No, cause Kyle cannot use it.

But can't you also say that Kyle still has the ability to use it and therefore copyable by Earth Man?

edit:
thinking about that some more... I guess you are right, MisterId... it would have said "would be able to use" instead of "can use" for my interpretation to be true.

No. Far all intents and purposes, if Kyle has an action token, he cannot use it. If he cannot use it, then Earth Man cannot copy it.