The world observes World Intellectual Property Day on the 26th of April each year. This year’s theme, “Intellectual Property and Music: Feel the Beat of IP”, highlights the interrelation of legal protection and creativity. Strong and effective intellectual property (IP) laws are crucial as streaming platforms grow, and artificial intelligence joins human artists in music creation. These laws not only support a thriving creative economy but also preserve cultural heritage and ensure fair compensation for artists.

Copyright in Musical Works

Copyright finds its foundational protection in law under the Constitution of Kenya, 2010 as follows:

1. i) Article 260 – which includes IP in the definition of property.
2. ii) Article 40 (5) – where the State is obligated to support, promote and protect the intellectual property rights of the people of Kenya.

iii) Article 11 (2) (a) and (c) – where the State is called upon to promote all forms of national and cultural expression through inter alia, literature, the arts and promote the intellectual property rights of the people.

With constitutional underpinning as set out above, IP is further entrenched into Kenyan law under the Copyright Act, 2001 (the Copyright Act), under which any musical composition and its lyrics are protected automatically from the moment the lyrics are written down, recorded or otherwise reduced to material form. This protection comprises two sets of rights.

Firstly, economic rights allow creators to control the reproduction, distribution, public performance, and digital streaming of their work, ensuring they can earn from broadcasts, downloads, or live performances.

Secondly, moral rights guarantee that the creator’s name remains attached to the work and protects it from distortions or derogatory treatment.

Together, these rights acknowledge that music has both a commercial value and a deeply personal dimension. The Court’s award of KES 4 Million to the well-known artist Nonini for the unauthorized use of his song “We Kamu”, as reported in the Business Today on 6th September 2024, underscores that copyright infringement carries real financial consequences.

Related Rights

Beyond composers and lyricists, Kenyan law also protects the contributions of performers, producers, and broadcasters. Performers i.e., vocalists, instrumentalists, or dancers, can authorise or refuse recordings and broadcasts of their live acts, securing payment whenever those performances are captured. Producers of sound recordings own rights in the resulting phonograms, whether on compact discs or in digital file form. Broadcasters hold rights in their transmission signals, preventing unauthorised retransmission.

By way of example, in Beyoncé’s widely acclaimed 2018 Coachella performance, later streamed globally on Netflix in 2020, her related rights as a performer were fully engaged. She held the exclusive right to authorise the recording and communication of her stage act, so no lawful recording or streaming could occur without her consent and a royalty arrangement. Netflix, as producer and broadcaster, would have secured licences for both the phonogram rights in the audiovisual work and the rebroadcast rights in the transmission signal.

In the Kenyan context, such licences can be administered through Collective Management Organisations (CMOs) such as the Performers’ Rights Society of Kenya (PRISK), which is licenced by the Kenya Copyright Board (KECOBO) established under the Copyright Act, and similar organisations which would collect the agreed fees and disburse them to the artist and any accompanying musicians, dancers or supporting artists.

However, as was recently highlighted by the African Union’s Goodwill Ambassador Nikita Kering at the Africa Creative meeting held in Addis Ababa, performers often struggle with opaque payment systems from CMOs, highlighting the urgent need for greater transparency and accountability within these bodies.

Economic Rationale

IP law seeks to balance two goals: it incentivises artists by granting them exclusive rights for a limited term, typically the author’s life plus fifty (50) years as per section 23 (2) of the Copyright Act, while eventually enriching the public domain once those rights lapse. This approach rewards creativity and encourages further innovation and, at the proper time, makes cultural treasures freely accessible. International Agreements such as the Berne Convention for the Protection of Literary and Artistic Works (the Berne

Convention), to which Kenya is a signatory, and Article 40 (5) of the Kenyan Constitution embrace this balance, recognising IP protection as both a private right and a public benefit.

Creating Value

Owning copyright is just the first step; real value lies in how rights are commercialised. Artists must manage their works strategically by releasing recordings through official channels to prevent piracy, negotiating licences for royalties, and using cross-licensing to expand into new markets. These arrangements, including performance fees, mechanical royalties, and synchronisation licences, help turn musical ideas into sustainable income.

Forms of Exploitation

Musical IP is most commonly monetised through licensing or assignment. A licence allows a rights owner to authorise another party to use the work, such as for streaming, public performance or synchronisation, in exchange for royalties. Exclusive licences give rights to one licensee and exclude others. Sole licences give rights to the licensee while allowing the owner to use the work. Non-exclusive licences allow multiple users at the same time.

Key contractual elements of licenses include precise definitions, clear scope and territorial limits, sub-licensing terms, consideration structures (fixed fees, running royalties or hybrids), confidentiality, and provisions on term, termination, warranties, indemnities, and dispute resolution.

By contrast, an assignment transfers full ownership of IP rights, extinguishing the original owner’s title in return for upfront or ongoing compensation. Cross-licensing, where parties exchange reciprocal rights to each other’s catalogues, enables broader distribution and collaborative ventures.

In all cases, well-drafted agreements help creators and rights holders navigate digital markets, secure sustainable income, and adapt to new distribution models and regulations. CMOs negotiate licences with radio stations, venues, and digital platforms, and allocate royalties based on usage data. Streaming services increasingly use automated systems to track plays and make payments, often through CMOs or direct contracts with rights holders.

Case Law

Recent court decisions have clarified how Kenyan IP law applies in practice. In Music Copyright Society of Kenya v Kenya Copyright Board & Others [2024] KECA 1172 (KLR), the Court considered whether the Music Copyright Society of Kenya (MCSK) was a CMO. MCSK argued that it was not, while KECOBO maintained that licensing as a CMO was necessary for MCSK to administer its members’ rights. The Court ruled in favour of KECOBO, finding that MCSK fits the definition of a CMO under the Copyright Act.

It also held that the collective management framework is a reasonable limit to the freedom of association and the right to property.

The decision highlights the importance of CMOs for the effective management and licensing of copyright works, especially where individual enforcement is impractical. In contrast to rights relating to other creative areas like books and other literary works, musical works are used by many users at different times and places, making individual monitoring and remuneration collection unfeasible.

Direct enforcement of their rights would be beyond the individual right holders, as it would be a logistical horror. The collective management thus provides a practical solution by enabling rights holders to exercise their rights indirectly through CMOs.

In Kimani v Safaricom Ltd & Others [2023] KEHC 20085 (KLR) (the Bamboo Case), the plaintiff, a popular Kenyan artist known as Bamboo, sued over the unauthorised use of his songs “Mama Africa”, “Yes Indeed”, and “Move On”. The High Court held that digital platforms cannot rely on indemnity clauses to shield themselves when distributing unlicensed music. The Court found the defendants had infringed Bamboo’s copyright and awarded him KES 1.5 Million per song as general damages.

The case underscores the need for musicians to secure proper contracts before their works are used, and for distributors to conduct due diligence on licensing. It also affirms that artists whose rights are infringed are entitled to seek legal redress and compensation.

In Omare v Safaricom Limited & another [2024] KEHC 875 (KLR) (the Omare Case), the High Court dismissed gospel musician Moffat Achoki Omare’s copyright infringement claim against Safaricom and Liberty Afrika Technologies. The claim concerned the alleged unauthorised distribution of his songs on the Skiza platform. The Court found that Omare had assigned his performing and mechanical rights to MCSK. MCSK then licensed Liberty Afrika, which licensed Safaricom. This chain of authorisation insulated both companies from liability.

Unlike in the Bamboo case, where the defendants were found liable for distributing works without proof of licence or assignment, the Court found no infringement because the entire authorization process chain of authorisation was properly documented. Omare did not challenge MCSK’s royalty distribution or prove any unauthorized by MCSK nor proved any unauthorised use of his works. The Court dismissed the suit with costs and reaffirmed the legal importance of formal intellectual property assignments.

Outro

Effective protection and strategic exploitation of musical IP underpin both creative vitality and economic success. Through structured licensing, assignments, collective management, and enforcement, rights holders can turn artistry into sustainable income.