This blogger has come across a recent article by CIO East Africa titled “Weak IP laws hurting aspiring IT billionaires” written by one Alex Owiti. The article, available here, contains several unsubstantiated claims, grave errors of fact and serious misrepresentations of substantive intellectual property law. Through twitter, several attempts were made by the Kenya Industrial Property Institute (KIPI), Kenya Copyright Board (KECOBO) and former KIPI CEO Dr. Kibet Mutai to enlighten the poor writer but the latter refused to admit his mistakes.

It is hoped that this blogpost will help our friends at CIO East Africa do a better job of editing all the articles they receive on IP matters. Since we are using Alex Owiti’s article as an example, we will be forced to reproduce it (in italics) in order to highlight the inaccurate statements made in the article. For purposes of this exercise, our comments will be in brackets [] and in bold.

Here goes:-

“Weak IP laws hurting aspiring IT billionaires”

[This is the title of the article. However, after reading the article, the reader realises that the following basic questions are not answered: 1) How are the IP laws weak? 2) If the laws are indeed weak, how are these weak laws hurting ‘IT billionaires’?]

“The fact that we don’t have millionaire or billionaire IT innovators and app developers in Kenya or even across Africa is confirmation of our weak intellectual property (IP) laws.” [Firstly, can it really be assumed that Kenya doesn’t have millionaire or billionaire IT innovators and app developers in Kenya? What about Onfon Media, and others or don’t those count? The article does not bother to explain or clarify. Secondly, assuming the first point was true, how does this relate to IP law specifically? We have three main IP laws in Kenya: Copyright Act, Trade Marks Act and Industrial Property Act, which of these laws is weak? What is weak about all or any of them specifically? Again, the article does not explain or clarify.]

“Europe, US, China and South Korea mint billions of dollars as a result of patents yet in Kenya, our app developers and IT nerds languish in abject dream of poverty because of inability to patent their innovations thus being taken advantage of by companies or organizations that purport to support innovation.” [Firstly, it is important to note that the nationals (both persons and companies) of US, China and South Korea are the primary beneficiaries of patent protection. The issue of GDP contribution is secondary. Secondly, the inability of Kenyans to patent their innovations cannot be attributed to the IP laws. The writer’s argument here is tantamount to saying that the failure of a farmer to acquire a title deed to a piece of land can be attributed to a weak land laws. As Dr. Rutenberg explains here, the minimal number of issued patents is not due to a lack of innovation or entrepreneurship in Kenya. Instead, it is due to a lack of patent expertise in the private sector, and a lack of funds available to hire expensive patent drafting services from firms in Europe, South Africa, or India. Without access to proper patent drafting, it is difficult for the Kenyan patent office to find applications that are suitable for granting as patents, and the ability of local inventors to obtain patents is severely diminished. Subsequently, without patents, the ability of local inventors to attract foreign investment and partnerships, and to build companies that are based on intellectual property (IP) assets, are also severely diminished. This current state of play cannot be attributed to ‘weak IP laws’ as the article wrongly suggest.]

“Talking about patents, Kenya has shamelessly lost some patents to foreign counties and can never claim them because of very weak laws. In 2007, some activists were aggravated and went up in arms to complain after losing the Kiondo basket trademark to Japan and even the popular Kikoi fabric design was at risk of being patented by a British company. The Kikoi patent actually went away.” [This paragraph is not only factually incorrect, it is also dangerously misleading. The kiondo and the kikoy are incapable of being patented. This is because the kiondo and kikoy fail to meet the 3-step patentability test in law. The kiondo matter involving Japan has been discussed previously here. In KIPI’s seminal article “Kiondo Idea Theft: An Intellectual Property Myth”, it is clearly explained that the product kiondo having been in the public domain together with the original way of weaving it, a different way of arriving at the same, which is industrially applicable would qualify for a process patent protection. It is only the kiondos which are proven to be woven through that protected method that infringe the process patent in Japan. Therefore, the myth perpetuated by the article that the kiondo is protected in Japan as a product patent to the exclusion of Kenya is totally false. The kikoy matter involving the United Kingdom has been discussed at length here. In KECOBO’s Copyright Newsletter Issue no. 4, it is explained that had the application in the UK Patent Office gone through, most Kenyan’s would not have been able to sell the kikoy under that name. Therefore, it is irresponsible for CIO East Africa and the writer to continue perpetuating falsehoods, myths and inaccuracies yet all this information can be verified from KIPI offices, KECOBO offices or from any IP experts within Kenya.]

“I would like to believe that Kenya’s Industrial Research and Development Institute (KIRDI) has failed miserably in protecting Kenya’s economic projects that identifies with its innovation. And this is the same thing that is happening in the ICT industry when young graduates walk home with pocket change after sweating it out in labs to come up with apps.” [How does KIRDI protect “Kenya’s economic projects that identifies with its innovation”? A simple internet search reveals that KIRDI is the National Industrial Research, Technology and Innovation Institution under the Ministry of Industrialization and Enterprise Development. Therefore it is factually inaccurate for the article to falsely accuse KIRDI of failing to protect Kenya’s economic projects yet KIRDI has no such role or mandate in law. KIRDI was established as a multidisciplinary Institution to conduct Research and Development in Industrial and Allied Technologies.]

“Ideas are worth billions of shillings and unless the government takes the issues of copyrights, patents and trademarks seriously, our own innovators will die poor and so is the economy.” [The article has not demonstrated how the government has failed to take IP issues seriously. Are we talking about Parliament, the Executive and/or the Judiciary? Each of these arms of government have a role to play with regard to IP in Kenya. The writer does not both to explore these issues.]

“I believe that the World Intellectual Property Rights body – WIPO – recognizes most of the global patents, trademarks and copyrights that have followed proper legal procedures as well as international standards. This calls for the government – through KIRDI and Kenya Industrial Property Institute (KIPI) with the respective ministries – to focus on fortifying the laws on copyrights, patents and trademarks to enable the young innovative minds create wealth and empower the economy.” [The article falsely refers to KIRDI instead of referring to the Kenya Copyright Board (KECOBO). In addition, the “fortifying” of IP laws is not done by parastatals, it is a legislative function. In this regard, KIPI and KECOBO’s role is largely advisory. If the article claims that KIPI and KECOBO have failed to advise Parliament, where is the proof for this? What areas of the IP laws require fortifying? The article fails to answer these basic questions.]

“Expansion of the Intellectual Property Right laws is therefore critical to ensure the creators of innovations enjoy full benefits for their ideas. In Europe, America and according to Wikipedia, the increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions. With no need for registration or copyright notices, this is thought to have led to an increase in orphan works (copyrighted works for which the copyright owner cannot be contacted), a problem that has been noticed and addressed by governmental bodies around the world.” [This entire section has been copy-pasted word for word from Wikipedia and has no direct application in the Kenyan context. In Kenya, the current duration of copyright is the entire lifetime of the author plus 50 years. Why should Kenya consider expanding this period? The article fails to explain this.]

“Also with respect to copyright, the American film industry helped to change the social construct of intellectual property via its trade organization, the Motion Picture Association of America (MPAA). In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA has advocated strong protection of intellectual-property rights.” [This entire section has been copy-pasted word for word from Wikipedia and ought to have been put in the Kenyan context. Recently the Media Owners’ Association has been advocating for the protection of their IP rights in the digital migration cases (see our commentary and analysis here) which is currently before the Supreme Court.]

“Such expansions of laws by our parliament will end the suits we see in our courtrooms regarding copyright infringement. Let us protect and appreciate the innovations that give us identify in the global village.” [This concluding paragraph is not supported by the body of the article. The article does not explain the connection between “expansion of laws” and law suits regarding copyright infringement. As far as we know, the “expansion of laws” only serves to grant copyright owners a longer duration to enjoy copyright protection. This longer duration does not stop others from filing suits for copyright infringement!]