New Kenya Intellectual Property Office Expected in 2014

Daily Nation Cover November 19 2013

As discussed previously by this blogger here, the Kenyatta Administration is keen on overhauling the operations of state corporations in Kenya. It was initially reported that the Presidential Taskforce on Parastatal Reforms (PTPRs) was proposing that the three main Intellectual Property agencies that KECOBO, KIPI and ACA be merged to form a single state corporation.

The Taskforce submits that its proposed reforms are benchmarked on reform initiatives conducted in several jurisdictions including South Africa, Australia, New Zealand, Singapore, Malaysia, China, Nigeria and the United Kingdom. From a IP perspective, it is important to note that the Taskforce report recommends the merger of KECOBO, KIPI & ACA to form Kenya Intellectual Property Office (KIPO).

Recently, the Report by PTPRs was released to the public and a copy of this report is available online here.

According to the Report, all entities previously known as State Corporations shall henceforth be known generally as Government Owned Entities (GOEs). These GOEs have been clustered in four (4) broad classifications as follows:

1. State Corporations: These entities shall be incorporated and managed under the Companies Act Chapter 486 and include: a) Commercial State Corporations; and b) Commercial Corporations with strategic functions that are to be defined through the national development planning process

2. State Agencies: These entities include: a) Executive Agencies; b) Independent Regulatory Agencies; c) Research Institutions, Public Universities, Tertiary Education and Training Institutions

3. County Corporations

4. County Agencies

The Taskforce Report recommends that the Government implement a Centralized Ownership and Oversight Model of all GOEs. The shareholding role for commercial entities shall however be exercised directly by the National Treasury through a Holding Company, the Government Investment Corporation (GIC), which the National Treasury shall incorporate under the Companies Act.

The overarching legal framework governing national government owned entities as well as County Corporations and Agencies will be the Government Owned Entities Bill 2013. This Bill, once enacted, will supersede all current legislation governing State Corporations on matters of governance and include all subsidiaries of Government Owned Entities (GOEs). The Bill will also repeal all individual enabling legislations and recognize the unique characteristics of national State Corporations, national State Agencies, County Corporations, and County
Agencies.

From an IP perspective, the report recommends the creation of a new State Agency to be known as the Kenya Intellectual Property Office (KIPO).

The report at page 107 reads as follows:

Copyright Law and Law Reform

In copyright protection and enforcement the government has established Kenya Industrial Property Institute, Kenya Copyright Board and Anti-Counterweight (sic) Agency. These
institutions sit in each others’ Board of Directors. Best practice has shown that the functions undertaken by the three agencies complement each other and are domiciled in one institution in many countries. It is therefore recommended that the Kenya Copyright Board (KECOBO), Kenya Industrial Property Institute (KIPI) and the Anti-Counterfeit Agency (ACA) be merged into a new State Agency to be known as the Kenya Intellectual Property Office (KIPO).”

It can only be assumed that the Taskforce is referring to IP Law, IP protection and enforcement and not only copyright as erroneously stated in the Report.

On page 192 of the Report, KIPO is classified as an Executive Agency under the broad category of State Agency. The Report elaborates that the enabling legislation for KIPO is yet to be drafted. Finally the Report states that KIPO will be a State Agency under the Cabinet Secretary of Industrialisation and Enterprise Development.

Media reports indicate that President Kenyatta has directed that the recommendations in the Report be implemented in three months time. To this end, Kenyatta directed that a government-led Entities Reforms Implementation Committee would be established to facilitate, oversee and monitor implementation of the Report’s recommendations.

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