MUSIC REFORMS IN KENYA CHALLENGES AND RECOMMENDATIONS

ABSTRACT

Music remains one of the crucial sectors in Kenya that defines the country’s cultural identity and creative economy, yet its legal protection under Kenyan law remains uncertain and increasingly strained by the technological revolution. The Copyright Act of Kenya, 2001, has provided a musical copyright framework anchored in the principles of originality and fixation in material form. However, the practical enforcement of this Act has faced profound challenges in this digital age. The effectiveness of the Act has been undermined by challenges such as online piracy, uncertainty in authorship evidence, conflicts in its regulations, and the absence of specialised intellectual property adjudication forums. In light of these problems, this article undertakes a comparison of Kenyan copyright doctrines with those of developed jurisdictions such as the United States, the United Kingdom, and the European Union, paying close attention to their structure and operational mechanisms.

On close scrutiny, this paper reaches a concrete conclusion that while Kenya’s legal framework is conceptually aligned with international norms, it is practically inadequate and requires urgent reforms to address and align with technological advancements in the digital innovation and creation space, particularly in music. Additionally, this article provides recommendations aimed at strengthening digital enforcement, clarifying the criteria for copyrightability, and empowering musicians through better legal and institutional support.

1. INTRODUCTION

Music — which encompasses the art of storytelling, identity, and social commentary — serves as a significant economic sector within the broader creative economy in Kenya. However, notwithstanding this significance, several Kenyan musicians — many of whom have achieved global recognition — continue to struggle with copyright exploitation, unpaid royalties, and the unauthorised use of their works. This clearly manifests a deeper tension between legal promise and lived reality within Kenya’s copyright space.

Kenya’s copyright space is governed by the Copyright Act, 2001 (Cap 130) of the Laws of Kenya, which draws substantially from the Berne Convention for the Protection of Literary and Artistic Works as well as the TRIPS Agreement.¹ This Act grants musical works automatic protection on the basis of originality and fixation in material form.² The text of the Act aligns itself with global standards; however, it is faced with weak enforcement mechanisms that are often inaccessible to ordinary artists.

Kenya has not kept pace with the rapid digitalisation of music consumption through streaming platforms and social media, which are the key drivers of music transformation and monetisation. Many judges who adjudicate copyright disputes arising from technology have not been in a position to deliver reliably accurate outcomes, as many lack specialised training in technology and digital rights. Recent disputes concerning Collective Management Organisations — particularly the Music Copyright Society of Kenya (MCSK), the Kenya Association of Music Producers (KAMP), and the Performers’ Rights Society of Kenya (PRISK) — with the Kenya Copyright Board, clearly expose the institutional weaknesses associated with the Kenyan copyright legal framework.³

Landmark cases such as Kimani v Safaricom PLC & 2 Others illustrate how commercial entities have exploited music without any licensing safeguards, a matter that has forced artists into costly and protracted litigation.⁴ Courts have, on a frequent basis, been faced with administrative and constitutional disputes rather than developing an inherent intellectual property jurisprudence.

The analysis below proceeds to examine the Kenyan copyright legal framework and the subsequent judicial interpretation, systemic challenges, and reforms suggested from the comparative lessons derived from developed jurisdictions.

2. RESEARCH METHODOLOGY

This paper draws on a range of primary and secondary sources in copyright law across Kenya, the USA, the UK, and the EU, as listed below.

Primary Sources

1. The Copyright Act, 2001 (Cap 130) of the Laws of Kenya
2. Kenyan case law
3. The Kenya Copyright Board (KECOBO) regulations
4. The Berne Convention for the Protection of Literary and Artistic Works
5. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

Secondary Sources

1. Digital copyright scholarship
2. The Strathmore Centre for Intellectual Property and Information Technology (CIPIT) journal on copyright
3. Books on copyright law
4. Relevant websites on copyright

3. THE LEGAL FRAMEWORK OF MUSIC COPYRIGHT IN KENYA

The Copyright Act of Kenya, 2001 (Cap 130)

This Act is the cornerstone of copyright law in Kenya, enacted in 2001 and subsequently consistent with the constitutional framework established by the Constitution of Kenya 2010. Section 22 stipulates that a musical work qualifies for protection if it satisfies two core conditions:

1. Originality
2. Fixation in material form⁵

Originality, as understood in the Act, does not demand absolute novelty but rather requires the work to reflect the author’s human intervention — including human skill, effort, and creativity. On the other hand, the Act defines fixation as the requirement for such work to be recorded, written, or embodied in a tangible form.

The Act clearly stipulates that copyright protection arises automatically upon creation and fixation. This therefore means that registration with the Kenya Copyright Board is optional rather than mandatory; registration merely serves as prima facie evidence of ownership when disputes arise.⁶ This principle keeps Kenya consistent with the Berne Convention’s prohibition of formalities as a precondition for copyright protection.

The Copyright Act further stipulates that the author enjoys a bundle of exclusive economic rights, including but not limited to:

1. Reproduction
2. Distribution
3. Public performance
4. Broadcasting; and
5. Any other communication of such work to the public⁷

Beyond these economic rights, the Act equally recognises moral rights, which protect the author’s right to be identified as the creator of such work and provide protection against any derogatory treatment of their work.⁸

On close scrutiny of the Copyright Act, it is evident that the Act conspicuously fails to provide detailed provisions on digital licensing, online infringement, or platform liability — an omission that has become increasingly problematic as music consumption continues to migrate to digital spaces. The law on Kenyan copyright therefore remains analogue in structure, hence unable to serve the demands of the overwhelming digital era.

4. JUDICIAL INTERPRETATIONS OF MUSIC COPYRIGHT

Without disregarding the fact that Kenyan courts have played a critical role in shaping the practical contours of music copyright, the jurisprudence has been reactive rather than doctrinally coherent.

The High Court of Kenya, sitting at Nairobi, in the case of Kimani v Safaricom PLC & 2 Others, addressed the issue of the unauthorised use of a musician’s work on the Safaricom Skiza Tune platform.⁹ The court held that its partners had infringed the artist’s rights by commercially exploiting his music without proper authorisation. This verdict underscored the importance of conducting due diligence in licensing.

Though the musician was ultimately relieved by the court order, the process of obtaining such a remedy was protracted and entailed significant expenditure of resources — a matter that could have been resolved through a statutory notice-and-take-down system.

In another case, the High Court of Kenya, sitting at Nairobi, in Music Copyright Society of Kenya (MCSK) v The Kenya Copyright Board (KECOBO), affirmed the Board’s authority to regulate Collective Management Organisations under copyright law, thereby rejecting MCSK’s claim that the oversight violated constitutional intellectual property rights.¹⁰ While this decision clarified KECOBO’s mandate under the Copyright Act 2001 (Cap 130), it also highlighted the institutional conflict within copyright regulatory bodies in Kenya.

Several subsequent copyright disputes have only examined the copyright regulatory framework; they have failed to resolve practical issues of royalty distribution in a more transparent and accountable manner.¹¹ This institutional conflict has driven parties toward arbitration rather than prompting legislative reform to address these issues directly.

5. GAPS AND PRACTICAL CHALLENGES

A. Inadequate Digital Framework

Despite the world’s advancing digital landscape in copyright, Kenya has lacked a comprehensive statutory framework to govern online copyright enforcement — unlike the USA’s Digital Millennium Copyright Act (DMCA), which provides clear notice-and-take-down procedures for copyrighted works. This gap has made musicians prone to mass online copyright infringement with limited recourse. Many social media and streaming platforms — including TikTok, Instagram, X, and YouTube — have become hubs for unauthorised streaming that infringes copyright with little accountability. This situation has forced copyright holders to resort to conventional litigation, which may be slow, costly, or impractical for independent artists.

B. Weak Regulation of Collective Management Organisations

Although Kenya has taken significant steps in establishing the Kenya Copyright Board to oversee and regulate copyright in Kenya, several artists have complained of delayed payments, opaque accounting, and arbitrary tariff-setting.¹² This calls for a robust statutory framework that clearly addresses transparency and auditing requirements.

To operationalise this, Kenya can draw from the United Kingdom, which has imposed strict reporting obligations on management organisations, including mandatory audits and public disclosure of royalty distribution mechanisms.¹³ This would otherwise mitigate the mistrust between artists and rights administrators.

C. Evidentiary Uncertainty in Authorship Claims

After recording music, many musicians lack formal documentation of their creative process — such as dates of recording, draft lyrics, and digital metadata — which weakens their ability to prove authorship in infringement disputes. Although filing online copyright registration forms with KECOBO may strengthen evidence of authorship in court, this process has not been widely practised by musicians, due either to limited awareness or administrative barriers.

D. Absence of Specialised Intellectual Property Courts

In Kenya, disputes arising out of copyright are heard in the civil divisions of the High Court as well as before KECOBO, where adjudicators may lack specialised training in music and digital rights. This demonstrates that Kenya has fallen behind jurisdictions such as the United Kingdom, which has established a dedicated Intellectual Property Enterprise Court to ensure fair and expert adjudication in copyright claims.¹⁴

6. COMPARATIVE LESSONS FROM DEVELOPED JURISDICTIONS

A. United States

The enactment of the Digital Millennium Copyright Act paved the way for online enforcement while balancing the rights of copyright holders with the conditional immunity of online platforms through notice-and-take-down procedures.¹⁵ This Act also addressed appropriate measures for technological protection and anti-circumvention rules. If Kenya were to adopt this model, a more comprehensive and transparent copyright enforcement framework would emerge.

Beyond this, US jurisprudence on sampling and derivative works is more settled and legitimate. The case of Bridgeport Music Inc v Dimension Films further clarified the boundaries between permissible inspiration and actionable infringement.¹⁶ Given that Kenya has not yet established clear precedent on these matters, uncertainty as to what qualifies as actionable infringement is likely to confuse copyright tribunals and rights holders alike at both the litigation and pre-litigation stages.

B. United Kingdom

The regulatory framework in the UK for Collective Management Organisations has emphasised transparency, accountability, and fair remuneration for musicians.¹⁷ The UK’s copyright tribunals have also been structured to provide a specialised forum for resolving licensing disputes efficiently. These features have not been fully incorporated within Kenyan copyright tribunals. If Kenya were to restructure its copyright tribunals along similar lines to those of the United Kingdom, it would advance significantly in matters of transparency and accountability in licensing and copyright ownership.

C. European Union

The EU Directive on Copyright in the Digital Single Market has put in place rules that impose greater responsibility on platforms to ensure licensed content dissemination and to prevent unauthorised uploads.¹⁸ This model has helped in recognising the central role of platforms and intermediaries in the digital space. Kenya could adopt similar obligations to enhance platform accountability.

7. EMERGING ISSUES AND DEBATES

Kenya continues to witness increasing policy discussion on reforming its creative economy framework, including potential amendments to the Copyright Act. The Kenya Copyright Board has initiated awareness campaigns and digital registration systems. However, these efforts remain piecemeal and insufficient.

Cases between the Kenya Copyright Board and various Collective Management Organisations continue to dominate the landscape, often overshadowing substantive artists’ protection. Civil society organisations and artist groups have called for clearer royalty frameworks, better digital enforcement, and stronger institutional support.

8. RECOMMENDATIONS

A. Amendment of Kenya’s Copyright Act

Kenya should amend the Act to incorporate a statutory notice-and-take-down regime for online infringement and clearly define platform responsibilities as well as safe harbour conditions. Provisions on sampling, remixing, and transformative use should also be clarified to encourage innovation while protecting rights.

B. Strengthening the Kenya Copyright Board’s Regulatory Authority

The Board should be empowered with greater investigative and enforcement tools, including the ability to impose administrative penalties for non-compliance by Collective Management Organisations and digital platforms.

C. Establishment of Specialised Intellectual Property Courts

A dedicated Intellectual Property Division within the High Court would enhance judicial expertise and consistency in copyright adjudication.

D. Enhancing Transparency Mechanisms for Collective Management Organisations

Mandatory audits, public reporting, and standardised royalty distribution formulas should be introduced to restore trust between artists and rights administrators.

E. Capacity Building for Artists

Musicians should be encouraged to register their works, maintain detailed records of the creative process, and formalise collaborations through written agreements.

9. CONCLUSION

Kenya’s music copyright regime stands at a critical juncture. While the legal foundation is sound in principle, it has failed to adapt effectively to the realities of the digital age. The gaps in online enforcement, collective management governance, evidentiary standards, and judicial specialisation have left musicians vulnerable and undervalued.

Drawing lessons from the United States, the United Kingdom, and the European Union, Kenya must embrace comprehensive reform that balances creator protection, technological innovation, and public access. Only through such reform can copyright fulfil its constitutional and economic purpose of promoting creativity, rewarding labour, and fostering cultural development.

10. BIBLIOGRAPHY

A. Statutes and International Instruments

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C.

Berne Convention for the Protection of Literary and Artistic Works (adopted 9 September 1886, as amended 1979).

Collective Management of Copyright (EU Directive) Regulations 2016 (UK).

Copyright Act, 2001 (Cap 130) (Kenya).

Copyright, Designs and Patents Act 1988 (UK).

Digital Millennium Copyright Act 1998, 17 USC 512 (Title II).

Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on Copyright and Related Rights in the Digital Single Market [2019] OJ L130/92.

B. Case Law

Bridgeport Music Inc v Dimension Films 410 F 3d 792 (6th Cir 2005).

Kimani v Safaricom Ltd & 2 Others; Music Copyright Society of Kenya & Another (Third Party) [2023] KEHC 20085 (eKLR).

Music Copyright Society of Kenya v Kenya Copyright Board & Others [2022] KEHC 13195 (eKLR).

Music Copyright Society of Kenya v Kenya Copyright Board, Civil Appeal No E888 of 2022.

C. Books

Cornish W, Llewelyn D and Aplin T, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (9th edn, Sweet & Maxwell 2019).

Bently L and Sherman B, Intellectual Property Law (5th edn, OUP 2018).

Goldstein P and Hugenholtz B, International Copyright: Principles, Law, and Practice (3rd edn, OUP 2019).

D. Reports

Parliament of Kenya, Departmental Committee on Sports, Culture and Tourism, Report on the Culture and Creative Economy (2024).

E. Websites

Kenya Copyright Board (KECOBO) https://www.copyright.go.ke (accessed 10 February 2026).

Kenya Law Reports (eKLR) https://www.kenyalaw.org (accessed 10 February 2026).

National Rights Registry, KECOBO Guidelines 2023 https://www.copyright.go.ke (accessed 10 February 2026).

UK Intellectual Property Office, ‘Collective Management Organisations: Guidance’ (2022) https://www.gov.uk/government/organisations/intellectual-property-office (accessed 10 February 2026).

UK Intellectual Property Enterprise Court (IPEC) https://www.gov.uk/courts-tribunals/intellectual-property-enterprise-court (accessed 10 February 2026).

World Intellectual Property Organization (WIPO), ‘Berne Convention’ https://www.wipo.int/treaties/en/ip/berne/ (accessed 10 February 2026).

World Trade Organization (WTO), ‘TRIPS Agreement’ https://www.wto.org/english/tratop_e/trips_e/trips_e.htm (accessed 10 February 2026).

EUR-Lex, ‘Directive (EU) 2019/790’ https://eur-lex.europa.eu (accessed 10 February 2026).

United States Copyright Office, ‘Digital Millennium Copyright Act’ https://www.copyright.gov/legislation/dmca.pdf (accessed 10 February 2026).

FOOTNOTES

¹ Berne Convention for the Protection of Literary and Artistic Works; Agreement on Trade-Related Aspects of Intellectual Property Rights 1994.

² S 22(1)–(2), Copyright Act, 2001 (Cap 130).

³ See generally disputes involving MCSK, KAMP and PRISK before KECOBO and the Copyright Tribunal.

⁴ [2023] KEHC 20085 (eKLR).

⁵ S 22(1), Copyright Act, 2001 (Cap 130).

⁶ Kenya Copyright Board (KECOBO), National Rights Registry Guidelines 2023.

⁷ S 26, Copyright Act, 2001 (Cap 130).

⁸ S 32, Copyright Act, 2001 (Cap 130).

⁹ [2023] KEHC 20085 (eKLR).

¹⁰ [2022] KEHC 13195 (eKLR).

¹¹ MCSK v KECOBO; Civil Appeal No E888 of 2022.

¹² Parliamentary Committee on Culture and Creative Economy Report 2024.

¹³ Copyright, Designs and Patents Act 1988 (UK); the UK Collective Management of Copyright Regulations.

¹⁴ UK Intellectual Property Enterprise Court (IPEC).

¹⁵ Digital Millennium Copyright Act 1998, Title II.

¹⁶ 410 F 3d 792 (6th Cir 2005).

¹⁷ UK Intellectual Property Office, Collective Management Organisation Guidance, 2022.

¹⁸ EU Directive 2019/790 on Copyright in the Digital Single Market.