ARTIFICIAL INTELLIGENCE IN THE STUDIO, SILENCE IN THE LAW: COPYRIGHT GAPS IN KENYA.

Generative Artificial Intelligence (AI) is no longer science fiction; it is now present in studios, galleries, and even on your playlists. From DALL·E, Midjourney, and Night Café to Suno-AI, creatives in Kenya and beyond are experimenting with these technologies to create art, write songs, and compose music at lightning speed.

Around the world, courts and copyright offices have rejected the notion of AI as a “legal person.” Therefore, the question is not whether AI can own copyright, but rather: who holds the copyright—the developer who created the technology, the user who directed it, or no one at all? In Kenya, where the law has yet to keep pace with these developments, this question is more urgent than ever

Answering this question will take us on a journey through Kenya’s copyright framework, the debate over who truly creates with AI, and the risks and opportunities facing Kenyan creators .

Kenya’s Copyright Rulebook: Where We Stand.

For a work to be protected by copyright, the following three requirements must be met:

1. it must be made by a qualified person, meaning the author must be a citizen, domiciled, or a resident of Kenya, or a body corporate in accordance with the laws of Kenya.[1]
2. It must be in material form, meaning that ideas must be expressed in writing, affixed, or presented in any other tangible form.[2]
3. It must be original, meaning the work should stem from one’s own intellectual efforts, not only demonstrating skill and effort but also exhibiting a modicum of creativity.

Therefore, the law currently only recognises natural and juristic persons as entities capable of holding copyright.

AI Assisted vs AI Generated: Spot the Difference.

The first step in making sense of AI and copyright is distinguishing between works that are AI-assisted and those that are AI-generated. This distinction is important because copyright law does not treat “AI art” as a single category; instead, it considers the extent of human creativity involved in the work.

AI-assisted works are those created with the help of AI technology but shaped by significant human contribution. This input may involve extensive post-processing, selective curation, or thematic direction.[3] To be eligible for copyright, the human contribution must meet the originality standard—meaning it must be more than negligible and demonstrate creative effort.

AI-generated works, on the other hand, are those produced autonomously by machines without human input. These works do not qualify for copyright protection. A clear example occurred in 2023 when the U.S. Copyright Office declined to register AI-generated images in the graphic novel titled *Zarya of Dawn*. However, it granted copyright protection for the human-authored narrative and the comic’s overall structure, emphasizing that AI alone cannot fulfill the requirement of authorship.[4]

When Law meets Machine: Who Gets the Credit.

While AI itself cannot be considered an author, our Copyright Act includes an intriguing provision — a clause concerning computer-generated works. Section 2 of the Act states that if a work is generated by a computer, the “author” is the person who made the necessary arrangements for the creation of the work.[5] Sounds straightforward, doesn’t it? Not quite. There are several issues. First, who exactly is that person? Second, can AI be classified as a computer?

Case for the Developer.

 

 

 

 

 

 

 

 

 

 

Some argue that the true credit should go to the AI developer. After all, they built the system, trained the algorithms, and laid the groundwork for everything the AI produces. Without their efforts, your image, beat, or poem would not exist. Courts abroad have occasionally adopted this perspective; for example, in 2019, the Nanshan District Court in China recognised a developer as the author of an AI-generated stock market article, noting that the originality came from the developer’s templates, rules, and data structuring.[6]

The UK Copyright, Designs and Patents Act[7] contains a similar provision regarding computer-generated works, and their Courts have previously awarded authorship to the programmer rather than the user. However, this case did not involve AI but rather a computer-generated video game frame.[8]

Something to consider is that once the AI is released into the world, the developer is not sitting beside you deciding what to type. Their role is more akin to that of the person who invented the paintbrush — important, yes, but they did not paint the picture.

Case for the User.

That brings us to you. You are the one providing prompts, rejecting poor outputs, and fine-tuning until the final product feels just right. Courts in other countries have leaned in this direction, recognising that copyright protection should belong to the human who makes those creative choices. From this perspective, you are not a passive observer. In 2019, the Beijing Internet Court ruled in favour of a user who had published an AI-written article under their own name, reasoning that the developer had already been compensated through licensing fees, while the user was the one actively disseminating the work.[9]

Is AI really a computer?

While the provision concerning computer-generated works may offer some reassurance to creatives reliant on AI, these technologies are not merely computers. Moreover, AI, with its current capabilities, was not envisaged at the time the provision on computer-generated works was established. Therefore, relying on this provision when seeking copyright protection for a work produced using AI is unlikely to prove successful unless you can convince the Court or the Copyright Office that AI-generated works are equivalent to computer-generated works as currently defined under the law.

Why It Matters for Kenya’s Creative Economy.

Kenya is focusing on IP-intensive industries to accelerate economic growth and achieve Vision 2030, as demonstrated by the AI Strategy 2025 and ongoing efforts to develop a National IP Policy. In this context, it is crucial for Kenyan creatives to understand the current limitations regarding AI-generated works. Due to the lack of international consensus on the best approach to the copyrightability of AI-influenced works, relying  too heavily on AI as a creative partner may result in the loss of future income.

Take the resale right as an example. If an AI-assisted artwork is sold abroad in a jurisdiction that does not recognise AI-influenced works as copyrightable, you may find it difficult to enforce resale royalties. This lack of harmonisation not only undermines cross-border commercial opportunities but also creates legal uncertainty for Kenyan artists seeking to scale their work internationally.

Copyright Uncertainty in Kenya’s AI Landscape.

With Kenya ranking as the world’s top ChatGPT user at 42.1%[10], KECOBO’s silence on the copyrightability of AI-assisted and/or AI-generated works is deafening. Given the widespread use of AI tools by Kenyans, the fact that the provision on computer-generated works under the Copyright Act has yet to be tested in court, and the introduction of voluntary copyright registration in 2022—which does not require disclosure of AI involvement—the lack of guidance from KECOBO is concerning. Collectively, these factors only heighten the uncertainty faced by creatives who require clear guidance on the legal status of their work.

The Road Ahead: Clarifying Copyright in the Age of AI.

The real uncertainty for Kenya lies in three unresolved questions: who qualifies as the author of AI-influenced works; whether the existing provisions on computer-generated works can or should be extended to such creations; and how KECOBO intends to guide stakeholders in navigating these challenges. The lack of clarity on these issues not only exposes creators to commercial and legal risks but also undermines Kenya’s ambition to become a leading AI hub. Clear policy direction and judicial interpretation are urgently needed—without them, the promise of AI for Kenya’s creative economy may remain unrealised.

For the moment, the safest course is to ensure your human touch is unmistakable. Use AI to inspire, experiment, and refine — but let your originality shine through. In a world where the rules are still being written, your creativity remains the one element the law will always recognise.

 

 

---

[1] Section 23(1) of the Copyright Act of 2001.

[2] Section 22(2&3) of the Copyright Act of 2001

[3] Hutson J. The Evolving Role of Copyright Law in the Age of AI-Generated Works. Journal of Digital Technologies and Law. 2024;2(4):886-914. https://doi.org/10.21202/jdtl.2024.43. EDN: SHDUEF

[4] Ibid Note 3 & See: https://www.copyright.gov/docs/zarya-of-the-dawn.pdf

[5] Section 2 of the Copyright Act of 2001.

[6] Tencent v. Shanghai Yingxun Technology Co. Ltd, People’s Court of Nanshan (District of Shenzhen) (2019) Yue 0305 Min Chu No. 14010 (深圳市南山区人民法院(2019)粤0305民初14010号民事判决), 24 December 2019.  

[7] Section 9(3) of the UK Copyright Designs and Patents Act,1988

[8] Matulionyte, Rita and Lee, Jyh-An, Copyright in AI-generated Works: Lessons from Recent Developments in Patent Law (November 30, 2021). SCRIPTed: A Journal of Law, Technology & Society, Volume 19, Issue 1, 2022, The Chinese University of Hong Kong Faculty of Law Research Paper No. 2021-73, Available at SSRN: https://ssrn.com/abstract=3974280

[8] Nova Productions Ltd v Mazooma Games Ltd [2006] EWHC 24 (Ch) (20 January 2006). Para 105-106.

[9] Feilin v Baidu, Beijing Internet Court, (2018) Jing 0491 Min Chu No. 239 (北京互联网法院 (2018) 京0491民初239号民事判决), 26 April 2019  

[10] Kanali, N. (2025,July) Kenya tops global rankings for ChatGPT usage, Africa Business Communities. https://africabusinesscommunities.com/tech-24/kenya-tops-global-rankings-for-chatgpt-usage/