#ipkenya Weekly Recap of Intellectual Property News from Around Africa

This week, IPKenya focused on South Africa’s recently released Copyright Review Commission Report and shed light on some of the emerging issues surrounding copyright administration of collecting societies both in the South and in Kenya. The post is available here.

Here are some of the other important IP-related stories IPKenya came across this past week:

– “Should Colour be Registrable as a Trade Mark in Kenya?” [Strathmore CIPIT Blog]

– Kenya: local artiste DNA sues bank for copyright infringement and passing-off [The Standard]

– “South African photographer – images tell a story, but who owns the copyright?” [Adams & Adams]

– Zambia: Patent and Companies Registration Agency (PACRA) Reviewing Intellectual Property Laws [The Times]

– Kenya: “State warned on ditching copyrighted software” [The Standard]

– Nigeria: Intellectual property rights to get federal government protection [The Business Day]

– “Medals, Models & Moguls” – IP Rights and Fashion Roundup [Stellenbosch Chair of IP]

– Kenya: “Why companies need intellectual property policies” [The Business Daily]

– South Africa: Rev. Abe Sibiya appointed new chairman of SAMRO [SAMRO]

– Africa’s largest collecting society changing from company limited by guarantee to a cooperative? [YouTube]

– “The GAP Widens…” – Ownership and use of the GAP trade mark in South Africa [Spoor & Fisher]

– “Kenya’s M-PESA technology & emerging intellectual property issues” [Cayman Financial Review]

– South Africa: “Patently Wrong – The jury’s verdict in Apple v Samsung” [Stellenbosch IP Chair]

– “Climate change and adaptation in Africa: evidence from patent data” [TradeMark Southern Africa]

– Kenya: Safaricom seeks out-of-court deal in copyright dispute. [The Business Daily]

– South Africa: “CRC Report 2011: DALRO licensing agreements” [Copyright & Education]

Finally, for all IP enthusiasts in Kenya, please note that there’s an upcoming IP Check-in Session on 13th October 2012 at Strathmore University. The discussion topic will be “Cultural Expressions and Traditional Knowledge: Protection Mechanisms, Modalities of Management and Commercialisation, for Community Benefit”
IPKenya urges you all to mark this date on your calendars, come prepared to brainstorm and share ideas on how we should develop this potentially fourth branch of IP in Kenya.

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Why Intellectual Property Law in Kenya Should Recognise Colour Trademarks

It is said that if you see a woman wearing the shoes pictured above, three things can be deduced. One, she spent an arm and a leg (and a foot?) on them. Two, those shoes are pronounced Christian Louboutin. Three, the surrounding women are a tad jealous.

This blogger has been following the spirited campaign by Christian Louboutin to assert and protect its trademark red sole, culminating in the highly anticipated outcome of its on-going court battle with fashion house Yves Saint Laurent (YSL).

The story goes something like this: in 1992, Christian Louboutin decided to give his shoes a distinctive feature by painting their soles with red nail polish. Over time, this red colour has become the signature look of his shoe collections. In 2008, the USPTO granted Christian Louboutin a trademark registration for the red-coloured sole in the following terms:

Trademark Reg. No:
3,361,597

Date:
January 1, 2008

Goods:
Women’s high fashion designer footwear

Description:
The color red is claimed as a feature of the mark. The mark consists of a lacquered red sole on footwear. The dotted lines are not part of the mark but are intended to only show placement of the mark.

In 2011, YSL came out with a collection of shoes that had varying colored shoes: purple shoes with purple soles, green shoes with green soles, navy shoes with navy soles and red shoes with red soles. Louboutin immediately moved to court to seek an injunction to prevent YSL from using the red sole, which the former alleged was trademark infringement in addition to a claim of $1 Million in damages.
The presiding District Court Judge Victor Marrero rejected Louboutin’s claims. His reasoning can be found at pages 21-22 and 29 of the judgment:

“Louboutin’s claim to “the color red” is, without some limitation, overly broad and inconsistent with the scheme of trademark registration established by the Lanham Act. Awarding one participant in the designer shoe market a monopoly on the color red would impermissibly hinder competition among other participants…”
(…)
“the Court cannot conceive that the Lanham Act could serve as the source of the broad spectrum of absurdities that would follow recognition of a trademark for the use of a single color for fashion items. Because the Court has serious doubts that Louboutin possesses a protectable mark, the Court finds that Louboutin cannot establish a likelihood that it will succeed on its claims for trademark infringement and unfair competition under the Lanham Act. Thus there is no warrant to grant injunctive relief on those claims.”

This decision was not received well by many who argued that the iconic red soles were not merely decorative but in fact fulfill a very important trade mark function insofar as they indicated the origin of Louboutin’s shoes and distinguished them from other women’s shoes.

The matter went on appeal and was decided by appellate court justices José Cabranes, Chester Straub, and Debra Livingston. This court has reversed the earlier decision and stated the following in its recent judgment:

“We hold that the District Court’s conclusion that a single color can never serve as a trademark in the fashion industry was based on an incorrect understanding of the doctrine of aesthetic functionality and was therefore error […]We hold that the lacquered red outsole, as applied to a shoe with an ‘upper’ of a different color, has ‘come to identify and distinguish’ the Louboutin brand […] and is therefore a distinctive symbol that qualifies for trademark protection.”

Although the Appeals Court ruled that Louboutin’s trade mark had acquired a ‘secondary meaning in the public eye’, it instructed the USPTO to limit Louboutin’s red sole trade mark to uses which the red sole contrasted with the remainder of the shoe:

“We conclude, based upon the record before us, that Louboutin has not established secondary meaning in an application of a red sole to a red shoe, but only where the red sole contrasts with the “upper” of the shoe. The use of a red lacquer on the outsole of a red shoe of the same color is not a use of the Red Sole Mark.”

Given the territoriality of IP, the question remains: would a colour trademark be registrable under Kenyan law?

Comments:

It is arguable whether the Registrar of Trademarks at Kenya’s Industrial Property Institute (KIPI) as well as the courts would allow attempts to “monopolise colour”. The question of colour trademarks arose partially in the Court of Appeal case of British American Tobacco v Cut Tobacco Kenya Ltd (2002) where it was said:

“[I]t has to be observed that the use of the colour red as the predominant colour on a packet of cigarettes is not the exclusive preserve of anybody, including the plaintiff, the colour being a conventional indicator in the tobacco industry of a strong brand of cigarettes.”

However it is clear that in the above case, the colour red had not acquired a secondary meaning in the context of cigarettes. In fact, the court of appeal was guided by evidence that in tobacco industry both in Kenya and internationally various colours are used to denote different brands, for instance variations of colour red denotes strong cigarettes, variations of colour blue denotes mild/light cigarettes; and variations of colour green denotes menthol cigarettes.

Nevertheless, it remains debatable whether Kenyan law allows for trademark registration of colour per se or colour that has acquired a secondary meaning associated with goods or services.

It is clear from the Trademarks Act no 4 of 2002 is that colour may be a factor when considering the distinctive character of a mark. section 19(1) of the Trademarks Act no 4 of 2002 makes the following provision:
“A trade mark may be limited in whole or in part to one or more specified colours, and in any such case the fact that it is so limited shall be taken into consideration by the court or the Registrar having to decide on the distinctive character of the trade mark.”

However the current Act fails to expressly cite ‘colour’ in the list of signs that are considered to be “marks”. The Act defines “marks” as follows:

“mark” includes a distinguishing guise, slogan, device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof whether rendered in two-dimensional or three-dimensional form

However it is argued that a purposive and contextual interpretation of the word “includes” in this section of the Act would indicate that the list above is not exhaustive. Thus, there is no reason why distinctive colours should not be registered as trade marks. In future, a great test case might arise if a new Telcom company decided to enter the market using the Green colour associated with Safaricom in their branding. Assuming Safaricom hasn’t already trademarked their color in the area of telecommunications services, perhaps Safaricom has acquired a common law trademark in their colour?

‘One Society, One Right’? 50 Years of Collective Administration of Music Copyright in Africa: Changes at SAMRO and MCSK

Last year, a Commission under the Department of Trade and Industry in South Africa was appointed to investigate collecting societies in South Africa. The Commission’s Report was recently released and can be accessed in full here.

This 223-paged report on collecting societies in South Africa made a number of key recommendations. For instance, this is what the Commission had to say, in part, about the Southern African Music Rights Organisation Limited (SAMRO):

“The constitutive documents for SAMRO are not aligned to the Companies Act of 2008 and good corporate governance standards and should be revised to fairly protect the members.” (see 7.3.2 in Chapter 7)

In the wake of this recommendation, SAMRO has recently uploaded a youtube video clip of SAMRO CEO Mr. Nick Motsatse calling all SAMRO members to participate in a consultative drive to seek members’ views on desired changes that SAMRO should make in order to comply with South Africa’s current company laws. As Motsatse explains in the video below, SAMRO currently operates as a company limited by guarantee (so does MCSK in Kenya) but it is now faced with a choice to either become a non-profit organisation, a for-profit organisation or another legal entity. The SAMRO CEO advocates that SAMRO should change into a cooperative because, it is best suited for it to accomplish its mandate as a collective management organisation. The full video is available below:

SAMRO recently celebrated 50 years, making it the largest and oldest collecting society in Africa. The total collections for music royalties (performance, needletime and mechanical rights) for 2010 amounted to approximately R357,9 million. Over and above the royalty collections, SAMRO has investments in excess of R300 million in different classes of assets. Over the last three years, these investments generated income of between R41 million and R66 million per annum.

Closer to home, IPKenya believes that this report by the South African Copyright Review Commission provides important insights into three hotly contested issues involving our own music collecting societies: Kenya Association of Music Producers (KAMP), Performers Rights Society of Kenya (PRISK) and of course, Music Copyright Society of Kenya (MCSK). These three issues are: 1) mechanical rights licensing in the digital domain, 2) ratio of distribution of royalties to administrative costs and 3) the existence of performing rights in a musical download aka “double dipping” debate.


Separate Collecting Society for Mechanical Rights?

In Kenya, mechanical rights licensing in the digital domain is largely dealt with by MCSK, as the collecting society for authors, composers and publishers of musical works. However the sticking appears to be the split or rather lack thereof before the artist and the producer in respect of royalties from mechanical rights licenses. Indeed, IPKenya has often wondered why producers and performers don’t seem to be getting their dues from ringtone downloads and the like. Perhaps one of IPKenya’s more informed readers can explain to us why related rights are sidelined from the mechanical rights cake? As one ponders on this issue, one possible solution that arises is the creation of a mechanical rights society of Kenya to properly and equitably administer licensing and royalties particularly in digital downloads.

In this connection, the recent case of JB Maina’s copyright tussle with Safaricom, Liberty Afrika and MCSK is worth mentioning. The Business Daily now reports that Safaricom is working on an out-of-court settlement with JB Maina. IPKenya wonders whether Safaricom is tacitly acknowledging that it may not have acquired mechanical rights from JB Maina despite the alleged existence of a valid and enforceable content provision agreement as well as a deed of assignment.

In South Africa, royalties payable in respect of mechanical rights are currently collected by SAMRO and NORM, an incorporated association collecting mechanical royalties on behalf of about 300 South African music publishers and composers. Originally, the sole licensing body in South Africa was SARRAL, but this entity collapsed and it is now under liquidation. The recent CRC report recommended that the legislation be amended to allow for only one collecting society per set of rights with regard to all music rights governed by the Copyright Act. IPKenya submits that this recommendation could easily be applicable to Kenya as explained above.

Ideal cost-to-royalty income ratio for collecting societies?

The costs-to-royalty income ratio (i.e. administration costs as a percentage of total collections) for collecting societies selected for international benchmarking purposes varies between 10% and 24%.
It is no secret that MCSK’s ‘deregistration’ by the Kenya Copyright Board (KECOBO) was due, in no small part, to a perceived mismanagement of funds largely attributed to a high costs-to-royalty income ratio. To put it bluntly, MCSK was accused of spending more on its own expenses while distributing less as royalties to its members. For more on this and other issues, please refer to IPKenya’s recent discussion with MCSK CEO Maurice Okoth.

MCSK has consistently taken the view that KECOBO‘s 70:30 is arbitrary and has no basis in law i.e. Copyright Act or Copyright Regulations. MCSK adds that the 70:30 is inconsistent with some but not all of its distribution classes. For instance, MCSK claims that an 80:20 split may be possible in broadcasting distribution but impossible for public performance because the latter is more difficult to collect hence increasing MCSK’s administrative costs.

Meanwhile in South Africa, the maximum allowable ratio is 20% in terms of current local regulations. Therefore the CRC believes that SAMRO’s current ratio of approximately 30% is excessive in relation to the international average. This is confirmed by the fact that when compared with other collecting societies, SAMRO has the lowest average ratio of revenue collected to labour costs. The CRC recommends that SAMRO be given three years to resolve this matter. It is clear that to comply with Regulations, which require a maximum of 20%, SAMRO will have to improve its levels of collection and reduce cost.

Performing rights in a music download?

In the US case of re Application of Cellco Partnership D/B/A Verizon Wireless, the court declined to hold that a sound recording (set as a ringtone) is performed in public each time a user’s phone rings. The court held that Verizon (a mobile service provider) did not need a public performance licence for musical compositions because it provides ringtones to its customers. This, of course, did not exonerate the service provider from paying the mechanical royalties, the communication right to the copyright owner and the ‘making available’ right for every sound recording it delivers to a customer.

However MCSK and SAMRO have both taken the view that indeed a performance royalty is payable on the downloading of music works. This view is supported by a number of persuasive judicial precedents from the United Kingdom. In South Africa, the Wireless Application Service Providers’ Association (WASPA) has denied this liability but agreed that mechanical royalties must be paid for all downloads, and that performance royalties must be paid for any kind of streaming of sound recordings or music.

This is an interesting debate to follow in Kenya, as MCSK will now attempt to get telcoms and broadcasters to buy in into this “principle of licensing performing rights”.

Concluding remarks:

IPKenya has come to realise that the copyright industry is as fiercely competitive and territorial as any other capitalist industry. Although collective management organisations like MCSK and SAMRO were once intended to exist solely to assist copyright holders in the collective administration of their rights under copyright and related related rights, these bodies have evolved into corporate entities aggressively pursuing profit-making objectives ostensibly for the benefit of their members.

It is reported that SAMRO acquired a property in Braamfontein, South Africa valued at R94 million to house its operations and save on future rental costs. SAMRO also has investments in shares, unit trusts and properties, which generate significant amount of income that ought to be, in turn, distributed to its members. Meanwhile the younger MCSK has been expanding its revenue base by setting up regional offices all over the country and employing their infamous agents to collect license fees from all and sundry dealing with copyright works. At one point, MCSK was rumoured to be eyeing property in the Kileleshwa area for purposes of permanently setting up its headquarters.

While there is merit in actively pursuing profit-making, MCSK and indeed SAMRO have a primary responsibility to their members and therefore discontentment about royalty payments and other issues relating to good governance definitely strike a bad note.

However, it hasnt been all sour tunes for MCSK. Recently, it has received favourable press for its introduction of scientific distribution of royalties and license fees using the WIPOCOS software as well as its 24-hour monitoring software for broadcasts in partnership with local IT firm Digital Linkage Technologies. Other positive events to be noted are the uncharacteristically sober manner in which new MCSK Board Members were voted recently as well as the successful MCSK gala night organised to celebrate Kenya’s best talents. More recently, MCSK set up the MCSK Foundation which has been established to cater for the social and cultural activities of its members. This Foundation is intended to provide members’ allowances for transport, medical assistance, funerals, benevolent payments and others.

IPKenya is counting on the newly constituted Competent Authority aka Copyright Tribunal to conclusively address these emerging issues in the administration of copyright and related rights in Kenya.

50th Anniversary of Francophone African Intellectual Property Organisation (OAPI)

OAPI LOGO OLD ORGANISATION AFRICAINE DE LA PROPRIETE INTELLECTUELLE

On the 13th of September each year, we celebrate the anniversary of L’Organisation Africaine de la Propriété Intellectuelle (OAPI). However, this is a special year because OAPI is turning 50!

Founded on September 13th 1962, OAPI (which in English translates to African Organization for Intellectual Property) is the main organization that ensures the protection of intellectual property rights in most African French-speaking countries. OAPI comprises: Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Côte d’Ivoire, Gabon, Guinea Conakry, Guinea-Bissau, Equatorial Guinea, Mali, Mauritania, Niger, Senegal, Chad and Togo.

In 1999, the African Union’s predecessor Organization for African Unity (OAU) declared OAPI’s anniversary date would be commemorated everywhere as the “African Day of Technology and Intellectual Property.”

IPKenya wishes to congratulate the African Organisation for Intellectual Property (OAPI) as it celebrates its fiftieth anniversary! The details of this event are available on OAPI’s site here.

IPKenya souhaiterait féliciter l’Organisation Africaine de la Propriété Intellectuelle (OAPI) lors de son cinquantième anniversaire! Toutes informations sur cet évènement sont disponsible sur le site de l’OAPI ici.

PS: Some will recall that in July 2012, OAPI’s Director General Dr. Paulin Edou Edou was named Managing IP Top 50 individuals shaping the IP industry worldwide. The only African to receive this recognition.

Revisting Copyright Protection of Databases in Kenya

In a recent decision by the South African High Court in Board of Healthcare Funders v Discovery Health Medical Scheme and Others [2012], Discovery Health South Africa was found guilty of copyright infringement in respect of a database developed by the Board of Healthcare Funders (BHF) known as Practice Code Numbering System (PCNS). PCNS is a set of numbers or codes which identify all of the medical practitioners and medical service providers in RSA together with related data. As Darren of Afro-IP explains:
“The PCNS is a tool for facilitating payment under the medical aid schemes and assists in preventing fraud by, for example, verifying that a claimant is claiming an amount from the scheme within his or her scope of practice and discipline”

Prior to 2010, Discovery was a member of the BHF, and by virtue of this membership it received data from the BHF on a weekly basis. This information related to changes of medical practitioners and associated data. Discovery was accused of extracting substantial portions of this information from BHF’s PCN system and importing it into the relevant fields within its own database. Meanwhile, sometime in 2010, Discovery cancelled its BHF membership. Thereafter, BHF went to court claiming that Discovery was infringing BHF’s copyright because it was using the PCNS without a license, in addition BHF sought to have Discovery deliver up all the infringing material in its possession, and BHF also claimed royalty payments against Discovery. Discovery challenged BHF’s claim in court on five grounds which were all dismissed by the court. However, for purposes of the present discussion, the focus shall be on the first issue raised by Discovery namely that no copyright exists in respect of PCNS.

The court defines PCNS thus: ” a compilation in so far as it consists of the combination of a series of digits to form the PCN coupled with the data which then in its totality forms the PCNS”. It is therefore clear that PCNS is a database. A database is commonly defined as a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. In terms of S1(1)(g) of South Africa’s Copyright Act, “literary work” includes: “tables and compilations including tables and compilations of data stored or embodied in a computer or a medium used in conjunction with a computer but shall not include a computer program”. Therefore PCNS may fall within the category of literary works and be protected along with other compilations, provided certain requirements are met.

There are two inherent requirements for copyright protection namely originality and material embodiment. The latter requirement means that the work must be reduced to material form in order to attract copyright. The former requirement namely originality requires that a work must emanate from the author himself and not be copied from another source. In South Africa, the test for originality is as follows: if an author has expended labour and skill in creating the work, it will enjoy copyright protection, notwithstanding the bland nature of the work . This test is based on the ‘sweat of the brow’ doctrine and was applied by South Africa’s Supreme Court of Appeal in the leading case of Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd [2006]. The court in this case made it clear that although originality requires that the work must originate from the author and not be copied from an existing source, this is not to say that every work which is not copied would qualify for protection in terms of the Act:

“Save where specifically provided otherwise, a work is considered to be original if it has not been copied from an existing source and if its production required a substantial (or not trivial) degree of skill, judgment or labour.”

At paragraph 30 of the Discovery Health judgment, the court cites with approval the reasoning in the Haupt case as adopted from the British case of Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964]:

“In deciding therefore whether work in the nature of a compilation is original, it is wrong to start by considering individual parts of it apart from the whole as the appellants in the argument sought to do. For many compilations have nothing original in their parts, yet the sum total of the compilation may be original.”

The South African Courts’ decision to apply the sweat of the brow approach in interpreting the Copyright Act’s requirement of originality means that local database owners (like BHF) enjoy the copyright protection of both original and non-original databases. However it has been argued elsewhere that this advantageous position enjoyed by database owners should be weighed against the short-comings inherent in the sweat of the brow doctrine. The Feist Publications Inc v Rural Telephone Services Co [1991] case, a seminal U.S copyright law decision, provides the strongest criticism of this doctrine. The court in Feist stated that:

The “sweat of the brow” doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement — the compiler’s original contributions — to the facts themselves.

This criticism stems from the existence of a long-standing principle that copyright should not be extended to cover basic information or “raw” data. This well established principle is based on the idea that only the elements of a work that are original to the author will attract copyright. Therefore, in the case of facts, they are merely discovered but not created which means that no one may claim originality because facts do not owe their origin to an act of authorship. But in South Africa, under the sweat of the brow doctrine, the sheer industrious collection of facts is sufficient to attract copyright.

This central flaw in the sweat of the brow approach offers a glimpse of the serious consequences that South Africa could face. First and foremost, the very low threshold of originality ultimately discourages both large scale local and foreign investment in database creation. Also, given the growth in the protection of information all over the world, those South Africans that end up developing creative databases targeted for both local and international use will opt for jurisdictions that offer more comprehensive protection of their work. These negative economic consequences as a result of the sweat of the brow doctrine, call for a consideration of other approaches to database protection in existence in order to be able to determine which of these would be applicable in and suitable for South Africa. Nevertheless it is readily conceded that raising the standard of originality for databases will not necessarily encourage more investment in the database industry; such is the lesson from the European Community’s sui generis protection: the 1996 EC Database Directive.

Conclusion:

This Discovery Health case provides important insight into the nature and scope of protection enjoyed by databases under South African copyright law. As noted, the sweat of the brow approach adopted by South Africa rewards the hard work of individuals involved in compiling of data without segregating between factual compilations and other more ‘creative’ literary works. However, it is argued that this low originality threshold for database protection is tantamount to providing copyright protection over raw facts/data themselves and distorting the long established idea/expression dichotomy. In this connection, it is possible that Discovery Health’s database would also be copyrightable and BHF may find itself back in court again only to discover the current copyright law regime works both ways!

African Currencies: Intellectual Property Rights and State Sovereignty

“The trademark patent right of the naira notes in circulation is owned by non-Nigerians, the Central Bank of Nigeria (CBN) has revealed.”

That is the opening line of today’s article in a local daily in Nigeria “Leadership” in an article titled: “Foreigners Own Naira Patent – Central Bank of Nigeria”. As many may already know, the Naira is Nigeria’s currency therefore its understandable why this heading and the opening line above were so painful to read. But IPKenya has gotten used to this: several months ago, IPKenya noted that the Minister of Finance here in Kenya made the same mistake while being grilled by a Parliamentary Sub-Committee on a 3 billion shilling currency printing scandal with British firm De La Rue.

It is clear that Kenya and Nigeria have a bigger problem than merely government officials who lack understanding of basic intellectual property. What is worrying is the nature of agreements that our Central Banks are entering into with foreign entities with regard to production of national legal tender. In this connection, it is apparent that not enough consideration is being given to ownership of the copyright and related rights in the bank notes right from conception, all the way to printing. Both governments appear to be outsourcing the entire currency printing operation without making any reservations on ownership of resulting intellectual property, commissioned using tax-payers’ money.

This fact is evidently clear when the CBN Director of Corporate Communications, Mr Ugochukwu Okoroafor is reported as saying: “it was quite shocking to us when we discovered that the patent rights of some of our notes are owned by non-Nigerians…It is dangerous for us as a nation because they can hold us at the neck with it.”

Therefore while IPKenya agrees with that safe-guarding Nigeria’s sovereignty may be a good rationale for redesigning its notes, the real problem lies in the nature of agreements the country enters into with respect to currency design and printing. Although most African countries may not have the technological capacity to design and reproduce state-of-the-art high quality bank notes, the government ministries responsible for procuring the services of foreign companies must also engage relevant IP experts to ensure that all intellectual property rights pertaining to the notes are assigned and not merely licensed.

#ipkenya Weekly Round-up of Intellectual Property News from Africa

“…the vehicle (featured above) and systems are completely manufactured in South Africa and are 100% South African intellectual property” – Engineering News. (Read more about South Africa’s Husky 2G armoured route clearance vehicle here.)

Today is 1st September 2012 and from Lagos to Gaberone, intellectual property is alive and well. Today marks “No Music Day” in Nigeria, a collective initiative by stakeholders in the music industry aimed at raising awareness about respecting and protecting intellectual property especially in today’s era of copyright piracy. Meanwhile in Botswana, new regulations pursuant to the Industrial Property Act will take effect today. The highlight of these new regulations is the provision for pre-grant oppositions. Afro-IP with the full story here.

While Apple v. Samsung continued to dominate headlines this past week, IPKenya came across 3 unique African perspectives on this case and the patent system as a whole.
Strathmore Law School’s Centre for IP and ICT Law recently did a blogpost in which very compelling arguments were made against the commonly assumed impacts of patents namely: they will stifle innovation; they will make both devices more expensive, and they will force users over to Apple products. In addition, Werksmans, a law firm in South Africa, shared its thoughts on Apple and it’s “notorious” intellectual property disputes and ultimately the firm concludes that Apple’s win highlights the importance of adequate protection of intellectual property. Read the article here.
Finally, Pravin Bowry, a prominent Kenyan lawyer examined the Apple-Samsung case in a recent newspaper article and sought to bring out possible lessons for Kenya. In the stand-out bit of his article, he writes:

“The importance of Apple’s colossal award must underline the value of intellectual property which Kenyans are not exploiting. Kenyan inventions are not being patented due to the intricate provisions of the law.”

In other news, the Attorney General appointed 12 individuals to sit on KECOBO’s Board of Directors, which included some familiar faces like Dr. Rutenberg, Mr. Tom Mshindi and David Muriithi (aka DJ D-lite). The details of these appointments can be found here. Still with KECOBO, IPKenya has learnt that after 3 years of meetings, the Southern and Eastern Africa Copyright Network (SEACONET) has finally adopted a sample model copyright law for the region. More details to follow.

Back in South Africa, three very progressive court decisions were reached. The first case involved database protection under copyright law, the second case involved plant breeders’ rights and how ownership of propagating/harvested material can be passed. The third court decision was delivered last friday and has not been reported yet. However this particular case is promising because the judge found that Standard Bank and MTN had conspired to infringe the patent of a South African IT company “3MFuture”. As soon as the full case decision is reported online, IPKenya will certainly do the needful in the blogposts ahead.

Meanwhile back Kenya, Strategic Industries (manufacturer and distributor of the “Darling” hair brand) successfully moved the court to bar Solpia Kenya Limited, a rival from infringing on its [Strategic Industries’] trademark.

As a parting shot, IPKenya would like to encourage all African intellectual property enthusiasts to take part in a creative writing competition titled: “The best IP judgment that has never been written”, organised by the Journal of Intellectual Property Law & Practice (JIPLP). The closing date for entries is 30 September 2012. Best of luck!