Publishing Agreement (Kenya)

A Publishing Agreement in Kenya governs the relationship between the parties by fixing what each must do.

The Copyright Act No. 12 of 2001, administered by the Kenya Copyright Board (KECOBO) established under Section 3 of the Act, is the primary statute governing intellectual property rights in literary and artistic works in Kenya. Copyright in Kenya subsists automatically upon the creation of an original work that qualifies for protection under Section 22 of the Copyright Act — no registration is required for copyright to subsist, although registration with KECOBO under the Copyright (Amendment) Act 2019 provides evidentiary advantages in infringement proceedings. The author is the first owner of copyright under Section 26 of the Copyright Act, unless the work is created in the course of employment — in which case the employer is the first owner under Section 26(3).

A Publishing Agreement grants the publisher a licence — either exclusive or non-exclusive — to exercise some or all of the economic rights of the author under Section 26 of the Copyright Act. The economic rights of an author in Kenya include the right to reproduce the work (reproduction right), the right to make the work available to the public (communication right), the right to translate or adapt the work (adaptation right), and the right to distribute copies (distribution right). A grant of exclusive rights means that only the publisher may exercise the licensed rights — not even the author — for the duration and in the territories specified. A non-exclusive licence permits the author to grant the same rights to other publishers simultaneously.

Kenya is a member of the Berne Convention for the Protection of Literary and Artistic Works, administered by the World Intellectual Property Organization (WIPO), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization (WTO). Kenyan copyright therefore benefits from international protection in all Berne Union countries without formal registration. The East African Community (EAC) has harmonised aspects of intellectual property law through the EAC Intellectual Property Policy Framework 2014, which Kenya has incorporated into its domestic policy.

The Kenya Publishers Association (KPA) — the trade association for commercial publishers in Kenya — publishes model publishing agreements and industry standards that inform commercial practice in the Kenyan publishing industry. Literary agents, though less common in Kenya than in Western markets, may negotiate publishing agreements on behalf of authors and are bound by fiduciary duties to their principal authors under Kenyan agency law. Digital publishing platforms — including e-book distribution and audiobook production — require specific clauses addressing digital rights management (DRM), streaming versus download formats, and sub-licensing to digital aggregators, in addition to the core publishing terms.

A Publishing Agreement in Kenya should be clearly distinguished from a Copyright Assignment, which transfers ownership of the copyright itself rather than merely granting a licence. Under a Copyright Assignment under Section 33 of the Copyright Act No. 12 of 2001, the author permanently transfers the specified economic rights to the assignee — this is irreversible unless the assignment contract expressly provides for reversion. A Publishing Agreement, by contrast, creates a contractual licence that terminates in defined circumstances, enabling the author to reclaim publishing rights upon breach by the publisher, non-publication within the agreed period, or expiry of the term.

A Publishing Agreement in Kenya under the Copyright Act No. 12 of 2001 is required whenever an author grants a publisher rights to reproduce and distribute their work, and several circumstances make a formal written agreement immediately necessary.

A Publishing Agreement is needed when an author completes a literary manuscript — a novel, short story collection, academic text, educational resource, children's book, or reference work — and enters negotiations with a commercial publisher such as East African Educational Publishers (EAEP), Longhorn Publishers, or Storymoja Publishers in Kenya. Without a written Publishing Agreement, there is no legally binding basis for either party to enforce royalty obligations, publication timelines, or rights reversion if the publisher fails to act.

A Publishing Agreement is required when an academic author publishes a scholarly journal article, book chapter, or research monograph with a university press or academic publisher operating in Kenya, including the University of Nairobi Press or publishers affiliated with Kenyan universities. Academic publishing agreements frequently involve open access clauses, Creative Commons licences, and rights to deposit work in institutional repositories — terms that must be expressly documented.

A Publishing Agreement is needed when a music composer or lyricist grants a music publisher the right to reproduce, distribute, and synchronise their musical compositions with film, television, or advertising content. The Copyright Act No. 12 of 2001 protects musical works, and the Kenya Copyright Board (KECOBO) administers collective management organisations — including the Music Copyright Society of Kenya (MCSK) — that collect and distribute royalties on behalf of rights holders.

A Publishing Agreement is required when a photographer, illustrator, or visual artist grants a publisher the right to reproduce their artistic work in a book, magazine, newspaper, or digital platform. The Copyright Act No. 12 of 2001 protects artistic works, and the agreement must specify whether reproduction rights are granted in print only, digitally, or in all media formats.

A Publishing Agreement is needed when a foreign publisher wishes to acquire Kenyan rights to publish a work by a Kenyan author in Kenya or an international publisher wishes to grant a Kenyan publisher territorial rights for East Africa or the African continent. Cross-border publishing agreements must address applicable law, dispute resolution jurisdiction, and the interaction with Berne Convention protections in all member states.

Under the Companies Act No. 17 of 2015, the Registrar of Companies at the Office of the Attorney General maintains the register of Kenyan companies. Section 3 of the Law of Contract Act (Cap. 23) governs contractual obligations. The Competition Authority of Kenya (CAK) enforces the Competition Act No. 12 of 2010. The Kenya Revenue Authority (KRA) administers corporate tax under the Income Tax Act (Cap. 470). The High Court of Kenya has unlimited original jurisdiction under Article 165 of the Constitution of Kenya 2010.

A valid and enforceable Publishing Agreement in Kenya under the Copyright Act No. 12 of 2001 and the Law of Contract Act Cap. 23 must include the following essential elements.

Parties and Work Description: Full legal names and contact details of the author and publisher, and a precise description of the work being published — working title, genre, subject matter, word count or page count, and whether the work is original or a translation, adaptation, or revised edition. The author must warrant that the work is their original creation, does not infringe any third-party copyright registered with the Kenya Copyright Board (KECOBO) or protected under the Berne Convention, and does not contain defamatory, obscene, or unlawful content.

Grant of Rights: A clear statement of the rights granted — exclusive or non-exclusive — specifying the media formats (print hardback, print paperback, e-book, audiobook, large print), languages, and territories covered by the publishing licence. Rights not expressly granted are reserved by the author under the principle of copyright reservation. The agreement should address subsidiary rights — translation, serialisation, dramatisation, film and television adaptation, merchandising — and specify whether these rights are retained by the author or assigned to the publisher.

Term: The duration of the publishing licence. Publishing agreements in Kenya commonly grant rights for the full term of copyright — the life of the author plus 50 years under Section 23 of the Copyright Act No. 12 of 2001 — subject to reversion rights on non-publication or non-exploitation. Alternatively, the term may be fixed at a period of years with renewal options. The agreement must specify the conditions under which rights revert to the author, particularly where the publisher fails to publish within the agreed period or allows the work to go out of print.

Publication Obligations: The publisher's binding obligations regarding the publication timeline — typically 12 to 24 months from delivery of the final manuscript — the editorial process, design, pricing, print run, and distribution channels. The agreement should specify the publisher's marketing and promotion obligations, including catalogue listing, distribution to Kenyan and East African bookshops, digital listing on e-commerce platforms, and participation in book fairs including the Nairobi International Book Fair.

Royalties and Advances: The royalty rates payable to the author on net receipts or recommended retail price (RRP) for each format — typically 10% to 15% of RRP for print and 25% of net receipts for e-books in international practice. Any advance payment against future royalties must be documented, including the advance amount, the payment schedule (on signing, on delivery of manuscript, on publication), and the recoupment mechanism. VAT obligations under the Value Added Tax Act No. 35 of 2013 and withholding tax on royalties under the Income Tax Act (Cap. 470) administered by the Kenya Revenue Authority (KRA) must be addressed — withholding tax on royalties is currently 5% for residents and 20% for non-residents.

Royalty Accounting and Audit Rights: The frequency of royalty statements — typically semi-annually — the information that must be included in each statement (copies sold, returns, digital downloads, foreign licence receipts), and the author's right to audit the publisher's royalty accounts through an independent accountant with the Law Society of Kenya (LSK) or the Institute of Certified Public Accountants of Kenya (ICPAK) qualification, on reasonable notice.

Moral Rights: The author's moral rights under Section 31 of the Copyright Act No. 12 of 2001, including the right to be identified as the author (paternity right) and the right to object to derogatory treatment of the work (integrity right). Moral rights in Kenya are inalienable — they cannot be assigned or waived by contract — and the Publishing Agreement must include appropriate provisions for the publisher's compliance with the author's moral rights in all editions and adaptations.

Warranties and Indemnities: The author's warranties that the work is original, not previously published in the licensed territories, free from third-party rights, and does not infringe any copyright or defamation law. The indemnity clause should allocate the risk of copyright infringement and defamation claims between the parties. Publishers typically carry media liability insurance under policies available from IRA-licensed insurers.

Termination and Reversion: The grounds for termination by each party — breach, insolvency, non-publication, out-of-print status — and the procedure for rights reversion to the author upon termination. Upon reversion, all rights granted revert to the author, and the publisher must cease exploiting the work, destroy remaining stock (or offer it to the author at cost), and render a final royalty account.

Dispute Resolution: The applicable law — Kenya — and the dispute resolution mechanism, with disputes referred to mediation under the Nairobi Centre for International Arbitration (NCIA) or to arbitration under the NCIA Rules 2015, or to the High Court of Kenya under the Civil Procedure Act Cap. 21.

Forms-legal.com provides this Kenya Publishing Agreement template as a starting point for authors and publishers. Publishing agreements for major works or involving significant advances should be reviewed by an advocate admitted to the Roll of Advocates maintained by the Law Society of Kenya (LSK) with specialist intellectual property experience, and authors are encouraged to consult with the Kenya Publishers Association (KPA) before signing.

Under the Companies Act No. 17 of 2015, the Registrar of Companies at the Office of the Attorney General maintains the register of Kenyan companies. Section 3 of the Law of Contract Act (Cap. 23) governs contractual obligations. The Competition Authority of Kenya (CAK) enforces the Competition Act No. 12 of 2010. The Kenya Revenue Authority (KRA) administers corporate tax under the Income Tax Act (Cap. 470). The High Court of Kenya has unlimited original jurisdiction under Article 165 of the Constitution of Kenya 2010.