Insights on the Proposed Intellectual Property Office of Kenya

uhuru-29042014

Recently, the Standard newspaper published a piece titled: “Truth behind delay in parastatal reforms, months after President Uhuru Kenyatta’s directive”, in which it explained that the reason for the delay in the setting up of the proposed Intellectual Property Office of Kenya (IPOK) among other newly merged parastatals was that the Government Owned Entities (GoE) Bill 2014 is yet to be passed by Parliament. The draft GOE Bill 2014 is available online here. The media report also speculates that the slow pace in implementation of the parastatal reforms could be a sign that there is strong resistance from powerful parastatal chiefs opposed to the mergers.

In the most recent issue no 12 of the Kenya Copyright Board (KECOBO) newsletter, there is an article on the proposed merger of KECOBO, KIPI and ACA, which we have previously discussed here, here and here. Although KECOBO’s article discussed the human resource management aspects of the proposed merger, it provides us with a suitable entry point to discuss this planned centralization of intellectual property (IP) administration and enforcement in Kenya.

As previously discussed, it was the presidential taskforce on parastatal reforms which proposed that the three IP parastatals: Anti-Counterfeit Agency (ACA), Kenya Industrial Property (KIPI) and KECOBO be merged to form a single state agency tentatively christened IPOK. According to the GoE Bill 2014, a state agency means any entity formed by the government to undertake a specific government objective in delivering public service.

The idea behind IPOK was borrowed from several jurisdictions with a similar centralised system of IP administration such as; The Intellectual Property Office in United Kingdom, The Intellectual Property Office of New Zealand among other countries. Therefore the taskforce argued that international best practice shows that the functions undertaken by the three existing IP bodies complement each other and are domiciled in as one institution in many countries.

The nature and powers of IPOK will be drawn from the Copyright Act, Anti-Counterfeit Act and the Industrial Property Act and Trade Marks Act which will all be amended and incorporated in the Act creating IPOK. Presumably these amendments to existing IP legislation and the IPOK Act will be done after the GoE Bill has been passed by Parliament. More fundamentally, IPOK will spearhead the Executive branch’s implementation of Articles 11, 40 and 69 of the Constitution, which all impose an obligation on the government to promote, protect and support the IP rights of all Kenyans.

According to the merger team’s report, IPOK’s management shall be led by a Director General who will provide overall direction and support to the four directors on the day to day running of IPOK.
These four (4) Directors are: Industrial Property; Copyright; Enforcement; and Corporate Services. With the full establishment, IPOK will require 236 members of staff against the current 184 staff members in the three IP institutions. The current personnel emolument for the combined institutions is Kshs 396,375,000 whereas for the proposed merged institution will be Kshs 512,547,360. This means that IPOK will cost the Kenyan tax payer an extra cost of Kshs 116,172,360 on personnel costs alone.

With regard to office space, the merger team report proposes that IPOK’s headquarters be at NHIF Building (the same building currently occupied by KECOBO). In addition, it is proposed that IPOK has five (5) regional offices in Mombasa, Kisumu, Eldoret, Nakuru and Namanga. Currently, the IP bodies have a regional office in Mombasa and a go down at Kiang’ombe, Mombasa Road. The current rent for the combined three (3) IP offices in Nairobi, one regional office and one (1) go-down is Kshs 60,000,000 whereas for the rent for proposed merged institution will be Kshs 128,684,000. This leads to an increased rental cost of Kshs 68,684,000 to be borne by the Kenyan tax payer.

However the Kenyan tax payer will be pleased to learn that there will be an estimated saving of Kshs 18,500,000 in board related expenses with the establishment of IPOK. Presently, the Board of Directors of the three IP bodies consume a total of Kshs 28,500,000 which is expected to drop to Kshs 10,000,000 with the proposed merger since the three institutions will have one single board of no more than 11 members.

Finally, the merger team report states that the implementation of the merger will take approximately one year from July 2014 through to July 2015. The timeframe provided is as follows:

July 2014: Enactment of enabling legislation

September 2014: Constitution of the IPOK Board of Directors

October – November 2014: Recruitment of IPOK Director General

December 2014: Formulation of IPOK Budget for the financial year 2015-2016.

December 2014 – May 2015: Staff Placement

June – July 2015: IPOK sets up new office locations and begins work!

This blogger will be closely monitoring the progress and developments in the implementation of this proposed merger and the establishment of IPOK.

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The Jubilee Government – One Year Later: Waiting for the Intellectual Property Organisation of Kenya

gado editorial cartoon April 10 2014 daily nation

As many readers may know, the Jubilee government of President Uhuru Kenyatta, his Deputy William Ruto and his Cabinet mark the end of their first year in office this month. To this end, Gado’s comic in today’s Daily Nation newspaper depicts Kenyatta and Ruto being accused of copyright infringement by the immediate former president Kibaki. The message is clear: the Jubilee government is literally singing the same tune as the previous government.

As this blogger has previously noted, 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 lasting mark on IP in the past 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. (See this blogger’s comments on the merger here and here).

According to recent media reports, the heads of the various government parastatals spent the month of March at the Kenya School of Government deliberating and making recommendations to the Jubilee Government on the best ways to merge the various state agencies across the various sectors, including intellectual property administration and enforcement. Unconfirmed whispers received by this blogger indicate that the proposed name for the new IP body is the Intellectual Property Organisation of Kenya (IPOK) which will be composed of three directorates (Copyright and Related Rights, Industrial Property and Anti-Counterfeit). This new body, IPOK, will be run by a Director-General, much like the African Regional Intellectual Property Organisation (ARIPO) or the World Intellectual Property Organisation (WIPO).

Regardless of the new IP body’s format, it is clear that members of the Jubilee Cabinet will play a crucial role to ensure that this body functions smoothly and delivers on the expectations of Kenyans. In particular, the Cabinet Secretaries in charge of Industrialisation, Justice and Culture will play the greatest role to midwife and steer the operationalisation of the proposed IP body. In a recent publication titled “Cabinet Scorecard”, the Star newspaper used the following rating to gauge the performance of the Jubilee Cabinet over the past year:

“A. You are doing an excellent job

B. Good, but room for improvement

C. You are okay

D. Get your act together

E. Resign

F. Please fire him, Mr President”

According to the Star, no member of the Executive obtained an “A” grade with Kenyatta being the highest scorer with a “B” grade. The Cabinet Secretary for Industrialisation, Adan Mohammed was among the lowest scorers with a “D” grade.

The scorecard reads in part:

“A year later, no one can say with certainty whether he [Mohammed] has done anything let alone inspire change. Nothing much has been heard of his ministry and nothing has reverberated on the ground from the golden touch everyone expected from him…It is no surprising therefore that in the ministry’s website, only three events appear in the “news and events” category one year later.”

Many will recall that Mohammed’s docket is the parent ministry for two out of the three IP agencies to be merged, namely the Kenya Industrial Property Institute (KIPI) and the Anti-Counterfeit Agency (ACA). Furthermore, it is widely speculated that the Industrialisation Ministry may be charged with direct oversight and supervision over the new IP body.

As the Jubilee government enters the second year of its administration, this blogger will continue to review the highs and lows of the Executive, including the current national IP offices, in promoting, supporting and protection the IP rights of the Kenyans.