Fair Use, Free Speech, and the Future of Kenya’s Digital Media
In the golden promise of the 2010 Constitution, Kenya enshrined freedom of expression and media independence as cornerstones of a democratic society. Yet today, our digital media landscape feels increasingly claustrophobic, not because of overt censorship alone, but because of the invisible trap of outdated laws, ambiguous copyright rules, and weak enforcement systems ill-suited for the digital age.
Nowhere is this contradiction more evident than in the realm of content creation. TikTokers, YouTubers, remix artists, digital educators, all part of Kenya’s thriving online creative economy, must navigate a copyright regime stuck in the past. The law governing them? The Copyright Act of 2001, revised in 2019, still leans heavily on narrow “fair dealing” exceptions that predate platforms like Instagram or TikTok. It offers little clarity on whether parody, satire, memes, or educational mashups count as fair use.
The result is uncertainty. Creators operate in a fog of legal risk. Journalists hesitate to use archival footage or government material in documentaries. Educators second-guess sharing online clips in digital classrooms. And remix artists often self-censor, fearing costly litigation or takedown notices. The Constitution promises free expression. But the law whispers: “Be careful.”
The judiciary hasn’t helped much either. In one of the few notable digital copyright cases, KECOBO v. Google Inc., Kenya’s Court of Appeal acknowledged the complexity of applying fair use to platforms like YouTube but declined to provide interpretive clarity. That vacuum leaves rights holders, creators, and regulators alike flailing. Kenya Copyright Board (KECOBO) officials do their best to enforce the law, but they lack the tech tools and capacity to monitor the explosion of online content. Kenya has no equivalent of YouTube’s Content ID or automated copyright resolution mechanisms. So creators remain exposed, unprotected from both infringement and accusation.
It’s a legal landscape designed for print media and CDs trying to govern viral TikTok reels and AI-generated art. While countries like the U.S. have developed nuanced fair use doctrines through case law, and South Africa is passing progressive copyright amendments to protect digital expression and educational access, Kenya remains overly deferential to international treaties without local adaptation. TRIPS and the Berne Convention allow flexibility, Kenya just isn’t using it.
And so, colonial-era statutes live on. Vague criminal provisions in the Penal Code. The Books and Newspapers Act. The Official Secrets Act. They form part of the same toolbox used to clamp down on independent media, only now, they’re increasingly weaponized against digital creators and online activists too.
In this murky legal terrain, who suffers most? Youth. The very generation driving Kenya’s innovation economy, building brands on Instagram, remixing culture, and educating their peers online. With no clear legal guidance, many are criminalized for creativity. Others give up altogether. The message is chilling: innovate, but at your own risk.
This doesn’t have to be Kenya’s story.
We urgently need a unified, forward-looking copyright regime, one that clearly defines fair use, protects transformative work, and supports creators as both users and rights holders. We need KECOBO to issue public, accessible guidance. We need Parliament to harmonize copyright law with Kenya’s digital aspirations, and to repeal antiquated statutes that threaten expression under the guise of protection.
And crucially, we need to treat digital content creation as part of the media ecosystem, not apart from it. The same protections and freedoms guaranteed to journalists must extend to YouTubers, podcast hosts, and digital educators. Speech is speech. Expression is expression.
Kenya has the talent. It has the Constitution. What it needs now is the political will to ensure that the law catches up with the digital realities of its people.
Ohaga Ohaga is a Kenyan journalist, writer, and communication specialist with a focus on media law and digital rights.
