The Rise of Constitutional Intellectual Property in Kenya

In a recent judgment in the case of Patricia Asero Ochieng, Maurine Atieno and Joseph Munyi vs Republic H.C.C.C. Petition No. 409 of 2009 handed down by Lady Justice Mumbi Ngugi (also known as “Kenyan Jurist” in blogging circles), the Constitutional Division of the High Court held that one of Kenya’s intellectual property laws namely the Anti Counterfeit Act was unconstitutional.

The full text of the judgment is available here.

At paragraph 87 of the judgment, the court’s ruling on the unconstitutionality of this IP act reads as follows:

Sections 2, 32 and 34 of the Anti Counterfeit Act threaten to violate the right to life of the petitioners as protected by Article 26 (1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable standard of health guaranteed under Article 43 (1) and the court hereby grants the declarations sought by as follows:

(a) The fundamental right to life, human dignity and health as protected and envisaged by Articles 26(1), 28 and 43(1) of the Constitution encompasses access to affordable and essential drugs and medicines including generic drugs and medicines.

(b) In so far as the Anti Counterfeit Act, 2008 severely limits or threatens to limit access to affordable and essential drugs and medicines including generic medicines for HIV and AIDS, it infringes on the petitioners’ right to life, human dignity and health guaranteed under Articles 26(1), 28 and 43(1) of the Constitution.

(c) Enforcement of the Anti Counterfeit Act, 2008 in so far as it affects access to affordable and essential drugs and medication particularly generic drugs is a breach of the petitioners’ right to life, human dignity and health guaranteed under the Constitution.

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The Return of Music Copyright Society of Kenya

Yesterday, IPKenya received this in an e-mail:

PRESS INVITE

Dear Sir/Madam,

Music Copyright Society of Kenya (M.C.S.K) would like to invite you to a press conference this Tuesday 24th April 2012 at the National Theatre – Wasanii Restaurant – in Nairobi from 10:00 am.

The purpose of the press briefing is to inform/present to the public;

1) The issuance of MCSK’s License by the Kenya Copyright Board (KECOBO)

2) The first Scientific distribution of Royalties by MCSK in conjunction with The World Intellectual Property Organization (WIPO).

3) Presentation of Royalty payments to the Top earners in the following tabulated distribution classes;

Ø Mechanical Rights Royalty Distribution;

a. The Orchard- Safari Sound Band
b. Skiza Tunes- St Joseph Catholic Choir Mbitini Parish

Ø Synchronization Rights Royalty Distribution- XYZ show Season 1, 2 and 3;

a) Joseph Wamumbe

Ø Radio and TV Distribution; ( completed logs July 2010 to June 2011

a) Capital Fm – Abbas Kubaff
b) Radio Afrika- Wyre
c) KTN – M.O.G
d) Hope Fm- Betty Bayo & Daddy Owen
e) Ghetto radio – Uko flani Mau Mau

Tabulated downloads from THE ORCHARD & SKIZA, playlists/logsheets from RADIO & T.V and XYZ show are available on our website http://www.mcsk.or.ke

Thank you for your continued support.

Signed,
Maurice Mwande Okoth
CEO, MCSK.

Comment:

IPKenya would like to urge everyone interested to mark Tuesday 24th April 2012 in their diaries and make a date with MCSK.
It is indeed an important event because up until this point, MCSK’s fate as a CMO remained unknown. In fact, it was widely speculated that MCSK would not be granted a CMO license by the Kenya Copyright Board (KECOBO). Therefore this event will be the perfect opportunity to raise all your concerns and queries with MCSK as well as with the Copyright Board. The hashtag for live tweets will be #MCSKConf and a recap post will be published soon after the Press Conference.

Moline infringing on Mololine Trademark, According to Court

The ratio decidendi of Lady Justice Murugi Mugo’s decision can be found on the second last page of the judgement:

“…it is clear that the words “MOLOLINE” and “MOLINE” as appearing in the Applicant’s minibuses KBB 882 M and respondents KBM 807 C and KBK 425B highly resemble in material particulars. (…) the said words and marks, their usage in the same locality and in the same industry, providing the same service, namely, public commuter services, do have a high likelihood causing confusion among the members of the public, with a high probability of making them confuse the 1st Respondent’s minibuses with those of the Applicant, be deceived or made to believe that “MOLINE” buses belong to or are associated with “MOLOLINE SERVICES LTD”, all to the detriment of the Respondent and its business.

By the registration of its trademark, the Applicant acquired a prima facie right of claim against any potential culprit in the infringement thereof. Given the nature of the business involved, as demonstrated by the 1st Respondent’s evidence as to earnings, I am in no doubt that the Applicant stands to suffer irreparable loss not capable of compensation in damages.”

Read the full judgement here.

South African Firm Accused by Kenya of Patent Rights Breach

The Daily Nation reports that a South African company has been blamed for selling semen from the Boran bull, a Kenyan cattle breed by purporting it is a patented product of that country.

When questioned by the Nation, the Livestock Minister Dr. Mohamed Kuti said that the move was in violation of the country’s patent rights since the Boran cattle is an indigenous breed of pastoral communities in Northern Kenya. The minister also said that the RSA company was working in cahoots with a local ranch.

Background:

Genus: Bos
Species: Indicus
Breed: Boran

The Boran cattle is described as a sub-tropically adapted Kenyan breed for natural beef.

Genetic studies at the International Livestock Research Institute (ILRI) have revealed that the genetic composition of the Kenya Boran is unique. The Boran now found in Zambia, Tanzania, Uganda, Australia and USA originated from genetic exports of Kenyan Boran cattle between the 1970’s and 1990’s. The breed in Zimbabwe and South Africa came from embryos exported from Ol Pejeta Ranch at Nanyuki, Kenya, during 1994 and 2000.

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The Competent Authority: Behold! Kenya’s New Copyright Tribunal

During the Second Reading of the Copyright Bill on November 20, 2001, the following statement was made by the Deputy House Speaker recorded in the Hansard at page 3186:

“the competent authority will act as an arbiter between the Board and the members.”

Section 48 (1) of Kenya’s Copyright Act provides for the appointment of a “competent authority” which is really a Tribunal appointed by the Minister in charge of the Kenya Copyright Board who happens to be the Attorney General (AG).

In Gazette notice no. 4339 dated 2nd April 2012, the AG has now appointed the following 5 individuals to form the Competent Authority:

Prof. Ben Sihanya – appointed as Chairman of the Competent Authority

Sihanya is currently Associate Professor of Law at the University of Nairobi School of Law. He has researched, published and spoken widely on Intellectual Property, Constitutionalism, Education Law and ICT Law in Kenya.

Sihanya is known for his innovative approach to the law and other inter-disciplinary areas of legal research and practice. He has conducted training, publishing, consulting and mentoring in Intellectual Property and Innovation, Education, Training, Research and Mentoring (ETRM) Law, Constitutionalism and Governance, Communications Law as well as Trade and Corporate Governance Law in Kenya specifically and Africa generally.

As one of the foremost authorities on copyright law in Kenya, IPKenya believes that Sihanya’s appointment as Chairman is well deserved. His wealth of skills, knowledge and experience in intellectual property is unmatched.

The following 4 individuals have been appointed as Members of the Competent Authority:

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