Copyright Registration Shows You Value Your Work

Although it is widely believed that no idea is original in and of itself, there are an infinite number of ways in which any single idea can be expressed and this fact may qualify to make each expression unique and original. For instance, the idea behind mobile money transfer in Kenya may well have been implemented differently had it been originally disclosed to a banking institution or a computer company instead of a mobile service provider. Therefore copyright protects that unique expression of any idea provided it has been translated into some tangible and material form.

Recently, in a case reported in the Kenya Law Reports on the 25th March involving a University of Nairobi student who plagiarized the postgraduate thesis of a Maseno University student, the High Court made it clear that the thesis was a work protected under copyright law. Accordingly, plagiarism of such work is copyright infringement and the court therefore restrained the University of Nairobi from including the student’s name in its list of graduands last year. Such cases clearly demonstrate the seriousness with which issues related to copyright are taken in the country.

The Kenya Copyright Board being the government agency mandated with the administration and enforcement of Copyright and related rights, encourages all owners of copyright works to register the same with the Board especially for those that intend to sell their work to the public such as producers and manufacturers of music and audio-visual works.

Although the Berne Convention, which Kenya has ratified, states that copyright may not be bound by any formalities, Kenya encourages its right holders to register their work because it is the only way the public can distinguish between genuine copyright works and pirated copies of the same. Once your register your copyright work, you as the legitimate copyright owner must apply for the Board’s authentication mark which consists of a bar-code sticker and a hologram. This authentication mark is to be placed on all copies of your work that are distributed for sale.

The advantages of registration can be broadly expressed in two ways. First and foremost, registration is prima facie evidence of the subsistence of copyright especially in today’s digital age. This gives the copyright owner an initial advantage in litigation when establishing ownership of the original work as distinguished from the infringing or pirated copy of the copyright work. Secondly, registration is useful for both the copyright owners and the State for the following reasons.
Firstly, it facilitates negotiations in respect of the copyright work since it puts the world on notice of the copyright owner’s identity and claim to copyright. Secondly, the data collected from copyright owners and their works helps the State, through the Kenya Copyright Board, to build and maintain a comprehensive database of authentic copyright works existing in Kenya. Thirdly, registration serves a signaling function in that although registration is simple and inexpensive and the Board denies very few registration applications, the fact that the copyright owner takes even the minimal pains necessary to register his or her work suggests that the owner believes that the work has some economic value in excess of the minor expenses.

African Intellectual Property Ranking in 2011 International Property Rights Index

The Property Rights Alliance has just released its 2011 report of International Property Rights Index (IPRI), which measures the intellectual and physical property rights of 129 nations from around the world.

Out of the 26 African countries, South Africa is ranked highest and is position 21 globally. Kenya is ranked 93. The lowest ranked african country is Libya at position 126 out of 129.

Here’s a glance at the IPR Score breakdown for South Africa, Kenya and Nigeria.

South Africa:

Kenya:

Nigeria:

Summary of the Industrial Property Act 2001

The main object of this Act is to provide for the promotion of inventive and innovative activities, to facilitate the acquisition of technology through the grant and regulation of patents, utility models, technovations and industrial designs. Section 3 of the Act establishes the Kenya Industrial Property Institute (KIPI).

KIPI is the main implementation and administration agency for industrial property in Kenya. It liaises with other national, regional and transnational intellectual property offices, patent offices and international organizations that are involved in industrial property protection. KIPI’s mandate includes: considering applications for and granting industrial property rights; screening technology transfer agreements and licences; providing to the public industrial property information for technological and economic development; and promoting inventiveness and innovativeness in Kenya.

The Act also establishes the Industrial Property Tribunal to deal with cases of infringement. Section 109 of the Act also criminalises infringement on others patents, registered utility models or industrial designs.

The application forms for patent, industrial design and utility model are available here.
The current fees payable to KIPI for patent, industrial design and utility model applications are available here.

 

Patents and Utility Models under the Industrial Property Act

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A patent is a legal document granted by a State that secures to the holder, for a limited period, the right to exclude others from making, using, selling, offering for sale, and importing the patented subject matter. Any new and useful process, product, composition of matter, or any improvement thereof, may be patented, if such invention meets these three requirements: (1) Novelty; (2) Inventive step i.e must not be obvious to a person of ordinary skills in that field of art, and (3) Industrial applicability.

The following are not patentable:

  • Discoveries or findings that are products or processes of nature, where mankind has not participated in their creations
  • Scientific theories and mathematical methods
  • Schemes, rules or methods of doing businesses or playing games or purely performing mental acts.
  • Methods of treatments of both human and animals by surgery or therapy as well as diagnostic methods practice thereto, except products for use thereof.
  • Inventions contrary to public order, morality, public health and safety, principles of humanity and environmental conservation

 

The steps to be followed for grant of a patent in Kenya are as follows:

8 kosgei kipi 2010

NB: Please note that the fees indicated in the diagram above may not be up-to-date, consult the link in the box above for the current fees.

Industrial Designs under the Industrial Property Act

9 kosgei kipi 2010

An industrial design refers to the ornamental or aesthetic features of a product.  In other words, it refers only to the appearance of a product and NOT the technical or functional aspects.

Any products of industry can be protected as an industrial design including: fashions, handicrafts, technical and medical instruments, watches, jewellery, household products, toys, furniture, electrical appliances, cars; architectural structures; textile designs; sports equipment; packaging; containers and “get–up” of products

The requirements for industrial design protection are: (1) Novelty;  (2) Originality i.e. independently created; and (3) Design must have “individual character” – when overall impression is evaluated against others.

The registration process for an industrial design in Kenya is as follows:

10 kosgei kipi 2010

NB: Please note that the fees indicated in the diagram above may not be up-to-date, consult the link in the box above for the current fees.