Collection of Music Royalties in Kenya Back On Track

Today, the Standard reports that the Kenya Association of Music Producers (KAMP) and Performers’ Rights Society of Kenya (PRSK) have picked Trueblaq Entertainment Limited as their royalties collection commission agent after a month-long competitive bidding process.

This is what the two female GMs had to say:

“We are hopeful that this partnership will realise the much needed extra revenue for both music performers and producers. We are dedicated to ensuring that the administration costs are within the limits prescribed by common rules and regulations of collecting organisations.”
Angela Ndambuki, PRSK GM.

“This has been long overdue. But the time has now come for producers to get their rightful share of income and we envision that this will go a long way to improving the music industry in Kenya; enabling producers to invest in better quality recordings and exploring new methods of production in line with ever-changing trends in technology.”
June Gachui, KAMP GM.


With big brother MCSK locking horns with KeCoBo over registration, the two younger CMOs KAMP and PRSK have been forced to team up and fend for themselves in a bid to ensure that their respective members don’t fall victim to their fallout with MCSK.
However, even as we wait to see the outcome of the MCSK/KeCoBo registration battle, all three music CMOs seem to be heading in the right direction as far their licensing and royalty collection activities are concerned.
As you may recall, earlier this month the Business Daily reported that MCSK had upgraded their licensing and collections infrastructure by acquiring a new software that is able to track all songs played by broadcasters in a bid to arrive at a more accurate calculation of royalties for their members.

Perhaps, once the dust settles, a Joint Licensing Agreement between the three CMOs can be revisited in 2012.

Establishment of a National Intellectual Property Academy in Kenya

IPKenya has learned, from a reliable source, that the World Intellectual Property Organisation (WIPO) has agreed to support the Kenya Industrial Property Office (KIPI) in establishing a National Intellectual Property Academy in Kenya.

The proposed academy will collaborate with other institutions of higher learning to train in matters of intellectual property at different levels.

A team of experts on a fact-finding mission from WIPO visted Kenya a few weeks back and held discussions with relevant stakeholders from IP Offices and other institutions of higher learning that already have, or intend to have, intellectual property courses in their academic curricula.

I understand several meetings have since taken place and there is a workplan and roadmap in place. For the time being, remember that KIPI signed a partnership with Inoorero University to offer IP courses as well as a specialised diploma in Intellectual Property.

More details to follow soon.

KIPI Workshop on Patent Information and Establishment of Technology Innovation Centers in Kenya

The Kenya Industrial Property Institute (KIPI) in collaboration with the World Intellectual Property Organisation (WIPO) organised a workshop on strategies to acquire and use patent information in preparation for establishment of Technology and Innovation Support Centers (TISCs) in the country.

TISCs are designed to provide innovators in developing countries with access to locally-based, high quality technology information services and other related services.

The workshop will equip participants with knowledge on how to acquire patent information from a variety of sources worldwide. Patent information can be used for research, studies and when introducing new products to the market. Patent documents usually contain comprehensive information on how to make a product whether new or existing. The workshop will also be very helpful to innovators and potential innovators who may want to acquire intellectual property rights for their inventions.

The workshop will be held at Redcourt Hotel, South C from 26th – 28th October 2011.

“Patenting” The Late Nobel Laureate Wangari Maathai’s Hyacinth Casket

The Watchman in today’s Nation mentioned the youth group from the lakeside city of Kisumu who invented the environment-friendly water hyacinth coffin in which Nobel Laureate Prof. Wangari Maathai’s remains were carried. The lady in this article insists that the group should “rush for the patent of the hyacinth coffin”.

In urging the coffin innovators to act swiftly in seeking patent protection, she warns:
“Someone (else) could just go ahead and do it and leave them crying as happened to the ciondo (basket) makers, after some Japanese fellows registered the patent. Can the government help them out?”

Is the hyacinth coffin patentable?

In order for the hyacinth coffin to be patentable, it must fall within the definition of “invention” as provided in section 21 of the Industrial Property Act, 2001. Furthermore, section 22 of the Act provides that this invention must meet three requirements: 1) Novelty (it must be new); 2) Non-obviousness ( it must involve an inventive step) and 3) Industrial Applicability (it must be industrially applicable or is a new use). An “invention” is defined as a solution to a specific problem in the field of technology and it may either be a product or a process.

Assuming the hyacinth coffin satisfies the novelty requirement, there is little questioning that it is indeed useful for purposes of the industrial applicability test. However, the requirement of non-obviousness is clearly not met therefore the hyacinth coffin would not be patentable. Nevertheless the inventors of the hyacinth coffin could apply for a utility model certificate in lieu of a grant of patent.

Ciondo/Kiondo Factor in Intellectual Property Protection
As it has been repeated several times before, the kiondo was never stolen by the Japanese. The main reason is that it cannot be patented as a product because it has been in the public domain for decades as a work originating from particular ethnic groups in Kenya. The Japanese have simply registered a process patent which is based on an invention they came up with which is able to produce en masse industrial woven baskets, some made of fabric or paper materials. But let’s not forget there’s a Kenyan company, Black Gold Ltd, which has its branch in Yokohama in Japan. They have leveraged on patent processing of the kiondo and have turned the basket into a high quality and desirable haute couture item that is incorporated into product designs and has a huge market both in Europe and Asia.
Therefore the role of KIPI is not get involved in policing the private IP rights of registered owners but rather to raise the awareness of the general public of their intellectual property rights and how they can protect them. The initiative to apply for registration can only come for the inventor himself or herself. As far as the costs of registration, KIPI has discretion under the Act to waive payment of registration fees in certain cases.

The Kiondo factor has nevertheless been important in getting Kenyans to be more conscious of their intellectual property assets in order to find ways of developing ideas and commercializing them.

Kenya Industrial Property Tribunal Allows Pre-Grant Entitlement Actions in Patent Applications

Imagine the following scenario: X employs Y as an inventor. During his Y’s employment with X, Y comes up with technology surrounding fabric impregnation with insecticides. However, Y later leaves X’s employ and joins Z. Z files a patent in respect of the technology Y came up with while in X’s employ.

The facts of the above hypothetical case mirror closely those of Vestergaard Frandsen Group SA and Vestergaard Frandsen EA Ltd v.s Intelligent Insect Control S.A.R.L and Ole Skovmand as reported over on Afro-IP.

The Managing Director of KIPI who is also the Register of Patents in Kenya, referred this matter to the Industrial Property Tribunal for determination on two crucial issues arising from the case:

1. Should pre-grant entitlement proceedings in respect of patent applications be allowed in Kenya?
2. If such proceedings are to be recognised, in what circumstances should the Tribunal entertain them and what will be the procedure governing them?

John Syekei, who was representing Vestergaard Frandsen writes to Afro Leo on the outcome of this case at Industrial Property Tribunal as follows:

“In arriving at its decision, the Tribunal rightly considered the nature of patent filings in Kenya and their examination. As noted by the Tribunal, examination of patents is important but the question as to the legality of an applicant in filing a patent is one best suited for determination by the Tribunal and not a patent examiner.

…in Kenya, as is the case in many Commonwealth jurisdictions, the practice is that “the first to file” rule applies such that the person who files for a patent first normally obtains the rights to the patent upon grant as against the world and can enforce this limited monopoly. The mischief to be cured by a pre grant action would be to correct an anomaly where a patent application and related rights accrue to a person who lacks the legal rights to claim ownership yet maintains them until challenged via revocation, entitling such a person to enforce the rights as against third parties including the rightfully entitled party.

…the Tribunal held that a pre grant proceeding which primarily deals with the question of ownership should be canvassed within 2 months before the Tribunal prior to grant by an affected party and shall be undertaken by use of a form similar to the one used in post grant proceedings (referred to as Form PR/IPT) such as revocation actions albeit with changes to reflect the nature of the proceedings. A claimant in such actions is now mandated to file its pre-grant arguments in written form within 10 days of written notice to the Tribunal and submission of the aforementioned form. It must annex supporting affidavits and documents in its possession as indicated in its Form PR/IPT.”

Kenya Industrial Property Journal Now Available Online

For a long time, the Journal of Patents, Industrial Designs, Utility Models and Trademarks published by the Industrial Property Office, was only available in printed format from KIPI‘s offices at a prescribed fee.

However, with effect from the 1st October 2011, the Industrial Property Journal is now available online for free. This is a widely welcomed move and adds to the growing number of user-friendly online features on KIPI’s eye-catching website.

The latest Industrial Property Journal has been uploaded by KIPI and can be accessed here.

“The Beauty of Intellectual Property Offices in Kenya”

I accidentally came across this twitter conversation between a certain Josphat Maweu (@joplii) and @gaQcx. Josphat is clearly a legal practioner as evidenced from his avatar where he’s wearing the signature black robe and white collar shirt from the Bar. At any rate, judging from the conversation they’re having, both men appear to have dealt with both the Copyright Office and the Industrial Property Office.

Their praise of both IP offices may be part of a private conversation but I believe that there’s a reason I spotted it and therefore I feel its only right to share it. The government of Kenya is often vilified by its hard-working taxpayers as being inefficient, incompetent and most of all corrupt. In this regard, the IP offices have unfortunately been lumped together with other government institutions.

From my experience I believe that unlike widely held perceptions of most government offices, the IP offices in Kenya have become customer-oriented, results-driven and conscientious of issues like transparency and accountability.

Youtube Kenya Launched!

Google Africa recently launched – the Kenyan version of YouTube. Kenya now joins Egypt, Tunisia and South Africa as the only African countries to have Youtube versions. The first African version of Youtube was launched in South Africa in May 2010.

Although has always existed in the past, Youtube Kenya will go a long way in facilitating unprecedented sharing of all the unique sights and sounds of our country and a diverse array of original content.

From an IP perspective the arrival of Youtube Kenya couldn’t have come at a more opportune time. Copyright laws are currently being amended notably in the area of exceptions and limitations, meanwhile the Creative Commons and Open Source movements seem to be gaining favour especially among new-age digital content creators in the creative industry as well as the IT industry.

However, there is still need for intellectual property education so as to avoid unnecessary IP ownership disputes and IP infringement cases. In this regard, I believe the IP Offices could also use Youtube as a tool to disseminate useful informational videos on IP in Kenya both from an industrial property and copyright point of view.