#ipkenya Weekly Dozen: 03/08

China loves Africa Art by Michael Soi Kenya 2018

  • A Kenyan painter’s art questions China’s deepening reach in Africa [Quartz]
  • Implementing AfCFTA: When and How? [tralac]
  • Draft ICANN Africa Strategic Plan 2016-2020 Version 3.0 [Have Your Say]
  • How to sue a plagiarist – an opinion on the law and plagiarism [Stellenbosch]
  • Interesting end to Crown Hotel-Crowne Plaza Trade Mark Dispute [Addis Fortune]
  • South Africa: Fostering technology innovation [Cape Town]
  • Kenya: What happened to the boy who chased away the lions? [BBC]
  • Zambia: Government urges users to take up ZARRSO licences [IFRRO]
  • Ethiopia: New legislation for plant breeders’ rights [A+ Bunch of Lawyers]
  • African thought leaders on the Berkman Klein list of 2018-2019 Fellows [Harvard]
  • Vacancies: Development, Innovation & IP @ The South Centre [Apply Now]
  • WIPO Indigenous Fellowship Program [Deadline September 21, 2018]

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

Have a great week-end!

Netflix in Kenya, Africa – A Fix for Copyright Piracy?

Netflix in Kenya website screenshot homepage

This week, Netflix, the popular American multinational subscription video on demand (SVoD) internet streaming media service provider announced that it’s service has gone live globally. Kenya is among 130 countries that can now access internet streaming TV from Netflix. In Kenya, Netflix is now available via their official website: https://www.netflix.com/ke/  which means that for one monthly price Kenyan consumers can sign up to enjoy Netflix original series as well as its huge catalog of licensed TV shows and movies simultaneously with the rest of the world. As of October 2015, Netflix had 69.17 million subscribers globally, including more than 43 million in the United States of America.

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Kenya Digital Reading Summit 2015: Digital Rights in Book Publishing – Revisiting Authors Agreements

print book versus electronic book a visual overview zoe sadokierski

“In Kenya, the publishing industry is estimated to be about 12 billion Kenyan shillings a year (US $150 million) but 95% of that comes from the sales of textbooks. The sales of trade books has not been growing that quickly, I am afraid, but we are trying to change that. And bookstore sales are down as well. But as a small publisher, we have to respond to the market.” – Publishing Perspectives Interview with David Waweru, CEO of WordAlive Publishers on January 11, 2013.

“Our publishers—a good number of who are plain dishonest and shady individuals—are obsessed with publishing for the school market. They fight tooth and nail to have their books accepted as approved school texts. That is not a good thing at all because incidents of bribery have been reported in the process, which ends up putting dubious books in students’ hands. Outside of this there hasn’t really been a vibrant market for fiction. As a result writers have been bending over backwards to produce work that can fit in this mould. This in my thinking, isn’t healthy. Writers, as social commentators and critics, need the space to think creatively without inhibition. Some authors try to break out of this straight-jacket by self-publishing, but usually they don’t go far. Soon they encounter the biggest pest in the business, the book pirate, who is vicious in Kenya and operates with impunity, earning from what he didn’t sow in—we suspect—collusion with the law enforcers.” – Africa39 Blog Interview with Kenyan author, Stanley Gazemba on August 11, 2014.

“I love reading much more than I love writing. I suspect if I did not like reading, I would not be a writer. The well-written books inspire me to be a better writer. The badly written books teach me how not to write. Kenyan publishers are, sadly, not doing much to ensure that other readers and I get more of the former and less of the latter. Their inability to respond to submissions timeously; poor editing; unfavourable contracts; and poor marketing are but some of the problems beleaguering the publishing industry.” – Daily Nation, January 10, 2015: “Problem with Kenyan publishers” by Zukiswa Wanner.

Editor’s Note: The Digital Reading Summit 2015 themed “Immerse Yourself in the Digital Era”, has been organised by the Kenya Publishers Association (KPA) and Worldreader and is scheduled to be held between 21-22 April 2015 at Pride Inn Hotel in Nairobi. The following day, April 23rd, is World Book and Copyright Day!

The business of publishing rests on a contract between creators (authors) and those who invest in bringing their work to market – publishers. In many jurisdictions (including Kenya) it is necessary that the contract adopt a written form and this is also the advisable way to proceed even where verbal agreements are valid. To avoid misunderstandings a written contract should always be issued at the conclusion of discussions and verbal agreement between the parties.

In the contract with the publisher the author licenses the rights of reproduction and distribution over a work, thus providing the publisher with the legal means necessary for publication. In Kenya, section 33(3) of the Copyright Act requires that any exclusive license between an author and a publisher must be in writing. An important Kenyan case in the area of book publishing and copyright law is Njeri Wangari & Another v. Oxford University Press (E.A) Ltd. [2012] eKLR discussed previously here.

Traditionally, publishers asked mainly for the right to publish authors’ book, sometimes in multiple formats and languages. Now many publishers demand broader rights, often including electronic/digital rights.

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Kenya Trade Marks Bill 2015 Published for Public Comment

kenya industrial property institute kipi website notice trademarks 2015

Mr. Sylvance Sange, the Acting Managing Director of the Kenya Industrial Property Institute (KIPI) has published the Trade Marks Bill 2015 for public comment.

KIPI notes that the Trade Marks Act, Cap 506 of the Laws of Kenya came into effect on 1st January 1957. Since then, the Act has undergone a number of amendments and was last comprehensively amended in 2002. In compliance with the Constitution of Kenya 2010 and in keeping with the current national and international trends in the field of intellectual property, KIPI now seeks to repeal the Act. To this end, KIPI has prepared Drafting Instructions to be forwarded to the Attorney General’s Office for the necessary action.

Members of the public and interested parties are invited to submit any written comments on this Bill to KIPI at info@kipi.go.ke on or before April 30th 2015.

A copy of the Bill is available here

A Look at the East African Community Creative and Cultural Industries Bill, 2015

East African Community Flags Burundi Kenya Rwanda Tanzania Uganda

“Although the East African region has the potential to develop new areas of wealth and employment as it is rich in cultural heritage and inexhaustible pool of talents, the region still remains a marginal played in the global market. While the East African Community (EAC) Partner States produce world-renowned artists, still the contribution of creative and cultural industries to our economy has remained insignificant. Likewise, due to lack of incentives, financial, educational, infrastructure and technology support from the EAC Partner States and the business community, our local creative industries are not yet fully developed.

Nurturing and exploitation of creative and cultural industries in the EAC through an effective regional legal framework can contribute to job creation, income generation and poverty alleviation.” – Hon. Dr. James Ndahiro (Rwanda), Member – East African Legislative Assembly.

On 27th January 2015, the EAC Creative and Cultural Industries Bill, 2015 was read for the first time and committed to the Committee of General Purpose during the Fourth Meeting of the 3rd Session of the 3rd Assembly plenary session held in Arusha, Tanzania.

Between the 9th and 10th of March 2015, this Committee has been covering all EAC Partner States holding public hearings to sensitise stakeholders on the Bill and receive views and contributions from them to be incorporated into the Bill.

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Making Caller Tunes of Person’s Voice Not Copyright Infringement: Case of Ssebagala v. MTN Uganda Ltd & Anor

This blogger has come across a recent judgment from the High Court in Uganda in the case of Ssebagala v. MTN (U) Ltd & Anor. In this case, Ssebagala the former Mayor of Kampala spoke to journalists who were waiting outside the precincts of Parliament. Ssebagala was being vetted by Uganda’s Parliamentary Appointments Committee following his nomination for appointment as a Cabinet Minister.

During the question and answer (Q & A) session, Ssebegala is said to have responded to the journalists using his “characteristic style and skill which obviously generated a lot of merriment”. Ssebagala’s interaction with the press was publicly broadcast in Uganda as current news of public and political events. Thereafter SMS Media Ltd, the third party in the suit, adapted audiovisual recordings of Ssebagala into caller ring back tones (CRBTs) and offered these caller tunes to leading mobile network MTN Uganda for sale to the latter’s subscribers.

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World Intellectual Property Day 2015: “Get up, stand up. For Music.”

world intellectual property day 2015 poster get up stand up for music worldipday

“When Bob Marley and the Wailers laid down the opening track on Burnin’ in a Kingston recording studio some four decades ago, they likely had little idea how far their simple, straightforward tune would resonate, becoming an enduring international anthem for human rights.

Such is the power of music.” – WIPO, 2015.

The theme for World Intellectual Property (IP) Day 2015 is out: “Get up, stand up. For music”. In its press release, the World Intellectual Property Organization (WIPO) describes music as the “most universal of creative expressions” which “transcends borders and connects with some primal beat within all of us”. Through this theme, WIPO also appears to be paying tribute to the “inspiration and hard work of thousands of creative people around the world – singers and songwriters; musicians and publishers; producers, arrangers, engineers and many others” who are responsible for the music that we enjoy today.

This year’s World IP Day theme invites us all to explore some of the changes shaping the music industry today, and interact with those intimately involved in the business of making music about how they see the future. In this regard, WIPO asks:

“What is the future of our relationship with music? How will it be created and disseminated? How will we listen to it? And how will we ensure that all those involved in bringing us this universal pleasure can make a living from their craft?”

This blogger wishes everyone all the best as preparations to celebrate and reflect on this year’s #worldipday theme begin.

In the African context, this blogger highlighted Kenya’s successful 2014 World IP Day activities here and hopes that this year will be equally memorable.

Inching Closer to Plain Packaging: Pictorial Health Warnings and Tobacco Trade Marks in Kenya

James Macharia Health Cabinet Secretary Kenya Tobacco

This blogger has come across Legal Notice No. 169 dated December 5, 2014 which states that the Cabinet Secretary for Health (pictured above), in exercise of the powers conferred by section 53 of the Tobacco Control Act, 2007 has made the Tobacco Control Regulations, 2014 which will come into operation six months from December 5, 2014. A copy of the Legal Notice and the Regulations are available here and here respectively.

Section 8 of the Regulations, whose short title reads: “prohibition on certain product descriptions”, is noteworthy and states as follows:

“8. A person shall not manufacture, sell, distribute, or import a tobacco product, for sale in Kenya, whose package carries a name, brand name, text, trademark or pictorial or any other representation or sign which suggests that the tobacco product is less harmful to health than other tobacco products.”

This section must be read with other sections in Part II of the Regulations on “Packaging and Labeling”:

3. (1) A person who manufactures, sells, distributes or imports a tobacco product shall ensure that every package containing the tobacco product bears warning labels and information required under section 21 of the Act and specified in the Schedule to the Act and the corresponding pictures and pictograms set out in First Schedule.

(…)

4. (1) No person shall manufacture, sell, distribute, or import a tobacco product, device or any other thing that is intended to be used to cover, obscure, mask, alter, or otherwise detract from the display of specified health warnings and messages including pictures and pictograms under the Act or these Regulations.

(…)

5. Where the health warnings and messages including pictograms that are required to be printed on packages are likely to be obscwed or obliterated by a wrapper on the package, the manufacturer, seller disfibutor or importer of the tobacco product shall ensure that the health warnings and messages shall be printed on both the wrapper and the packet.

(…)

6. (1) The manufacturer, seller, distibutor or importer of a tobacco product shall ensure that the specified health warnings and messages including pictograms required under these Regulations are rotated in accordance with section 21 (3) of the Act.

(…)

7. (1) The health messages required under these Regulations on all packages shall be in the form of a text message specified in the Schedule to the Act and a prescribed pictorial message set out First Schedule.

(…)

The Regulations appear to be made in compliance with the World Health Organisation Framework Convention on Tobacco Control (WHO FCTC) reaffirms the right of all people to the highest standard of health and represents a paradigm shift in developing a regulatory strategy to address addictive substances.

The Convention itself does not deal with intellectual property associated with tobacco packaging, particularly trademarks. Of relevance for this discussion is Article 11, which requires of countries to adopt effective measures to ensure:
(i) that tobacco product packaging and labelling do not promote a tobacco product by any means that are false, misleading, deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions; and
(ii) that any outside packaging and labelling should carry health warnings that should be 50 per cent or more of the principal display areas.

And then there are Guidelines. These provide that countries “should consider adopting measures to restrict or prohibit the use of logos, colours, brand images or promotional information on packaging other than brand names and product names displayed in a standard colour and font style.”

In this connection, the First Schedule of Kenya’s new Tobacco Regulations contains a “list of prescribed health warnings and messages including corresponding pictograms” which must be displayed on every package. These include the following:

tobacco regulations kenya pictorial warning 4

tobacco regulations kenya pictorial warning 3

tobacco regulations kenya pictorial warning 2

tobacco regulations kenya pictorial warning 1

To the relief of Big Tobacco, Kenya seems to have decided against requiring plain packaging: black and white or two other contrasting colours; nothing other than a brand name, a product name and/or manufacturer’s name; and no logos.

Be it as it may, this blogger submits that these Regulations will have the drastic impact of removing the last space for tobacco advertising (i.e. the packaging), reducing the incidence of smoking and thus diminishing the industry’s power to recruit new smokers. Readers of this blog will recall our previous article here on the constitutional and intellectual property arguments around tobacco plain packaging.

Tunisia to Host Pan African Intellectual Property Organization (PAIPO)

AU Assembly 23 Ordinary Session June 2014 Malabo Equatorial Guinea

Two separate media reports here and here indicate that Tunisia will host the African Intellectual Property Organisation (OAPI). These reports are indeed confusing since the francophone African Intellectual Property Organisation (OAPI) is based in Yaoundé, Cameroon – atleast according to the contacts page of OAPI’s official website available here.

This blogger believes that the news reports were referring to PAIPO and not OAPI. As many readers may know, PAIPO was established as a specialized agency of the African Union (AU) that would be responsible for intellectual property (IP) and other emerging issues related to IP in Africa. At the Twenty-Third Ordinary Session of the Assembly of the African Union on 26-27 June 2014 in Malabo, Equatorial Guinea, the Assembly made the following decision on PAIPO:

Assembly/AU/Dec.522(XXIII)
Doc. EX.CL/839(XXV)

The Assembly,

1. TAKES NOTE of the Report and the recommendations of the Extra Ordinary Session of the African Ministerial Conference on Science and Technology (AMCOST V) held from 16 to 18 April 2014 in Brazzaville, Republic of Congo;

2. RECALLS Assembly Decision Assembly/AU/Dec.453(XX) on the Creation of the Pan-African Intellectual Property Organization (PAIPO);

3. TAKES NOTE of the Draft Statute of the Pan African Intellectual Property Organization (PAIPO) and REQUESTS the Commission to submit it to the Specialized Technical Committee on Justice and Legal Affairs for consideration and appropriate recommendations;

4. RECOGNIZES ARIPO and OAPI as building blocks for the creation of a single Pan African Intellectual Property Organization and WELCOMES their support in the implementation of the Heads of State and Government decisions on PAIPO;

5. INVITES Member States, WIPO as well as development organizations and partners to lend support for implementation of the decision;

6. WELCOMES AND ENDORSES the offer by the Republic of Tunisia to host the Headquarter and Secretariat of PAIPO;

7. REQUESTS the Commission to prepare road map for implementation of PAIPO in coordination with the host country and to report progress in this regard to the Summit.

In light of these recent media reports, it may be interesting to consider some of the comments made by IP professionals on PAIPO’s founding statute and intended raison d’etre:

” The news that PAIPO is about to be launched (….) after being in the works for such a long time is alarming for two other reasons. The first of these is that although the draft statute has been long in the making, this has not been through an open or participatory process. There has been no public consultation on the continent nor have civil society, academics and public interest advocates been afforded an opportunity to engage with the proposal or participate in the crafting of the statute. (….) Secondly, the AU has not provided detailed information about its deliberations and decisions pertaining to the establishment of PAIPO. It is ironic that African states have been chastising WIPO for not being transparent enough (….) when the same can be said of them with regard to the establishment of PAIPO.

Is it asking too much of the AU to request that it defer the establishment of PAIPO until a more inclusive and transparent consultative process is carried out? Certainly not, these are the same demands African states make of WIPO. Are the calls for a more nuanced PAIPO statute with a preamble that resounds with developmental goals, public interest concerns and an emphasis on the appropriate balancing of stakeholder interests unreasonable or unachievable?” – Prof. Caroline Ncube, Associate Professor at University of Cape Town, Faculty of Law.

———–

“(….)the lack of consultation and transparency in the process leading up to the production (and potential adoption) of the Draft Statute is something that should be condemned. Intellectual property has become a highly politicised issue, and it is imperative that there be an inclusive and transparent process when initiatives of this nature are embarked upon.

My principal concern at this point in time is of a more pragmatic nature. One has to question the wisdom of trying to establish an African centralised registration system. Would the resources which are to be spent in such an endeavour not be better utilised in ensuring that the intellectual property registries and laws of the various African states are improved in order for them to participate in existing international registration systems such as the Madrid Agreement and Protocol, administered by WIPO, for trade marks? There is no cogent argument for proliferating registration systems, and for focusing on, comparatively, parochial initiatives in an era of ever-expanding cross-border trade.

The fact that I spent about 20 minutes on the African Union’s website attempting to find the Draft Statute (and failed to locate it via that route), and that the ARIPO website was unavailable when I attempted to access it, convinces me that this is an ill-conceived initiative, built on structures that have proven to be dysfunctional (and largely ignored), and, therefore, unsuited to warrant the extra resources which would be dedicated to them.” – Dr. Sadulla Karjiker, Member of the IP Unit at Stellenbosch University, Faculty of Law.

———–

“I do not see how Member States of the AU, African IP agents and other stakeholders can be expected to make a rational decision on the benefits of establishing a new continental IP body within the AU, and especially a continental registration Office, if the constitutive Protocol for such registration Office and the implementing regulations have not been formulated. (…) In my view Article 20 of the draft Statute appears problematic as some Member States of the AU do not provide for automatic ratification or accession to a convention or treaty or agreement, or automatic recognition of the legal status of an international body, without approval by the national Parliaments of Member States. (…)

Apart from the fact that the draft Statute does not define what such industrial property titles will be called (African patent, PAIPO trademark, etc.), the establishment of a supranational registration Office would appear to be a costly duplication of the registration function of current national and regional IP Offices” – Ms. Sara Moyo, President, Zimbabwe Institute of Patent and Trademark Agents (ZIPTA)

———–

“The truth of the matter is that the proposal to establish PAIPO is a misinformed and misguided effort by a small subset of policy makers at the AU that undermines other policy initiatives at the AU and by Member States that seek to: (1) minimize the impact of patent monopolies on access to medicines and other public goods technologies, (2) minimize the impact of copyright monopolies on access to educational and cultural resources, (3) preserve the livelihoods and agricultural vitality of small-scale farmers that still make up the bulk of the Africa economy, and (4) retain policy space for other more creative mechanisms that promote both knowledge creation and cultural expression while preserving affordable access to the same.

This wrongheaded proposal must be stopped. Normative agency like UNAIDS and UNDP and WHO must immediately engage AU stakeholders and issue statements cautioning against adoption of the imbalanced PAIPO proposal in its current form. Other AU bodies must demand a review of the proposed legislation and determine its consistency or inconsistency with other AU policy objectives in the IP, health, education, and development arena. African civil society organizations and their allies must insist that the proposal be euthanized and that policy space be preserved for innovation and access measures that better meet human development needs.” – Prof. Brook K. Baker, Honorary Research Fellow, University of KwaZulu Natal, Durban, S. Africa.

———–

The PAIPO saga continues…

The ‘Digital Genius’ Software Dispute: High Court Ruling in Riara Schools v. Lucas Kimani Case

riara group of schools ICT department kcpe

In a recent ruling by the High Court in the case of Riara Group of Schools Limited v Lucas Kimani [2015] eKLR, Ogola J found that Riara had failed to establish a prima facie case against an ex-employee who is alleged to have wilfully and knowingly infringed Riara’s copyright in a learning/revision computer program known as “Digital Genius”. At the heart of the case is the question whether or not a teacher formerly employed at Riara developed a computer program under his contract of service with Riara.

It is interesting to note that while the supporting evidence in Riara’s application clearly establishes an employment relationship which coincides with the period when the ex-employee claims to have developed the computer program, the court held that Riara has not provided any or enough evidence to support its assertion that the: “said computer program was developed using the Plaintiff [Riara]’s resources which included but are not limited to official working hours spent in designing and developing the software, equipment and machinery including computer hardware and electricity. Further, the utility of the said computer program was tested on the Plaintiff School’s pupils and was thereafter fully implemented and used as a teaching aid and revision material in the aforesaid Plaintiff’s School.”

A copy of the ruling is available here.