According to a recent article in the Business Daily published here, 80 per cent of electronics sold in the country and 34 per cent of medicines stocked in pharmacies are fake. Further, it is reported that approximately 30 per cent of the drug market is counterfeit and Kenyans are believed to be spending about Sh4 billion each year on fake medicine. This proliferation of counterfeits is also affecting Kenya’s agricultural sector with counterfeit fertilisers, chemicals and seeds which has resulted in decreased agricultural productivity.
This blogger has inadvertently stirred a heated debate on social media involving health activists who are actively engaging the government to review Kenya’s Anti-Counterfeit Act. This blogger alerted the twitter accounts of Aids Law Project (ALP), the Anti-Counterfeit Agency (ACA) and the CEO of ACA to an article published on the CIPIT blog by Paul Ogendi – Deputy Director at ALP. In this article ALP raised concerns on the goverment’s implementation of the High Court’s judgment in Patricia Asero Ochieng & 2 Others vs Attorney General. This landmark decision declared the Anti-Counterfeit Act unconstitutional because of its provisions affecting access to essential medicines including generics. In his twitter response, Stephen Mallowah the ACA CEO stated as follows:-
These responses by the ACA sparked off a spirited twitter campaign under the hashtag #TellACABoss where various health activists reaffirmed that the constitutional rights of people living with and affected by HIV, TB and Malaria remain threatened unless the Anti-Counterfeit Act is reviewed particularly section 2 which defines “counterfeit”.
The position of the health activists is that the government has failed to acknowledge and specifically exempt generic drugs and medicines from the definition of counterfeit goods under section 2 of the Act. Therefore this broadly worded definition includes generic drugs thereby effectively prohibiting importation and manufacture of generics in Kenya. According to the health activists, the Act deems generic drugs and medication to be deemed counterfeit goods and therefore liable to seizure at any time
by ACA inspectors.
However ACA claims that this judgment by Justice Mumbi Ngugi is a judgment in vain as the mischief adjudicated upon has never happened and never will. The ACA is categorical that there have been no seizures of generic drugs anywhere in Kenya. In his twitter response to the #TellACABoss tweets, Mallowah tweeted:
The ACA boss does have a point: ACA operates in the trademarks space and can only enforce trademarks where a formal complaint has been made by the registered owner. From a policy perspective, both ACA and the health activists seem to be in agreement that the Act is not working for various reasons all of which require that the Act be amended. Therefore it appears that the review meeting was ACA’s way of getting stakeholders’ views and proposals on possible amendments to the Act. This blogger does not envy ACA’s position as it contends with diverging views from health activists as well as the pharmaceutical industry, the Kenya Association of Manufacturers and other interested parties.
Towards the tail end of last month, a crucial meeting was convened by the Anti-Counterfeit Agency (ACA) to review the Anti-Counterfeiting Act of 2008 (the Act).
Many public health and HIV/AIDS stakeholders would recall that in April 2012 the High Court of Kenya declared the Act unconstitutional since it infringed on the constitutional right to health (see this blogger’s previous comments on this case here).
It should be noted also that in the past, national civil society organizations (CSOs) led by AIDS Law Project (ALP), have been making a series of inquiries to determine the extent to which the High Court decision was implemented. This review opportunity was therefore welcomed.
The purpose of the review meeting (as inferred from the invitation letter) was ‘discussions and exchange of views on recommendations that may further be incorporated.’ And, the objective of the review meeting was ‘improving and strengthening the Agency’s scope of operation within the stipulated mandate.’ In fact, the proposals on amendment document talks of ‘certain lapses that were not envisaged during the initial drafting that makes it impossible to holistically deal with the menace of counterfeiting.’
From the outset, the agenda was set at strengthening enforcement of intellectual property rights. Arguably, the agenda failed or ignored the concerns raised by the CSOs as well as the High Court decision. In these circumstances, a conflict was therefore inevitable between the Agency and the private sector on the one side and the CSOs and other public health stakeholders on the other.
The nature of the conflict manifested itself in various forms. This blogger will discuss only two: proposals; and establishment of a technical working group.
To begin with, the proposals on amendments tabled for discussions by the ACA and that by the CSOs were completely divergent. For example, the ACA amendments emphasized on the following: extending the offence of counterfeiting to ‘counterfeit marks’ in addition to ‘counterfeit goods’; providing for a penalty for ‘counterfeit marks’; and enhancing the qualification of the Executive Director to be at a Masters degree. Other amendments were minimal.
On the other side, the CSOs’ amendments focused on: restricting counterfeiting to willful trademark infringements on a commercial scale; completely alienating medicines from the scope of the legislation; and defeating the extra-territorial application of the legislation in favour of a territorial application of the legislation. These proposals were calculated to safeguard access to medicines and facilitate TRIPS flexibilities uptake or utilization in Kenya.
Another point of conflict was manifest when the meeting concluded that a technical working group had to be set up to define the term ‘counterfeiting’ under the legislation. It was apparent that both teams were unwilling to let go of their positions.
Moving forward, the CSOs have resolved to engage in the process to its conclusion. In this regard, some of the strategies proposed include parliamentary engagement, publishing and dissemination of a CSOs proposals booklet on anti-counterfeiting legislation; and lastly community mobilisation. The three-pronged strategy is calculated to respond to the heavy opposition that was manifest from the meeting.
Carole Theuri, in her maiden appearance on the CIPIT blog, speaks candidly about how tech manufacturers ought to engage with emerging economies especially where intellectual property protection and technology transfer are concerned. Using the example of the Communication Commission of Kenya’s recent campaign to switch off all counterfeit/fake cell phones, she sees an opportunity for tech manufacturers to team up with more local partners to exchange knowledge and know-how on mobile phone repair, maintenance and recycling of components.
The recent gung-ho attempt to rid the Kenyan market of the fake mobile phone has inadvertently caused boom in business for the backstreet phone repair shops who have found a way to revive the fake phones to good working condition and get them back on the market. Like most Kenyans, this blogger has visited the backstreet phone repair shops to get a malfunctioning phone back in working order. The expense and scarcity of official repair shops for phones, opens up the market for the young tech savy computer graduates to start small businesses instead of spending their time looking for a job “tarmarking”.
Regrettably a recent copyright infringement suit (in the making) may see the end of the backstreet business of phone repairs. A recent article on wired.com titled The Shady World of Repair Manuals: Copyrighting for Planned Obsolescence, tells a story of Tim Hicks a 25 year old Australian who trawls the nooks and crannies of the internet looking for manufacturer service manuals and posts the PDFs online for free:
“Hicks was frustrated that there wasn’t a single website out there with every laptop service manual. He started the sight- aptly named “ Tims laptop service manuals”- because he fixes laptops himself. Tims site now streams over 50 gigabytes of manuals every day. Or rather… it used to. In a recent strongly worded cease and desist letter, Toshiba’s lawyers forced Tim to remove the manuals for over 300 Toshiba laptops”
Planned insolence (Designing a product with a limited useful life span) is the name of the game it seems when it comes to stopping sites like Tims from publishing repair manuals. This especially affects us in the developing world where phones are sold and distributed by people who bought the phones as consumers and not authorized distributors. If anyone has visited a backstreet phone/laptop repair shop they know that the technicians were not trained by Toshiba, Nokia or HP but have most likely gained their knowledge from the internet and sites like Tims. With tech manufacturers setting their sights on shutting down more service manual sites, there go the young men and women who make their contribution to the society by aptly using their talent and skill to repair the phones and laptops. And there goes hundreds of un-repairable phones into the rubbish piles contributing to the ever growing pile of non-degradable electronic waste and profits for the manufacturers who sell you the phone to replace the one that can no longer be repaired.
The facts are, it is illegal to redistribute work under copyright without the authors consent and that Africa is the largest dumping ground for refurbished electronics. The question here is, Should copyright extend information on how to repair your phone/laptop be it be in a repair manual or another form? Are the manufacturers taking unfair advantage of consumers by ensuring that their products can only be repaired by authorized personnel? And in the event of no such authorized personnel, will they be responsible for the growing pile of electronic waste in the developing world?
One can only hope more manufacturers are like Samsung who seem to have a “real” interest in doing business in Africa. Early this year Samsung launched various engineering academies on the continent. These academies train students on practical engineering skills for but not limited to their products. Currently Samsung has over 100 students selected from E-learning Centres at PC Kinyanjui and Kabete Technical Institute attending the Kenyan academy and receiving hands-on, practical skills training at no cost. This is indeed a better way of ensuring customers buy your products knowing that there are skilled and trained persons available to fix them rather than going then purposefully relegating products to the waste pile.