REWRITING THE RULES: FIVE PROPOSED AMENDMENTS TO KENYA’S COPYRIGHT LAW WORTH KNOWING. 

Kenya’s copyright law is changing. The Copyright Bill, published in early March 2026, proposes amendments that touch on how creative works are owned, commercialised, licensed, and enforced. Some changes respond to long-standing gaps in the law while others, reflect on the realities of a digital economy that the existing copyright legislation was not designed to anticipate. In this article, we examine five of the proposed changes that we consider significant and what they mean for creators, businesses, and researchers operating in Kenya. 

Commissioned Works. 

The Bill proposes a definition of the term commissioned works.  Specifically, it defines commissioned works as creations made under a contract between an author and the person who commissions the work. [1]  Additionally, the Bill provides that the author will retain copyright ownership unless the contract expressly transfers it to the commissioner. [2]

Under the Act, authorship of a commissioned work remains with the creator, while ownership by default lies with the person who commissioned it, unless agreed to otherwise and no written contract is required. [3]

Should the Bill pass and this provision feature as is, it will mean that the authorship and ownership of commissioned works shall lie with the author/creator unless there is an express written contract providing otherwise.

For creatives who earn their keep by creating works for others, such as photographers, this may open additional revenue streams. Whilst this may seem like a win, it may also turn out to be a nightmare because of two words: image rights. Just because you own the copyright in a photograph does not automatically confer the right to exploit it freely. If the image features an identifiable person, exploiting it without their consent may violate their right to privacy under Article 31 of the Constitution. 

Text and Data Mining 

In an era where data underpins much of the digital economy, the Bill seeks to align Kenya’s copyright framework with international standards by introducing an exception on text data mining (TDM). Text and data mining refers to the automated computational analysis of information in digital form, including texts and data, with the aim of gaining new knowledge or discovering trends.[4] This process carries a significant risk of copyright infringement, as most of the text, images and other materials are protected.

The proposed exemption would apply to TDM conducted for research.[5] While the section heading refers to non-commercial research, the wording of the proposed provision does not reflect that distinction instead referring to research without qualification.

As a researcher, this means that text and data mining for research may not require a license. Whether this will extend to commercial research will depend on the final wording of the Bill, if passed.

Monetary Remedies

The Bill distinguishes the type of remedies available to you as a right holder, depending on the forms of infringement. Where the primary infringement occurs(unknowingly), you are entitled to statutory damages only as a monetary remedy, capped at 1 million shillings for a single work and 1.5 million shillings for a bundle of works.[6] Where infringement occurs knowingly, i.e. secondary, you may elect from a broader range of monetary remedies, including reasonable royalty and accounting for profits. When the infringement is wilful, large and results in significant harm, the Tribunal/ Court may additionally award punitive damages.

The nature of the infringement will largely influence the kind of remedies you as a right holder may seek and that the Tribunal is likely to award. For potential infringers, the distinction is equally significant: the larger the scale, the greater the financial exposure.

Takedown Procedures.

The Bill introduces stronger procedural safeguards for those on the receiving end of enforcement actions.

While both the Bill and the Act do have takedown procedures for online copyright infringement, the Bill proposes measures that guarantee due process for alleged infringers. Upon receipt of a takedown notice, an alleged infringer will be able to issue a counter notice. If the complainant fails to contest the notice by filing a complaint with the Copyright Authority (presently known as KECOBO) within a specific period, access to the disputed content will be restored.[7]

For alleged infringers, you would have a formal process to contest a takedown notice without having to immediately resort to court proceedings.

Jurisdiction of the Copyright Tribunal and Right of Action.

The Bill proposes to expand the jurisdiction of the Copyright Tribunal. Presently, the Tribunal’s jurisdiction is limited to determining disputes over the registration of copyright and appeals from decisions of the copyright board on registration decisions touching on collective management organisations.[8]

The Bill proposes to extend that jurisdiction to cover disputes over ownership of copyright and related rights, disputes on takedown notices, infringememust bems of fair dealing, claims of equitable remuneration, as well as disputes over orphaned works licenses among a few others.[9] This list is a closed one, meaning a disputes that fall outside it, must  be filed at the High Court.  For rights holders, assignees and licensees, should you have a dispute that falls under the list above, then you must first lodge your case before the tribunal and if dissatisfied, file an appeal at the High Court.

The Bill also introduces a right of action for non-exclusive licensees which is currently a reserve of the rights holders, exclusive licensees and sub-licensees.[10]Non-exclusive licensees, will be able to independently file infringement proceedings without relying on the copyright owner. However. the infringement must relate directly to an act covered by the license, the license must be in writing and must explicitly grant you the right to take action.

Almost, but not quite there yet.

These five amendments represent some of the significant proposed changes in the Bill, touching on areas that you as creators, researchers, businesses, and the public interact with daily. That they are being addressed at all signals legislative awareness of the gaps that have long existed in the current framework.

That said, the Bill is not without its shortcomings. The retention of provisions under the Act granting copyright inspectors powers to enter premises, seize and detain any article or substance based on reasonable belief alone is a questionable one.[11]  Especially following the High Court’s decision in  Wathome & 14 others v Kenya Plant Health Inspectorate Service & another [12] which declared  comparable provisions in the Seeds and Plant Varieties Act unconstitutional on the basis that their ambiguity risked misuse, arbitrariness, abuse and possible extortion. The Bill’s retention of equivalent provisions represent a missed opportunity for reform. [13]

Separately, while the introduction of a TDM exception is welcome, the provision as drafted is comparatively bare. It fails to include an opt in or opt out mechanism for right holders or even define what will amount to non-commercial research and which users may use this exception. These gaps are not miniscule.

The public participation process for the Bill concluded at the end of March earlier this year. As it progresses through parliament, the Committee stage presents you, as a stakeholder, a final opportunity to submit oral or written submissions, so keep an eye out on the Bill’s through the Parliamentary Tracker.

We would love to hear which of the proposed changes under the Bill, you are dreading or excited about.

Share your thoughts in the comments.

[1] Section 2 of the Copyright Bill, 2026.

[2] Section 21(3) of the Copyright Bill, 2026.

[3] Section 31(1) of the Copyright Act, 2001.

[4] Article 2(2) of the EU Copyright in the Digital Single Market Directive (EU)2019/70.

[5] Section 34 of the Copyright Bill, 2026

[6] Section 73(7) &74(6 ) of the Copyright Bill,2026.

[7] Section 84(2) of the Copyright Bill,2026.

[8] Section 48(4) of the Copyright Act of 2001.

[9] Section 99 of the Copyright Bill,2026.

[10] Section 74(9) of the Copyright Bill,2026.

[11] Sections 39,40,41 &42 of the Copyright Act of 2001.

[12] Wathome & 14 others v Kenya Plant Health Inspectorate Service & another; Greenpeace Environmental Kenya & 2 others (Interested Parties) (Petition 11 of 2022) [2025] KEHC 18166 (KLR) (27 November 2025) (Judgment)

[13] Section 88 of the Copyright Bill,2026.