On Wednesday 8th May 2013, the Honourable Attorney General Prof. Githu Muigai will officiate the National Stakeholders’ Validation Seminar on the proposed legal framework on Protection of Traditional Knowledge (TK) and Traditional Culture Expressions (TCEs) at the Red Court Hotel, South C, Nairobi from 9:00am to 12:00noon. The legal framework aims to protect holders of TK and TCEs against misappropriation, misuse and unlawful exploitation by third parties for use in pharmaceutical products, therapy, arts and craft, music, design and even works of architecture.

This is a historic achievement for Kenya because it is the first country in the region and Africa, to develop a draft legal framework to validate legislation to protect TK and TCEs. It is also pursuant to Section 11, 40(5) and 69 of the Constitution of Kenya, which requires the State to protect the intellectual property rights of Kenya which includes TK and TCEs. The Kenya Copyright Board recognises that the protection of TK and TCEs is in tandem with Kenya’s “Vision 2030” blue print that aims to move our country to a middle income economy by the year 2030 through wealth creation, increased trade and national development.

Alongside KeCoBo and KIPI, there will be representatives from National Council for Science and Technology (NCST), National Museums of Kenya, State Law Office, ARIPO and WIPO.

Below is the program for the day:

SESSION 1:

0800-0830

Arrival
Registration
Prayer – Dr. Benson Mburu (NCST)

Master of Ceremony/Moderator : Dr. Evans Taracha (National Museums of Kenya)

09:10-09:20

Welcome Remarks:
by Chairman Kenya Copyright Board Mr. Tom Mshindi

Introduction:
by Executive Director KECOBO Dr Marisella Ouma, PhD

09:20-09:30

Overview and Objectives:
by Chairperson Inter-ministerial Expert Working Group, Mrs. Catherine Bunyassi Kahuria

09:30-09:45

Africa Position:
by ARIPO representative from TK Division

09:35-10:00

Opportunities for improvement:
by WIPO representative from TK division

10:00-10:30

Keynote address:
The Hon Attorney General Prof. Githu Muigai

10:30-11:00

Group Photo + Tea Break

SESSION 2:

11:00-11:15

Master of Ceremony/Moderator : Dr. Benson Mburu (NCST)

Presentation of the Draft Bill on Traditional Knowledge and Traditional Cultural Expressions, 2013 – Key Highlights:
by KIPI, Mr. Stanely Atsali

11:15-01:00

Thematic Groups/Plenary Discussion/Q&A

01:00–02:00

Lunch

02:00-03:00

Group Discussion

03:00-04:00

Group reports and Recommendations

04:20-04:35

Tea Break

04:35 – 05:00

Closing Ceremony and Vote of Thanks

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To RSVP, contact KECOBO at info@copyright.go.ke

“A society that takes itself too seriously risks bottling up its tensions and treating every example of irreverence as a threat to its existence. Humour is one of the great solvents of democracy. It permits the ambiguities and contradictions of public life to be articulated in non-violent forms. It promotes diversity. It enables a multitude of discontents to be expressed in a myriad of spontaneous ways. It is an elixir of constitutional health.” – Justice Albie Sachs in Laugh It Off Promotions CC vs South African Breweries 2005 (8) BCLR 743 (CC)

A parody, also called burlesque, satire or spoof, in contemporary usage is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humourous, satiric or ironic imitation. Parody, as a method of criticism, has been a very popular means for authors, entertainers and advertisers to communicate a particular message or view to the public.

In recent times, the popularity of parodies has brought this creative form of expression in direct conflict with the owners of the original works protected under intellectual property (IP) law, particularly copyright and trademark.

Read the rest of this article over at the CIPIT Law Blog here.

As part of the World IP Day 2013 activities in Kenya, CIPIT will host a special intellectual property (IP) debate organised by the Aids Law Project (ALP) between students drawn from the local universities. The topic of this debate is: how the Novartis and Patricia Asero court decisions affect public health in developing countries. Although this blogger will not be able to attend the debate in person, what follows are a few ruminations on this debate topic.

The Supreme Court of India judgment in the Novartis case and the High Court of Kenya judgment in the Patricia Asero case seem to have one common consequence: making pharmaceutical companies very unhappy. Both these cases have placed the spotlight on the generic drugs industry. In the developing world, where few people can afford original patented medicines, many opt for generic versions of the same drugs that are sold for as little as 1/10th of the price of the original product. Therefore, what generics companies do essentially is to replicate drugs that are no longer protected by patents. This leaves the pharmaceutical companies with two main issues to deal with: Firstly how do they “extend” patent protection for their well-known drugs? Secondly how do they ensure strict IP enforcement in respect to their patented drugs? The first issue is illustrated in the Novartis case and the second issue appears in the Patricia Asero case.

Read the rest of this article over at the CIPIT Law Blog here.

Twelve years ago, the World Intellectual Property Organization (WIPO) created the “World Intellectual Property (IP) Day” as an event intended to “raise awareness of the role of intellectual property in our daily lives, and to celebrate the contribution made by innovators and creators to the development of societies across the globe”.

Last year, this blog covered the World IP Day events in Kenya and highlighted some of the key IP developments at the time. (See here)

This year, the theme for World IP Day is “Creativity: The Next Generation. How do you see the future? Who will be the next game-changers?”

The Aids Law Project (ALP) have lined up a number of interesting events to mark World IP Day 2013:

On Thursday 25th April 2013, you are invited to Strathmore University (Room 7 -MSB Building, 2nd Floor):

9:00-9:30:
Welcome Address by Jacinta Nyachae of Aids Law Project (ALP) & Isaac Rutenberg of Strathmore Law School Centre for IP and Information Technology Law (CIPIT)
9:30-10:00:
Key Note Address by. Mr. David Njuguna, Chief Patent Examiner at Kenya Industrial Property Institute (KIPI).
10:00-11:00:
Inter-university IP Debate
Debate Topic: “How do the Novartis and Patricia Asero court decisions affect public health in developing countries?”
Moderators: Paul Ogendi, Sarah Ochwada
11:00-12:00:
Closing Remarks – Anne Gathumbi

On Friday 26th April 2013, you are all invited to Railways Club for a World IP Day Picnic organised by ALP:

9:00-9:30:
Arrival and Registration
9:00-9:30:
Welcome Address by Jacinta Nyachae of Aids Law Project (ALP)
9:30-9:45:
Brief of the activities of the day by Kate Kiama (ALP)
10:00-12:00:
Games and Activities
12:00-12:30:
Snacks and Q & A
12:30-12:45:
Closing Remarks and Award Ceremony

IPKenya is also aware that the State Agencies in charge of IP have organised some events for World IP Day. The Kenya Patents and Trademarks office (KIPI), the Kenya Copyright Office (KECOBO), the Anti-Counterfeit Agency (ACA) with the support of the World IP Organization (WIPO) have organised a public event at the Mount Kenya University Towers in Nairobi Kenya from 09h00 to 12h30. The full details are available below:

All are invited. Please spread the word! IPKenya will update everyone on any other World IP Day activities/events taking place in Kenya.

Media reports (here, here and here) indicate that the world’s largest multinational cosmetics company L’Oréal has acquired Kenya’s Interconsumer Products Ltd’s flagship Nice & Lovely brands, in a multi-million dollar acquisition reported this past week.

L’Oréal opened shop in Nairobi in late 2011 and has for the past 18 months been in talks with Interconsumer Products Ltd for a buyout deal. To facilitate the conclusion of the deal, Interconsumer Products Ltd transferred the beauty division to a new company dubbed Interworld Cosmetics, which has now been acquired by L’Oreal. The French based cosmetics giant has now renamed the new business Interbeauty Products.

This blogger salutes Interconsumer Products Managing Director Mr. Paul Kinuthia. We have all read the story of how Mr. Kinuthia grew his business from a modest sole proprietorship in the late 1990s to a major cosmetics manufacturer in East Africa. This success story of Interconsumer Products Ltd is even more significant and instructive when viewed from an intellectual property (IP) perspective.

The mark NICE and LOVELY was registered in favour of Interconsumer Products Ltd at the Kenya Industrial Property Institute (KIPI) in 2002 but had been in use by Interconsumer since 1999. From this date onwards, Interconsumer has been actively policing its intellectual property rights in the NICE AND LOVELY mark particularly as its products begun to gain prominence not just in Kenya but in neighbouring countries, particularly Uganda.

Read the rest of this article over at the CIPIT Law Blog here.

Plant Breeders rights became an accepted branch of intellectual property with the adoption of the International Convention for the Protection of New Varieties of Plants (UPOV) in 1961.

The Convention protects the variety of the plant not the plant itself therefore the subject matter of protection is the variety and not the whole plant. A variety is a new plant that is distinct from any other variety that is known to agriculture or published in any botanical literature. A variety is ‘known to agriculture’ if man has cultivated it. A variety is ‘known to botanical literature’ if it has been recorded. Therefore any person who discovers a new plant variety that is wild, that man can use or domesticate, can apply to the competent authority for a Grant of a Plant Breeder’s Right.

The UPOV Convention 1961 was subsequently amended in 1978 and 1991. Kenya was the first country in Africa to domesticate the UPOV Convention. Kenya’s Seed and Plant Varieties Act Chapter 326 is modeled on UPOV 1961. South Africa’s Plant Breeders’ Rights Act 1976 is modeled on UPOV 1978. For a practical look at the protection of plant breeders rights in South Africa, this blogger has previously discussed the recent High Court decision in Voor-Groenberg Nursery CC and Another v Colors Fruit South Africa (Pty) Ltd [2012].

Recently, it has been widely reported (see: here, here and here) that over 80 civil society organisations from the Southern African Development Cooperation (SADC) region and beyond have prepared a detailed submission to the SADC Secretariat calling for the rejection of the SADC Draft Protocol for the Protection of New Varieties of Plants. One of the key contentions raised by these civil society groups was that the Draft Protocol is modeled on the “one-size-fits-all” UPOV 1991. UPOV 1991 abolishes the farmers’ privilege in UPOV 1978 which allowed farmers to use the harvested material from plant varieties as propagating material but this privilege can be withdrawn at any time. Looking at Article 27 of the Draft Protocol, the farmer’s exception is limited in scope as it “only allows an exception for subsistence farmers.”

Read the rest of this article over at the CIPIT Law Blog here.

One of the local newspapers recently published an article titled: “Can’t someone stop this photocopying madness?”, which raises the alarm over high levels of illegal photocopying especially in tertiary institutions of learning, namely our universities. The writer explains:

We were taught in classes that photocopying a book without the requisite permission of the copyright holder would be against the law, except for the very strict exemptions made on the copyright page of the book. Yet at student centres and other photocopying areas in institutions of higher learning, the exact opposite of this lesson goes on in the open.
Students photocopy entire books. Some shop owners photocopy books in advance and store them for sale. With such scenarios, what does the student learn? That the lessons on copyright law are a mere hot air?

Recently, a news feature was published by Al Jazeera titled: “Photocopying courts India campus controversy” which was premised on the on-going Indian High Court case of Oxford University Press and Others vs Rameshwari Photocopy Services and Delhi University. In this case, Cambridge University Press (CUP), Oxford University Press (OUP) and Taylor & Francis, the three of the world’s largest publishers have filed a case in court seeking to stop the reproductions of their work into study packs and course packs for students.

Authors and publishers all over the world contend that they fully support free access to information. But they have come to realise that their contended principle of free flow of information must not be confused with the idea of the flow of free information. After all, books, journals, newspapers etc. cost money to produce and the same must apply to the right to reproduce them, particularly through photocopying. The only way authors and publishers have been able to deal with this situation has been through collective administration of rights. It is widely agreed that no single author or publisher can effectively police the use or abuse of its bundle of rights throughout a whole national territory let alone the world at large. Thus, collective administration is a solution devised to overcome the many difficulties which individuals authors and other rights holders face in the enforcement of their rights separately by themselves in the face of fast-growing technologies of the modern world.

Read the rest of this article over at the CIPIT Law Blog here.

Businesses often spend much time and money to create a successful advertising campaign. It is important to protect your intellectual property (IP) assets, so that others do not unfairly copy or free-ride upon your innovative creations.” – Lien Verbauwhede, WIPO.

Like in many parts of the world, the advertising sector in Kenya is the new battle-ground upon which businesses compete to creatively and uniquely pass on relevant information to customers so as to facilitate and positively influence their buying decisions. It is generally agreed that for an advertisement to be effective, it must first get noticed, and then be remembered long enough to persuasively communicate the unique selling proposition of a product or service, so as to make potential customers into actual ones. Outdoor advertising, in particular, is considered a cost effective way of giving messages the maximum exposure. Outdoor advertising includes billboards, outdoor signs, printed messaging, street banners, posters, brochures etc.

This blogger has noted an increase in the number of creative new outdoor advertisements by both medium-sized and large companies leading to a surge in the number of billboards along streets, highways in urban areas. Billboards are so far the preferred medium for outdoor advertising. there are several types of intellectual property rights that are involved in billboard advertising. For instance, most of the creative content on the billboard (writing, pictures, art, graphics, lay-out) may be protected by copyright along with any advertising slogans which may also be protected by trademark law.
In addition, industrial design law may be crucial for protection of billboards. Industrial designs cover the three dimensional form of billboards provided that such form gives a special appearance to a product of industry and can serve as a pattern for a product of industry. In the case of ENG Kenya Ltd v Magnate Ventures Ltd (2009), both the plaintiff and defendant carried on business in the outdoor advertising sector and the plaintiff alleged that the defendant had infringed on the plaintiff’s design for ‘suburban signs’. The court held that the registration of the plaintiffs’ design at the Kenya Industrial Property Institute (KIPI) was proof enough that the design was unique and capable of registration. The plaintiff could therefore claim exclusive right to the design. The court further stated that the defendant copied the plaintiffs’ design in bad faith.

Read the rest of this article over at the CIPIT Law Blog here.

Today’s Question of the Day (QOTD) is on the duration of copyright where the author of the copyright work is a juristic person.

Authorship is at the core of copyright law. It determines ownership of copyright in the first instance. It provides a defence to alleged infringement. Most importantly, authorship determines the duration of copyright.

Section 2(1) of the Copyright Act defines an “author” in relation to the various categories of copyright works as a “person”

Section 23(2) of the Act states that copyright lasts for 50 years after the death of the author. The duration of copyright is computed from the end of the year in which the author dies for literary, musical and artistic works excluding photographs. The length of copyright protection is measured by reference to the human author’s lifespan.

The cumulative effect of these two sections of the Act would be that the word “person” refers only to a natural person, since the length of copyright protection is measured by reference to the human lifespan.

However, the current practice and procedures for copyright registration in Kenya allow for both natural and juristic persons to be applicants as well as authors for the purposes of copyright registration. Where the application for registration of copyright is successful, the copyright registration certificate issued by the Kenya Copyright Board (KeCoBo) may be in the name of either an individual or a company.

The question then arises, how long does the copyright last where the author is a juristic person and not a natural person?

Given that a juristic person, unlike a natural person, enjoys perpetual succession, does this mean that copyright in works of corporate authorship exist in perpetuity never to expire?

Read the rest over at the CIPIT Law Blog here.

A study commissioned by the International Chamber of Commerce (ICC) Business Action to Stop Counterfeiting and Piracy (BASCAP) initiative reports that Kenya’s current intellectual property (IP) rights regime performs poorly in international gauges, ranking 95th of 130 countries in the IPR Index and 106th of 140 economies in the Global Competitiveness Index 2010. The BASCAP report, “Promoting and Protecting the Value of IP in Kenya”, sets out BASCAP’s recommendations for policy and legislative changes needed to bring Kenya’s IP regime and IP enforcement efforts up to international standards.

The full 2013 BASCAP Report is available here.

Legislative recommendations:

+ Address deficiencies in criminal IP law and procedures, particularly fines and penalites in the Anti-Counterfeit Act

+ Improve border enforcement provisions in the Anti-Counterfeit Act

+ Address deficiencies in the Copyright Act, 2001, particularly penalties for infringement and delineation of KECOBO and ACA mandates.

+ Improve and expedite civil enforcement procedures, and procedures with respect to the Trade Marks Act, 2001.

+ Grant powers to the ACA to settle matters out of court under the Anti-Counterfeit Act, 2008 in addition the power to destroy counterfeit goods and impose fines.

Policy recommendations:

+ Establish an inter-agency approach between the different Kenya Agencies administering and enforcing IP rights.

+ Establish an inter-agency approach with private sector coordination.

+ Expand IP-related administrative and technical capacity building

+ Increase public and political awareness of counterfeiting and piracy and the associated economic and social harm.