Paradoxes of Equality and Inequality: Multiple Exclusions in Intellectual Property Law and Practice

ALL MEN CREATED EQUAL

…To debunk the fallacies of equality does not depend as much on might or brute force as on subtle, seemingly miniscule but powerful actions taken every hour and every day.” – Prof. Patricia Kameri Mbote, SC., 24th January 2013.

Equality remains a difficult and deeply controversial social ideal. At its most basic and abstract, the idea of equality is a moral idea that people who are similarly situated in relevant ways should be treated similarly. This idea of equality has found its way into Kenya’s Constitution under Article 27, which states that every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality, we are told, includes the full and equal enjoyment of all rights and fundamental freedoms.

Prof. Kameri Mbote in her recent Inaugural Lecture discussed the paradoxical reality whereby the practical application of equality and non-discrimination as enshrined in the Constitution resulted in discrimination and inequality. In the context of intellectual property law, the idea of equality is indeed problematic given that the State may be said to discriminate indirectly against Kenyans on several grounds

Read the rest of this article over at the CIPIT Law Blog here.

When Public Interest IP Goes Wrong: CIPIT Slams PIIPA

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IPKenya is pleased with CIPIT’s reaction to a recent notice that PIIPA was looking for pro-bono assistance from Kenyan intellectual property professionals.

In a post today titled “Open Letter to PIIPA on Puzzling Pro-Bono Assistance Request”, CIPIT openly confronts PIIPA on its bizarre decision to grant a seemingly well-financed company access to “precious pro-bono resources” in a personal IP war to be waged against locals in Kenya.

CIPIT calls out PIIPA on its misplaced priorities and wonders: “Why would PIIPA agree to help this company get pro bono legal assistance to fight its IP battles in Kenya? Shouldn’t PIIPA instead be advising and assisting local Kenyans to repel such IP actions?”

Read the full CIPIT response to PIIPA here.

PIIPA Pro-Bono Request for Assistance: Trademark Infringement of Solar Lighting Product in Kenya

PIIPA  PUBLIC INTEREST IP ADVISORS

Public Interest Intellectual Property Advisors (PIIPA) describes itself as a global nonprofit resource for public interest organizations in developing countries seeking expertise in intellectual property matters to promote health, agriculture, biodiversity, science, culture, and the environment. It’s partner organisations include WIPO, UNECA, WHO, World Bank, among others.

Now, PIIPA is requesting any and all pro-bono assistance from Kenyan IP practitioners to combat trademark infringement of a solar lantern currently being sold in Kenya. The company behind the original solar lantern is a social enterprise whose mission is to manufacture and distribute solar light and power products throughout the developing world. The company is a member of the Lighting Africa program sponsored by the International Finance Corporation and the World Bank.

After the company discovered there is a solar lantern being sold in Kenya that is infringing on its trademark, it is now appealing for IP assistance.

If you are able to provide pro bono assistance to the following request please contact PIIPA’s Pro Bono Coordinator Emilie van den Berkhof at emilieberkhof@piipa.org. “RE: Case 168-Trademark infringement in Kenya Off-grid lighting product”. Don’t forget to complete the volunteer form on the PIIPA website here.

Does Kenya Really Need a National Intellectual Property Policy?

Many will recall that last year, Strathmore University’s Centre for Intellectual Property and Information Technology (CIPIT) took part in a series of consultative meetings on the Draft National Intellectual Property Policy and Strategy for Kenya which took place on two separate occasions in the second half of 2012. These meetings were hosted by the Kenya Plant Health Inspectorate Service (KEPHIS) and various stakeholders were invited including WIPO, KIPI, KECOBO, ACA, the Attorney General’s Office, KEMRI, MCSK, KAMP, PRISK, KOPIKEN among others.

Recently, this blogger spoke with CIPIT Director Dr. Rutenberg about these meetings and asked him to comment on the on-going developments:

IPKenya: What is your take on these consultative meetings thus far?

Rutenberg: My take is that there are a lot of people in Kenya right now desperate for direction and guidance in IP. But there are also a lot of resources in the country, particularly in the area of people skills and knowledge.

IPKenya: Do you think these consultative meetings will bear any fruit in 2013?

Rutenberg: Yes, I believe so. However, I think a better approach would have been to form an association of IP professionals, and then have the association direct the generation of the IP policy. This is nothing against those who were selected to direct the process – they were (and are) very competent and knowledgeable. But one of the problems is getting the right IP people to join the process. For example, the second meeting had to be canceled and rescheduled (and, ultimately, a different format for the meeting was adopted) because only about 10 people arrived. I think an Association of IP professionals would have been a better first step and then would be able to see through any implementation of the policy.

IPKenya: Does Kenya really need a National Intellectual Property Policy?

Read the rest of this article at the CIPIT Law Blog here.

Music Copyright Society Set to Make Millions with Licensees for Performances in Public Places

MCSK MUSIC COPYRIGHT SOCIETY OF KENYA

Recently, the Standard Newspaper in an article titled: “Banking on airwaves” reported that MCSK had entered into a commercial partnership with several well-established entertainment companies aimed at boosting the society’s revenues in license collection.

This so-called “alternative licensing regime” will see the provision of ready-packaged, advert-laden music content to particular establishments and other public places. The revenues generated from the ads in the audio/audio-visual content will then shared between MCSK, the radio and television frequency holder, the content/music provision management and the establishment and/or public service vehicle (through its umbrella body eg. Sacco, Union). The musical content to be used will vary from different music genre mixes, comedy, news highlights, short form documentaries, short films, entertainment news and sports highlights. MCSK notes that Kenyans spend up to 3 hours per day in transit therefore ‘transit advertising’ offers unique opportunities to brands as the audience’s attention is focused on the content in the vehicle, there is over 60% retention and limited distraction unlike in a home/office environment.

According to MCSK, each public service vehicle (PSV) ferries a conservative number of 100 people per day multiplied by the over 70,000 PSVs, MCSK claims it will have an advertising reach of over 7 Million people daily, not including fixed venues (restaurants, pubs, banks, supermarkets etc.)

MCSK contends that its research indicates that point of sale communication contributes to 37% of new purchases. Therefore, MCSK argues that this regime will be able to offer unprecedented exposure and out of home reach for brands. The product will be designed to ensure it’s entertaining, highly engaging and a natural fit to Kenyan lifestyles.

With the advent of this new licensing regime MCSK aims to reduce the operational and logistics costs of collecting these revenues, generate alternate revenue and if optimal capacity from advertiser revenues, then it may not even require to charge the standing fees from partner stakeholders.
This licensing regime will apply to places that rely on broadcast music. (Radio and television stations License is for broadcast into a domestic environment only and not public places and or public environment).

MCSK contends that this new licensing regime will reduce the operational costs with regard to Performance in Public Places (PPP) that usually eats upto 50% of the revenue total revenue collected per annum. Beside sthis, due to the sheer size of the operation and amount of resources required, MCSK claims that the current model of public performance fees collection comes with several inefficiencies like loss of revenue from evasion, corruption and operational gaps.

IPKenya’s comments will be reserved until MCSK officially launches this concept. However at this early stage, it is encouraging to see collecting societies in Kenya being innovative and business-minded in ensuring that the rights holders see greater benefits for their creative work.

Interpretation of Intellectual Property Rights in Kenya’s Constitution: Lessons from Supreme Court Advisory Opinion on the One-Third Gender Rule

Supreme Court Fountain Kenya

It is true the constitution will present the courts with inconsistencies, grey areas, contradictions, vagueness, bad grammar and syntax, legal jargon, all hallmarks of a negotiated document that took decades to complete. It reflects contested terrains, vested interested that are sought to be harmonized, and a status quo to be mitigated. These features in our constitution should not surprise anybody, not the bench, or the bar or the academia. What cannot be denied, however, is we have a working formula, approach and guidelines to unravel these problems as we interpret the constitution. We owe that interpretative framework of its interpretation to the Constitution itself. – W. Mutunga, CJ, Supreme Court of Kenya, Advisory Opinion No. 2 of 2012.

On 10th October 2012, the Attorney General sought the Supreme Court’s advisory opinion on one notable issue: Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1)(b), Article 116, and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one third gender rule or if it requires the same to be implemented during the general elections scheduled for 4th March 2013.

This month, the Supreme Court delivered its Advisory Opinion on the issue raised above, in which the majority view supported progressive realisation of the gender equity rule and whereas a dissenting view in the minority argued for immediate realisation of the constitutional rule. The four Supreme Court judges in majority namely Justices Tunoi, Ojwang, Wanjala, Ndungu were of the opinion that the gender equity principle in Article 81(b) of the Constitution is a statement of aspiration and would only transform into a specific, enforceable right after it is supported by a concrete normative provision.

In arriving at this majority view, the following statement was made:

“The word “shall” in our perception, will translate to immediate command only where the task in question is a cut-and-dried one, executed as it is without further moulding or preparation, and where the subject is inherently disposable by action emanating from a single agency.”

Read the rest of this article on the CIPIT Law Blog here.