International Women’s Day: Celebrating African Women Leaders in Intellectual Property

Angélique Kidjo won her 2nd Grammy Award in 2015. The world renowned Beninoise singer-songwriter is Vice President of the International Confederation of Societies of Authors and Composers (CISAC). CISAC is the umbrella body for copyright societies worldwide.

Angélique Kidjo won her 2nd Grammy Award in 2015. The world renowned Beninoise singer-songwriter is Vice President of the International Confederation of Societies of Authors and Composers (CISAC). CISAC is the umbrella body for copyright societies worldwide.

Celebrated globally on 8th March, this year’s International Women’s Day highlights the Beijing Declaration and Platform for Action, a historic roadmap signed by 189 governments 20 years ago that sets the agenda for realizing women’s rights. The official United Nations theme for International Women’s Day 2015 is “Empowering Women – Empowering Humanity: Picture It!”

“When we unleash the power of women, we can secure the future for all” – United Nations Secretary-General Ban Ki-moon in his message for International Women’s Day 2015.

To mark this year’s International Women’s Day (#IWD2015), this blogger has compiled a list of some of the (influential) women (leaders) in intellectual property (IP) from Kenya and throughout English-speaking Africa. The women listed below (in no particular order) are primarily drawn from IP offices, academia, non-governmental organisations and the IP legal fraternity.

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Comments on the Revised Draft National Music Policy

Kenya at 50

Recently, it was reported that the Cabinet Secretary in the Ministry of Sports, Culture and the Arts, Dr. Hassan Wario has appointed a 10-person committee to finalise work on Kenya’s National Music Policy. This Music Policy Committee will be chaired by the Director of Administration at the Ministry, Mr Wenslas Ong’ayo and comprises two representatives from the related rights collective management organisations (CMOs) namely Suzanne Gachukia (KAMP Board Member) and Angela Ndambuki (PRiSK CEO). Interestingly, there are no representatives from the Music Copyright Society of Kenya (MCSK) not to mention the apparent lack of broad-based stakeholder representation in the committee’s membership. In addition the appointments appear to contravene the two-thirds gender principle in the Constitution.

This committee is mandated with streamlining the entire music industry, reviewing the legal and institutional framework and also recommending implementation plans through the formulation of a robust National Music Policy. We have previously discussed an earlier draft of the policy here. This draft has since been revised and an updated version of the draft policy is available here. This blogpost offers some thoughts on the draft policy for the consideration of the newly appointed Committee.

Read the full article here.

The Jubilee Government – One Year Later: Waiting for the Intellectual Property Organisation of Kenya

gado editorial cartoon April 10 2014 daily nation

As many readers may know, the Jubilee government of President Uhuru Kenyatta, his Deputy William Ruto and his Cabinet mark the end of their first year in office this month. To this end, Gado’s comic in today’s Daily Nation newspaper depicts Kenyatta and Ruto being accused of copyright infringement by the immediate former president Kibaki. The message is clear: the Jubilee government is literally singing the same tune as the previous government.

As this blogger has previously noted, Kenyatta has been very supportive of the creative economy and has on several occasions reiterated his administration’s commitment to creating a conducive environment for creators to reap from their intellectual property (IP) assets. However, Kenyatta’s lasting mark on IP in the past year was the decision to reform all state corporations and parastatals in Kenya which has set in motion plans to merge the copyright office, the industrial property office and the anti-counterfeit agency into one national IP office. (See this blogger’s comments on the merger here and here).

According to recent media reports, the heads of the various government parastatals spent the month of March at the Kenya School of Government deliberating and making recommendations to the Jubilee Government on the best ways to merge the various state agencies across the various sectors, including intellectual property administration and enforcement. Unconfirmed whispers received by this blogger indicate that the proposed name for the new IP body is the Intellectual Property Organisation of Kenya (IPOK) which will be composed of three directorates (Copyright and Related Rights, Industrial Property and Anti-Counterfeit). This new body, IPOK, will be run by a Director-General, much like the African Regional Intellectual Property Organisation (ARIPO) or the World Intellectual Property Organisation (WIPO).

Regardless of the new IP body’s format, it is clear that members of the Jubilee Cabinet will play a crucial role to ensure that this body functions smoothly and delivers on the expectations of Kenyans. In particular, the Cabinet Secretaries in charge of Industrialisation, Justice and Culture will play the greatest role to midwife and steer the operationalisation of the proposed IP body. In a recent publication titled “Cabinet Scorecard”, the Star newspaper used the following rating to gauge the performance of the Jubilee Cabinet over the past year:

“A. You are doing an excellent job

B. Good, but room for improvement

C. You are okay

D. Get your act together

E. Resign

F. Please fire him, Mr President”

According to the Star, no member of the Executive obtained an “A” grade with Kenyatta being the highest scorer with a “B” grade. The Cabinet Secretary for Industrialisation, Adan Mohammed was among the lowest scorers with a “D” grade.

The scorecard reads in part:

“A year later, no one can say with certainty whether he [Mohammed] has done anything let alone inspire change. Nothing much has been heard of his ministry and nothing has reverberated on the ground from the golden touch everyone expected from him…It is no surprising therefore that in the ministry’s website, only three events appear in the “news and events” category one year later.”

Many will recall that Mohammed’s docket is the parent ministry for two out of the three IP agencies to be merged, namely the Kenya Industrial Property Institute (KIPI) and the Anti-Counterfeit Agency (ACA). Furthermore, it is widely speculated that the Industrialisation Ministry may be charged with direct oversight and supervision over the new IP body.

As the Jubilee government enters the second year of its administration, this blogger will continue to review the highs and lows of the Executive, including the current national IP offices, in promoting, supporting and protection the IP rights of the Kenyans.

Protection of Well Known Marks in Kenya

On this subject of well known marks, this blogger invites readers to listen to audio recordings of the presentations made by KIPI trade mark examiners during a workshop held in January 2014 available here. Readers may also wish to download Caroline Muchiri, Advocate’s powerpoint presentation made in February 2014 available here.

Below are my reactions (in bold) to some of the issues addressed in Caroline’s presentation

Read the full article here.

Intersections between Intellectual Property, Consumer Protection and Competition Law in Kenya

quail

Editor’s note: This article is a commentary on the LSK CLE on Competition and Consumer Law on Feb 8, 2014 at the Hilton, Nairobi. Audio recordings of the various presentations made during the CLE have been uploaded here.

From an intellectual property (IP) perspective, the enactments of the Competition Act, 2010 and the Consumer Protection Act, 2012 have played a major role in balancing the interests of IP owners and IP users in Kenya. The Competition Act is a broad piece of legislation as it seeks to promote and safeguard competition in the economy whilst protecting consumer rights. The Consumer Protection Act was enacted with a view to consolidate various consumer protection provisions scattered in several pieces of legislation. In this regard, the 2012 Act governs the protection of the consumer and aims to prevent unfair trade practices in consumer transactions.

In this discussion of how IP intersects with consumer protection law and competition law, the point of departure is the Constitution of Kenya, 2010. The rights of the various categories of IP rights holders are guaranteed under Article 11, 40 and 69 of the Constitution, whereas the rights of IP rights licensees as users are guaranteed under Article 46 of the Constitution.

However it is important to note that, under Article 24 of the Constitution, none of these rights enshrined in the Bill of Rights are absolute in nature. This Article provides that a right in the Bill of Rights can be limited by law where that limitation is reasonable and justifiable in an open and democratic society, taking into account certain factors relating to the nature, extent, importance and purpose of the limitation.

In this connection, it is submitted that the Competition and Consumer Protection Acts introduce several limitations to the rights of IP owners, discussed below.

In the Competition Act, restrictive trade practices are defined to include any agreement, decision or concerted practice which amounts to the use of an intellectual property in a manner that goes beyond the limits of legal protection. However the Act provides for the grant of exemption for certain restrictive practices in respect of intellectual property rights. This blogger wonder whether de jure monopolies such as collective management organisations would be required to apply and obtain such exemptions.

In addition, the Act defines the abuse of dominant position to include abuse of an intellectual property right. This latter point is discussed by Guserwa, SC at 4:37 in the audio recording below, labelled: “Competition Law Issues in the Legal Profession”.

With regard to the provisions on extra-territorial operation and mergers in the Act, it is important to note the use of the word “asset” which is defined in section 2 as follows:

” “asset” includes any real or personal property, whether tangible or
intangible, intellectual property, goodwill, chose in action, right, licence, cause
of action or claim and any other asset having a commercial value;”

Another important section of the Act is part VI which deals with consumer welfare. This blogger submits that these consumer welfare provisions may have the effect of limiting some of the rights enjoyed by IP owners. These provisions are further enhanced by the Consumer Protection Act. Therefore it is noteworthy that the provisions in the Competition Act relating to false or misleading representations and unconscionable conduct are covered in the provisions relating to unfair practices under the Consumer Protection Act.

From an IP perspective, the consumer law provisions in these two Acts interact with IP at both international and national levels. At the international level, these consumer law provisions give effect to Kenya’s obligations under the Article 10bis of the Paris Convention. These obligations are reinforced by Article 2 of the TRIPs Agreement. At the national level, these consumer law provisions give effect to three IP legislations, namely the Copyright Act, the Trade Marks Act and the Anti-Counterfeit Act. In this context, this blogger argues that the definition of “supplier” in the Consumer Protection Act is broadly defined such that it includes owners of IP rights. Therefore the obligations and duties imposed on suppliers can therefore be extended to IP owners in their normal course of trade.

Copyright Board To Review Guidelines for Collective Management Organisations

This blogger has learned that KECOBO is in the process of the review its CMO Guidelines titled “Guidelines for Licensing Collective Management Organisations”. These CMO Guidelines are available on KECOBO’s website here. Therefore, this blogger hopes to provide an in-depth examination of the Guidelines while making comments on important areas and issues connected with the Guidelines.

In coming up with these Guidelines, KECOBO explains in the opening paragraph that it is mandated under the Act to license and supervise CMOs in Kenya so to ensure that CMOs carry out their core function, namely the collection and distribution of royalties. It is noteworthy that since 2011 when the Guidelines were introduced, KECOBO has been enforcing these Guidelines against CMOs despite the fact these guidelines have no force of law. It is therefore advisable that KECOBO causes the inclusion of these Guidelines in Regulations to be made by the Minister (Attorney General) under section 49 of the Act.

Notwithstanding the legal force of these Guidelines, this blogger has the following comments to make on the Guidelines:

1. Title: this blogger suggests that the title of the Guidelines be amended to include “and Supervising”.

2. Public Notice: KECOBO may wish to include a time frame within which notices shall be published to increase KECOBO’s accountability and transparency. In addition, KECOBO may wish to specify which platform(s) will carry the public notices eg. local dailies with national circulation, KECOBO’s official website, KECOBO notice board?

3. Licensing: In the spirit of transparency and accountability, KECOBO may consider including a time frame within which licenses shall be processed once all application documents are submitted.

4. New Applications: The requirement under (g) appears vague and KECOBO may consider specifying what documents would be required to satisfy that the applicant has the “capacity for collection and distribution of the royalties”.

5. Renewal of License: To avoid duplication of documents submitted by licensed CMOs, the requirements of (a) and (b) should be removed. In the alternative, the requirement (b) should be qualified for cases where the memorandum and articles of association have been amended.
With regard to requirement (i), submitting individual deeds of assignment for each and every member may be onerous for most CMOs due to the sheer bulk of documentation to be produced. At any rate, KECOBO may decide to verify the deeds during an inspection visit to ensure that it corresponds with the list of members submitted.

6. Revocation of a license: The CMO Guidelines have made several additions to the grounds provided under the Act. However the wording and punctuation of this list of grounds for revocation is ambiguous as it does not disclose whether all the ten (10) listed grounds must be present for revocation or whether the presence of one or several grounds is sufficient.

In sum, this blogger submits that the Guidelines play an important role of supplementing the existing legal provisions on licensing and supervision of CMOs found in the Copyright Act, 2001 and Copyright Regulations, 2004. However these Guidelines ought to be given the force of law in order for KECOBO to enforce them against CMOs.

Editor’s note: The author currently works with MCSK however the views, opinions and analyses expressed herein are solely those of the author and are not those of his employers, both past and present.

The Past Decade: Kenya’s Copyright Office Turns 10 Years Old This Month

Kenya Copyright Board KECOBO

On the 21st July 2003, the then Honourable Attorney General of the Republic of Kenya, S. Amos Wako, SC officially launched the Kenya Copyright Board (KECOBO) at the State Law Office in Nairobi. In his speech, he expressed optimism that the launch of KECOBO marked the beginning of a new era for the copyright industry in Kenya. This optimism was of course tempered by his acceptance that there continued to exist numerous challenges in the copyright industry with adverse effects on copyright owners countrywide.

The first challenge cited was the issue of piracy. It was noted that piracy has resulted in several prominent recording artistes and performers dying poor while their music dominates the airwaves both locally and internationally. In addition, it was noted that piracy resulted in wood carvers and other finer artists having their works misappropriated and sold overseas at abnormal profits with no compensation to these original creators. Furthermore, local authors and book publishers found it difficult to keep afloat as there was an influx of pirated books manufactured in the back streets of Nairobi and elsewhere throughout the country. At the time of KECOBO’s launch, software piracy levels were at 78%, which was considered a serious issue not only because Kenya was losing billions in unpaid taxes but because of the link between piracy and other international crime such as drug trafficking and illegal trade in firearms.

With regard to this challenge of fighting piracy, it was recognised that KECOBO joins a growing list of enforcement agencies such as the Customs Department of the Kenya Revenue Authority, the Kenya Police, the Weights and Measures Department of the Kenya Bureau of Standards who were all on the spot for their lack of efficiency and effectiveness with regards to curbing copyright piracy.

In the case of KECOBO, it was noted that prior to 2003, the Copyright Office was a small section within the Department of the Registrar General and lacked personnel and other resources to ensure the proper administration of copyright and related rights through public awareness campaigns and training of key agencies and other enforcement bodies.

Connected to the challenge of fighting piracy was the issue of the administration of the Anti-Piracy Security Device (APSD) introduced in the 2001 Copyright Act which replaced the previous Act, CAP 130 of the Laws of Kenya. The APSD would be affixed to all genuine audio and audio-visual works in Kenya and would serve as an identification of legitimate works. The administration of the APSD would also facilitate a comprehensive database of all copyright works in Kenya that would be used both by the Government and the stakeholders in the copyright industry.

Another herculean challenge cited during KECOBO’s launch was the organisation of the music industry in Kenya, which was riddled with disagreements and controversies. It was noted that although the Music Copyright Society of Kenya (MCSK) had been in existence for the past 24 years as the sole collecting society, the latter was characterised by constant wrangles and non-payment of royalties. Therefore at KECOBO’s launch, it was stated that the Board must exercise its function of licensing and supervising the activities of collecting societies in order to intervene and put the music industry in order.

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