Unauthorized use of copyrighted work amounts to infringement: Legal Analysis & Case Law from a Kenyan Perspective

The below provides a Kenyan legal analysis of a case where a court orders a church (e.g., CITAM) to pay a gospel musician for unauthorised use of their copyrighted song, such as in a choir mix.

🧾 Legal Analysis from a Kenyan Perspective

⚖️ 1. Legal Framework

a) Copyright Act, 2001 (as amended)

This is the principal law governing copyright in Kenya. The relevant provisions include:

• Section 22: Grants copyright protection to original musical works, including lyrics and musical compositions.
• Section 23(1): The copyright owner has the exclusive right to reproduce, perform, broadcast, and adapt their work.
• Section 35: Unauthorized use of copyrighted work amounts to infringement.
• Section 38: Provides for civil remedies, including damages, injunctions, and accounts of profits.

b) Constitution of Kenya, 2010

• Article 40: Protects the right to property, including intellectual property.
• Article 11: Recognizes culture and creative expressions as part of national heritage and protects artists’ rights.

📌 2. Legal Issues Arising

i. Was the work copyrighted?

Yes, assuming the gospel musician had original authorship and possibly registered their work with the Kenya Copyright Board (KECOBO) or through a collecting society such as MCSK.

ii. Was there a license or permission to use the song?

• If CITAM (or any church) used the song in a choir mix without a license or proper attribution, this amounts to copyright infringement.
• Churches often believe that using songs in worship is exempt — but unless the use falls within fair dealing exceptions (e.g., private study, criticism, or review), performance in public settings requires permission.

iii. Does adaptation (e.g., remix/choir version) amount to infringement?

Yes. Creating a choir version or a medley of the original song, especially if recorded, distributed, or performed publicly, amounts to a derivative work, which requires the original author’s consent under Section 23(1)(e).

🧑‍⚖️ 3. Court Ruling (Assumed Facts)

If the court ruled in favour of the musician and awarded Ksh 1.5 million, it likely based its decision on:

• Evidence of copyright ownership
• Proof of unauthorised use
• Extent of usage (e.g., inclusion in albums, public performance, online streaming)
• Failure to obtain a license or compensate the artist
• Moral rights infringement (e.g., failure to credit the artist)

The award may include:

• General damages for loss of income and violation of rights.
• Special damages (if any were pleaded and proven).
• Injunction to stop further use of the song.

🧠 Key Takeaways for Churches and Creative Institutions

Risk	Legal Position
Use of copyrighted music in choir renditions	Requires permission or license from rights holder
Adaptations/remixes	Treated as derivative works — need express consent
Ignorance or non-commercial use	Not a valid defence under copyright law
Role of KECOBO & MCSK	Offer licensing frameworks but do not absolve direct liability

📚 Relevant Case Law

• Rebecca Wanjiku v Christ Is The Answer Ministries & Another [2021] eKLR
  CITAM was sued for copyright infringement involving a song. While the outcome focused on procedural issues, it highlights churches' vulnerability in such matters.
• John Kagwe v Standard Ltd & Another [2010] eKLR
  Affirmed the right to damages for infringement of copyrighted material.

✅ Conclusion

In the Kenyan legal context, religious organizations like CITAM are not exempt from copyright law. Where a song is used without authorization, whether in live performance or choir mixes, it amounts to infringement, and the artist is entitled to compensation, injunctive relief, and damages.

This ruling (if confirmed) sets a strong precedent and reinforces the need for churches and artistic institutions to:

• Obtain proper licenses,
• Credit original creators,
• Work with copyright collecting societies, and
• Respect Kenya’s evolving IP rights landscape.