Machines Do Not Author: The Copyright Tribunal’s First Word on Artificial Intelligence in Aryeh Movement Limited v Akoth & Another
AI & authorship in Kenya
A reading of Tribunal Case E001 of 2025 [2025]
Keywords: Kenya Copyright Tribunal, Copyright Act (Cap 130), artificial intelligence and authorship, Kenya Copyright Board (KECOBO), human authorship requirement, commissioned works, Thaler v Perlmutter, Berne Convention, computer-generated works, AI governance in Kenya.
I. Introduction: A Registration Dispute That Became a Precedent
Cynthia Beldina Akoth wrote Bible Scripture Stories under contract to Aryeh Movement Limited, using AI tools to help generate some of the accompanying material. When the commercial relationship broke down, she discovered that Aryeh had registered the literary works with KECOBO in its own name. She complained on 16 May 2025, arguing that she had never consented to that registration and had not transferred ownership. KECOBO agreed, and by a letter dated 15 July 2025 directed the parties to reach a written agreement on their respective shares of copyright interest within seven days, failing which it would expunge Aryeh’s registration.
Aryeh appealed to the Copyright Tribunal under section 21(1) of the Copyright Act, contending, among other grounds, that KECOBO had acted ultra vires, that Akoth’s authorship was disputed, and that the works were in fact a product of joint authorship involving AI-generated image curation. It is worth being precise: this was a jurisdictional and procedural dispute over whether KECOBO had the legal authority to adjudicate a registration disagreement not a substantive determination of who owned the copyright, or whether the works were original. The AI-authorship question entered the Tribunal’s reasoning as an ancillary issue raised during the viva voce hearing, not as a matter either party had pleaded with evidence.
Even so, the case has been widely reported as a “landmark” ruling on AI and copyright the first time a Kenyan adjudicatory body has said anything at all on the subject. The Tribunal, composed of five members chaired by Hon. Elizabeth Lenjo, chose to address the question even though it was not strictly necessary to dispose of the appeal, giving the judgment more precedential ambition than its underlying facts required.
II. Facts and Procedural History
The material chronology is straightforward. KECOBO’s letter of 15 June 2025 first flagged the dispute, observing under section 5(g) of the Copyright Act and regulation 4(7) that the first owner of copyright is the author, that a publisher holds only a related right, and that absent a publishing agreement between Aryeh and Akoth, the parties needed to reach a written agreement on the percentage of copyright interest. KECOBO warned that failure to comply would result in the registered work being expunged.
Aryeh’s Notice of Appeal (22 July 2025) raised eight grounds, later supplemented. Akoth filed Grounds of Opposition on 1 August 2025. KECOBO joined suo moto by the Tribunal as 2nd Respondent but never entered appearance and filed nothing, a regulatory absence the Tribunal noted with evident dissatisfaction. The viva voce hearing proceeded on 6 August 2025 with only the Appellant and 1st Respondent present.
The Tribunal identified three issues for determination: (i) whether the appeal was properly before it; (ii) whether KECOBO acted ultra vires its jurisdiction in issuing the 15 July 2025 letter; and (iii) ownership, authorship, and copyrightability of the subject literary works. The AI question sits inside the third and least resolved of them.
III. Jurisdiction, Procedure, and the Limits of KECOBO’s Mandate
On the first issue, the Tribunal rejected Akoth’s argument that the appeal was fatally defective for want of a supporting affidavit. Applying Lord Diplock’s classic definition of a cause of action from Letang v Cooper, as adopted by the Court of Appeal in Diana Katumbi Kiio v Reuben Musyoki Muli [2018] eKLR, the Tribunal held that neither the Copyright Act nor general civil procedure principles impose an absolute affidavit requirement.
The more consequential holding is on the second issue: the Tribunal found that KECOBO had exceeded its statutory mandate. Section 22D empowers the author or owner to register a work; regulation 4(7) allows the Executive Director to amend the register only to correct errors, not to resolve genuine disputes between rival claimants. Drawing on Anisminic v Foreign Compensation Commission [1969] 2 AC 147 and its Kenyan adoption, the Tribunal characterised the distinction between an “error” (factual mistake) and a “dispute” (disagreement over conflicting claims) and held that KECOBO’s threat to expunge the registration exceeded its regulatory competence and was “in law, a nullity.”
IV. Ownership, Authorship, and the AI Question
Having disposed of the appeal on jurisdictional grounds, the Tribunal proceeded by its own account, because the issue “emerged” during the viva voce hearing to address ownership, authorship, and copyrightability substantively. Two threshold problems limited how far this analysis could go:
- No primary text in evidence: neither party produced the disputed literary works themselves before the Tribunal. KECOBO, absent throughout, never presented the works lodged with it. The Tribunal was reasoning about copyrightability and AI-generated content in the abstract.
- Thin evidentiary record on commissioned works: Section 31 of the Copyright Act vests copyright initially in the author, transferring to a commissioning party only where an agreement exists. Aryeh’s bundle allocated roles but never spoke expressly to authorship; Akoth led no evidence establishing that she was the author. The Tribunal declined to make any finding on authorship or ownership on that state of the record.
It is against this backdrop no text in evidence, no clean finding on authorship that the Tribunal addressed “whether under Kenyan law, works generated by Artificial Intelligence (AI) are copyrightable and capable of a claim of authorship and ownership.” Aryeh had argued that the literary works were a product of joint authorship, with Akoth’s contribution described as that of a “script writer AI-image illustrator.”
The Tribunal’s reasoning proceeded in three steps. First, it noted that section 22(3)(a)-(b) makes copyright eligibility conditional on “sufficient effort” being expended to give the work “an original character,” and on reduction to material form. Second, it surveyed comparative jurisprudence. Third, it issued its operative finding:
“under Kenyan law, any aspects of works generated by AI are not eligible for copyright protection unless the Author can distinguish/demonstrate sufficient human intervention/effort giving the work original character, as per Section 22(3)(a).”
This is the sentence that will be quoted for years. But its status must be stated precisely: it is an interpretive gloss on an existing statutory test, offered without a live factual dispute to test it against, and the Tribunal expressly declined to apply it to the actual works in the case. It is best read as authoritative guidance on how section 22(3)(a) should be construed going forward, rather than as a holding that determined the rights of the parties before the Tribunal.
V. The Comparative Survey the Tribunal Drew On
The Tribunal’s comparative reasoning tracked three jurisdictions:
- United States: The Tribunal cited Thaler v Perlmutter (D.C. Cir. 2025), affirming that an image autonomously generated by an AI system is ineligible for copyright registration because the U.S. Copyright Act requires human authorship. The U.S. Copyright Office’s own guidance takes the same position: AI-generated material without human creative control is unprotectable.
- United Kingdom: The UK offers a statutory departure under section 9(3) of the CDPA 1988: for a “computer-generated” work, the author is deemed to be “the person by whom the arrangements necessary for the creation of the work are undertaken.” The Tribunal cited Temple Island Collections Ltd v New English Teas Ltd [2012] for the proposition that UK courts protect human intellectual creation exercised through digital tools.
- European Union: The Tribunal invoked Infopaq (C-5/08) for the EU’s foundational originality standard: protection attaches only where a work is the “author’s own intellectual creation,” presupposing a human intellect.
Reading these together, the pattern is clear: no major jurisdiction currently grants copyright to AI output standing alone. The live disagreement is not whether machines can author works the consensus is that they cannot but how much human involvement is enough to pull an AI-assisted work back across the line into protectable territory, and who that human is deemed to be. The Kenyan Tribunal’s formulation “sufficient human intervention/effort” sits closer to the US and EU end of that spectrum.
VI. What This Case Settles and What It Leaves Open
It is tempting, given the press coverage, to treat Aryeh v Akoth as Kenya’s definitive AI-copyright precedent. A more disciplined reading yields a shorter list of settled points and a longer list of open questions.
- AI itself cannot be an author under Kenyan law.
- Purely AI-generated content, without demonstrable human creative input, is not eligible for copyright protection.
- KECOBO cannot adjudicate ownership or authorship disputes by administrative directive.
- No test for how much human intervention is “sufficient”.
- No guidance on disclosure or disclaimer obligations.
- No resolution of the underlying dispute.
- No engagement with joint or hybrid authorship where AI is one contributor among several humans.
VII. Implications for Kenyan Creators, Companies, and Policy
For individual creators: documentation is key. Where a human contributor’s creative judgment, selection, arrangement, editing, prompting strategy, iterative refinement can be shown on the record, that contribution remains protectable. Creators should keep contemporaneous evidence: draft iterations, prompt logs, editorial notes.
For companies commissioning AI-assisted creative work: the case is a caution about assuming commissioning status confers ownership automatically. Section 31 requires an actual agreement. Any Kenyan business engaging authors to produce AI-assisted content should have a written agreement that expressly allocates authorship, ownership, and AI-related disclosures before the work is registered.
For KECOBO and Parliament: the case exposes a genuine legislative gap. Kenya’s Copyright Act was not drafted with generative AI in contemplation. The UK’s statutory computer-generated-works provision, whatever its conceptual difficulties, at least has the virtue of being a legislature’s considered answer. This judgment should be read as an invitation to legislative attention, not a substitute for it.
VIII. Conclusion
Aryeh Movement Limited v Akoth & another will be remembered as the first Kenyan adjudicatory word on AI and copyright. But it should be cited for what it actually decided jurisdictional not for the fuller doctrine that press coverage has already begun attributing to it. What the Tribunal offered, by way of considered but ultimately untested dictum, was an interpretive signal that Kenyan law, consistent with the US, UK, and EU, will not extend copyright protection to AI output absent demonstrable human creative intervention.
That signal is useful, and worth taking seriously as guidance for how section 22(3)(a) will likely be construed in the next case that actually puts the disputed work into evidence. But it is guidance, not doctrine settled on a full record. The next Kenyan case to raise this question and there will be one will need to do what this one could not: put the work itself before the tribunal, lead evidence of exactly what the human contributor did and what the machine did, and let the copyrightability question be decided on facts rather than inferred from their absence. Until then, Aryeh v Akoth stands as Kenya’s first and, for now, only compass pointing in a defensible direction.
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