Introduction
Copyright is an intangible asset conferring enforceable economic rights over the use and reproduction of literary, musical, artistic, dramatic, audio-visual, sound recording, and broadcast works. The question is not whether copyright has commercial value, but whether it may be attached in execution proceedings. Recognising copyright as potentially realisable reflects its economic value, expands access to finance, and prevents debtors from sheltering wealth in intangible portfolios. Yet, clear legislative steps and judicial interpretation are essential to expressly classify copyright as exigible.
Comparative Jurisdictions
In Planet Earth Productions Inc. v. Rowlands (H.C.J.) 73 O.R. (2d) 505 [1990] O.J. No. 595 Action No. 6905/81 (Toronto), photographic negatives and the copyright therein were held exigible. The Court reasoned that negatives were “almost worthless” without copyright, but distinguished ownership: interests belonging to B.M.G. Music Canada Ltd. and C.B.S. Records Canada Ltd. Were returned, while Rowlands’ interests were available for sale.
By contrast, in Wira v. Jubilee Enterprises Ltd, (2010) 358 Sask.R. 298 (QB). (Saskatchewan), the Court held that copyright and trade marks were not exigible under the then-operative Executions Act, which expressly included patents but omitted copyright. The Court noted that Saskatchewan had passed, but not yet proclaimed, the Enforcement of Money Judgments Act, which would expressly include intellectual property.
In the United States, Hendricks & Lewis PLLC v George Clinton No. 13-35010 D.C. (9th Circ. 2014) affirmed a receivership over George Clinton’s master sound recording copyrights to satisfy a judgment exceeding USD $1.7 million. The receiver was directed to maximise income without unconditional sale, with any disposal requiring Court pre-approval. The analysis relied on inter alia the Federal Rule of Civil Procedure 69 (a), under which non-exempt property was liable to execution.
Historical Difficulties
Section 44 (1) (Property liable to Attachment and Sale in Execution of a Decree) of the Civil Procedure Act Cap. 21 renders “all property belonging to a judgment debtor, including property over which or over the profits of which he has a disposing power which he may exercise for his own benefit, whether that property is held in his name or in the name of another but on his behalf…” liable to attachment and sale in execution of a decree, but does not expressly define attachable “property” to include or exclude copyright. Execution regimes have historically addressed intangibles such as debts and shares, but whether copyright falls within residual categories or requires express inclusion remains unsettled.
Copyright lacks tangible status and may be complicated by authorship, assignment, licensing, territorial restrictions, and royalty arrangements. Section 33 (Assignment and Licences) of the Copyright Act Cap. 130 governs consensual assignment and licensing, which differ from non-consensual attachment. Transferability alone may be insufficient where statutes do not expressly authorise seizure, as the Wira case illustrates.
Legislative and Judicial Developments
The Copyright and Related Rights Bill 2026 (the Bill), if enacted, may strengthen the use of copyright as a commercial commodity. Sections 27 (2) (e) and 61 of the Bill provides for copyright to be used as security for loans or other contractual agreements enforceable under the Movable Property Security Rights Act 2017 (the Act), as well as establishing a National Rights Registry for recording security interests.
It is noteworthy that the Bill covers consensual registration of security in copyright. It does not, however, conclusively establish that unsecured judgment creditors may attach copyright without consent. Non-consensual execution against copyright rights remains a separate question requiring clear legal procedures and frameworks.
In Jovet (Kenya) Limited v Bavaria NV (Petition E039 of 2024) [2025] KESC 27 (KLR) (Constitutional and Judicial Review) (16 May 2025) (Judgment), the Supreme Court of Kenya held that goodwill may qualify as property protected under Article 40 (Protection of Right to Property) of the Constitution of Kenya 2010 where it is identifiable and capable of measurable valuation. Though not a copyright or execution case, it supports the analogy that intangibles can be property. However, the Jovet case did not decide whether copyright is attachable in execution nor the applicable legal procedures and framework if indeed it is attachable.
Conclusion
The Jovet case illustrates that intangible interests can be recognised as property capable of constitutional and legal protection. Meanwhile, the Bill and the Act reinforce the framework for consensual registration of security rights over copyright. However, non-consensual execution against copyright demands explicit statutory authority or carefully structured judicial interpretation. Such an approach must address valuation, notice to registries, third party rights, royalty streams, Court supervision, and the non transferability of moral rights. Until legislative or judicial clarity is achieved, the attachment of copyright remains an unsettled frontier within Kenya’s execution regime. Parties seeking to enforce decrees against intellectual property rights such as copyright should obtain specialised legal advice before proceeding.