3, 2, 1: Action as Film Regulation Moves to ICT Ministry

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Last month, the President signed Executive Order No. 1 of 2018 on the Organisation of Government which, inter alia, assigned functions and institutions among Ministries and State Departments. One interesting new change in the structure of the Government is that Kenya Film Classification Board (KFCB) and Kenya Film Commission (KFC) are now listed under the State Department for Broadcasting and Telecommunications in the ICT Ministry. In addition the Ministry’s functions now includes overall responsibility for policies on film development in Kenya and the development of the country’s film industry.

This may all seem like a mundane bureaucratic detail but in reality it may well represent a fundamental shift in Kenya’s approach to the development of the creative economy and the important contribution of the film industry. But like every good story, there is a plot twist: the only thing that KFCB and KFC seem to agree on is that they are better off separate than together. Lately, the two lead film agencies have been at loggerheads (see video clips here and here) over how best the film industry should be regulated for the development of this vital pillar of the creative and cultural industries.

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

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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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Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act No. 33 of 2016 Comes into Force

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On 31 August 2016, President Uhuru Kenyatta (pictured above) assented to the Protection of Traditional Knowledge and Cultural Expressions Bill, No.48 of 2015. The Bill was published in Kenya Gazette Supplement No. 154 on 7 September 2016 cited as the Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016. The date of commencement of the Act is 21 September 2016, which means the Act is now in force. A copy of the Act is available here.

In previous blogposts here, we have tracked the development of this law aimed at creating an appropriate sui-generis mechanism for the protection of traditional knowledge (TK) and cultural expressions (CEs) which gives effect to Articles 11, 40 and 69(1) (c) of the Constitution. This blogpost provides an overview of the Act with special focus on the issues of concern raised previously with regard to the earlier Bill.

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Comments on the Protection of Traditional Knowledge and Traditional Cultural Expressions Bill, 2015

Call for Submission of Memoranda - National Assembly - TK Bill 2015 Kenya

This blogger has learnt that the Protection of Traditional Knowledge and Traditional Cultural Expressions Bill, 2015 has undergone Second Reading at the National Assembly as it nears enactment as a law in Kenya.

Other than the detailed commentary sent out last month by Prof. John Harrington and Dr. Lotte Hughes on the Bill, there has been no other substantive reactions or comments on the Bill excluding this recent piece on an earlier draft of the Bill.

A copy of the Bill tabled in Parliament is available here.

The commentary and response by Harrington and Hughes on the Bill reads in part:

“…the bill freely mixes ideas from conventional IP protection, sui generis regimes for TK and TCEs and the 2003 UNESCO Convention on the Safeguarding of the Intangible Heritage without trying to harmonise them or limit problematic consequences from the different approaches taken. The resulting system of protection may have some unintended consequences.”

What follows are some of this blogger’s thoughts on the Bill including some of the same issues raised by Harrington and Hughes.

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Nollywood, Rejoice: Nigerian Copyright Reform Draft 2015 Bill Published

Nigerian-Copyright-Commission-NCC

In November 2012, the Nigerian Copyright Commission (‘the Commission’) formally launched the Reform of the Copyright System. The key objective of the reform was to re-position Nigeria’s creative industries for greater growth; strengthen their capacity to compete more effectively in the global marketplace, and also enable Nigeria to fully satisfy its obligations under the various International Copyright Instruments, which it has either ratified or indicated interest to ratify.

Since the formal launch of the Reform, the Commission has undertaken a number of activities, including review and comparative analysis and case studies of similar national reform efforts; stakeholders’ consultations; collation of commentaries; and analysis of stakeholder feedback.

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Some World Intellectual Property Day 2015 Posters from Africa

Map of World Intellectual Property Day 2015 Events

As the world prepares to mark World Intellectual Property (IP) Day this Sunday April 26th 2015, this blogger has come across several World IP Day posters from around the continent created to reflect this year’s theme: “Get Up. Stand Up. For Music”. According to the map of World Intellectual Property Day 2015 Events by World Intellectual Property Organization (WIPO), there are only sixteen (16) confirmed World IP events being held in ten (10) countries across the continent. This blogger reckons that this represents a low turn-out by IP stakeholders across Africa’s fifty four (54) states given this year’s World IP Day theme and the importance of World IP Day activities and events for awareness creation and public sensitisation.

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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.