Uganda Performing Rights Society vs MTN: Importance of Evidence in Copyright Litigation

 

This blogger has recently had occasion to revisit the judgment in the case of Uganda Performing Rights Society v. MTN (U) Ltd, Civil Suit No. 287 of 2010. This case was discussed earlier this month over at the Afro-IP Blog under the title: “A step forward for Uganda’s copyright law – landmark case”, where it was concluded that:

“Although UPRS was not able to recover damages due to a technical glitch in its legal maneuvers, the fact that the Commercial Court came out with a pronouncement on the powers of a Collecting Society to demand for royalties in music performances, is a step in the right direction.”

One may wonder, what was this “technical glitch” that cost UPRS the case? What could UPRS have done differently?

Having perused the judgment of the Honourable Lady Justice Hellen Obura in this case, this blogger is of the view that there were some fundamental mistakes made by UPRS that serve as important lessons for those seeking to increase their odds of success in copyright litigation.

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

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Kenya Enacts New Law on Science, Technology and Innovation

mobile kenya

In January 2013, the President assented to the Science, Technology and Innovation Act 2012. This is an Act of Parliament to facilitate the promotion, coordination and regulation of the progress of science, technology and innovation in the country. This legislation also aims to assign priority to the development of science, technology and innovation. Finally, this new law is intended to entrench technology and innovation into the national production system.

This new law repeals the Science and Technology Act, Cap 250 of the Laws of Kenya which was came into force on July 1977 with the establishment of the National Council for Science and Technology (NCST).

The process of arriving at this new law concretised in 2009 with the conclusion of the Science, Technology and Innovation (ST&I) Policy and Strategy spearheaded by the Ministry of Higher Education, Science and Technology. This ST&I Policy underscored the importance of mainstreaming science, technology and innovation in all sectors of the economy to ensure that Kenyans benefit from the acquisition and utilisation of available ST&I capacities and capablities to improve their quality of life. This (ST&I) Policy and Strategy provided the framework for creating a knowledge-based economy. It was this (ST&I) Policy and Strategy that was used to develop the draft ST&I Bill in 2009 which was subsequently amended in 2012 to align it with the new constitutional dispensation.

From an intellectual property (IP) perspective, it is important to note the definition of “innovation” introduced in the new law, which reads as follows:

Innovation” includes-

(a) a technovation model, utility model or industrial design within the meaning of the Industrial Property Act, 2001;
(b) a product, process, service or idea which is novel;
(c) an improved use of a new product, service or method in industry, business or society, or
(d) any other non-patentable creations or improvements which may be deemed as deserving promotion and protection or sui-generis intellectual property rights and “innovator” shall be construed accordingly; (Emphasis mine)

The paragraph (d) provision above is important in that it covers inventions and innovations such as business methods (eg. M-Pesa) which may be excluded from protection under the Industrial Property Act.

In addition to the National Commission for Science Technology and Innovation, the new law also introduces two other organs, namely the National Innovation Agency and the National Research Fund.

Among the functions donated to the National Commission, the new law in section 6(2) states that:

The Commission shall have powers to-
(a) apply for the grant or revocation of patents;
(b) institute such action in respect of the patent as it may deem appropriate for the security of the country;
(c) acquire from any person the right in, or to, any scientific innovation, invention or patent of strategic importance to the country; (Emphasis mine)

The paragraph (d) provision above is interesting as it creates a system of compulsory acquisition in intellectual property and must therefore be read together with Articles 40 and 260 of the Constitution.

Under section 29(1) of the new law, the newly created Kenya National Innovation Agency is required to:

(d) scout for and nurture innovative ideas from individuals, training institutions, the private sector and similar institutions;
(…)
(g) increase awareness of intellectual property rights among innovators;
(…)
(o) develop the national capacity and infrastructure to protect and exploit intellectual property derived from research or financed by the Agency;
(…)
(p) facilitate the application for grant or revocation of patents and institution of legal action for infringement of any intellectual property rights;

The new law in section 32 establishes The National Research Fund. The Fund will be managed by a Board of Trustees. In section 32(2), it is stated that the Fund shall consist of-

(a) an initial sum of money amounting to two percent of the country’s gross domestic product, provided by the Treasury; (Emphasis mine)

This provision in the new law is noteworthy as it prescribes a fixed percentage of Kenya’s GDP that should be allocated to Research and Development.

Under section 34(1)(k), the Board of Trustees is required to “initiate liaison with bodies involved in the protection of intellectual property rights”.

Overall, it is clear that this new law aims to ensure that existing Intellectual Property Rights (IPR) regime are strengthened to maximize incentives for the generation, protection and utilization of intellectual property by all types of innovators and foster achievement of Kenya’s national development objectives.

Science, technology and innovation is indeed at the heart of Kenya’s vision to become a globally competitive and prosperous nation as contained in the National Vision 2030 national blue print.

Observers, policymakers and stakeholders alike recognise the urgent need for the government to create an enabling environment through the formulation of policies that promote the use of science and technology, integrating the science policy into our nation’s development agenda and ensuring that adequate funding for the implementation of ST&I policies is available.

Event: Creative Commons Kenya “School of Open” Launch

School of Open CC P2PU

CIPIT, as the Public Lead for Creative Commons Kenya, has organised the Launch of a Creative Commons “School of Open” on the 23rd of February 2013 at Precious Blood Secondary School, Riruta. Through this event, CIPIT in partnership with the National Council for Law Reporting (Legal Lead for Creative Commons Kenya) and jamlab aims to introduce the concept of “Open” to high school students all over the country and engage them in the use of Open Education Resources. The chief guest at the launch will be Dr. Bitange Ndemo, PS in the Ministry of Information and Communication among other key invited guests. Proceedings will run from 09:30am to 12:30pm.

As a background, the School of Open is an open community project that aims to help anyone in the world understand what “open” means in the world around us, especially as it applies in the digital medium also known as the internet and how it can benefit creative endeavours across all fields including education, science, research and the arts.

The School of Open is a joint initiative being coordinated by two organisations: Peer to Peer University (P2PU) and Creative Commons (CC). While P2PU encompasses all types of courses, the soo is focused on the specific domain of openness. P2PU believe that open resources can improve access to and participation in research, education, technology and culture BUT not enough people know what “open” means or how to apply it.

As for CC, it is a non-profit organisation that offers a legal framework (through licenses) for the voluntary sharing of creative works on the web such music, videos, photos and educational resources like textbooks. With CC, creators can grant copy and reuse permissions in advance without having to negotiate rights each and every time. CC licenses also form the backbone of the Open Educational Resources (OER) movement. A movement of organisations and individuals that offer free educational resources under CC licenses to anyone in the world.

Konza or Bust: Intellectual Property and Africa’s Silicon Savannah

KONZA concept

A few weeks ago, the President Mwai Kibaki launched a KES 900 Billion ($14.5bn) project to build a new technology city: Konza, intended to be an IT business hub and dubbed “Africa’s Silicon Savannah”.

Many may know that Konza is part of the government’s Vision 2030 initiative to improve much-neglected infrastructure over the next two decades or so. It is hoped that more than 20,000 IT jobs will be created in Konza by 2015, and more than 200,000 jobs by 2030.

According to the official Konza website, this Techno City will include:

– Modern Business Processing Outsourcing (BPO) Park
– Science Park
– Convention Center
– Mega Mall
– Data Centres
– World-class Hotels
– Local and International Schools
– World Class Hospitals
– Championship Golf Course
– Financial District
– High Speed Mass Transport System
– Residential Housing
– Superior Modern Integrated Infrastructure, Roads, Sewer, electricity and Telecommunications networks and Integrated security system, among other features;

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

Judge Erred on Intellectual Property in Faulu Kenya vs Safaricom M-Shwari Case

JONATHAN BOWEN JB HAVELOCK DN

This blogger, in an earlier post, had expressed optimism and hope in Mr. Justice JB Havelock’s ability to preside over this high-stakes intellectual property (IP) case with clarity and wisdom.

Recently this hope has been somewhat dashed by what can only be termed as a gross and unfortunate oversight by Judge JB Havelock in a ruling he made on 20th December, 2012.

A copy of this ruling is available here.

At paragraph 12, the learned judge claims that he “really cannot see that the plaintiff’s concept paper.. qualifies” as per the interpretation section the Copyright Act, which defines inter alia the various categories of copyright works. Havelock even goes further to reproduce the entire definition of “literary work” under the Act and yet shockingly admits:

Try as I may, I do not seem to be able to fit the Plaintiff’s said concept paper into any of these categories…

Reading this section of the ruling, one is left wondering why the learned judge would chose to ignore the words “works similar thereto” in the definition of literary work. It is clear that a concept paper is a literary work in the proper interpretation of the Act. In light of the above, one is left doubtful whether the judge will be able to address the elephant in the room of this case, namely the idea/expression dichotomy and the limits of IP protection for Faulu Kenya’s creation.

This blogger has since done some background research on the learned judge and discovered yet another gross misinterpretation of the Copyright Act.

In a previous life Mr. Jonathan Bowen Havelock was Partner at Havelock, Muriuki & Raval Advocates and was advising Southern Cross Safaris Limited in a matter involving Music Copyright Society of Kenya (MCSK). There were two main issues raised: 1) Does the playing of a FM radio station in a public service vehicle constitute infringement of a copyright? and 2) What is the nature and scope of MCSK’s mandate?

In an opinion to Southern Cross dated August 4th 2008, Havelock wrote:

“it is quite clear from section 26 and 27 that the copyright license is obtained by the broadcasting authority and not by the end-user. The client is, in this instance, an end-user.”

This remark is indeed appalling and misleading in that it fails to distinguish between two distinct types of commercial exploitation of musical works under copyright, namely: broadcast and communication to the public.

Section 2 of the Act reads as follows:

“communication to the public” means –
(a) a live performance; or
(b) a transmission to the public, other than a broadcast, of the images or sounds or both, of a work, performance or sound recording;” (Emphasis mine)

Section 2 of the Act also defines “broadcast” as:

“the transmission, by wire or wireless means, of sounds or images or both or the representations thereof, in such a manner as to cause such images or sounds to be received by the public and includes transmission by satellite;”

From the sections referred to by Havelock, there is a clear distinction made between private and domestic use and other uses where revenue is generated. Therefore in the case of a PSV, there can be no doubt that the use of musical works is commercial in nature. In line with the definitions above, the PSV’s exploitation of musical work is not a broadcast but rather a communication to the public or public performance. It thus follows that both the broadcast and the public performance form part of the copyright owner’s economic rights and all other users must be licensed as plainly spelled out in the Act.

On the question of MCSK’s mandate, Havelock wrote:

“..for MCSK to be able to fulfill its mandate, it would have to have entered into an agency contract with each individual performer, whose performance it seeks to protect”.

One wonders why the Havelock failed to take cognisance of the fact that musicians sign a deed of assignment with MCSK on their registration as members, which allows MCSK to control their public performance and reproduction rights in respect of their musical works as declared to the Society.

To sum up, this blogger submits that Kenya’s Judiciary must be continuously trained on all aspects of IP, not just copyright and related rights. The Judicial Training Institute must reach out not only to the governmental IP agencies but also to institutions like CIPIT who are better placed to impart on judges and magistrates both theoretical and practical knowledge of the various branches of IP and its application both locally and internationally.

Seminar: Making A Living From Music – Copyright and Related Rights in Kenya

MUSIC SEMINAR POSTER KENYA COPYRIGHT

This coming Tuesday 19th February 2013, KECOBO in conjunction with Kenya Vision 2030 have organised a Music Seminar at Sarakasi Dome. The Seminar is scheduled to start at 9.30am and end at 12.30pm and aims to address the following main issues:

– A short history of the music business – The principles of copyright

– The Business of Music – How to make a living out of your creativity

– The role and management of collective management agencies – Demistifying the roles of MCSK, PRSK, KAMP

– Future trends in the Music Industry – from e-commerce to m-commerce: Emerging trends, distribution tools, legal implications & opportunities

Speakers at the event will include: two popular artists namely Size 8 and Jimmy Gait, Maurice Okoth, CEO of MCSK, Angela Ndambuki, GM of PRISK, Bernard Kioko, CEO Bernsoft Interactive Media and RKay, Producer, CEO Ingoma Talent Management.

All those interested, kindly RSVP online here.