Like clockwork, behind every mega corporate launch in Kenya is a law suit over allegedly ‘stolen’ intellectual property (IP). In a recent High Court ruling in Incognito Productions Limited & another v Nation Media Group  eKLR, the learned judge appeared to sympathise with the Plaintiffs but not enough to grant their application for a temporary injunction against the Defendant, one of Kenya’s largest media conglomerates that recently rolled out a multi-million shilling project dubbed ‘Lit Music’.
The face of Lit Music (which is really just a record label) is ‘LIT 360’, a 1-hour programme made available simultaneously on Nation’s radio, television and digital platforms. LIT 360 was designed with the aim of talent scouting, soliciting and harvesting content, as well as distribution, marketing and promotion of musical talent. As readers may have undoubtedly figured out by now, the Plaintiffs’ claim is that Nation unlawfully appropriated their concept which underlies Lit Music and LIT 360 based on a series of confidential business proposals made to Nation by the Plaintiffs between July 2016 and March 2017.
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
Last year, Organisation Africaine de la Propriété Intellectuelle (OAPI) published a notice on its website stating that a group of unnamed persons calling themselves “Collectif des Conseils en propriété industrielle” were leading a public campaign opposing OAPI’s accession to the Madrid Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. Recently, OAPI published two notices here and here informing the public that two OAPI Agents, Christian Djomga and Judith Fezeu Tchimmoe along with all other representatives from their firm, Cabinet Isis, have been provisionally suspended. In addition to several alleged violations of OAPI rules, OAPI claims that Djomga and Fezeu are involved in the Collectif’s campaign against OAPI joining Madrid.
Intellectual property (IP) observers will be keenly following this on-going matter between OAPI and the Collectif with at least three main questions in mind. Firstly, how will OAPI member states react to the Collectif’s campaign? Secondly, what will be the fate of the agents implicated in the Collectif and it’s campaign? Thirdly, how will the outcome from this saga between the Collectif and OAPI affect relations between agents and IP offices in other African countries?
The most recent edition of Kenya Copyright Board (KECOBO) newsletter (cover pictured above) focuses on photography and image rights. A copy of the full Issue 18 is available here.
In the lead article starting on page 4 by KECOBO Executive Director, a compelling case is made in favour of specific legal protection of image rights, particularly in the case of celebrities. The article uses the oft-cited case of Dennis Oliech v. EABL (previously discussed here) to illustrate the limitations of existing intellectual property (IP) regimes in cases of commercial appropriation of one’s personality and/or image.
The article reads in part as follows:
“The use of images and personality rights is gaining currency and there is need to ensure that the same is well regulated and third parties do not take undue advantage of the commercialisation of the same. Guernsey provides a good example and maybe we should follow suit.”
This view from the Copyright Office begs the question: will Kenya be better off with a specific law on image rights like Guernsey? This blogger argues that the answer must be “No”.
“A society that takes itself too seriously risks bottling up its tensions and treating every example of irreverence as a threat to its existence. Humour is one of the great solvents of democracy. It permits the ambiguities and contradictions of public life to be articulated in non-violent forms. It promotes diversity. It enables a multitude of discontents to be expressed in a myriad of spontaneous ways. It is an elixir of constitutional health.” – Justice Albie Sachs in Laugh It Off Promotions CC vs South African Breweries 2005 (8) BCLR 743 (CC)
A parody, also called burlesque, satire or spoof, in contemporary usage is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humourous, satiric or ironic imitation. Parody, as a method of criticism, has been a very popular means for authors, entertainers and advertisers to communicate a particular message or view to the public.
In recent times, the popularity of parodies has brought this creative form of expression in direct conflict with the owners of the original works protected under intellectual property (IP) law, particularly copyright and trademark.
Read the rest of this article over at the CIPIT Law Blog here.
The Copyright Act provides copyright protection for literary, musical and artistic works, audio-visual works, sound recordings and broadcasts. It establishes the Kenya Copyright Board. The Board’s main functions include, directing, co-ordinate and overseeing the implementation of laws and international treaties and conventions to which Kenya is a party and which relate to copyright and other rights recognised by this Act and ensure the observance thereof.
The steps for registration of copyright are as follows:
Step 1: Collect the registration forms from the Kenya Copyright Board offices (also available online here)
Step 2: Fill in the relevant details
NB: Any such person purporting to register a work as an authorised agent, s/he is required to produce an authority letter authorising him/her to act as such agent and a copy of his/her National ID
Step 3: Have the forms commissioned by a Commissioner for Oaths.
Step 4: Attach two ORIGINAL copies of the work.
Step 5: Deposit the prescribed registration fee in the bank account of the Kenya Copyright Board below:-
Bank name: Kenya Commercial Bank
Account name: Kenya Copyright Board
Account number: 1104002450
Branch: Kipande House
Step 6: Present the Bank Deposit Slip at the KECOBO reception, where a reciept of registration will be issued.
Step 7: The ORIGINAL “Certificate of Registration” will be issued within 5-7 days** from the date of registration
** these 5-7 days allow for a rigorous process of verification of the copyright works offered for registration and it is done by KECOBO’s Legal Department.