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Tribunal: No copyright protection for AI works without human creativity
Under Kenyan law, aspects of works generated by AI are not eligible for copyright protection unless an author can distinguish or demonstrate sufficient human intervention or effort giving the work an original character.
Artificial intelligence (AI) generated works cannot enjoy copyright protection in Kenya unless an author can demonstrate sufficient human effort and creative intervention to give them an original character, the Copyright Tribunal has said.
The Tribunal further observed that under Kenyan law, aspects of works generated by AI are not eligible for copyright protection unless an author can distinguish or demonstrate sufficient human intervention or effort giving the work an original character.
The tribunal, however, failed to determine whether the particular literary works at the centre of a dispute involving Aryeh Movement Limited and Cynthia Beldina Akoth were eligible for copyright protection, saying the issue had not been properly placed before it and no evidence had been presented to enable such a finding.
“With the abovementioned section in mind, indeed, for the Appellant to prove that the said works in the dispute are commissioned, an agreement is imperative and should have been in place to support this assertion. Otherwise, the copyright would still vest in the author or creator of the works,” the tribunal said in a ruling on August 24, 2026.
The decision provides one of the clearest judicial statements in Kenya on the copyright status of AI-generated material, at a time when the technology is increasingly being used in writing, illustration and other creative works.
The dispute arose after Ms Akoth complained to the Kenya Copyright Board (Kecobo) on May 16, 2025, seeking revocation of copyright registrations for literary works she claimed to have authored.
She complained after Aryeh Movement Ltd presented the works to the board for registration, without her consent or authority.
Kecobo subsequently issued a letter dated July 15, 2025, asserting its authority under Section 5(g) of the Copyright Act and Regulation 4(7) of the Copyright Regulations, 2020.
The board observed that the first owner of copyright is the author, while a publisher only holds a related right. It further noted that there was no publishing agreement between the parties and directed them to reach a written agreement on the percentage of copyright interests to be registered in respect of the works.
The board warned that the failure to reach an agreement would lead to the quashing of the registration.
Aryeh Movement Ltd then challenged the decision before the Tribunal, arguing that Kecobo had acted beyond its statutory mandate by attempting to determine questions of authorship and ownership.
The Tribunal agreed, holding that Kecobo did not have jurisdiction or legal authority to make the findings contained in its July 15, 2025 letter.
The Tribunal went ahead and set aside the decision, noting that the dispute before it was essentially about the legality of Kecobo's decision and not a determination of who ultimately owned or authored the works.
Documents contained in Aryeh's bundle stated that “the copyright for the works would be in the name of Aryeh”, while Cynthia Akoth and another author would be acknowledged for their contributions.
The documents also stated that Ms Akoth's moral rights had been acknowledged in the book blurbs for her role as one of the scriptwriters and as an illustrator “through curation and adaptation” using AI-generated images.
Aryeh, on its part, argued that the literary works were jointly authored, with Ms Akoth contributing as a scriptwriter and AI-image illustrator alongside another author.
None of the parties produced the disputed works as evidence before the Tribunal, while Kecobo did not produce the works that had been lodged with it for registration. Akoth, however, did not dispute the assertion that parts of the works were AI-generated.
The Tribunal observed that the Copyright Act does not expressly provide for or address AI-generated works.
But the Tribunal found that there was no clarity on authorship.
It noted that Akoth had not presented evidence demonstrating that she was the author of the works, while Aryeh Movement Ltd appeared to dispute the legal presumption arising from authorship.
According to the Tribunal, ownership could be transferred from an author to another person through employment or commissioning. But for a work to qualify as a commissioned work, or “work for hire”, an agreement must be in place as provided under Section 31(1) of the Copyright Act.
It therefore considered Section 22(3)(a) and (b), which provides that a literary, musical or artistic work is not eligible for copyright unless “sufficient effort has been expended on making the work to give it an original character” and the work has been written down, recorded or otherwise reduced to material form.
“With the abovementioned section in mind, for the Appellant to prove that the said works in the dispute are commissioned, an Agreement is imperative and should have been in place to support this assertion,” the tribunal said.
The Tribunal said a factual inquiry would be necessary to determine whether a particular AI-assisted work contains sufficient human effort and originality to qualify for protection.
