THE REIGNING PRINCIPLE OF
HUMAN AUTHORSHIP AND
CREATIVITY

The rapid advancement of artificial intelligence (AI), particularly generative AI capable of producing text, images, music and other creative outputs, has disrupted traditional understandings of copyright law. Copyright regimes were historically developed on the premise of human creativity and authorship. The emergence of AI systems capable of autonomous or semi- autonomous creative expression raises complex legal questions
regarding ownership, infringement, liability, and enforcement. This article examines the intersection of AI and copyright law in Kenya, drawing comparative lessons from recent judicial developments in the United States and the United Kingdom.

HUMAN AUTHORSHIP AND COPYRIGHT PROTECTION

A foundational principle of copyright law is that protection subsists only in works resulting from human intellectual effort. In Kenya, the Copyright Act of 2001 implicitly presumes human authorship in recognizing protection for original works that are the product of skill, labour and judgment. Although the Act does not expressly address prevailing interpretation is that originality must be attributable to a human author.

In the matter of Aryeh Movement Limited vs. Cynthia Belinda Akoth Obello (COPTA/E001/2025), the Copyright Tribunal upheld the principle of human authorship in copyright protection against AI-generated works. In the instant case, the Appellant argued that the literary works were jointly authored, with the Claimant contributing as a scriptwriter and AI-image illustrator. This raised the broader legal question of whether, under Kenyan law, AI-generated works can attract copyright protection. The Tribunal noted that neither party produced the disputed literary works, nor did KECOBO furnish the lodged materials. Nonetheless, the Respondent did not dispute the assertion that portions of the works were AI-generated.

The Tribunal noted that the Copyright Act does not expressly address AI-generated works. Instead, Section 22(3) provides that:

“A literary, musical or artistic work shall not be 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.” This test presupposes human involvement, therefore works generated autonomously by AI cannot meet the statutory threshold unless can author demonstrates sufficient human intervention to give the work originality.

UNITED STATES OF AMERICA

In Thaler v. Perlmutter, Dr. Thaler developed a generative AI system named “Creativity Machine” and used it to create an image titled “A Recent Entrance to Paradise.” The U.S. Copyright Office denied Dr. Thaler’s application to register copyright for the image, in which he listed Creativity Machine as the “author.” Following the Copyright Office’s denial, Dr. Thaler appealed the decision to the U.S. District Court for the District of Columbia, which upheld the denial. Dr. Thaler then appealed to the D.C. Circuit, which unanimously affirmed the district court’s decision and the Copyright Office’s denial of the application. The Appellate panel emphasized that authors are at the center of the Copyright Act. Although the Copyright Act does not define the term “author”, the Court provided several provisions of the said Act that supported the interpretation of “Author” as a human being.

1. Ownership and inheritance provisions which are premised on the author’s ability to own property, something that a machine or software is incapable of doing so;
2. Provisions limiting the duration of copyright based on the lifespan of the author, which concept cannot be applied to machines;
3. Provisions as to the legal capacity to provide an authenticating signature or demonstrate intent, especially in determining joint authorship, which concept of legal capacity machines lack.

UNITED KINGDOM

The case of THJ Systems Ltd vs Sheridan [2023] EWCA Civ 1354 related to a dispute over who held copyright to a program called OptionNET Explorer, which takes live (or historic) market data and presents it in the form of a table of “call” and “put” positions displayed side by side with a graph showing the “risk profile”. The Court of Appeal made reference to the Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569 where the Court of Justice held that “copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation”. It concluded that the software developer had made sufficient free and creative choices such that the selection of colours and font styles in the visual charts to be deemed the human author under conventional copyright principles.

Comparative Analysis : AI and Copyright Across Jurisdictions

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The Role of ESK Advocates

As businesses, creators, and technology developers navigate the evolving interface between artificial intelligence and copyright law, ESK Advocates LLP is well positioned to provide strategic, practical, and forward-looking legal support. The firm advises clients on general copyright ownership as well as authorship risks arising from AI-generated works.

KEY TAKEAWAYS

1. Human Authorship is Essential
   AI-generated works without human intervention lack copyright protection
2. The “Sufficient Effort” Test
   Works must demonstrate skill, labor and judgement to qualify
3. Global Consensus
   Emerging Kenya, USA and UK all require human creative input
4. Practical Implications
   Businesses must document human contributions to AI-assisted work

CONCLUSION

Artificial intelligence poses a fundamental challenge to traditional copyright doctrine by separating creative output from human authorship. Comparative jurisprudence from the United States and the United Kingdom demonstrates judicial reluctance to extend copyright protection to purely machine-generated works. As for Kenya, our legal landscape continues to uphold the principle of human authorship in copyright protection. Through careful judicial interpretation and targeted legislative reform, Kenya can foster innovation while safeguarding the rights of creators in an increasingly AI-driven economy.

Article by
Teresia Wamaitha
Managing Partner

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