Netflix in Kenya, Africa – A Fix for Copyright Piracy?

Netflix in Kenya website screenshot homepage

This week, Netflix, the popular American multinational subscription video on demand (SVoD) internet streaming media service provider announced that it’s service has gone live globally. Kenya is among 130 countries that can now access internet streaming TV from Netflix. In Kenya, Netflix is now available via their official website: https://www.netflix.com/ke/  which means that for one monthly price Kenyan consumers can sign up to enjoy Netflix original series as well as its huge catalog of licensed TV shows and movies simultaneously with the rest of the world. As of October 2015, Netflix had 69.17 million subscribers globally, including more than 43 million in the United States of America.

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2013 Year in Review: Intellectual Property in Kenya

2013 was an election year for Kenya which resulted in the swearing in of Uhuru Kenyatta as the fourth President of the Republic. 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 mark on IP this 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.

Copyright and Related Rights

In 2013, copyright news was monopolized by Safaricom which was embroiled with two high profile copyright cases with Faulu Kenya and JB Maina. Another popular copyright story was Longhorn’s acquisition of publishing rights for iconic educational textbooks writer, Malkiat Singh.

The year was also memorable for Kenya as she successfully negotiated and signed the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are BIlind, Visually Impaired or Otherwise Print Disabled.

Industrial Property

In 2013, trade marks stole the show with several far reaching rulings by the Registrar of Trademarks as well as the landmark acquisition of a local trademark by a multinational cosmetics company. In addition, trademark administration has continued to be the major revenue earner for the national IP office, Kenya Industrial Property Institute (KIPI) especially through the Madrid System.

The Red Bull case (available online) was an important decision in that it expanded the Kenyan IP jurisprudence in respect of the doctrines of “conceptual similarity” and “well-known marks”.

In the Basmati case, a clear distinction was drawn between trade marks and geographical indications within the context of Kenya’s international obligations under the World Trade Organisation (WTO) Agreement on Trade Related Aspects of IP (TRIPs) adopted in section 40A of the Kenya Trademarks Act.

In the Pyrex case (available online), the Registrar found that the withdrawal of a threat of opposition does not amount to a surrender of your rights to institute cancellation proceedings in respect of the same trade mark. This ruling was important because it provides a practical application of two amended provisions of the Act, namely Section 36A and 36B of the Act.

Later in the year, one of the largest cosmetics companies in the world, L’Oréal fully acquired the health and beauty divisions of local firm, Interconsumer Products Ltd, makers of Nice & Lovely brands, in a multi-billion shilling transaction. This acquisition is seen as part of L’Oreal’s push to dominate the East Africa’s low-end cosmetic market.

Legislative Developments

As previously discussed here, several amendments have been proposed to the Copyright and the Anti Counterfeit Acts in the Statute Law Miscellaneous Bill currently before Parliament is passed. Earlier this year, a proposed draft law on the protection of traditional knowledge and traditional cultural expressions was validated.

This year saw the enactment of the Science, Technology and Innovation Act, Consumer Protection Act, Media Council of Kenya Act and Kenya Information and Communication Amendment Act, all of which will affect IP administration and enforcement both directly and indirectly.

For more stories from 2013, check out the IPKenya archive on the right hand side of this page and information from other sites on our twitter feed.

See you all in 2014!

Kenya Enacts New Law on Science, Technology and Innovation

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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.