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At about 14h42 local time on March 9th 2013, the Chairperson of the Independent Elections and Boundaries Commission (IEBC) declared that Uhuru Muigai Kenyatta was the duly elected fourth President of the Republic of Kenya.

In an earlier post titled: “Words for the Unwary: Intellectual Property and Political Parties in Kenya”, this blogger anticipated and discussed a whole host of intellectual property (IP) related issues that have arisen from elections and examined a few examples from Kenya, Ghana and South Africa touching on various aspects of trade marks and copyright.

As the curtain closes on yet another General Election in Kenya, the following five IP issues are noteworthy:

1. The ‘Miguna’ Effect

Once upon a time, Mr. Miguna Miguna was a close aide to Prime Minister Raila Odinga – a key contender in the 2013 Presidential race. However, after a public falling-out with Odinga, Miguna published his explosive memoirs about Odinga titled: ““Peeling Back the Mask: A Quest for Justice in Kenya”. Several copyright issues arose surrounding this book, all of which were canvassed by this blogger here. Regardless of what Miguna’s motives were for publishing this damaging critique of Odinga and his inner circle, what remains clear for our purposes is that copyright protects all original works irrespective of literary quality.

2. Getting politicians to pay for use of music in election campaigns

During any election period, music is an important tool used by politicians to pass their campaign messages, market themselves and entertain crowds. Popular local songs were in high demand by politicians in their roadshows, concerts, rallies and other events countrywide. One record label in Kenya, Grandpa Records is reported to have issued a warning to politicians not to use any of its artists’ music without paying for such use. In carefully worded public statement, Grandpa Records is reported as having said:

“It has come to our attention that politicians across the country are heavily using music owned by Grandpa Records, along with Artist DNA’s back catalogue, for purposes of seeking popularity, self-promotion, and promotion of their agendas. In particular, the songs “Chapa [Fimbo inachapa]”, “Maswali Ya Polisi”, and “Banjuka Tu” are being exploited due to their massive popularity among all Kenyans, to catch their attention, and to sway potential voters. We would like to categorically state that we prohibit all political alliances, parties, and candidates from playing / using our music at political rallies, meetings, and any other forms of exploitation, without written consent from Grandpa Records. We will not hesitate to take legal action against any person or entity that will continue to exploit our intellectual property without our consent”.

This blogger applauds this record company’s pro-active steps to assert and protect its IP rights in the musical works. However the fact remains that policing of rights under copyright, particularly the communication to the public right/public performance right can be quite difficult for a single individual or entity working on its own. In this regard, the need for collective management of rights comes squarely into play. There are currently three separate collective management organisations (CMOs) that deal with copyright and related rights in musical works namely, the Performers Rights Society of Kenya (PRiSK), the Kenya Association of Music Producers (KAMP) and ofcourse, the Music Copyright Society of Kenya (MCSK).

As a matter of fact, during the elections, MCSK is reported to have issued a stern warning to politicians to obtain licenses for all public performances and reproductions of musical works. MCSK CEO Maurice Okoth is reported as saying: “We are urging all political parties and any other group holding public events where music is played to apply for a licence and comply with the law”. These licenses are issued based on the collecting society’s tariffs which depend on the nature of the exploitation and the duration. It was reported that one of the political parties, Raphael Tuju’s Party of Action (POA) paid 180,000 shillings for a the annual license for public performance issued by MCSK.

3. Kidero’s copyright faux-pas, FORA’s appropriation of Ubuntu trademark and Balala’s Ferrari-inspired party logo

Dr. Evans Kidero was successful in his bid to be Nairobi County’s first Governor. However during his campaign, one of his posters caused some controversy as it was alleged that he had used a photograph that did not belong to him. This blogger discussed the Kidero case here and drew parallels with the well-known Shepard Fairey case involving the Obama “Hope” Poster in the United States. There was no doubt that Kidero was caught red-handed “borrowing” the freelance photographer’s work but luckily the matter was settled amicably out of court.

In a separate incident, this blogger also spotted the case of Prime Minister Raila Odinga and his Friends of Raila (FORA) organisation that appropriated the trademark of Ubuntu, the worldwide flagship product of Canonical Limited. The questions about whether FORA-Kenya’s use of the Ubuntu trademark amounts to infringement were raised here by this blogger, however to-date the status quo remains.

In passing, some have also remarked that the Republican Congress Party’s logo of a horse is quite similar to car manufacturer Ferrari’s logo, “cavallino rampante”/”prancing horse”. However a simple google photo search reveals that the RCP’s logo may have been appropriated from this site. This blogger wonders whether Najib Balala and the other party members obtained clearances and/or permission to use this photo as their logo.

4. What’s in a name? – UDF’s claim to the name “Jubilee”

In the run-up to the General Elections, political parties begun coalescing around so-called “alliances” or “coalitions” in a bid to increase their odds of capturing the various elective posts up for grabs including the Presidency. One such coalition was the “Jubilee Alliance” that was initially made up of Mr Musalia Mudavadi, Mr Uhuru Kenyatta and Mr William Ruto. These three men agreed that Mudavadi would be the presidential flag bearer for the Jubilee Alliance only for Kenyatta to refute the existence of this agreement while maintaining that he was the Coalition’s Presidential candidate and flagbearer. Mudavadi claimed that Kenyatta and Ruto had violated the terms of their agreement and in particular, it was reported that Mudavadi alleged that he (and his party, UDF) was responsible for the coining of the Alliance’s name and therefore claimed ownership over the word “Jubilee”.

University of Nairobi political scientist Dr. Adams Oloo, in supporting Mudavadi’s claim, is reported as having said:

“At Jevanjee (on December 3), the name jubilee was not used but at Laico Regency Hotel (the next day) we heard Ruto using the name Jubilee Coalition. Therefore if UDF can prove it contributed to the name and under the intellectual property rights law, all parties that patent a certain name have equal rights to it…”

Whether or not Dr. Adams Oloo was misquoted by the media report, what is clear is that one cannot “patent” a name! Furthermore, any ownership claim to the word “Jubilee” in intellectual property law would not even be considered by the Registrar of Political Parties and such a dispute would promptly be referred to the Registrar of Trademarks. Therefore, while the Political Parties Act and the Trademarks Act allow for registrations of slogans and names, these registrations are only enforceable within the fields of politics and commerce respectively.

5. Did Waititu plagiarise his concession speech?

As explained in point no. 3 above, Dr. Kidero won the Nairobi gubernatorial race. Kidero’s closest challenger Ferdinand Waititu is reported to have written and posted online a concession speech in which he congratulates Kidero on his win, thanks his supporters urging them to work together with the Governor-elect to build ‘a stronger, better country.’ The only concern raised was that Waititu’s alleged concession speech appeared to have relied heavily on US Presidential Candidate John McCain’s 2008 concession speech when Barack Obama was declared winner of the Presidential election. A side-by-side comparison of the two speeches is available here.

Notable mentions:

Last year, IP Law expert and lecturer Mr. Onesimus Kipchumba Murkomen resigned from his teaching position at the Moi University’s School of Law to run Senator in Elgeyo Marakwet County. At the time, he was also serving as a Board Director of the Anti-Counterfeit Agency (ACA), a position he also relinquished in order to pursue his political ambitions. The first-time politician was successful in his Senatorial bid trouncing political heavyweights like Nicholas Biwott.

Finally this blogger recalls reading of media reports of campaigns in Narok County where political aspirants vowed to protect the Maasai Shuka and other indigenous cultural products and resources from being “stolen” by “outsiders”. Indeed such a campaign promise was timely and relevant given the widely reported Louis Vuitton collection that misappropriated the Maasai Shuka, which brought back memories of the intellectual property sagas surrounding the Kiondo and the Kikoy.