Proposed Draft National Music Bill: More Licenses, More Confusion and Yet Another Fund

The Music Policy Discussion on the Draft Music Bill Kenya by Francis Muchina Elani Sauti Sol MCSK KECOBO.jpg-large

The latest draft of the proposed National Music Bill has been released by the Permanent Presidential Music Commission (PPMC). PPMC requests all stakeholders and interested parties to circulate it widely and email back (to: directorppmc@gmail.com) any contributions, comments, reactions, etc for consideration and possible inclusion. A copy of the draft document is available here.

This blogpost highlights some of the key features of the PPMC draft document including an apparent conflict with existing intellectual property (IP) legislation.

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In Regulation We Trust: Kenya Copyright Board Proposes New Set of Administration and Enforcement Provisions

kenya copyright board kecobo

To date, Kenya Copyright Board (KECOBO) has published two sets of draft proposals of amendments to the Copyright Act on collective management organisations (CMOs) available here and on intermediary liability for internet service providers available here. KECOBO has now published a third set of draft legislative proposals namely a draft copyright regulations 2016 available here. These three sets of draft proposals will be the subject of a day-long consultative public forum to be held next week on February 11th 2016 at the Auditorium of NHIF Building starting at 8:00am. For those who will not be able to attend the public forum, KECOBO has set up an email account to receive your comments on the drafts, which is: publicforum@copyright.go.ke. This blogpost is a commentary of the key features of the draft copyright regulations 2016 proposed by KECOBO.

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OAPI Suspends Agents: IP Community Across Africa is Watching

OAPI NEW LOGO ORGANISATION AFRICAINE DE LA PROPRIETE INTELLECTUELLE

Last year, Organisation Africaine de la Propriété Intellectuelle (OAPI) published a notice on its website stating that a group of unnamed persons calling themselves “Collectif des Conseils en propriété industrielle” were leading a public campaign opposing OAPI’s accession to the Madrid Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. Recently, OAPI published two notices here and here informing the public that two OAPI Agents, Christian Djomga and Judith Fezeu Tchimmoe along with all other representatives from their firm, Cabinet Isis, have been provisionally suspended. In addition to several alleged violations of OAPI rules, OAPI claims that Djomga and Fezeu are involved in the Collectif’s campaign against OAPI joining Madrid.

Intellectual property (IP) observers will be keenly following this on-going matter between OAPI and the Collectif with at least three main questions in mind. Firstly, how will OAPI member states react to the Collectif’s campaign? Secondly, what will be the fate of the agents implicated in the Collectif and it’s campaign? Thirdly, how will the outcome from this saga between the Collectif and OAPI affect relations between agents and IP offices in other African countries?

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Proposed Copyright Act Amendments on Regulation of Collective Management Organisations

kecobo kenya copyright board

This week, Kenya Copyright Board (KECOBO) has published a set of draft amendments on collective management organisations (CMOs) available here. KECOBO has requested the public to give comments on these ISP provisions through the email account: publicforum@copyright.go.ke. In this regard, KECOBO has confirmed that it shall convene a consultative public forum on February 11th 2016 at the Auditorium of NHIF Building starting at 8:00am. This blogpost is a commentary of the key features of the draft CMO provisions from KECOBO.

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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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New Regulations Prohibit Registered Trade Marks as Company Names – Problem?

Companies Registry at Office of Attorney General Sheria House Nairobi by Business Daily

In an earlier post here, this blogger reported that Kenya finally enacted a new and comprehensive company law legislation. The Companies Act 2015 contains an express provision on prohibited names which states that the Registrar of Companies has the discretion not to register a company if the name applied for reservation is offensive or undesirable.

The Act states that the criteria to be used by the Registrar to determine whether a particular name is offensive or undesirable shall be prescribed by the regulations. This blogger is now pleased to report that the regulations in question have been published in the Kenya Gazette. From an intellectual property (IP) perspective, it is notable that the regulations contain a provision intended to provide greater certainty in situations where a company is registered using a name that is identical to a registered trade mark belonging to a third party.

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President Assents to Anti-Counterfeit (Amendment) Act 2014

parliament of kenya by diasporadical

This blogger has received official confirmation that the Statute Law (Miscellaneous Amendments) Bill, 2014 passed by the National Assembly on 13/08/2014, was assented to by the President of the Republic on 28/11/2014 thereby bringing the Anti-Counterfeit (Amendment) Act 2014 into force. The Bill has effectively amended four sections of the Anti-Counterfeit Act, namely sections 2, 6, 16 and 34. A copy of the Bill is available here.

The Bill’s Memorandum of Objects and Reasons explains that the Anti-Counterfeit Act has been amended to “provide for the establishment of the Board to manage the Anti-Counterfeit Agency. It [The Bill] also establishes an Intellectual Property Enforcement and Co-ordination Advisory Committee. It [The Bill] also introduces a new provision empowering the Executive Director to compound offences committed under the Act.”

What follows is this blogger’s take on the recent amendments to the Act.

Section 2

This is an amendment by deletion. The words “or elsewhere” have been deleted in the definition of “counterfeiting” under the Act. The spirit behind this amendment appears to be based on the principle of territoriality in intellectual property law.

Unlike Kenya Copyright Board (KECOBO), the Anti-Counterfeit Agency (ACA) appears to have facilitated public participation and stakeholders’ consultations in the drafting of these proposed amendments. For instance, the ACA organised a Stakeholders’ Meeting on September 25, 2013 to deliberate on changes to the Anti-Counterfeit Act. However, health activists voiced their disappointment with the outcome of the meeting (See here) which later morphed into a full blown social media campaign dubbed #TellACABoss (See here).

Therefore this blogger reckons that the health activists will be disappointed once more with the amendment to section 2. The health activists have consistently maintained that the definition of counterfeiting under the Act creates ambiguity between ‘generic’ and ‘counterfeit’ medicines thereby threatening access to affordable and essential generic medicines. They hold that this definition in section 2 goes beyond what is legally required under the World Trade Organization Trade Related Aspects of Intellectual Property Rights (TRIPs), which Kenya has already domesticated into law. The activists have been emboldened in their calls for amendments to the Act by the landmark judgment in the case of Patricia Asero Ochieng and 2 Ors v The Attorney General. In this case, the judge held, inter alia, that:

“It is incumbent on the state to reconsider the provisions of section 2 of the Anti-Counterfeit Act alongside its constitutional obligation to ensure that its citizens have access to the highest attainable standard of health and make appropriate amendments to ensure that the rights of petitioners and others dependent on generic medicines are not put in jeopardy (…)”

Section 6(1)

This is an amendment by deletion and substitution. The new section is intended to set out the composition of the ACA Board of Directors. This amendment principally aims at reducing the size of the ACA Board and setting the minimum qualifications for private sector appointees to the ACA Board. Any private sector appointee is required to have at least one degree from a university recognised in Kenya and at least ten (10) years’ experience in matters relating to either intellectual property (IP) rights, consumer protection or trade.

The lean ACA Board will no longer include the heads or representatives from the Ministry of Trade, KECOBO, the Office of the Attorney General, Kenya Industrial Property Institute (KIPI), Kenya Plant Health Inspectorate Services (KEPHIS) and the Pharmacy and Poisons Board.

This blogger is in full support of these amendments as it promotes professionalism and good governance. The other IP agencies, KECOBO and KIPI, would be well advised to emulate ACA’s example with similar amendments to the Copyright Act and Industrial Property Act respectively.

Section 16(4)

This is an amendment by addition. Section 16(4) establishes a special committee known as the Intellectual Property Enforcement and Co-ordination Advisory Committee (IPECAC). IPECAC will be comprised of fifteen (15) members namely the Cabinet Secretary for Industrialization and Enterprise Development who will be the chair and fourteen members drawn from various state agencies involved in protection and enforcement of IP rights.

The spirit of this amendment is praise-worthy. However, this blogger is of the view that a committee of 15 members may be slightly bloated. Ideally, the members of IPECAC should be no more than nine (9) in number, with the bulk of the members coming from the various state agencies to be removed from ACA’s Board under the proposed amendment to section 6(1).

Section 34A

This is an amendment by insertion. The new section empowers the ACA Executive Director to act as judge, jury and executioner with respect to all offences committed under the Act. These powers allow the Executive Director to order the payment of a fine or forfeiture. However the Executive Director can only exercise these powers where the person who has committed the offence(s), admits in the prescribed form that s/he has committed the offence(s) and requests the Executive Director to deal with such offence under this new section.

This is a very positive amendment to the Act and is both constitutionally and logically sound. This section will allow ACA to dispose of criminal cases efficiently and expeditiously while expending significantly less time and energy. Once again, KECOBO would do well to borrow a leaf from ACA in this regard when making necessary amendments to section 38 of the Copyright Act.

This blogger will be keenly following the implementation of these amendments and the impact of these amendments on the anti-counterfeiting matters in Kenya.

Reminder: CIPIT – KIPI Training Course on Patent Drafting and Prosecution, 18th – 21st August 2014

“The strength of a patent depends on a properly prepared patent specification that meets the requirements prescribed in the Industrial Property Act 2001 and the industrial Property Regulations 2002. In addition, there are generally accepted practices that have developed over the many years of patent practice, which serve to guide preparation and prosecution of patent applications.”

There will be a training course, Patent Drafting and Prosecution, to be held on 18th – 21st August 2014 at Strathmore University. For learned friends who attend and complete this course, they will receive 2 CLE points. The course prospectus is available here and the course programme is available here.

For those who attended this course in 2013 (see here), and wish to further refine your patent drafting skills, please note that the 2014 version of the course will focus heavily on patent drafting for ICT-based inventions. The trainers of this year’s training course will also work with repeat attendees to customize your training.

The fee per participant is Ksh 50,000 which is inclusive of course materials, lunches and teas. Participants who register and pay the fee early will enjoy a special rate of Ksh. 45,000.

For more information contact: cipit@strathmore.edu

Copyright Board To Review Guidelines for Collective Management Organisations

This blogger has learned that KECOBO is in the process of the review its CMO Guidelines titled “Guidelines for Licensing Collective Management Organisations”. These CMO Guidelines are available on KECOBO’s website here. Therefore, this blogger hopes to provide an in-depth examination of the Guidelines while making comments on important areas and issues connected with the Guidelines.

In coming up with these Guidelines, KECOBO explains in the opening paragraph that it is mandated under the Act to license and supervise CMOs in Kenya so to ensure that CMOs carry out their core function, namely the collection and distribution of royalties. It is noteworthy that since 2011 when the Guidelines were introduced, KECOBO has been enforcing these Guidelines against CMOs despite the fact these guidelines have no force of law. It is therefore advisable that KECOBO causes the inclusion of these Guidelines in Regulations to be made by the Minister (Attorney General) under section 49 of the Act.

Notwithstanding the legal force of these Guidelines, this blogger has the following comments to make on the Guidelines:

1. Title: this blogger suggests that the title of the Guidelines be amended to include “and Supervising”.

2. Public Notice: KECOBO may wish to include a time frame within which notices shall be published to increase KECOBO’s accountability and transparency. In addition, KECOBO may wish to specify which platform(s) will carry the public notices eg. local dailies with national circulation, KECOBO’s official website, KECOBO notice board?

3. Licensing: In the spirit of transparency and accountability, KECOBO may consider including a time frame within which licenses shall be processed once all application documents are submitted.

4. New Applications: The requirement under (g) appears vague and KECOBO may consider specifying what documents would be required to satisfy that the applicant has the “capacity for collection and distribution of the royalties”.

5. Renewal of License: To avoid duplication of documents submitted by licensed CMOs, the requirements of (a) and (b) should be removed. In the alternative, the requirement (b) should be qualified for cases where the memorandum and articles of association have been amended.
With regard to requirement (i), submitting individual deeds of assignment for each and every member may be onerous for most CMOs due to the sheer bulk of documentation to be produced. At any rate, KECOBO may decide to verify the deeds during an inspection visit to ensure that it corresponds with the list of members submitted.

6. Revocation of a license: The CMO Guidelines have made several additions to the grounds provided under the Act. However the wording and punctuation of this list of grounds for revocation is ambiguous as it does not disclose whether all the ten (10) listed grounds must be present for revocation or whether the presence of one or several grounds is sufficient.

In sum, this blogger submits that the Guidelines play an important role of supplementing the existing legal provisions on licensing and supervision of CMOs found in the Copyright Act, 2001 and Copyright Regulations, 2004. However these Guidelines ought to be given the force of law in order for KECOBO to enforce them against CMOs.

Editor’s note: The author currently works with MCSK however the views, opinions and analyses expressed herein are solely those of the author and are not those of his employers, both past and present.

Proposed Intellectual Property Law Amendments: Kenya Anti-Counterfeit Act

Parliament of Kenya

In an earlier blogpost here, this blogger discussed proposed amendments to the Copyright Act introduced through the Statute Law (Miscellaneous Amendments) Bill, 2013 published in Kenya Gazette Supplement No. 146 (Bills No. 32). In similar fashion, this Bill also seeks to amend four sections of the Anti-Counterfeit Act, namely sections 2, 6, 16 and 34. A copy of this Bill is available here (See pages 933-936).

Read the rest of this article here.