3, 2, 1: Action as Film Regulation Moves to ICT Ministry

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Last month, the President signed Executive Order No. 1 of 2018 on the Organisation of Government which, inter alia, assigned functions and institutions among Ministries and State Departments. One interesting new change in the structure of the Government is that Kenya Film Classification Board (KFCB) and Kenya Film Commission (KFC) are now listed under the State Department for Broadcasting and Telecommunications in the ICT Ministry. In addition the Ministry’s functions now includes overall responsibility for policies on film development in Kenya and the development of the country’s film industry.

This may all seem like a mundane bureaucratic detail but in reality it may well represent a fundamental shift in Kenya’s approach to the development of the creative economy and the important contribution of the film industry. But like every good story, there is a plot twist: the only thing that KFCB and KFC seem to agree on is that they are better off separate than together. Lately, the two lead film agencies have been at loggerheads (see video clips here and here) over how best the film industry should be regulated for the development of this vital pillar of the creative and cultural industries.

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2018 Proposed Amendment to The Copyright Act

2018 Amendments to Copyright Act Kenya KECOBO Bill

The Statute Law (Miscellaneous Amendments) Bill, 2018 seeks to make various, wide-ranging amendments to existing intellectual property (IP) law-related statutes. The Bill contains proposed amendments to the following pieces of legislation: The Industrial Property Act, 2001 (No. 3 of 2001), The Copyright Act, 2001 (No. 12 of 2001), The Anti-Counterfeit Act, 2008 (No. 13 of 2008) and The Protection of Traditional Knowledge and Cultural Expressions Act, 2016 (No. 33 of 2016). The Memorandum of Objects and Reasons for the Bill is signed by Hon. Aden Duale, Leader of Majority in the National Assembly and it is dated 29 March 2018. This blogpost will focus on the changes proposed to The Copyright Act.

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Proposed Amendments to Intellectual Property Laws in Kenya

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On 11th November, 2016, pursuant to Special Issue of Kenya Gazette Supplement No.185 (National Assembly Bills No. 45) the Attorney General published the Statute Law (Miscellaneous Amendments) (No. 2) Bill 2016. It is recalled that this Bill is intended to “make minor amendments which do not merit the publication of separate Bills and consolidating them into one Bill”. The Bill proposes to amend several intellectual property (IP) laws including Industrial Property Act, 2001 (No. 3 of 2001), Copyright Act, 2001 (No. 12 of 2001) and Anti-Counterfeit Act, 2008 (No. 13 of 2008).

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High Court Strikes Down Appointment of Anti-Counterfeit Agency Board Chairman Twice in a Row

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This blogger has come across a recent High Court judgment in the case of Republic v Attorney General & 2 others Ex parte Tom Odoyo Oloo [2016] eKLR in which the appointment of the chairman of Anti-Counterfeit Agency (ACA) was challenged for being unconstitutional.  In the earlier case of Republic v. Attorney General & 3 Others Ex-Parte Tom Odoyo Oloo [2015] eKLR discussed on this blog here, the High Court struck down the appointment of Polycarp Igathe as ACA Chairman and less than one week later on 24th December 2015, the Cabinet Secretary responsible for ACA appointed Igathe as ACA Chairman to take effect from 17th April 2015, the effective date that was the subject of the Court’s orders in the 2015 case. According to the applicant in the present case, this re-appointment of Igathe was both illegal and unconstitutional.

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High Court Declares Appointment of Anti-Counterfeit Agency Inspectors Unconstitutional

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“In my view fresh appointments to the positions of inspectors must be open to the public and such positions must be advertised. It therefore does not matter whether the interested parties were handpicked by the Board or Mr Igathe [Former Chairman of ACA Board of Directors]. The era of handpicking persons and appointing them as public officers was in my view buried with the retired Constitution and has no place in the current constitutional dispensation.” – Odunga J at para. 39.

In a recent judgment in the case of Republic v Anti-Counterfeit Agency Ex parte Moses Maina Maturu [2016] eKLR, the High Court quashed Gazette Notice No. 9451 published on 24th December, 2015 appointing several individuals (enjoined in the suit as interested parties) as inspectors of Anti-Counterfeit Agency (ACA). According to ACA, the present suit was a scheme to paralyze its operations instigated by persons who have been behind several court cases, which ACA has been forced to defend thereby directing its resources away from the fight against counterfeiting.

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Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act No. 33 of 2016 Comes into Force

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On 31 August 2016, President Uhuru Kenyatta (pictured above) assented to the Protection of Traditional Knowledge and Cultural Expressions Bill, No.48 of 2015. The Bill was published in Kenya Gazette Supplement No. 154 on 7 September 2016 cited as the Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016. The date of commencement of the Act is 21 September 2016, which means the Act is now in force. A copy of the Act is available here.

In previous blogposts here, we have tracked the development of this law aimed at creating an appropriate sui-generis mechanism for the protection of traditional knowledge (TK) and cultural expressions (CEs) which gives effect to Articles 11, 40 and 69(1) (c) of the Constitution. This blogpost provides an overview of the Act with special focus on the issues of concern raised previously with regard to the earlier Bill.

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High Court Rules New Tobacco Law on Packaging, Labelling and Disclosure Does Not Violate Intellectual Property Rights

British American Tobacco Kenya

Previously, this blogger reported here that the High Court had suspended the coming into force of the Tobacco Control Regulations 2014 made by the Cabinet Secretary for Health scheduled to take effect on 1st June 2015. Recently in the case of British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 4 others [2016] eKLR, Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by ‘Big Tobacco’ that their constitutional rights including intellectual property (IP) rights are being violated by the new Tobacco Regulations.

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