Constitutional Protection of Intellectual Property in Kenya

The Pre-2010 Constitution of Kenya did not capture concerns on innovation and IP. In that Constitution, sections 70 and 75 capturing the Bill of Rights provided substantive property guarantees limited to real property as opposed to technological innovations, cultural innovations and IP. Its spirit however prohibits discrimination against illiterate innovators. Today, land, as real property, plays less significant role in development and global competitiveness. Therefore, ICT like software, the internet and e-commerce; new materials like fibre optics and super conductors and biotechnology and environmentally sound technologies are the key contributors to development.

In the new Constitution, there is a paradigm shift. The Constitution expressly protects IP, innovation and technology transfer. For the first time in Kenya’s history, IP norms have been constitutionalised. First, Art. 260 (c) includes IP in the definition of “property. Secondly, Art. 40 (5) obliges the State to support, promote and protect the intellectual property rights of the people of Kenya. In the same breath, Art. 69(1) (c) and (e) mandates the State to protect and enhance intellectual property, traditional or indigenous knowledge of biodiversity and the genetic resources of the communities and protect genetic resources and biological diversity.

Under Art. 11(1), the Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. And mandates the state to promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; recognise the role of science and indigenous technologies in the development of the nation; and promote the intellectual property rights of the people of Kenya.

Parliament is also mandated to enact laws to ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage. Legislation should also be passed which recognise and protects the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

The National Copyright Office: Kenya Copyright Board (KeCoBo)

twitter: @kenyacopyright
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The Kenya Copyright Board (KECOBO) is a State Corporation established under section 3 of the Copyright Act No. 12 of 2001, to administer and enforce Copyright and Related Rights protection in Kenya. The first Board was appointed by Hon. Attorney General in May 2003 with members from various sectors within the copyright industry and representatives from the relevant government institutions such as the Ministries of Finance, Information, Culture and the Kenya Police.
In 2009, the Board State Law Office and relocated from the State Law Office in Sheria House to the 4th Floor of NHIF Building. Dr. Marisella Ouma was appointed Executive Director who is part of the Board’s 15 members, made up of 4 copyright experts, 5 Government representatives and 5 members from the private sector. Dr. Henry Chakava is currently chairman of the Board of Directors. KECOBO currently has 33 members of staff including 5 legal counsels and 9 police officers gazetted as copyright inspectors.

Mandate of the Kenya Copyright Board:
The Board administers and enforces copyright and related rights throughout the Republic by carrying out 9 major functions: registering of copyright, administering the Anti-Piracy Security Device (APSD), creating and mainitaining a database on copyright works in Kenya, inspection and enforcement actions, prosecution of copyright cases, training, awareness-raising and advocacy on copyright matters, offering free legal advice to the public on copyright law, licensing and supervision of Collective Management Organisations and reviewing copyright legislation.

Copyright in the New Constitution:
Under section 2(6) of the Constitution of Kenya 2010, any treaty or convention ratified by Kenya forms part of the law of Kenya. Therefore the Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention as well as other Conventions and Treaties related to intellectual property must be enforced by KECOBO.
The Constitution also imposes several other duties on KECOBO including devolution of its services to all the counties of Kenya, promotion of the copyright rights of the people of Kenya, protection and enhancement of the intellectual property in indigenous knowledge and the genetic resources of the communities of Kenya.

Registration of Copyright:
So far KECOBO has registered over 1,794 works. The majority of these have been literary works such as computer programs, software, websites, novels, stories, textbooks among others. The other types of works registered by KECOBO in order of volume are audio-visual works followed closely by musical works and lastly artistic works.
The registration process is simple: applicants collect registration forms from our offices, fill them in, have the forms commissioned by a Commissioner for Oaths and then attach two original copies of the work with their duly completed form. The applicant must also deposit the registration fee of Kshs 600 in the account of KECOBO and attach the Bank Deposit Slip to their application forms. Once these steps are followed, the application forms are returned to KECOBO where a receipt is issued and after seven days, the applicant returns to collect the Certificate of Registration.

Anti-Piracy Security Device:
After registration of copyright work, an application must be made to the Board for the Anti-Piracy Security Device which consists of a bar-code sticker and a hologram. This authentication mark is to be placed on all copies of the copyright work intended to be sold, such as sound recordings and audio-visual works. This is because section 36 of the Copyright Act stipulates that no audio or visual works are to be sold or offered for sale if the works do not carry this anti-piracy security device.
Therefore the anti piracy security is instrumental in assisting the right holders, law enforcement agencies and members of the public to differentiate between genuine and pirated copyright works. Continuous investigation enforcement actions including raids and seizure of suspected pirated works have also been enhanced with the introduction of the APSD.

Presence of an Enforcement Unit:
In Kenya, there has been an increase in the levels of piracy of copyright-protected music, books, film with the main beneficiaries being those engaged in these illegal activities at the expense of the rights holders. Piracy not only deprives the copyright owners of income, but also cost the government much in lost tax revenue.
Since 2006, the Board has had an enforcement unit, with police copyright inspectors to investigate infringement cases. The Hon. Attorney-General also appointed State Counsel to the Board as prosecutors. So far over 200 cases have been investigated and prosecuted.
For Kenya to have effective enforcement of copyright, it is crucial to have informed stakeholders, including the public, rights holders and law enforcement authorities such as the police, the Judiciary and the standards organizations. The Unit currently has 9 police officers (investigators) and 4 prosecutors.

Training of Law Enforcement Officers:
Since its inception, the Board works closely with rights holders in training and awareness creation among the law enforcement agencies, especially the police. So far, in collaboration with the Judiciary Training Institute and the CID Training School, over 48 Magistrates and 400 police officers have benefitted from this training since 2006. The Board has also organized several workshops, seminars and media campaigns on protection of copyright and related rights.

Awareness Creation:
Lack of knowledge among the users and rights holders is one of the biggest obstacles in copyright enforcement in Kenya and the Board has embarked on a series of programmes to create awareness among the users and rights holders through workshops and seminars, print and electronic media campaigns. The Board also collaborates with educational institutions, industry management organizations and government departments.

Licensing and Supervision of Collective Management Organisations:
Collective management organizations are private organizations that are established to collectively administer the rights of their members such as composers, performers, authors, among others. The Board has currently licensed 3 collective management organizations namely the Reproduction Rights Society of Kenya (KOPIKEN), Kenya Association of Music Producers (KAMP) and the Performers’ Rights Society of Kenya (PRSK). Licensing and supervision by the Board have greatly increased the collection and distribution of royalties.
The Board also facilitates the training of staff of these collective management organizations by the World Intellectual Property Organisation and other international, regional and national bodies. The Board has also facilitated the General Managers of KAMP, KOPIKEN and PRSK to attend training courses at in Europe with European collective management organizations such as WIPO, CISAC, NORCODE and KOPINOR.

Review of the Copyright Act No. 12 of 2001:
Taking cognizance of rapid developments in copyright and related rights especially within the digital platforms, it is now possible to download and store and even disseminate all copyright works such as music, films, software, books, photographs or even graphic art in real time and at a minimal cost. This presents challenges to the enforcement of copyright and related rights.
The Board is currently working on draft amendments to the law that incorporates the latest developments and also seeks to improve the enforcement and administration of copyright and related rights in Kenya. This has been a participatory process as the rights holders as well as stakeholders and users were involved
This year, the Board’s key proposed amendments to be presented to the Hon. Attorney General include: provisions for the protection of performers’ rights including equitable remuneration in line with other rights holders, provision for private copying remuneration, protection of Traditional Cultural Expressions, enhanced penalties for copyright infringement, exceptions for the visually impaired, libraries and archives and educational institutions.

Hello world!

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Will update this blog very soon.

Until then, follow me on twitter @IPKenya for daily updates on IP both in Kenya and around Africa.