As readers may know, there has several media reports by book publishers, book authors and their supporters raising an alarm about the rising level of piracy of printed texts. Japhet Otike, a professor at Moi University, offers a user’s perspective in a recent newspaper article titled: “Photocopying of a copyrighted book is not quite illegal”. His overall argument, which this blogger concurs with, is that copyright is and should be balanced to take into account the rights and interests of owners and users of copyright works respectively. In this regard, Otike argues that the term ‘piracy’ should be reserved only for those involved in mass production of copyrighted materials for commercial purposes. Thus students and teachers who produce a few pages from a book for non-commercial purposes should not be lumped together with hardcore pirates making a fortune from making, distributing and selling unauthorised copies of printed works.
On 10 June 2015, the Agreement establishing a Tripartite Free Trade Area (TFTA) was signed in Egypt bringing together 26 African countries from three major regional blocs namely the Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC) and the Southern African Development Community (SADC). Following the signing, the current phase of the TFTA negotiations is meant to cover ‘the built-in agenda’ in five areas namely: trade in services, cooperation in trade and development, competition policy, intellectual property (IP) rights and cross border investment. The fourth of those five areas was the subject of the second Open AIR East Africa Distinguished Speaker Series (DSS) talk by Dr. Henry Mutai at Strathmore University.
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The holiday season has come upon us and during this time of the year, some of us sing Christmas carols, as well as sing or hum the song, “We wish you a Merry Christmas”. This song is synonymous with the Christmas and festive season. You will probably hear this song blaring from shopping malls and hubs, eager reveller’s phones as their ringtone and down many streets, especially as December 25th approaches and the New Year. This blogger would like to explore the fact that certain versions of “We wish you a Merry Christmas” and a number of other Christmas carols are “copyright free” as they are considered to be works in the public domain.
In 2013, three local free-to-air (FTA) broadcasters filed a suit at the High Court of Kenya claiming that certain digital broadcasters were illegally re-broadcasting their programme-carrying signals pursuant toa so-called “must-carry” rule in the Kenya Information and Communication Broadcasting Regulations. The “must-carry” rule compels all signal distributors to carry a prescribed minimum number of Kenyan broadcasting channels, as a precondition to retaining their licences. Although the High Court dismissed the FTA broadcasters’ claims, this dismissal was later reversed in the Court of Appeal. As a result, the matter was appealed before the highest court in the land – the Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others  eKLR.
For our purposes, the central issue to be determined by the Supreme Court was whether the ‘must-carry’ rule infringes upon the intellectual property rights of the FTA broadcasters.
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Disclosure: Back in the day when this blogger was young and naive, he worked both at Kenya Copyright Board (KECOBO) and Music Copyright Society of Kenya (MCSK). The views and opinions expressed in this blog are solely those of the author and should not be attributed to the author’s past or present employers or clients.
It all started with this twitter hashtag. Actually, no – one might want to start from an earlier point in time. On February 20th 1984 a local newspaper published an article titled: “Musicians Complain of Royalties” where it was reported that musicians who were members of the then Musicians Performing Rights Society of Kenya (MPRSK) had complained that the license fees collected on their behalf by MPRSK under a pre-existing collaboration agreement with the Performers Rights Society (PRS) in London were not being paid out to MPRSK members. On March 1st 1984, Mr. S.N. Ndemange the then MCSK General Manager wrote a letter captioned “Royalty Payment” addressed to Mr. Habel Mwalumba Kifoto, one of the complaining musicians mentioned in the newspaper article, explaining that the functions of MPRSK had since been taken over by MCSK, a duly registered company limited by guarantee incorporated a year prior in 1983, that would serve as the national society of composers, authors and publishers of musical works. Shortly after, Kifoto joined MCSK as a member and later rose up the ranks to become the Chairman of the Board of Directors at MCSK, a seat he occupied until his untimely demise on July 31st 2011.
In the midst of two decades of TRIPs and three decades of openness, 400+ delegates from over 50 countries, ranging from established academics to activists to students converged in New Delhi for the 4th Global Congress on Intellectual Property and the Public Interest (GCIP). Right from the inaugural plenary session, delegates were called to reflect on the progress of the Global Congress in the re-articulation of a public interest agenda in Intellectual Property (IP).
Over a period of three days, GCIP delegates met at the prestigious National Law University, Delhi to discuss a host of topics under four broad themes: Users’ Rights, Openness, IP and Development and Access to Medicines. Some of the outcomes from the various panel discussions were tweeted using the hashtags #GCIP15 and #GCIP2015.
For some weeks, this blogger has been following with interest various opinions on the wiki-leaked Trans-Pacific Partnership Agreement (TPP) document. The blogger whose interest largely lie in the copyright realm while noting the gravitas of the impact of the Secret trade agreements, firstly on the basis of public interest or lack thereof in the drafting of the agreements. And, the impact of the agreement in by passing the World Trade Organisation (WTO) Trade Related Aspects of Intellectual Property (TRIPS) agreements, was unable to link the impact of the TPP to the global south other than the possible copy paste adoption of some provisions by regional trade bodies.
This blogger having being able to attend the 3rd Global Congress on IP and Public Interest in Cape Town last week gained a new perspective of how and why the global south and in particular African countries should keep their ears peaked and get involved in advocacy around the TPP. This perspective was largely brought by the sessions on the access to medicines IP debate which this blogger readily admits is not her area of expertise.
Briefly, the TPP (which is mainly pushing a US based trade agenda) would give pharmaceutical companies longer monopolies over brand name drugs. Companies would be able to charge high prices for longer periods of time. And, it would be much harder for generic companies to produce cheaper drugs. These provisions are found in the intellectual property, investment and pharmaceutical pricing chapters. A more extensive analysis can be found here
Despite the fact that these provisions and the consequences thereof are indeed dire, it seems that at least five countries involved in the negotiations namely Canada, Chile, New Zealand, Malaysia and Singapore have put forth counter proposals, that at least try to present a balanced approach to the needs of developing countries and commercial interest of pharmaceutical firms. The counter proposal is based on ensuring that the standards set in the WTO TRIPS agreement are not overtaken by the TPP agreements.
At the end of the Global Congress a declaration on fundamental public interest principles for international intellectual property negotiations was drafted by the conference attendees which noted the concerns raised at the conference. The main concern was the lack of public involvement in the drafting of these rules, sighting that the main tenant of democratic societies is that law making should occur through procedures that are public, inclusive, transparent and accountable so that law can best reflect the values and consent of the governed.
While this blogger encourages all readers of this post to sign onto this declaration here, she draws large inferences from the manner in which the TPP agreement is being negotiated and the Kenyan governments tabling of media and public benefits organisations bills and the AU cyber security bill with little involvement from the public whom these bills seemingly seek to protect. And wonders whether a similar declaration would be worth circulating in Kenya and perhaps regionally.
We refer to your recent request for pro-bono assistance referenced as “Case 168 – Trademark Infringement in Kenya – Off-grid lighting product”.
This request is vexing, odd and curious for reasons that will be enumerated.
First and foremost, through the request itself, one is forced to question the motive and intentions of the requesting company.
The requesting company is described as a “social enterprise” thus one is inclined to assume that it is a not-for-profit company pioneering technologies and solutions for widest-possible distribution in the developing world. So, is this company a social enterprise, or a for-profit business?
With this background in mind, we are indeed puzzled that such an entity would chose to “combat” any and all use of its IP in Kenya. However, what is greatly troubling is the role PIIPA has chosen to play in all of this. The requesting company is clearly not short of financial resources given its affiliation with the Lighting Africa program sponsored by the International Finance Corporation and the World Bank. Why would PIIPA agree to help such a non-profit company get pro bono legal assistance to fight its IP battles in Kenya? Shouldn’t PIIPA instead be advising and assisting local Kenyans to repel such IP actions, or at least helping local Kenyans acquire their own IP resources?
Let it be clear that the gist of this letter is not to condone intellectual property infringement in any way, shape or form. IP infringement, wherever in the world it is committed, must always be fought.
Therefore, the requesting company’s desire to enforce its trademark rights is not being called into question. However what it being called into question here is PIIPA’s confusing stance on the matter.
One would expect that the requesting company would use its own resources to fight its own IP battle(s) rather than relying on precious pro bono resources that ought to be going to those who actually need it.