On 16 May 2018, President Uhuru Kenyatta (pictured above) assented to the Computer Misuse and Cybercrimes Bill, 2018. The Bill was passed by the National Assembly on 26 April 2018. Readers of this blog will note that, unlike the previous Computer and Cybercrimes Bill, 2017 that was first tabled in Parliament, the Act now contains some new provisions relating to blockchain, mobile money, offences related to cybersquatting, electronic messages, revenge porn, identity theft and impersonation, as well as the newly created National Computer and Cybercrimes Coordination Committee. A copy of the Act is available here.
From an intellectual property (IP) perspective, the Act is significant for several reasons, including that it creates new offences and prescribes penalties related to cyber-infringements, it regulates jurisdiction, as well as the powers to investigate search and gain access to or seize items in relation to cybercrimes. It also regulates aspects of electronic evidence, relative to cybercrimes as well as aspects of international cooperation in respect to investigations of cybercrimes. Finally it creates several stringent obligations and requirements for service providers. Continue reading
In our previous blogpost here, we discussed an agreement between Kenya Wildlife Service (KWS) and global biotech firm Novozymes A/S entered into in May 2007 entitling Denmark-based Novozymes to access and exploit for commercial purposes genetic resources, enzymes and micro-organisms within national parks, national reserves and other protected areas within Kenya.
In a recent media report, Chief Administrative Secretary in the Ministry of Environment William Kiprono has urged the Baringo County government to ‘demand full disclosure of all the money from the royalties deal.’ Kiprono reportedly said that the micro-organisms collected from Lake Bogoria ‘should have been of great benefit to the community’ and that ‘the county government should revisit to see if the amount paid to the community living around the lake is commensurate with the billions of shillings the bio-tech industries are getting from the enzymes.’
The raison d’etre of the collective administration or collective management system in copyright law is to bridge the gap between rights holders and users of copyright works. So, what happens when collecting societies, or as they are commonly called collective management organisations (CMOs), fail to carry out this core function and instead become poster children for corruption, mismanagement, lack of transparency, and abuse of power?
Back in 2013, Jonathan Band and Brandon Butler published an insightful article titled ‘Some Cautionary Tales About Collective Licensing’ which exposed the dark side of CMOs around the world. This blogger was pleased that some of our work in the context of CMOs in Kenya was featured in the article, specifically the on-going wrangles between Music Copyright Society of Kenya (MCSK) and literally everyone else including the copyright regulator, copyright owners, copyright users and even other Kenyan CMOs in the music industry.
In a recent media report here, the Commercial Court of Nyarugenge in Rwanda has ruled that it will not proceed with a case filed by Innscor International accusing two local companies Chicken Inn Limited and Pizza Inn Limited of trademark infringement in Rwanda. The basis of this ruling was reportedly that Innscor had not demonstrated to the court that it had “legal status according to the law governing registered entities in Rwanda”. Technicalities aside, it is clear that once Innscor produces its certificate of incorporation in court, this case would proceed to consider the merits of Innscor’s claim (as illustrated by the picture above), namely that registration of a name as a company name by entity A should not trump any rights in such a name acquired previously by entity B through trade mark law.
A recent judgment by the High Court in the case of Albert Gacheru Kiarie T/A Wamaitu Productions v James Maina Munene & 7 others  eKLR is likely to have profound ramifications for the enforcement of intellectual property (IP) rights in Kenya. At the heart of this case is a catalogue of widely popular vernacular songs such as “Mariru (Mwendwa Wakwa Mariru)” which is featured in the video above by Gacheru and produced by the latter’s company, Wamaitu.
According to Gacheru, his music and those of other rights holders he was involved with through his Wamaitu label have all been the subject of piracy and copyright infringement for many years. From 2004, Gacheru was the complainant in a criminal copyright infringement case (Criminal Case No. PP 06 of 2004) and was later granted permission to privately prosecute the case but he was then barred from continuing to undertake the private prosecution for the reason that he intended to serve as a witness in the same case. Gacheru appealed this decision insisting that he should be allowed to act as private prosecutor and witness in his case. The present judgment settles this 12 year old dispute on this matter.
“I am acutely aware of the far reaching consequences of my conclusive finding that purely constitutional issues and questions have been borne out of a hitherto commercial relationship and hence the court’s jurisdiction rather than agreed mode of dispute resolution. I however do not for a moment view it that the framers of our Constitution intended the rights and obligations defined in our common law, in this regard, the right to freedom of contract, to be the only ones to continue to govern interpersonal relationships.” – Onguto, J at paragraph 101 of the ruling.
A recent well-reasoned ruling by the High Court in the case of Bia Tosha Distributors Limited v Kenya Breweries Limited & 3 others  eKLR tackled the complex question of horizontal application of the Constitution to private commercial disputes governed by contracts with private dispute resolution mechanisms. More interestingly, the court had to consider whether the amount of Kshs. 33,930,000/= paid by the Petitioner to acquire a ‘goodwill’ over certain distribution routes or areas of the Respondents’ products can be defined as ‘property’ held by the Petitioner and as such protected under Article 40 of the Constitution.
“We wish to underscore the importance of fostering creativity through respect and protection of intellectual property rights of others. A nation cannot be built on disregard for originality and promotion of copy cats.” – Excerpt from a press statement by Transcend Media Group.
This blogger has come across the recent case of Transcend Media Group Limited v. Saracen Media Limited & 2 Ors Civil Case No. 3644 of 2016 in which Senior Magistrate E.K Usui has granted temporary injunctive orders sought by Transcend, the applicant against Saracen and the two other respondents. The court granted Anton Piller orders allowing Transcend to enter the premises of the respondents to preserve, seize, collect and keep machines, data, documents and storage material relating to Transcend’s copyright work under the supervision of Kenya Copyright Board (KECOBO) officers. In addition, the respondents have been restrained by the court from any further infringement, alienation, distribution and storage of Transcend’s copyright work pending hearing of the suit.
According to a Business Daily report here, the genesis of this copyright dispute is a Sh208 million tender by Safaricom seeking to procure the services of an advertising agency to handle the mobile network operator’s youth segment brand communication which is now called BLAZE. Transcend submitted its strategy proposal and creative body of works to Safaricom but lost the bid to Saracen. Transcend alleges that Safaricom awarded the business to Saracen and a Company (Fieldstone Helms Limited) owned by former Transcend staff who were involved in Transcend’s bid including the team leader. As a result, Transcend claims that Fieldstone Helms is now “illegally implementing” Transcend’s intellectual property (IP).