Visual Artists are Biggest
Beneficiaries of Amended Copyright Act
By Paul Kaindo
he Kenya Copyright (amendment)
Act, 2019 was assented to by the
president on 18
September 2019.
This Act makes a raft of amendments to the
Copyright Act Number 12 of 2001. These
amendments are intended to among other
things update copyright laws and provide
better protection for copyright works in the
digital environment. Part of the amendments
is aimed at granting visual artists enhanced
rights in their artwork.
Artworks are visual or physical two or three
dimensional objects that have a predominantly
aesthetic purpose. The Act as amended denes
an artwork as an original work of visual art cre-
ated by an artist(s) or produced under his/her/
their authority. Visual art is a creative art whose
products are to be appreciated by sight, such as
painting, sculpture, and lm as contrasted with
literature and music. However, for the purpose
of the amendment Act, visual art does not in-
clude motion pictures or lm as they fall under
the denition of audio-visual works.
The Act amends the denition section of the
principal Act and denes an original work of
art to include batiks, carvings, ceramics, col-
lages, drawings, engravings, ne art, jewelry,
glassware, lithographs, fashion design, paint-
ings, photographs, pictures, prints, sculptures,
graphics, weavings, or any other works as may
be included by regulation. Provided they are
made by the artist himself or copies considered
works of art in themselves.
One of the most progressive changes in
the amendment Act as far as visual artists are
concerned is that it grants visual artists a resale
royalty right. This right provides visual artists
with an opportunity to benet from the increase
in value of their artwork over time by granting
the artists a percentage of the proceeds from the
resale of their original artwork. There is a re-
buttable presumption under the amendment Act
that a person whose mark or name purporting to
identify him/her as the artist of the artwork ap-
pears on the artwork is the artist and hence the
beneciary of the resale royalty right.
Under the amendment Act, resale royalty
right refers to the right of an artist or a group
of artists or successors to receive resale royalty
on commercial resale of an artwork. This will
be an exemption to the established international
legal doctrine of exhaustion of copyright. The
visual artists’ right to a royalty does not “ex-
haust” on their artworks’ rst commercial sale.
This right will be valid as long as copyright
continues to subsist in the original artwork.
Consequently, the right subsists for 50 years
after the end of the year in which the artist dies
other than for photographs where the right will
subsist for 50 years after the end of the year in
which the photograph was either made, or made
available to the public, or published, whichever
is the latest. The right will not be available when
the work falls into public domain or copyright
in the work ceases to exist for whatever reason.
The artist resale right under the amendment
Act will be inalienable and will be incapable
of being waived under any circumstances. This
suggests that the right cannot be sold, or trans-
ferred, or surrendered. Neither can the artist
relinquish, renounce or abandon the right. It is
therefore a personal and non-transferable right.
The amendment Act also allows visual art-
ists to form a Collective Management Organi-
sation (CMO) in order to manage the resale
royalty right. In the absence of a CMO, the At-
torney-General shall designate any registered
CMO to manage the right.
The resale royalty will be payable at the rate
of 5% of the net sale price on the commercial
resale of an artwork. The seller, the art profes-
sional, the sellers agent and the buyer will be
jointly and severally liable to pay the resale
royalty. An art market professional includes an
auctioneer, owner or operator of a gallery, mu-
seum, an art dealer or any other person involved
in the business of dealing in artworks.
The royalty will only be payable on commer-
cial resale and shall not be payable where the re-
sale price is less than Sh20,000 or the resale con-
cerns the resale of a building, or a drawing, plan
or model of a building or where it is an auction
for charitable purposes or it is a ne art produc-
tion of identical copies, or if it concerns a manu-
script of a literary, dramatic or musical work.
The applicability of this right beyond the
Kenyan boundaries will largely depend on reci-
procity as there currently is no international in-
strument on resale royalty right. However, dis-
cussions to develop an international instrument
are ongoing at WIPO’s Standing Committee on
Copyright and Related Rights.