On February 8, US-based Global Intellectual Property Center (GIPC) released the fifth edition of the U.S. Chamber International Intellectual Property (IP) Index, “The Roots of Innovation,” which illustrates the value of a robust IP framework in 45 economies around the world. According to the US Chamber of Commerce, the world’s leading economies view intellectual property (IP) standards as essential to the success of any 21st century economy. IP provides the living and growing roots that stimulate innovation and bolster growth. And those with the strongest IP systems stand to reap the greatest economic rewards. The 2017 Index benchmarks the IP standards in 45 global economies, representing roughly 90% of global GDP. The 45 economies covered in the Index include: Kenya, Japan, South Korea, Russia, Turkey, Vietnam, Malaysia, New Zealand, Peru, Nigeria, Argentina, France, Sweden, Algeria, Brunei, Poland, Germany, Israel, Ukraine, Ecuador, UK, Canada, UAE, Indonesia, Switzerland, Taiwan, China, India, Pakistan, Singapore, Colombia, South Africa, Thailand, Egypt, Italy, Spain, Mexico, Saudi Arabia, Brazil, Philippines, Venezuela, Hungary and Australia.

According to the GIPC IP Index, Kenya is ranked at position 31 out of the 45 world economies. The Index lists several key areas of strength in Kenya’s IP system namely:
-IP leader among African economies; for instance, in new online copyright registration system
-Basic IP framework in place, including a number of sector-specific rights
-Dedicated IP bodies and enforcement agencies, with demonstrated efforts to address IP infringement (although fragmentation occurs and much more action is needed)
-Improving business environment with reduction in IP-related market barriers.

Similarly, the Index itemises several key areas of weakness in Kenya’s IP system namely:
-Weak and backlogged judicial system with notable deficiencies in criminal enforcement
-Important gaps in copyright protection, particularly in the digital space
-Scope of trademark protection limited in legislation and in practice
-Legislative and resource barriers to border enforcement

To some extent, the factors listed by the Index are not far from the truth. With regard to Kenya’s patent system, the Index notes that: “According to KIPI statistics, despite significant growth in the use of the national system, over the past 15 years patenting activity has remained relatively low. Moreover, local legal analysis suggests that although the examination framework is relatively strong, in practice resources and expertise for patent review are not readily available. As a result, innovators continue to face significant delays and barriers to patenting. KIPI data indicate the average time to grant is 3.5 to 4.5 years.”

With regard to Kenya’s copyright system, the Index notes that: “Proposed copyright amendments within wider ICT Act amendments would introduce a semi-notice and takedown system; however, the proposed system is out of sync with international best practices, relying on involvement from infringing parties and not adequately outlining ISPs’ responsibilities. In practice, ISPs typically do not face liability, even when there is awareness of blatantly infringing content, and digital piracy is very high.” Readers may recall that these proposed amendments were discussed on this blog here and here.

Finally, with regard to enforcement, the Index notes that: “In general, although the groundwork for stronger IP enforcement is present, actual enforcement is weak, with enforcement bodies lacking the necessary expertise and resources. Nevertheless, cases before Kenya’s four specialized IP Tribunals tend to proceed much faster than in regular courts. However, significant barriers to enforcement against counterfeits exist. Despite the introduction of the Anti-Counterfeit Agency in 2008, counterfeiting remains a major problem with little real recourse available. Counterfeiting results in estimated losses in tax revenues of at least USD80 million, capital flight, and public safety risks, particularly in pharmaceuticals (an estimated 30% of medicines in Kenya are fake). Moreover, with significant gaps in border enforcement, Kenya is a major point of entry into East Africa for counterfeit goods”