ARIPO Roving Seminar Comes to Kenya: Copyright in the Digital Environment, 16 – 17 March 2015

ARIPO ROVING SEMINAR 2015 KENYA COPYRIGHT IN THE DIGITAL ENVIRONMENT KECOBO

The African Regional Intellectual Property Organization (ARIPO) in collaboration with the Kenya Copyright Board (KECOBO) will be hosting a seminar on copyright and related rights as part of the on-going series of ARIPO roving seminars. The Seminar will be held on 16 and 17 March 2015 in Nairobi.

The theme of the Seminar is “Copyright in the Digital Environment”. According to the host organisations, digital networks have had a major impact on the way we access, use, reproduce and disseminate copyright works such as music, film, software, visual arts among others. Therefore the Seminar is aimed at providing an opportunity for stakeholders to interact with experts and players in the industry to discuss topical issues related to the theme.

Some of the speakers at the Seminar will include:

– Githu Muigai, Attorney General of Kenya
– Tom Mshindi, Chairman KECOBO
– Sylvance Sange, Ag. Managing Director, KIPI
– Fernando Dos Santos, Director General, ARIPO
– Adejoke Oyewunmi, MIP Professor, Africa University, Zimbabwe
– Ben Sihanya, IP Professor, University of Nairobi, Kenya
– Henry Mutai, Former Managing Director, KIPI
– Hezekiel Oira, Former Corporation Secretary, KBC
– David Muriithi, Board Member, KECOBO
– June Gachui, Principal, JGIP Consultants
– Lawrence Njagi, Chairman, Kenya Publishers Association
– Sharon Chahale Wata, General Manager, KOPIKEN

KECOBO asks that those who are interested in attending the roving seminar should send their details to info@copyright.go.ke as soon as possible.

International Women’s Day: Celebrating African Women Leaders in Intellectual Property

Angélique Kidjo won her 2nd Grammy Award in 2015. The world renowned Beninoise singer-songwriter is Vice President of the International Confederation of Societies of Authors and Composers (CISAC). CISAC is the umbrella body for copyright societies worldwide.

Angélique Kidjo won her 2nd Grammy Award in 2015. The world renowned Beninoise singer-songwriter is Vice President of the International Confederation of Societies of Authors and Composers (CISAC). CISAC is the umbrella body for copyright societies worldwide.

Celebrated globally on 8th March, this year’s International Women’s Day highlights the Beijing Declaration and Platform for Action, a historic roadmap signed by 189 governments 20 years ago that sets the agenda for realizing women’s rights. The official United Nations theme for International Women’s Day 2015 is “Empowering Women – Empowering Humanity: Picture It!”

“When we unleash the power of women, we can secure the future for all” – United Nations Secretary-General Ban Ki-moon in his message for International Women’s Day 2015.

To mark this year’s International Women’s Day (#IWD2015), this blogger has compiled a list of some of the (influential) women (leaders) in intellectual property (IP) from Kenya and throughout English-speaking Africa. The women listed below (in no particular order) are primarily drawn from IP offices, academia, non-governmental organisations and the IP legal fraternity.

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Constitutionalisation of Intellectual Property in Africa: Some Experiences from Kenya

KENYA-CONSTITUTION-KIBAKI

This month’s edition of the World Intellectual Property Organization (WIPO) publication “WIPO Magazine” contains an article on Egypt and Tunisia’s new constitutions which ‘recognize the importance of the knowledge economy and intellectual property (IP) rights’. This article by one Ahmed Abdel-Latif titled: “Egypt and Tunisia Underscore the Importance of IP” reads in part:

“For the first time, the constitutions of these two countries provide for the protection of IPRs although in different ways. In both constitutions, the wording is succinct: the Egyptian Constitution stipulates that the “State shall protect all types of intellectual property in all fields” (Article 69) and the Tunisian Constitution indicates that “intellectual property is guaranteed” (Article 41).”

In addition, the article notes that ‘both constitutions contain a number of clauses on the protection of culture, health, and heritage which can influence both the interpretation and implementation of the IP rights clauses’.

With regard to the “challenge of implementation” of the IP rights clauses in the two constitutions, the article astutely points out that:-

“(…) ultimately the manner in which these clauses are implemented through national laws and judicial decisions will be critical in ensuring that a balanced approach to IP protection is adopted; one which takes into account the level of development of each country and one which is supportive of their respective public policy objectives.”

At this juncture, it may be instructive for this blogger to share some views on Kenya’s experiences thus far with constitutionalised IP protection since it begun in 2010. The pre-2010 Constitution of Kenya did not capture concerns on innovation and IP. In that Constitution, sections 70 and 75 capturing the Bill of Rights provided substantive property guarantees limited to real property as opposed to technological innovations, cultural innovations and IP. However in 2010, there was a paradigm shift which resulted in the promulgation of a new Constitution. This new social contract expressly protects IP, innovation and technology transfer. For the first time in Kenya’s history, IP norms were constitutionalised. First, Article 260 (c) includes IP in the definition of “property”. Secondly, Article 40 (5) obliges the State to support, promote and protect the intellectual property rights of the people of Kenya. In the same breath, Article 69(1) (c) and (e) mandates the State to protect and enhance intellectual property, traditional or indigenous knowledge of biodiversity and the genetic resources of the communities and protect genetic resources and biological diversity.

Under Article 11(1), the Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. And mandates the state to promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; recognise the role of science and indigenous technologies in the development of the nation; and promote the intellectual property rights of the people of Kenya.

Parliament is also mandated to enact a law to ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage. This legislation should also be passed which recognise and protects the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

So far, it appears that the judicial branch of government has risen to the challenge of implementation of the constitutional IP provisions, with due deference to the executive branch aptly represented by the Kenya Industrial Property Institute (KIPI), Kenya Copyright Board (KECOBO) and the Anti-Counterfeit Authority (ACA). Notable court decisions directly related to constitutional IP protection include the Patricia Asero case (previously discussed here, here and here), the Digital Migration case (previously discussed here and here – this matter is currently before the apex court, Supreme Court of Kenya), the Sanitam case of 2012 (previously discussed here).

Away from the courts, KECOBO and KIPI are leading an inter-ministerial taskforce on Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources. This taskforce has already finalised work on a draft Bill on the protection of TK and TCE (previously discussed here and here). In the meantime, several state agencies dealing with IP have held consultative forums to develop a National IP Policy (previously discussed here). Still within the Executive, the Ministry of Sports, Culture and the Arts has established a multi-stakeholder committee to finalise work on a draft National Music Policy (previously discussed here and here). It is hoped that the forthcoming merger of KIPI, KECOBO and ACA (previously discussed here, here and here) will increase the Executive’s capacity to spearhead the implementation of the various constitutional provisions relating to IP.

All in all, the road from adaptation to full realisation of constitutionally guaranteed IP protection is long, arduous and involves several levels of engagement.

Benefit Sharing Deal for San & Khoi Communities Should Inspire the Maasai

Tom Lalampaa and Prince William

The Atlantic published an article titled: “The Maasai People Take Back Their Brand” in which it highlights the efforts of UK-based non-profit Light Years IP in helping the Maasai “trademark its customs and name and claim a share of profits” made from the use of its name by European companies such as Land Rover and Louis Vuitton. Readers of this blog will no doubt confirm that this misleading article by the Atlantic appears to have gone viral and has been widely shared, re-posted, tweeted and retweeted. (See previous stories on the “Maasai brand” by the Guardian and BBC.)

While the Atlantic article continued to flood the internet, the news24 network in South Africa issued a press release announcing that a benefit-sharing agreement was signed between Cape Kingdom Nutraceuticals, the South African San Council (SASC) and the National Khoisan Council (NKC). Michael Stander, Managing Director of Cape Kingdom Nutraceuticals – a Cape Town-based company that acquires and processes the buchu plant in South Africa – is quoted as having said that:

Read the rest of this article here.

Constitutional Protection of Traditional Knowledge in Zimbabwe and the Robert Mugabe Fashion Brand

zimref

Recently, the people of Zimbabwe went to the polls in a referendum vote for the acceptance or rejection of a draft new Constitution to replace the Lancaster Constitution of 1980, tied with their independence from Britain in 1980.

A copy of the Constitution Select Committee (COPAC) Final Draft Constitution is available here.

Local media reports now indicate that Zimbabweans have voted in overwhelmingly in favour of the new Constitution.

This blogger has been going through Zimbabwe’s new Constitution and came across three interesting provisions, as quoted below:

16 Culture

(2) The State and all institutions and agencies of government at every level, and all Zimbabwean citizens, must endeavour to preserve and protect Zimbabwe’s heritage.

(…)

33 Preservation of traditional knowledge

The State must take measures to preserve, protect and promote indigenous knowledge systems, including knowledge of the medicinal and other properties of animal and plant life possessed by local communities and people.

(…)

71 Property rights

(1) In this section –

property means property of any description and any right or interest in property.

Read the rest of this article over at the CIPIT Law Blog here.