Copyright protection in Kenya is governed principally by the Copyright Act, 2001 and administered by the Kenya Copyright Board (KECOBO). Copyright protects original literary, musical, artistic, audiovisual and other qualifying works, provided that sufficient effort has been expended to give the work an original character and the work has been reduced to a material form. Importantly, copyright protection arises automatically once an eligible work is fixed in material form; registration is not a prerequisite to the existence or enforcement of copyright. The Copyright Act expressly provides that non-registration does not bar an author from asserting copyright. Registration nevertheless serves an important evidentiary and commercial purpose by placing the work and its ownership particulars on the National Rights Registry.
What can be registered?
Copyright registration is available for qualifying works including literary works, musical works, artistic works, audiovisual works, sound recordings, broadcasts and computer programmes. The work must demonstrate originality and must exist in a form capable of being identified and recorded. For example, literary works may include books, articles, manuals and other written works, while software may qualify as a literary work where the relevant source code and accompanying documentation meet the statutory requirements. KECOBO’s National Rights Registry currently provides separate guidance for literary works, artistic works, audiovisual works and software documentation.
For businesses developing software or other works that are still under development, the key consideration is what has actually been created and fixed at the time of application. Registration should therefore accurately describe and deposit the material that exists rather than purporting to register an abstract idea, concept or future work. Where a work is incomplete, the applicant should consider whether the existing material constitutes a sufficiently developed copyright work or whether it is more appropriately documented as a particular form of literary, artistic or technical work.
Who may apply?
An application may be made by or on behalf of the author, copyright owner, assignee or exclusive licensee of the work. Where copyright has been assigned to a company, the company may therefore register the work as the copyright owner, provided that the underlying ownership is properly documented. The Copyright Regulations require the Copyright Register to capture information including the title of the work, details of the author and owner, a description of the work, the copyright owner’s contact details and the date on which the work was fixed in material form.
This distinction is particularly important where a work has been commissioned, developed by employees or created by independent contractors. The person who created the work and the person who legally owns the copyright are not necessarily the same. Before registration, applicants should therefore confirm the ownership position and retain relevant employment agreements, consultancy agreements, assignments or other documentation supporting the claimed ownership.
Application process
Copyright applications are now made through KECOBO’s National Rights Registry (NRR). An applicant creates an individual or corporate account, depending on the applicant’s status, and submits the relevant details and the work electronically through the portal. The current NRR provides separate registration accounts for individuals and corporate applicants and enables copyright holders to register and subsequently access their copyright certificates.
The application requires the applicant to provide details of the work, author and copyright owner, together with the applicable supporting information and a copy of the work. KECOBO’s registration guidance provides for the work to be uploaded through the online application. Where the nature or size of the work makes electronic submission impractical, the applicant may be required to submit the work physically to KECOBO together with the relevant application documentation. Applicants should therefore ensure that the deposited copy corresponds with the work identified in the application and that the ownership information is accurate.
Following submission and payment of the prescribed registration fee, KECOBO reviews the application and, where the requirements are satisfied, issues a registration certificate. The National Rights Registry is intended to provide an accessible record of registered copyright works and their ownership particulars. The Copyright Act further provides that particulars entered in the Register may constitute prima facie evidence of those particulars, making registration particularly valuable where ownership or the existence of a work may subsequently be disputed.
Practical considerations for applicants
Applicants should treat copyright registration as an evidentiary and rights-management exercise rather than simply an administrative filing. The work should be clearly identified, the author and copyright owner should be correctly distinguished, and the chain of title should be established before submission. This is particularly important for companies registering software, commissioned works, branding materials, manuals or other works created by employees or third-party developers. Registration does not itself transfer copyright or cure an underlying defect in ownership; where ownership has been transferred by assignment, the relevant assignment should therefore be properly documented.
Finally, copyright registration should not be confused with registration of a trade mark, patent or industrial design. Copyright protects the qualifying expression contained in the work, whereas other forms of intellectual property protect different subject matter and confer different rights. Businesses should therefore assess the nature of their intellectual property as a whole and consider whether copyright registration should be complemented by trade mark registration, patent protection, contractual confidentiality provisions or other appropriate measures.