The Rise of Constitutional Intellectual Property in Kenya

In a recent judgment in the case of Patricia Asero Ochieng, Maurine Atieno and Joseph Munyi vs Republic H.C.C.C. Petition No. 409 of 2009 handed down by Lady Justice Mumbi Ngugi (also known as “Kenyan Jurist” in blogging circles), the Constitutional Division of the High Court held that one of Kenya’s intellectual property laws namely the Anti Counterfeit Act was unconstitutional.

The full text of the judgment is available here.

At paragraph 87 of the judgment, the court’s ruling on the unconstitutionality of this IP act reads as follows:

Sections 2, 32 and 34 of the Anti Counterfeit Act threaten to violate the right to life of the petitioners as protected by Article 26 (1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable standard of health guaranteed under Article 43 (1) and the court hereby grants the declarations sought by as follows:

(a) The fundamental right to life, human dignity and health as protected and envisaged by Articles 26(1), 28 and 43(1) of the Constitution encompasses access to affordable and essential drugs and medicines including generic drugs and medicines.

(b) In so far as the Anti Counterfeit Act, 2008 severely limits or threatens to limit access to affordable and essential drugs and medicines including generic medicines for HIV and AIDS, it infringes on the petitioners’ right to life, human dignity and health guaranteed under Articles 26(1), 28 and 43(1) of the Constitution.

(c) Enforcement of the Anti Counterfeit Act, 2008 in so far as it affects access to affordable and essential drugs and medication particularly generic drugs is a breach of the petitioners’ right to life, human dignity and health guaranteed under the Constitution.

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The Fate of Music Copyright Society of Kenya (MCSK)

Today IPKenya came across this story in the Bahamas Tribune about the Bahamas Copyright Royalty Tribunal titled “Copyright Holders Recieve ‘Not One Cent’ in 11 Years” and the opening paragraph summarises the article as follows:

“”NOT one single cent” has been paid by the fund set up 11 years ago by the Bahamas to compensate intellectual property rights holders, Tribune Business can reveal, due to the absence of a regulatory regime that stipulates payment rates.”

Immediately one is reminded of Kenya’s own challenges with fees collection and royalty payments, best exemplified by Music Copyright Society of Kenya (MCSK).

As you know, an ugly row took centre stage last year after KECOBO deregistered MCSK as a collective management organisation (CMO) acting on behalf of authors and composers of music primarily because MCSK’s operational costs were too high compared to the royalties it pays musicians. For instance, MCSK’s expenses stood at Sh137 million in the year to June 2010 against revenues of Sh185 million, leaving it with a surplus of Sh48 million or 25 per cent of its collections, which are supposed to go to musicians. Meanwhile KECOBO maintained that the guidelines for CMOs clearly stated that only 30% of monies received can be spent on administrative costs and the remaining 70% must be distributed among musicians as royalties. As the financial books showed, MCSK was doing quite the opposite: distributing 30% and spending 70%, notwithstanding the large number of complaints over unpaid royalties from musicians.

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