On the Proposed Parastatal Merger of the Copyright Board, Industrial Property Institute and Anti-Counterfeit Agency

kenya intellectual and industrial property corporation

The Daily Nation reports that a special taskforce appointed by the President to streamline the operations of state corporations has proposed that KECOBO, KIPI and ACA be merged to form a single state corporation christened: “Kenya Intellectual and Industrial Property Corporation”. Before commenting on this proposed merger of intellectual property (IP) parastatals, we must put into context the full scope of the proposals by the Abdikadir-led taskforce.

At the heart of the taskforce’s proposals is that all parastatals be categorised into two, namely, state corporations and state agencies. It is proposed that power and oversight of these corporations and agencies be moved from “parent ministries” to two new entities, namely, Government Investment Corporation (GIC) and the National and County Agencies Oversight Office (NACAAO). As their names suggest, GIC and NACAAO will regulate state corporations and state agencies respectively. All regulatory authorities, public universities and research institutions will be classified as state agencies while all commercially-oriented institutions where the government controls more than 50 per cent shareholding will be categorised as state corporations.

Comment:

At present, there are two “parent ministries” in charge of IP in Kenya namely, the Ministry of Industrialisation and Enterprise Development which is in charge of KIPI and ACA and the Office of the Attorney General which is in charge of KECOBO. These three IP parastatals administer four IP laws namely, the Industrial Property Act, the Trademarks Act, the Anti-Counterfeiting Act and the Copyright Act. In addition, these parastatals administer several ratified international instruments on IP including the Paris and Berne Conventions, TRIPS Agreement and a host of other regional and international IP-related treaties and protocols.

From the outset, this blogger is in full support of the move to have one state corporation dealing with all the administration and enforcement of all the branches of IP in Kenya. Among the benefits of this merger would be better service delivery to Kenya especially enforcement of IP rights and awareness creation as well as the promotion of creativity and innovation among Kenyans. In the case of IP enforcement, ACA has been at the forefront of conceptualising and implementing an “inter-agency approach to IP protection and enforcement” along with KRA, KEBS, KIPI, KEPHIS and KECOBO, among other public and private partners. In this regard, the discussion has centred mainly on ACA’s empowering legislation the Anti-Counterfeiting Act 2008 which provides ACA with broad enforcement powers with relation to both copyright and trademark infringements.

In addition, this merger appears to have taken into account several constitutional factors. First and foremost, Articles 11, 40 and 60 all impose an obligation on the State to support, protect and promote the IP rights of the people of Kenya Secondly, under the proposed parastatal structure, the President as the Head of the National Government shall the chair and board of the GIC, who shall in turn appoint appoint chairpersons and directors of all state corporations in Kenya. This is in line with the fourth schedule of the Constitution, which lists intellectual property among the functions of the national government.

However the proposed merger as it stands is problematic for two reasons. Firstly the name itself appears to be misinformed. By definition, “intellectual property” includes “industrial property” therefore there is no need to refer to the entity as “intellectual and industrial property corporation” is unnecessary. This blogger submits that the name “Kenya IP Corporation” would be more appropriate and sufficiently descriptive for all to understand.

The second problem with this proposed merger is that it leaves out plant breeders’ rights (PBRs). In fact, the taskforce proposes that the Kenya Plant Health Inspectorate Services (KEPHIS) which administers PBRs in Kenya should merge with the National Biosafety Authority. The crucial question to be asked in this regard is: Are PBRs recognised in Kenya as a branch of IP? During this blogger’s LLM studies, two leading IP professors offered two divergent answers to this question with Ben Sihanya saying “No” while James Otieno-Odek saying “Yes”. This blogger is swayed by the latter answer by Prof. Otieno-Odek, who has since left academia and currently serves as Judge of the Court of Appeal. According to Odek, industrial property was the first recognized category of intellectual property in 1893, followed by copyright in 1895 and Plant Breeders Rights in 1961. Odek explains that all these categories have been given legal recognition under the WTO TRIPS agreement. Odek states that Kenya was the first country in Africa to domesticate the UPOV Convention through the Seeds and Plant Variety Act Chapter 426 Laws of Kenya, which is modeled on UPOV 1961.

Politics and power play aside, this blogger is convinced that the merger would be good for IP in Kenya, especially if KEPHIS is included alongside KIPI, ACA and KECOBO. Let us wait and see whether the taskforce proposals will be adopted by the Executive and Legislative arms of government.

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