#ipkenya Weekly Dozen: 10/08

African Telecommunications Union ATU Administrative Council Session Conference of Plenipotentiaries Kenya

  • Kenya Guns for Top ICT Positions in Africa and Globally [Official]
  • Strengthening Africa’s audiovisual sector: market intelligence is critical [WIPO Magazine]
  • Technology transfer to transform agricultural production in Africa [African Development Bank]
  • A decision-making tool for countries to implement the Multilateral System of Access and Benefit Sharing [Biodiversity International]
  • ‘My President is a Pair of Buttocks’: the limits of online freedom of expression in Uganda [Oxford]
  • Parallel imports remain a grey area for IP rights in East Africa [Captain Obvious]
  • Trademark Infringement in Nigeria: What is ‘Use in the Course of Trade’? [Afro-IP]
  • In case you missed it: You can now register copyright online in Kenya [KECOBO]
  • Industrial Property Act Comes Into Effect [Namibia Economist]
  • Scotch Whisky Association awarded a certification trademark in South Africa [the drinks business]
  • Ethiopia becoming an industrial powerhouse and future ‘Wakanda’ [Asia Times]
  • 10% of WIPO’s workforce comes from Africa [2018 Report]

For more news stories and developments, please check out #ipkenya on twitter and feel free to share any other IP/ICT-related items that you may come across.

Have a great week-end!

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

Rafiki Movie Kenya Image Twitter Dc6K6pSW4AEDmmr

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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The New Face of Creative Commons in Kenya

Elizabeth Oyange By Rori! Comics for UnCommon Women, CC BY

The inaugural meeting of the Creative Commons (CC) Kenya Chapter was held on 25 July 2018. This meeting marked the transition of the CC community in Kenya into a CC Country Chapter. A key agenda item was the election of several officials to manage the affairs of the CC Kenya Chapter. As readers of this blog may know, the Creative Commons community in Kenya was previously organised using an ‘Affiliate’ model with two Leads, a Public Lead (based at CIPIT – Strathmore University) and a Legal Lead (based Kenya Law i.e. National Council for Law Reporting).

Under the new structure, the Creative Commons Global Network (CCGN) co-ordinates and provides leadership in the global CC movement. The Global Network Council (GNC) is the governing and decision-making body of the CCGN. It consists of elected representatives of all CC Country Chapters and representatives from CC HQ. CC Chapters serve as the central coordinators of the work of the individuals and institutions participating within a country in support of the CCGN. As such, all those interested in becoming members of CC must register here either as Network Members or Network Partners (for Institutions) and belong to a Country Chapter.

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Proposed Draft National Music Bill: More Licenses, More Confusion and Yet Another Fund

The Music Policy Discussion on the Draft Music Bill Kenya by Francis Muchina Elani Sauti Sol MCSK KECOBO.jpg-large

The latest draft of the proposed National Music Bill has been released by the Permanent Presidential Music Commission (PPMC). PPMC requests all stakeholders and interested parties to circulate it widely and email back (to: directorppmc@gmail.com) any contributions, comments, reactions, etc for consideration and possible inclusion. A copy of the draft document is available here.

This blogpost highlights some of the key features of the PPMC draft document including an apparent conflict with existing intellectual property (IP) legislation.

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Intellectual Property Concerns in Kenya’s Draft National Culture Bill

HASSAN WARIO ARERO

On 27 August 2010, this blogger was among hundreds of Kenyans who witnessed the promulgation of Kenya’s Constitution. On numerous occasions here, we have discussed the far-reaching impact the 2010 Constitution has had on intellectual property laws in Kenya. For the first time in Kenya’s history, intellectual property (IP) norms were constitutionalised with corresponding obligations placed on various arms of the government to ensure that these constitutional provisions are actualised for the benefit of Kenyans.

One of these provisions is Article 11 which reads as follows:

Article 11 – Culture
(….)
11.(3) Parliament shall enact legislation to—
(a) ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and
(b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

As a result of the above, Parliament is required to enact legislation to ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage. This legislation should also address the recognition and protection of the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

In this connection, the Fifth Schedule of the Constitution requires that the legislation in respect to Culture under Article 11 must be enacted by Parliament within the first five years from the date of promulgation of the Constitution. Therefore the deadline for enactment is no later than August 27, 2015!

In a bid to meet or beat this deadline, the Ministry of Sports, Culture and the Arts has begun the process of formulating a piece of legislation on Culture. The Ministry plans to hold a stakeholders’ workshop on January 30, 2015 at KICD to develop a Bill on Culture that will later be tabled before Parliament. In preparation for this planned workshop on formulation of the National Culture Bill, the Ministry has circulated a zero draft of the Bill available here. This draft is clearly ‘zero’ as it is largely incomplete except from a few provisions relating to a proposed National Council for Culture and the Arts and a National Fund for Culture and the Arts.

This blogger’s reading of Article 11(3) is that the legislation on Culture must address important concerns touching on the promotion and protection of traditional knowledge (TK), traditional cultural expressions, folklore as well as certain in situ genetic resources. In this regard, there may be considerable overlap between the proposed National Culture Bill and the 2013 Bill on the Protection of Traditional Knowledge and Traditional Cultural Expressions Bill, previously discussed here and here. In fact, the Premable of the proposed draft TK Bill reads: “This legislation will give effect to provisions of Article 11 and 40(5) of the Constitution of Kenya 2010.”

Another case of inter-ministerial mis-communication, per chance?

From an IP perspective, this blogger believes that an important question to be answered in the formulation of the Bill on Culture is whether to use the existing IP rights systems including industrial property, copyright and plant breeders rights or to develop a sui generis system for the promotion and protection of Culture.

Publicly Funded Intellectual Property: Why Kenya Needs a Bayh-Dole Law and Lessons from South Africa

science kenya hiv

“Every Kenyan is an inventor.” – Anon.

With the enactment of the Science, Technology and Innovation (ST&I) Act 2013 (discussed by this blogger here), it is imperative that the central government legislates on the management of intellectual property (IP) emanating from publicly financed research and development (R&D). Such legislation would ensure that IP from publicly funded R&D is commercialized for the benefit of all Kenyans in line with the State’s IP mandate under Article 40(5) of the Constitution. This is also consistent with an increasing awareness in Kenya of IP as an instrument for wealth creation.

In the context of publicly funded research, institutions such as universities can be encouraged through an enabling legal framework to protect and commercialise the fruits of their research. Such a legal framework would, among other things, clearly delineate the rights and obligations of the public funders and the researchers. In support of such legislation, this blogger submits that Kenya’s IP legal framework must reflect a manifest desire to transition from a resources-based economy to a knowledge-driven economy.

Read the rest of this article here.

Kenya Enacts New Law on Science, Technology and Innovation

mobile kenya

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.