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


…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.