The Case for an Inter-Agency Approach to Intellectual Property Protection and Enforcement

Today marks the opening of an important event by the Anti-Counterfeit Agency (ACA): “Workshop on the Implementation of an Interagency Approach to Intellectual Property Protection and Enforcement: Kenya and the East African Community”

Unlike tangible property, IP is not well understood and thus is highly under-utilised in Kenya. That said, it is no secret that the proper administration and regulation of the intellectual property system in Kenya is faced with two main challenges: enforcement and awareness creation.

The US Department of Justice and the Department of Commerce along with the State Department, Customs & Border Protection and USPTO have been strongly advocating for Kenya and other countries in the East African Community to adopt an interagency approach to protection and enforcement of IP within the countries’ national borders and the EAC as a whole.

While it is often said that enforcement is the best form of awareness creation, one must still ask whether the government, stakeholders and industry players are doing enough to educate, enlighten, inform and advise Kenyans on what intellectual property is all about, why infringement is both morally and legally wrong and most importantly instilling and promoting a culture of respect for intellectual property.

As far as nation-wide IP awareness and IP enforcement, the buck ultimately stops with government and it’s 4 key specialised agencies dealing with IP namely:

a) Kenya Industrial Property Institute – KIPI ( which administers this Act and this Act)
b) Kenya Copyright Board – KeCoBo (which administers this Act)
c) Kenya Plant Health Inspectorate – KEPHIS (which administers this Act)
d) Anti-Counterfeit Agency – ACA (which administers this Act)

Effective and efficient utilisation of IP can be well facilitated by creation of a knowledgeable, skilled and positively-cultured human resource base through public awareness and training programmes in IP. In view of, and in order to facilitate, this, KIPI, KeCoBo, ACA and KEPHIS under the support of their parent ministries: Industrialisation, State Law Office and Agriculture should be mandated with the task of designing and implementing an Inter-Agency Intellectual Property Protection and Enforcement Strategic Plan (IPPESP).

This Inter-Agency IPPESP would aim at inculcating a culture that promotes creativity and innovation, protection and commercialisation of IP in Kenya through enhancement of awareness and utilisation of IP for industrialisation in accordance with the Constitution of Kenya, 2010 and our national development blueprint, Kenya Vision 2030.

The five strategic objectives of the Inter-Agency IPPESP should be:
1. To create general awareness in intellectual property matters. Eg. Electronic, print media
2. To train selected target audience on the various aspects of IP matters and relevance in operations of the targets
3. To promote creativity, innovation and IP enforcement in Kenya
4. To propagate emerging IP issues in Kenya; and
5. To ensure efficient and effective implementation of the IPPESP.

At present, the Government recognises (on paper) that the IP system as an important tool for trade, incentive for investment and thus a catalyst for national growth in this world’s liberalised economy. Consequently, as a commitment to regional/ international co-operation, Kenya is actively involved in formulation and implementation of regional/ international policy on IP system, and is partly to the main regional/ international treaties/agreements on IP. Nationally, the Government is devoting resources towards putting in place machinery for effective and efficient administration and management of the IP system within its territory, and all main aspects of IP are administered and managed in Kenya by four IPOs.

That said, adopting an inter-agency approach to IP enforcement in Kenya would not be without its set of challenges. The following key obstacles have been identified:

1. Challenge of coordination in terms of enforcement and public awareness
2. Conflict management and avoidance: between the various IP agencies, especially due to overlapping mandates and jurisdictions.
3. Capacity building
4. Confidentiality and information sharing
5. Multiplicity of legal provisions and procedures

In response to these challenges, a host of solutions have been proposed in the past:

1. Establishment of a CEOs Forum
The CEO forum would be convened by ACA (because it’s empowering legislation is the broadest IP statute on enforcement and protection) and this Forum would establish a mechanism/task Force to review current IP legislations with a view to harmonizing them and enhancing inter-agency cooperation.

2. A Memorandum of Understanding (MOU) between the four IP agencies
This MoU would be prepared and signed by the CEO/Executive Directors of the the four IP agencies comprising the CEOs Forum.

3. Establishment of Committees as agreed under MOU
An important committee in this regard would be a IPR Enforcement Committee comprising of persons who head the enforcement departments in the respective four IP agencies. Other committees would be be defined in the MOU and/or constituted as and when need arises under the Forum of CEOs.

4. Establishment of formal mechanisms for private-public consultations on enforcement of IPR

5. Establishment of a formal mechanism that brings together various Tribunals that enforce civil IP rights.

With this background in mind, ACA’s three day workshop starting today is aimed at arriving at “the best way to implement an interagency approach to IP protection and enforcement.”

IPKenya looks forward to the Workshop’s outcomes.

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