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Intellectual Property: Are we missing out on something?

Integrating patents into business  is one of the most neglected factors in Africa. Kenya has seen two of its most indigenous products: the  Kikoi and Kiondo swallowed by international companies through patents which will in no doubt lead to increased poverty due to reduced sales among Kenyan women groups. Whereas the Kikoi  has been patented by Kikoi Company UK, the  Kiondo on th other hand has been registered as a Japanese trademark.

Universities and research institutions are losing millions of shillings in potential earnings as some employees opt to privately patent new products and services developed from their laboratories. Industry statistics show that 95% of applications for patents come from individual and private companies leaving institutions with nothing.  Patent issues are slowly catching up with communities not well informed or protected by patent legislation.

Though many would jump and point a finger at the many inadequacies of the law, ignorance and lack of public awareness of the basics of intellectual property (IP) rights and the fact that it might be a little bit costly are a major factor. In addition, lack of sufficient training facilities on IP and insufficient funds for running IP institutions has contriributed to the current IP problems. Moreover, IP related issues are not a priority to the Government due to other pressing needs such as food security and  poverty among others.

A majority of people are blinded by mythical assumptions.

Myth 1: Since it's becoming difficult to avoid infringement regardless of what niche I'm in, I'm better off not taking a patent to advertise my company as bait.

Myth 2: There's absolutely no competition out there for my business, so there's no sense in spending money to patent any part of it.

Myth 3: If the invention is "obvious to one skilled in the art," the patent won't be valid.

Myth 4: It takes a long time to license a patent. I want to have something to show by the second quarter next year.

Disregard of intellectual property rights is seemingly going to cost many in public and private corporations a handsome amount of business. The owner of a patented invention can take legal action to prevent the unlicensed manufacture, use, importation or sale of the invention. The owner can use this right to develop a business based on the invention and prevent others from competing directly with him/her by using the same invention. Alternatively, the patent owner may allow someone else to exploit the invention, under a licensing agreement, in return for royalties.

Strong intellectual property rights promote the investment of time and money in the development of the results of research into products and processes that benefit society.Whereas patents are only one determinant of investment, other factors such as domestic technological capacity, availability of research infrastructure, and the existence of a skilled labor force are important. Some countries with strong patent protection have received little investment, while others with little or no protection have received significant investment. This suggests that other factors may play a more important role.  For instance, in a publicly heated debate; Starbucks coffee corporation was trying to patent Ethiopia coffee brands. To the chagrin of Starbucks, Ethiopia won this debate and Starbucks agreed to pay royalty rights to Ethiopia. This issue wouldn't have even occurred if Ethiopia, or the African Union had a strong patent or intellectual property law.

The legislative regime in Kenya though catering for Intellectual property rights, has proven to be insufficient in meeting the growing needs in the developing world. The constitution of Kenya recognizes the freedom to own property and protects the rights of individuals to the protection of their property.  However the right to intellectual property is not recognized. Infringements of intellectual property rights are taken lightly  compared with other rights.

Most of the IP laws are either insufficient or outdated and can neither keep up with the latest development in IP and IP issues, comprehensively deal with the whole corpus of IP in Kenya nor match with international law.

Some groups nonetheless have benefited from the IP laws. The Loita Maasai group in Kenya are using Article 8 from the main international agreement that has been ratified by over 170 countries, the Convention on Biological Diversity and Intellectual Property Rights, as the basis for their claim to ownership of the forest. Article 8 requires governments to:

“respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity, and promote the wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.” (Dutfield 1999: 508).

The IP piracy challenge

Piracy ranges from 83% for business software to well over 90% for music cassettes and CDs, and virtually 100% for video and DVD costing the entertainment industry millions of shillings. Cable piracy remains a significant problem in Kenya. Local Kenyan music is pirated in Uganda and Tanzania and imported into Kenya. While it is believed that piracy emerges from Uganda, Tanzania, and Pakistan, Kenya has been noted by the Business Software Alliance as the country in Africa with the highest piracy level, for hard disk loading and unauthorized use of software in businesses.

Enforcement is a major challenge in Kenya. The Kenya Copyright Board was established in 2003 but has to date not been able to fulfill its mandate for various reasons, including an endemic lack of funding. The Trade Descriptions Act is the only Act that has been used with some effectiveness in Kenya, but the penalties under the act in the past do not provide a deterrent. Recent amendments have increased the level of fines to KShs. 2 million (US$28,070) and/or a term of up to 3 years. Raids in Kenya are marred by loss of both evidence and seized goods. Court cases drag on and in some infamous instances, are then decided in favor of pirate defendants under bizarre circumstances. There are also legal issues such as presumption of ownership, which are misapplied by courts ( a defendant for example, has been able to put ownership into question with demands to see agreements between the performing artist and the Kenyan company in various court cases). The courts also fail to use sampling to prove pirate volume, instead, in some cases demanding a list of each title seized (in some cases requiring a list from right holders of 17,000 titles!). 

Policy makers in IP have to rethink IP laws if we are to diversify our economic networks, and this shall only be achieved if institutions, individuals and private companies participate in IP reform. Though the problem of piracy is universal,  it is more rampant in Africa not because of the poverty levels but the reluctance of African governments to create strong IP laws or implement them.

The profound nature of the African crisis lies in the fact that it seems that Africa does not care or is not willing to make intellectual property work for her. The challenge therefore is that of innovation, access and awareness. While the two challenges of innovation and access could be said to underlie the world crisis of intellectual property the challenge of awareness can be said to be uniquely African, and perhaps explains the sorry state of intellectual property in Africa.





By Brenda Marangu
Law Student, Catholic University of Eastern Africa


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