FLEXING THE LAW: EXCEPTIONS AND LIMITATIONS IN KENYA’S IP FRAMEWORK.

As creatives and inventors often learn, creating an Intellectual Property (IP) product means you acquire rights (IPRs) over the use of your product for a limited period. These rights prevent any unauthorised exercise of your IPRs, attracting civil and even criminal liability in the event of any unsanctioned acts. As Kenya aims to further harness Intellectual Property for economic prosperity, there is a strong emphasis on tougher enforcement measures spearheaded by IP administering and enforcement bodies. It is of equal importance for emphasis to be placed on educating the public and creatives that IPRs are not absolute and that they have limits. These limitations (also known as exceptions or flexibilities), similar to the IPRs themselves, have implications for the development priorities of a country as they contribute to a sustainable innovation ecosystem. It is through these flexibilities that knowledge is further disseminated to the public, enabling future innovators and creatives to create new IP products.[1] This article will therefore highlight the flexibilities under various forms of Intellectual Property Rights (IPRs) provided by the key IP legislation in Kenya.

IPRs Exceptions under Kenyan Law

Kenya has four legislations that govern IPRs i.e.; Copyright Act, Trade Marks Act, Industrial Property Act (Patents, Utility Designs and Industrial Designs) and the Seeds and Plant Varieties Act. Each of these statutes provide for exceptions, allowing the public to unauthorised exercise of the IPRs in limited circumstances.

1. Copyright

Copyright is an automatic right that accrues to creators of original expressions of ideas that may take the form of a book, drawing, painting, films, etc. As a creator, if you create a work that is eligible for copyright protection, you attain rights, including the right to reproduce, publish, perform and transmit the work.[2] As a user, you can use copyrighted material without a right holder’s permission under a legal doctrine known as fair dealing. To invoke this doctrine, the unpermitted acts have to satisfy the following conditions. Namely;

1. Must be in special cases;
2. That do not conflict with the normal exploitation of the work; and
3. Does not unreasonably prejudice the legitimate interest of the author/rights holder.[3]

The exceptions under the Act may be classified as general and specific exceptions.

1. General Exceptions

These apply to all works of copyright where as a user, you are allowed to use a copyrighted work for purposes of:

1. Scientific research, private use, criticism, review, reporting current events, parody, pastiche, caricature, quotation, use in a judicial proceeding or a report of such judicial proceeding, the reproduction and distribution of copies or the inclusion in an audio-visual work or broadcast of an artistic work situated in a place it can be viewed by the public.
2. Incidental inclusion in an artistic work, sound recording, audio visual work or broadcast.
3. The reading or reciting in public or a broadcast by one person of any reasonable extract from a published literary work.^[4]

ii. Special Exceptions

These exceptions apply to specific consumers and authors of copyright works like educational institutions, libraries, archives and broadcasters.^[5]

• Educational institutions like universities are allowed to:
• Use up to one page from a literary or musical work in an educational collection for schools or universities, so long as the title and author are acknowledged.
• Make limited copies of published articles, short works, or excerpts for teaching in non-commercial educational institutions, if it’s done occasionally and there’s no available license for it.
• Broadcasting a work for structured educational purpose and make copies of such broadcasts for instructional use.
• For libraries/ archives, it is not considered copyright infringement when:
• Government or approved public libraries, archives, or scientific institutions make copies of a work for the public good, as long as they do not make money from it.
• A public library or archive makes one copy of a book (or similar material like maps or sheet music) for use by the library or for preservation purposes, especially if the book is not available in Kenya.
• Broadcasters are allowed to:

1. Make temporary copies of a work (with the copyright owner’s permission) just for broadcasting. These copies must be destroyed within six months unless a longer time is agreed upon. However, if the copy is historically important, it can be archived but can’t be used again without the owner’s permission.
2. Air literary, musical, artistic, or audio-visual works that are already legally available to the public, as long as no licensing body is involved. The right holder must still receive fair compensation, which will be set by the Copyright Tribunal if the parties can’t agree.

As you exercise these user rights, you should always credit the creator of the work and cite the source.

Whilst Kenya remains a country that adheres to fair dealing vide the Copyright Act, the Supreme Court in the case of Communications Authority of Kenya & 5 others v Royal Media Services Limited & 5 others  applied a fairness test more akin to the US approach to exceptions known as fair use.^[6] Contrary to the fair dealing, fair use is much more open ended, essentially setting the principles to be followed while allowing courts to determine the permitted uses.

2. Patents

 

Similar to copyright, when you invent a new product that is novel, has industrial application and involves a new inventive step, such a product is eligible for patent protection. Different from copyright, however, patent protection requires registration at the Kenya Industrial Property Institute (KIPI). Once registered, the patent owner gains rights over the production, use, sale and importation of the patented product/article. These rights shall not extend to:

1. Scientific research;
2. Patented articles available in the local market or in any other country or imported into the country by the owner of a patent, his assignee or licensee;
3. Patented articles on board aircrafts, land vehicles or vessels that accidentally or temporarily enter Kenyan territory;
4. Compulsory Licenses, which are granted by the government vide the Industrial Property Tribunal allowing a third party to produce a patented product or article without consent of the owner;
5. Mutations or variations of living form or replicable living matter that are different from the original for which patents have been obtained and where such mutated living matter deserves separate patents.^[7]

3. Utility Models

 

These are known as ‘mini’ or ‘petty’ patents and are also covered under the Industrial Property Act. People usually seek these to protect minor technical inventions or improvements to an existing patentable article. Utility models are a good option when you have an invention that may not meet the patentability requirements. Utility model inventors enjoy the same rights as owners of patentable inventions. Equally, the limitations highlighted above regarding patents also apply to utility models.^[8]

4. Industrial Designs.

These protect the aesthetic features of a product that appeal to users of the product, including the shape, pattern and configuration. Industrial Designs are protected under the Industrial Property Act. Similar to patents, after registration, the creator of the design obtains the right to reproduce, import, stock and offer for sale and stock the product bearing the design for industrial and commercial purpose.^[9]

The rights of the creator do not extend to any purpose outside industrial and commercial. They also will not apply to acts done to the product that embodies the design. This means that once the product is sold or imported into Kenya, as a user, you may deal with the product that embodies the design however you like. These liberties, however, do not extend to the design.

5. Trade Marks

Trade Mark is any sign used or proposed to be used by a person to distinguish their goods and services from those of another. Exclusive trade mark rights are granted upon registration. This means that as a Trade Mark owner, you have the right to use the mark, prevent others from using the mark or registering a similar mark and the right to license, transfer and even hypothecate the mark.^[10] There are however some situations where anyone can use the trademark without authorisation, such as:

1. If the owner or licensee put the trademark on the goods, and it hasn’t been removed, or they agreed (even informally) to its use.
2. If the trademark is used to show that a product is meant to be used with another product that legally bears the trademark (e.g., printer ink made for a specific brand of printer).
3. If the trademark is used to truthfully show that services were performed by the trademark owner or licensee.
4. If the services are connected to the owner or licensee, and they’ve given consent (even implied) for the use.
5. If the services are meant to be used together with other trademarked services, and:
6. The use of the trademark is necessary to show that, or
7. The use doesn’t mislead anyone into thinking there’s a connection when there isn’t.

While not codified in law or been subject to any litigation proceedings in Kenya, friction between trademark rights and the freedom of expression has been the subject of debate among scholars as well as litigation in South Africa, the US and the EU. These have arisen mostly in cases whereby a person creates an erringly similar sign to a protected mark for satirical purposes.^[11]

6. Plant Breeders Rights

For a detailed background on what Plant Breeders Rights (PBRs) are and how they come about, please refer to my earlier article on Plant Variety Protection here.

Plant Breeders Rights also have exceptions. The Seeds and Plant Varieties Act provides for two types of exceptions to the breeder’s rights; compulsory and optional. The compulsory exceptions include:

1. Acts done privately and for non-commercial purposes.
2. Acts done for purposes of breeding other plant varieties.
3. Acts done for purposes of research.

The optional exception known as the farmers’ privilege that permits farmers to utilize propagating materials (seeds) from the harvest of a protected variety exclusively on their own land, within reasonable limits, while safeguarding the legitimate interests of breeders.

Conclusion

In sum, while Intellectual Property Rights (IPRs) are crucial for incentivizing innovation and creativity in Kenya, they are not absolute. exceptions embedded within various IP laws—whether under copyright, patents, industrial designs, utility models, trademarks, plant variety protections—serve as critical safeguards that ensure a balance between private rights and societal needs.

Understanding these flexibilities is not just a legal technicality—it empowers users, especially educators, innovators, entrepreneurs, and consumers, to make informed, lawful use of IP in ways that promote access, creativity, and local development. For IP holders, being aware of these exceptions helps manage expectations and mitigate potential disputes.

As Kenya continues its push to leverage IP for economic transformation, both right holders and the public must recognize the value of these public interest provisions. By doing so, they can navigate IP rights more confidently and ethically unlocking knowledge, fostering innovation, and contributing to a more equitable IP ecosystem.

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[1] Ruth L. Okediji, (2006) The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries. https://unctad.org/system/files/official-document/ictsd2006ipd15_en.pdf

[2] Section 26 of the Copyright Act, CAP 130.

[3] Article 13 of the Agreement on the Trade Related Aspects of the Intellectual Property(TRIPS) 1995 & Article 9(2) of the Berne Convention on the Protection of Literary and Artistic Works,1886.

[4] Paragraphs 1& 2 of the Second Schedule of the Copyright Act, CAP 130.

[5] Part B, C and D of the Second Schedule of the Copyright Act, CAP 130.

[6] Nzomo, Victor, In the Public Interest: How Kenya Quietly Shifted from Fair Dealing to Fair Use (December 1, 2016). WIPO-WTO IP Colloquium Research Paper Series 2016, Available at SSRN: https://ssrn.com/abstract=2929252

[7] Section 58 of the Industrial Property Act, 2001.

[8] Sections 81-83 of the Industrial Property Act, CAP 509.

[9] Section 92 of the Industrial Property Act, CAP 509.

[10]  Sections 7 and 8 of the Trade Marks Act, CAP 506.

[11] Bohaczewski, M. Conflicts Between Trade Mark Rights and Freedom of Expression Under EU Trade Mark Law: Reality or Illusion? IIC 51, 856–877 (2020). https://doi.org/10.1007/s40319-020-00964-5