Kenya’s Anti-Counterfeit Act: Intellectual Property and Constitutionalism Collide

In 2009, three HIV/AIDS patients petitioned the Constitutional Court to declare the Anti-Counterfeit Act illegal because it could deny them access to generic medicines. The move sought to have the 2008 Anti-Counterfeiting Act made unconstitutional on the grounds that it could rob them of their right to life.

The Constitutional Court is due to deliver a verdict on March 9, 2012. As one of the petitioners in this case explains:

“The court will rule on whether, the Kenya Anti-Counterfeit Act of 2008 which was enacted by the national parliament infringes on the right to access more affordable medicines especially for treatment of HIV and other public health challenges. Depending on the decision, it is widely expected that this case , the first legal challenge in Africa against a new push for anti-counterfeit legislation, could have significant implications on other countries preparing similar laws.”

Public health advocates have consistently argued that the Anti-Counterfeit Act’s definition of what constitutes a counterfeit product is too vague, and could be used to block the import and local manufacture of generic drugs. The Act is so broad that it could, for example, allow a pharmaceutical company to charge legitimately produced generics as counterfeits in Kenya even if its patent is not registered there, which is argued to be “against the whole principle of territorial application of IP rights”.

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Are we all lazy? The debate over innovation in Africa is back

IPKenya came across this viral “article” by a certain Field Ruwe titled: “You Lazy (Intellectual) African Scum!”.

In case you haven’t already read it, please do. It is annoyingly true for the most part and perhaps what is being described in the “article” about Zambia could be applied to lots of other African countries.

However, IPKenya does not fully agree with this “article” in so far as it terms African intellectuals as “lazy” for their failure to innovate and create.

“Poor and uneducated Africans are the most hardworking people on earth. I saw them in the Lusaka markets and on the street selling merchandise. I saw them in villages toiling away. I saw women on Kafue Road crushing stones for sell and I wept. I said to myself where are the Zambian intellectuals? Are the Zambian engineers so imperceptive they cannot invent a simple stone crusher, or a simple water filter to purify well water for those poor villagers? Are you telling me that after thirty-seven years of independence your university school of engineering has not produced a scientist or an engineer who can make simple small machines for mass use? What is the school there for?”

First of all, not all intellectuals are inventors, creators and innovators. Most intellectuals are simply that, intellectuals. They’ve published, written and done studies on their native countries, for instance critically acclaimed Zambian-born and bred Dr. Dambisa Moyo.

Is this “article” suggesting that her and others like her are lazy?

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The intellectual property tale of how Kenya almost lost the Kikoi fabric

Recently, the Standard did a feature titled “How Global Coalition saved Local Fabric” in which it called for pro-active measures and long-term strategies to avert the loss of Kenya’s intellectual property assets to foreign entities.

“The country has seen one of its most indigenous products, Kiondo, snapped by international companies and nobody knows which one is next, whether is Kikoi, Maasai shuka, Akala, Akamba carvings, Gusii soap stones or Nyatiti, an eight stringed plucked musical instrument.” – Standard.

IPKenya has in the past argued for both IP-oriented protection measures (in the short term) and a sui-generis regime (in the middle and long terms) to deal with the issue of Kenya’s traditional knowledge products.

But for those who are not familiar with the Kikoi story in particular, here’s how it went:

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The Fight Against Piracy: Open Source Software versus Microsoft

This past week both leading newspapers and the Business Daily have run stories highlighting a peculiar trend among certain Kenyan businesses who are opting for open source software primarily to escape the long arm of the law.

As IPKenya announced late last year, software giant Microsoft through its East and Central Africa Regional Office here in Kenya together with the Kenya Copyright Board (KECOBO) embarked on an ambitious “Buy Genuine” Campaign aimed at both creating awareness about the dangers of software piracy, how to spot pirated/counterfeit software as well as urging businesses and other software users to acquire genuine software licenses at reduced rates and enjoy other additional benefits.

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The Fate of Music Copyright Society of Kenya (MCSK)

Today IPKenya came across this story in the Bahamas Tribune about the Bahamas Copyright Royalty Tribunal titled “Copyright Holders Recieve ‘Not One Cent’ in 11 Years” and the opening paragraph summarises the article as follows:

“”NOT one single cent” has been paid by the fund set up 11 years ago by the Bahamas to compensate intellectual property rights holders, Tribune Business can reveal, due to the absence of a regulatory regime that stipulates payment rates.”

Immediately one is reminded of Kenya’s own challenges with fees collection and royalty payments, best exemplified by Music Copyright Society of Kenya (MCSK).

As you know, an ugly row took centre stage last year after KECOBO deregistered MCSK as a collective management organisation (CMO) acting on behalf of authors and composers of music primarily because MCSK’s operational costs were too high compared to the royalties it pays musicians. For instance, MCSK’s expenses stood at Sh137 million in the year to June 2010 against revenues of Sh185 million, leaving it with a surplus of Sh48 million or 25 per cent of its collections, which are supposed to go to musicians. Meanwhile KECOBO maintained that the guidelines for CMOs clearly stated that only 30% of monies received can be spent on administrative costs and the remaining 70% must be distributed among musicians as royalties. As the financial books showed, MCSK was doing quite the opposite: distributing 30% and spending 70%, notwithstanding the large number of complaints over unpaid royalties from musicians.

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Trade mark tussle over Standard Group ‘Eve Sisters’ name

The January issue of The Nairobi Law Monthly reports “Standard wins ‘sisters’ name row” which pertains to the recent ‘trade mark infringement dispute’ filed by Creative Force Events MD Ann Njeri Mungai Kihiu against The Standard Group Ltd and Associate Editor, Ms. Njoki Karuoya.

The background to this trade mark dispute is simply boils down to a bitter falling out between the two former business associates (Kihiu and Karuoya) which has now translated into both parties trading accusations of “stealing a concept”.

According to the Law Monthly, Ms Kihiu has moved to court accusing Ms Karuoya and the Standard Group of infringing on her trademark by the name “Sista 2 Sista”. She alleged that Ms Karuoya has initiated a similar programme known as “Eve Sisters” using the same concept and clientele. In the programme, women gather to share personal experiences, training and so forth, what Kihiu terms an ‘experiential’ programme. Kihiu alleged that that she was aggrieved by Karuoya’s introduction of a similar product under the name “Eve Sister” which she claimed misrepresented the public by way of a similar concept.

Kihiu further claims that Karuoya was using the database of her contacts to publicise the event and “fradulently misleading her” that the even was for the “Sista 2 Sista” programme. Kihiu pleaded for orders to restrain the Standard Group from using the name saying that she was bound to suffer loss of reputation, sales and goodwill and other irrepable damage through the confusion generated by SG.

In response, Karuoya argued that the trademark Kihiu claimed to own had not been registered and what was before the court was a mentorship programme. She added that her former business partner had not tabled evidence to prove loss of money or that the whole concept was a collaborative effort between them.

Justice Kimondo ruled that Kihiu’s argument could not meeet the threshold for the grant of intelocutory stay against the media group. The judge noted that the Kihui should have called at least a member of the public to demonstrate that there was a confusion between the two products. The judge said he did not find sufficient evidence of the monies used by Kihiu on the trade name. In addition Kimondo added:

“I would venture to also add that on the face of it, the names ‘Sista 2 Sista’ and ‘Eve Sisters’, and even get-up, seem to be quite different from a visual and phonetic basis.”

Kimondo therefore ruled that Kihui had failed to prove loss of goodwill or deception to prove her case and dismissed the dispute in favour of the SG on grounds that the applicant had not established a prima facie case.

IPKenya plans to get the ruling some time this week in order to provide a more comprehensive analysis of Justice Kimondo’s ruling.

Election Campaigns and Copyright Infringement

It’s election year again for both Kenya and the United States. And with election year comes campaign posters, slogans, colours and logos. Today IPKenya’s attention was drawn to an interesting case of appropriation involving the photograph of a well-known freelance photographer that was used in a gubernatorial candidate’s campaign poster.

Evans Kidero, a rising public figure, is running for Governor in this year’s elections. On his official facebook page, the following poster is at the centre of the controversy:

Mutua Matheka, better known on twitter as “@truthslinger“, is passionate about photography and has taken amazing shots of people, places and things all over Kenya. Take a look at one of his photos of the Nairobi sky-line:

It is immediately apparent that the skyline in Kidero’s poster is identical to that in Matheka’s picture. Initially it was “@Mwirigi” that spotted the infringement and alerted Matheka (“@truthslinger”) about it:

This Matheka – Kidero story reminded me of the copyright dispute over Obama’s “hope” poster in the last US elections. But the major difference is that unlike the AP, Matheka is in a much stronger position to claim copyright infringement of his work. In other words, Fairey’s poster would pass the subjective and objective tests for copyright infringement, while the Kidero’s poster obviously wouldn’t as the Matheka’s photograph was used without any modification or transformation, other than some cropping.

Although Fairey’s poster was based on an AP photograph, he substantially transformed it from a work of photo-journalism into a mixed-media stenciled collage depicting Mr. Obama on a red, white and blue field. Therefore Fairey argued that his work was protected by the exceptions and limitation of copyright (‘fair use’) and it is indeed an original and creative work. Kidero and his campaign team cannot make such an argument in respect of their poster therefore they are likely to be accused of copyright infringement.

Fortunately for Kidero, Kenyans are not as litigious as they ought to be especially in protection of their IP rights. When Matheka was asked via twitter whether he intends to sue Kidero, he replied:

“I should be meeting him (Kidero) sometime next week. In the meantime, he has apologised and pulled down the poster.”

IPKenya hopes that politicians and their campaign teams will learn to be careful and ethical in how they go about branding their candidates because after all, the public is always watching!