Idea/Expression Murkiness: Court Ruling in Nation Media Copyright Suit over ‘LIT 360’ Simulcast Show

Lit360 Nation Media Group April 2018 31337776_588196948202537_5963395935391186944_o

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 [2018] 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.

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Recap of 6th Global Entrepreneurship Summit 2015 #GESKenya2015

6th Annual Global Entrepreneurship Summit (GES) Nairobi Kenya 2015 July Victor Nzomo Delegate

In a previous post here, this blogger announced that among the topics to be discussed at the 6th Global Entrepreneurship Summit (GES) was the protection of intellectual capital with a sharp focus on intellectual property (IP). In addition to the IP Workshop on the first day, there was a Creative Economy Workshop on the second day. According to this workshop’s introduction, the creative industries (arts, entertainment, fashion) are attractive to many young people but few understand the business behind these industries and how to tap the creative economy to give them returns. On the workshop’s panel was a group of successful creatives who are turning the creative arts into sources of revenue, jobs and wealth creation.

In addition to the above, this blogpost will profile some of the top products and services pitched during the Global Innovation through Science and Technology (GIST) Tech-I Competition at GES which recorded over 790 applications from 74 countries in the sectors of agriculture, energy, healthcare, and information communication technology.

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Med Dispenser Loses First Round Against Health Presence: Copyright Ruling in Dedan Maina Warui & another v. Safaricom case

“It could be said that Copyright seeks to protect the author’s actual expression and not the ideas, and it does not therefore forbid independent creation. As such, the claim that the two parties in this suit had an idea on tele-healthcare, but which they expressed differently is not untenable in law.” – Gikonyo J. at page 7.

In a recent ruling by the High Court in the case of Dedan Maina Warui & another v Safaricom Limited [2014] eKLR, a medical doctor was denied a temporary injunction and an order of delivery up with respect to a health-related product launched by Safaricom. A copy of the ruling is available here.

Dr. Dedan Maina Warui claims that Safaricom infringed its copyright in a concept styled under the name “Med Dispenser” which the doctor pitched to the leading mobile network operator’s Enterprise Business Unit on or about March 2011. To prove ownership of the copyright in the concept, the doctor presented a certificate of registration No. CR 000712 dated 8th March, 2011 whereby the Med Dispenser was registered as a Literary Work number KCB 0712 by the Kenya Copyright Board. The literary work in question is a concept paper containing the work flow, methodology or the process in which the med dispenser innovation would work once deduced into a software program.

AAR Safaricom Health Presence October 2012

Safaricom admitted that it did give some initial consideration to the Warui’s proposal, but however made a decision to proceed with a separate proposal which involved a partnership with AAR and Cisco Systems Inc. (Cisco’s system is featured in video featured above) to launch the Tele-health product which was developed without any reference to the Warui’s innovation or ideas. Safaricom claims that the electronic medical prescription concept upon which it’s “Health Presence” product is built, has been in use in other jurisdiction, namely India, since May 2010 and was therefore not an original idea of Warui as claimed.

The learned Gikonyo J. appears to have rendered a fair ruling in this case avoiding the error made by his brother Havelock J. in the case of Faulu Kenya Deposit Taking Microfinance Limited v Safaricom Limited [2012]eKLR where the latter stated that a concept paper does not fall within any of the existing categories of copyright works (See our analysis of Havelock and his ruling here).

In October 2011, a media report published here by our good friends over at CIO East Africa announces that Cisco, Deaf Aid and Safaricom formally piloted the first Cisco HealthPresence clinic in Kenya. The article reads in part:

“This first implementation of Cisco’s HealthPresence solution in Kenya demonstrated how technology can transform the delivery of healthcare to underserved, remote, and rural areas. Bandwidth connectivity was provided by Safaricom, the leading provider of converged communication solutions in Kenya.”

Tele-medicine The Standard October 23 2012

In the same month, Warui claims he saw the above article titled: “Tele-medicine: Treating patients from a distance” published by the Standard newspaper on October 23, 2012. The article reads in part:

“Safaricom Health Presence is a product that will use tele-presence to deliver health services to patients, with the doctor giving instructions to the patients or nurse, on what to do, and what medicine to prescribe. (…) Speaking at the launch of the product, Safaricom CEO, Bob Collymore noted that the adoption of tele-medicine would help address the gnawing question of the skewed doctor to patient ratio. He [Collymore] noted: ‘With this technology, all a doctor needs is a computer or a tablet to treat a patient. The product aims at widening reach of quality healthcare in the country’.”

Warui further claims that Safaricom made a business presentation in January 2013 on its “Health Presence Solution” to the Pharmaceutical Society of Kenya. In light of these two claims, Warui alleges that these products by Safaricom were based on his work which formed the core of his proposal registered as a literary work with KECOBO.

While the court rightly agrees with Warui that his concept paper was copyrightable, the ruling is cautious to note that from the evidence adduced by Warui, it is not clear which exclusive rights in the Concept Paper Warui is alleging to have been breached by Safaricom. Therefore the court makes the correct judgment call by stating as follows:-

“…In the absence of oral evidence which can be tested by way of cross examination, it would be difficult to ascertain whether the Defendant [Safaricom] has infringed on any intellectual property rights of the Plaintiff [Warui] in the Med Dispenser innovation by introducing the Safaricom Health Care Presence platform in conjunction with Cisco Limited. From the material before the Court, the Plaintiffs did not quite navigate the mix in this matter arising from the circumstances of the case, and thus, did not establish a prima facie case with a probability of success. The upshot is that the application before the court fails. However, the suit should be set down for hearing on a priority basis so that the substantive issues which are of great significance in the field of intellectual property law are resolved once and for all.”

Safaricom and Intellectual Property Theft: Some Thoughts

The Business Daily reveals that there are currently two accusations of intellectual property theft levelled against Safaricom, Kenya’s leading mobile telephone company:

a. “Maliza Storo”: a service that enables pre-pay subscribers to access airtime on credit for a fee of 10 per cent for each request.

b. “M-Kesho”: a mobile-based platform allows customers to perform basic banking transactions.

The accusations in both cases are more or less the same. Innovators pitched these ideas as business proposals to Safaricom. Safaricom accepts the proposals. Several months later, the innovators in question see their ideas have been implemented without Safaricom seeking their consent or paying any form of compensation.

IPKenya would like to make the following three overlapping points:

1. Patentability of business methods?:

There is/was an argument that mobile phone generated innovations such as Mpesa could be protected as process patents in Kenya. However, the Industrial Act is clear in Section 21 (b) that patentable inventions do not include:
“schemes, rules or methods for doing business, performing purely mental acts or playing games”

So IPKenya wonders why Justice Musinga has referred the mPesa case to the Industrial Property Tribunal. The Tribunal’s hands are tied. It will only confine itself to the four corners of the Industrial Property Act, 2001 which will not work in favour of the innovator.

2. The role of the IP offices:

The IP offices namely KIPI and KECOBO still have a long way to go as far as awareness creation is concerned. The challenge is to demystify IP and give all members of the public basic information on how they can use the IP system to safeguard their intellectual assets. Other information that the IP offices need to pass on to the general public is on the use of non-disclosure agreements, licensing agreements and other relevant forms of contracts.
These offices must also be more pro-active in lobbying for funding for innovators, creators, inventors with great ideas and projects but lack adequate funding.
IPKenya is also concerned about the peculiar practice at KECOBO where individuals are allowed to register business proposals, concepts, TV show plots and events as literary works. These individuals register these works under the false presumption that they are obtaining a monopoly over the ideas contained in their proposed works.
Instead IPKenya argues that the IP offices should put more emphasis on the role of branding. Inventors and creators must be encouraged to brand their innovative goods and services using the trademark system. The public needs to understand that copying can only be countered by establishing goodwill and brand loyalty as the pioneer and quality benchmark in a particular market.

3. The role of the Judiciary:

IPKenya would like to believe that the courts can help put an end to a disturbing trend of Safaricom’s exploitation of the ideas of innovative Kenyans. Here we pause to recall the case of Alternative Media Ltd v Safaricom, Civil Case 263 of 2004. The plaintiff alleged that the defendant had used the plaintiff’s artwork on the defendant’s scratch cards without the plaintiff’s authority. The plaintiff claimed that the defendant had infringed the plaintiff’s copyright and asked the court for compensation and to permanently restrain the defendant from committing further infringement. The court found in favour of the plaintiff, stating that it had proved it was the owner of the copyright in the artistic works in issue and that the defendant had infringed this copyright.

However, the present cases require the courts to go beyond interpretation and to actually create new law in the area of industrial property. Although section 21 of the Industrial Property Act purports to exclude “methods of doing business” from the scope of patent protection, it is undeniable that mobile technology in Kenya particularly mobile money transfer, is/was a process that is/was novel, inventive/non-obvious and industrially applicable. In the present case, all indications are that Safaricom has been unjustly enriched from the mPesa idea and other ideas it has turned into business products without giving any form of compensation to the innovators concerned.
More fundamentally, IPKenya argues that the industrial property law must be re-examined in light of this mPesa case with the possibility of allowing grants of patents to be issued for business methods.

UPDATE: Isaac Rutenberg over at Afro IP Blog has just published an article titled: “Safaricom, mPesa and business method patents: another view” in which he disagrees with the position I have taken on business methods patents in Kenya. Kindly share with us your views on this debate.