Over the past five years, this blogger has not had the opportunity to write a single book review because no texts on intellectual property (IP) law have been published in the East African region. We now have our very first text to review: “Intellectual Property Law in East Africa” recently published by LawAfrica Ltd and written by David Bakibinga and Ronald Kakungulu, both from Uganda’s Makerere University School of Law. The description on the back of the book (presumably authored by the publisher) reads in part that: “The text deals primarily with the law relating to intellectual property protection in Uganda (…) Throughout all the chapters reference is made to the corresponding Kenyan and Tanzanian laws and relevant cases in order to give the reader a regional appreciation of the subject. Intellectual Property Law in Uganda is aimed at students pursuing intellectual property law courses in Ugandan and East African Universities as well as peripheral students of intellectual property in the humanities as well as natural,technological and health sciences disciplines. It will also be useful to legal practitioners in the field of intellectual property as a ready reference on the subject.”
As readers may have already noted, the title of the book is confusingly referred to both as “Intellectual Property Law in Uganda” and “Intellectual Property Law in East Africa” on the spine, front cover and back cover of the book. So as not to judge this book by its cover, this blog briefly examines the contents of this 260 paged paperback text to establish whether it is a book on IP Law in Uganda or a book on IP Law in East Africa or something else altogether.
The book contains 11 chapters in total broken down as follows: 3 chapters on the law of copyright and neighbouring rights, 1 chapter on design law, 4 chapters on patent law and 3 chapters on law of passing off and trade marks. Surprisingly, trade secrets law, law on biotechnology and plant variety protection (although plant and animal varieties are briefly touched on in Chapter 6 on Validity of Patents), traditional knowledge and genetic resources and the law on geographical indications were left out. In addition, topical issues such as IP and Public Health, IP and Competition, IP and Trade/Development as well as International Law and Policy in Intellectual Property or even IP in the digital environment, all appear to have been side-lined.
The book’s Table of Cases omits several key Kenyan cases, for instance: the ‘Digital Migration’ cases, the ‘Sanitam’ cases, ‘Safepak’ cases, the cases involving Music Copyright Society of Kenya, the ‘Nice and Lovely’ cases, the ‘Patricia Asero Ochieng’ case, the ‘Jiwani’ cases, the “British American Tobacco v Cut Tobacco” cases among others. Equally, several well-known Ugandan cases have not been listed such as the ‘Ssebaggala’ case, ‘Agaitano’ case, the ‘UPRS v MTN’ case, the ‘Glaxo Group v J.B. Chemicals’ case, the ‘Britannia Allied’ case, the ‘Anglo Fabrics’ cases, among others. As for Tanzania, this book only cites one case – which begs the question whether there may be other reported and unreported cases from Tanganyika and Zanzibar that were not considered by the authors of the book.
The book’s Table of Statutes freely mixes Ugandan legislation and the WTO TRIPs Agreement while omitting legislation from Zanzibar, the Kenya Anti-Counterfeit Act and the Kenyan Constitution which contains several provisions that expressly address IP. In addition, the book’s Table of Statutes does not list any of the existing legislations for the protection of plant varieties in Uganda, Kenya and Tanzania. Further, Uganda’s Geographic Indications Act No. 8 of 2013 is not listed in the Table of Statutes. Despite Uganda (as well as Kenya and Tanzania) having ratified several international and regional IP instruments, none of them are listed in the Table of Statutes. This is ironic because Chapter 3 of the book, for instance, deals entirely with international conventions on copyright.
The book does not have a Preface, Foreword or Acknowledgements. This is bizarre especially given the ambitious title of the book, its diverse and multi-territorial subject-matter and the glaring lack of textbook scholarship on IP law within the region. In the absence of a Preface, Foreword or Acknowledgements, the reader may be left questioning the genesis of the book, the backgrounds of the authors, the methodology used and time spent on the book project, any general observations from the authors drawn from the book project, comments of other academics on the book and most importantly the people and institutions whose collective input contributed to the book.
Against this backdrop, the book invites students and researchers of IP law to peruse its various chapters. On the whole, the book reads like a summary of United Kingdom (UK) case law and UK textbooks on IP law interspersed with references to Ugandan legislation and cases. Several chapters in, it becomes clear that the book represents a missed opportunity to be a leading text book for millions of East Africans hungry for comprehensive and up-to-date knowledge on IP.
There is hardly any comparative analysis of the IP laws in the three East African countries aside from footnotes of section numbers from Kenyan and Tanzanian legislation with no explanations and very brief discussion of some case law for the most part. Many footnotes contain erroneous references including one instance where the authors borrowed the title and opening paragraph from an article on this blog but failed to correctly attribute them to this blogger or indicate the source correctly. The instance in question is at page 73, 1st paragraph and footnotes 93 and 94 as pictured below.
While on the issue of sources cited, it is interesting to note that the book refers to a grand total of one publication on IP law between the two authors of the book namely, the contribution of Dr. Kakungulu to the 2010 “Access to Knowledge in Africa” book published by UCT Press. As for Prof. Bakibinga, there are several references in the book to one of his publications: “Equity and Trusts” which, on the face of it, seems to have little relation to IP law. In fact, there are virtually no academic sources from Africa cited in the book with the exception of the 2013 “Innovation and Intellectual Property” book published by UCT Press and two Master of Laws theses from Makerere University and University of South Africa. Outside formal literature, the book does not in any way explore the plethora of grey literature on IP law in Africa available online including articles and reports.
Overall, the book is not very engaging both content-wise and from a style perspective. There are no statistics, pictures, tables, graphs, charts or illustrations of any kind throughout the entire book despite a wide variety of options available, including internet sources. If you are looking for in-depth commentary, insightful analysis and nuanced debate on IP law in Uganda let alone East Africa, you will be sorely disappointed.
All in all, the book is underwhelming and leaves a lot to be desired. This blogger wonders how this text will be received by the wider community of IP law students, researchers, teachers and practitioners across the continent and beyond.
The book is available at LawAfrica and will set you back around Kshs. 2,800 ($28).