Unpacking the Device Management System (DMS) Judgement

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By Mitchel Ondili

Communications Authority of Kenya v Okiya Omtatah Okoiti & 8 others [2020] eKLR

Introduction

Under the Global System for Mobile Communication (GSM) standards, each mobile device bears a unique quality mark known as the International Mobile Equipment Identity (IMEI) number, which is issued by the Global System for Mobile Communications association (GSMA). The GSMA maintains a central database containing the IMEI numbers of manufactured devices.

The East African Communications Organization, of which Kenya is a member, implemented an Equipment Identification Register (EIR) to tackle counterfeit and illegal phones. The system allows networks to keep list of blacklisted lost or stolen phones and automatically connects to the GSMA IMEI database to share that list with other operators in order to block them on both local and international networks. This resulted in the switch off of 1.89 million illegal mobile handsets by September 2012.

The victory was short lived as this measure had a dual effect on those running counterfeit or illegal operations as regards mobile communication. First, they began to clone genuine IMEI numbers to slip through detection, secondly, they began to engage in SIM boxing which refers to bypassing the international mobile carrier legal route and evading license fees in the process.

The Communications Authority of Kenya (CAK) proposed the introduction of the Device Management System (DMS), intending to curb the newer methods of introducing and using counterfeit and illegal mobile devices.

The DMS would:

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KANUNI ZA ULINZI WA DATA

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Grace Bomu, Oliver Ochieng

Kenya ilipitisha sheria ya ulinzi wa data (Data Protection Act) mnamo Novemba 2019. Sheria hii inajumuisha kanuni ambazo watu, biashara na kampuni zinazoshughulika na au kutumia data binafsi katika shughuli zao zinapaswa kuzingatia ili kulinda na kutunza hadhi na faragha ya wenye data. Kanuni hizi zimeorodheshwa katika kifungu cha 25. Kwa muhstari kanuni hizi ni:

a) faragha

Kila anayekusanya au kutumia data binafsi lazima azingatie faragha/usiri wa mwenye data.

b) sheria

Kila anayekusanya au kutumia data binafsi anapaswa kuzingatia usheria, usawa nauwazi anapochakatua data hiyo.

c) madhumuni

Data binafsi lazima ikusanywe kwa madhumuni maalum na kwa malengo halali na isitumike kinyume cha na madhumuni hayo.

d) kupunguza

Data binafsi ikusanywe kulingana na madhumuni ya utumizi wake na isizidi madhumuni yake. 

e) ufafanuzi

Wanaokusanya data binafsi lazima watoe maelezo halali wakati wowote data kuhusu familia au mambo ya kifaragha yanahitajika.

f) sahihi

Kila hatua ichukuliwe kuhakikisha kwamba data binafsi inayokusanywa na kutumika ni sahihi, na inasasishwa au kusahihishwa bila kupoteza muda.

g) uhifadhi

Data binafsi isiwekwe kwa muundo unaomtambulisha mwenye data wakati madhumuni ya kukusanya data hiyo yamekamilika.

h) uhamisho nje ya nchi

Data binafsi isihamishwe nje ya nchi ya Kenya bila dhibitisho kwamba nchi hiyo nyingine ina sera sambamba za kutosha ulinzi wa  data binafsi, au kwa ruhusa ya mwenye data.

The Kenya Intellectual Property Bill 2020: An Open Public Participation Call

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By Caroline Wanjiru Muchiri

In 2013 the Presidential Task Force on Parastatal Reforms made wide ranging recommendations among them the merger of Intellectual Property Agencies namely the Kenya Industrial Property Institute (KIPI), the Kenya Copyright Board (KECOBO) and the Anti Counterfeit Authority (ACA). To achieve this, a Task Force on the Merger comprising of members drawn from ACA, KECOBO, KIPI, Ministry of Industrialisation, Trade and Enterprise Development and the Kenya Law Reform Commission (KLRC) drafted a bill- the Intellectual Property Office of Kenya Bill. To download a copy of the Bill, click here.

From the Preamble, it is a ‘Bill for AN ACT of Parliament to consolidate the laws relating to intellectual property, to provide for the establishment of the Intellectual Property Office of Kenya; to provide for its functions, organisation and administration; and for connected purposes.’

The Bill has a raft of amendments and is also missing some aspects that we believe should be included in a Bill proposing to ‘consolidate intellectual property laws in Kenya’. The Taskforce has requested for comments on the document to be submitted on or before 17th May 2020. If interested in submitting comments to the Taskforce for their consideration before the said deadline, please see the notice here.

We at CIPIT, have opened our Jadili Platform to avail the bill and its contents for continuous comments and conversations. Jadili is an interactive civic engagement platform offering technical capacity for public participation in decision making in Kenya. Sign-up, engage by commenting, asking and providing responses to enrich the Bill.

Although the Task Force has set a deadline to submit comments, Jadili shall remain available throughout the life of this Bill. We shall endeavour to aggregate the comments and avail them to the relevant authorities in due course. The Bill is in its formative stages and is not yet tabled in Parliament. We believe once tabled, the statutory public participation forum will be open providing us yet another opportunity to further comment on the content of the Bill. We at CIPIT shall keep the content of the Bill as hosted on Jadili updated as the process moves to Parliament.

For now, we seek the assistance of the public and the stakeholders to enrich the public participation process for the Intellectual Property Bill, 2020.

Go to Jadili Page.

THE CONTROVERSY SURROUNDING END-TO-END ENCRYPTION AMONG MESSAGING APPS

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By Margaret Zalo

A lot of information is shared back and forth on messaging platforms on a daily basis. While governments have an incentive to monitor private communication on these platforms to prevent the abuse of others’ rights; fears of surveillance, unauthorized data collection and other beaches of privacy drive individuals to seek security measures such as encryption to communicate without interference.[1]

Encryption is a data-protecting process that converts information or a message into an unreadable form, preventing access by anyone other than the intended recipient.[2]The use of online products/services that employ encryption mitigates the risk of incidents in which confidential, private or sensitive data –such as passwords, financial information and personal photographs– are copied, transmitted, viewed, stolen or used by persons unauthorized to do so.[3]  

As more people realise the value of online security, messaging apps gain a competitive advantage by adopting methods of protecting customer data such as encryption.[4] A common form of encryption used by messaging apps to protect user data is end-to-end encryption(E2EE). E2EE facilitates secure communication that allows parties to send and receive information or messages privately, while completely preventing access by any other party including the intermediary messaging apps.[5]

On end-to-end encrypted messaging apps such as WhatsApp and Signal, a message is encrypted on a sender’s device and transmitted through the intermediary’s servers to the recipient’s device in an unreadable format. When the intended recipient accesses the message, the information is decrypted for the recipient to its original form through a secret key.[6] The intermediaries’ servers cannot decrypt encrypted information and merely act as a medium to facilitate data transfer of encrypted information.[7] Hence, messaging apps that employ E2EE cannot read information shared by their customers.

E2EE better protects data from persons that may want to snoop on conversations as the privacy and security of customer communications cannot be compromised in transit even if attempts are made to hack or compromise servers. While individual devices may be hacked, it makes mass surveillance much harder.[8] What is frowned upon about E2EE is the fact that it conceals communications between criminals as well – making it harder for law enforcement to access the information they need to safeguard the public, investigate crimes, and prevent future crimes.[9] Hence, there have been attempts to enforce a “backdoor” for government authorities to access communications on messaging platforms in the interest of combatting crimes such as terrorism and child pornography.[10] China and Russia, for instance, give their national security services the authority to order companies to install hardware and software that facilitate government surveillance.[11]

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Taking Stock during Covid 19 Era: Tracking the influence of intellectual property rights in curbing the pandemic

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By Caroline Wanjiru Muchiri

Introduction

What began as a virus solely affecting residents of Wuhan, China in December 2019 has substantially spread and is now a global pandemic according to the World Health Organisation (WHO). The virus commonly referred to as COVID-19 has had tragic consequences leaving people, in thousands, dead thousands infected. WHO is keeping tabs on the situation by providing a situational report. See the reported cases here.

In Kenya, the Ministry of Health continue to ardently conduct tests, treat and otherwise manage the impact of the virus. Additionally, the President outlined various actions to be taken during this crisis including controlled movement to and from the affected areas mainly metropolitan areas. Other recommended measures include social distancing, washing hands and staying home. These measures require social and behavioural changes from the people.

Below, we take note of various contributions by intellectual property during these times and particularly in influencing the people’s response to the crisis. These measures are mainly by private persons as IP is a private right.

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Technology and COVID-19 in the Kenya Judicial System

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By Florence Ogonjo

Introduction.

As Kenya joins the rest of the world in fighting the novel coronavirus (Covid-19) , various measures have been introduced affecting our day to day lives both socially and economically . The past three weeks have seen the Kenyan Government through presidential directives and press statements from the ministry of health take measures to contain and minimize the spread of the highly infectious virus. Various government institutions, organizations and companies that serve huge populations of Kenyans have been forced to either completely shut down and resort to working from home.

On 15th March 2020, President Uhuru Kenyatta through a press statement instituted measures aimed at mitigating the spread of the virus among which included a directive instructing government offices , businesses and companies to allow employees where possible to work from home with the exception of employees working in critical and essential services.

The judicial system in Kenya is key in the dispensation of justice, handling numerous cases from civil to criminal on a daily basis services of which are primarily run on face to face interactions [1]. Chief Justice David Maraga in addressing the situation released a press statement with directives on the Judiciary’s position in mitigating COVID -19. The press statement covered administrative issues among which included the scaling down of court activities throughout the country as well as the suspension of all appeals , hearings and mentions in criminal and civil cases in all courts countrywide.

As the number of COVId-19 infections increased in the country more stringent measures were issued by the government through the  Ministry of Health . On 19th March, the National Council on the Administration of Justice (NCAJ)[2] announced further measures  to be taken , among them included directions advising advocates to adopt e-filing in the High Court Commercial and Tax Division as well as the Chief Magistrate’s Commercial Court to avoid visiting the courts. Judges were consequently advised to consider electronic delivery of ruling, where appropriate.[3]

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Optima Sports Management vs KBC: A Goal in One?

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By Joanna Kahumbu

Soccer. A game enjoyed by many from the comfort of their homes or the now decried social gatherings. While enjoying a good match or criticising the skill of players, ever think of the legalities behind bringing the game to your screen was able to reach your screen? The case of Optima Sports Management (UK) Limited v Kenya Broadcasting Corporation [2020] gives us a sneak preview of what happens or may happen before the game is aired, albeit through litigation.  The case involves the lucrative business of broadcasting rights over the La Liga and Copa del Rey and the English Premier League matches. Ideally, entities bid for licences from the official broadcasters who sub-licenses them to air the game in specific territories ensuring the game is enjoyed by many of its fans. 

In the 2008/2009 football season, Optima Sports Management secured exclusive rights to broadcast some matches in the La Liga and Copa del Rey and the English Premier Leagues in Kenya. Optima in turn entered into two sublicense agreements with the free to air network in Kenya, Kenya Broadcasting Corporation (KBC) to air the matches. Why KBC, a free to air TV in Kenya you may ask? The strategy for the Premier League is to ensure the widest possible access to their competitions for the many passionate fans across Africa. The free to air television have wide coverage in the countries and are accessible without a fee. This provides the Premier League with an opportunity to create and maintain a wide fanbase, their geographical location notwithstanding.

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Leveraging Intellectual Property Law to Enhance Kenya’s Manufacturing Capacity in the Corona Virus Disease (“COVID 19”) Era

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By Perpetua Mwangi* and Chrispin Bosire*

“The World can be happy that scientific resources have been mobilized so quickly without capitulating to false IP claims…”[1]

-Brook Baker

Introduction

On 29th March 2020, The Ministry of Health (“MoH”) indicated that the government had initiated plans to manufacture Protective Personal Equipment (“PPE”) materials locally for self-sustainability.[2]  This pronouncement intimated the possibility of enhancing local manufacturing capacity. The government’s intervention followed the interim guidance issued by World Health Organization (“WHO”) on the 27th of February 2020 on the rational use of PPEs.  

Disruptions in the global supply chain of PPE, particularly for medical masks and respirators; gowns and goggles calls for a local intervention. This is perhaps to guard against the potential outcome of an overrun of COVID 19 patients in Kenya, likely to overwhelm our medical systems.

Rivatex East Africa Limited and Kitui County Textile Center (“Kicotec”), among other local manufacturing companies, have been earmarked to start the manufacturing of PPEs for Kenyans.[3] Several aspects of local manufacturing affect Intellectual Property Rights inter alia Patents, Trademarks, Trade secrets, Utility Models and Industrial designs, which ought to be leveraged for strategic advantage in product development.

Patents create monopolies for rights holders thereby putting them in a strong position to set prices.[4] Such prices have made the required products costly hence inaccessible.[5] The monopoly contributes to the inaccessibility of medicines. Remission of royalties and removal of restrictions on generic competition, leads to affordable medicines through reduced prices, sometimes by 99%.[6]

Trademarks are source identifiers which influence consumer decisions.[7] A trade secret is confidential information that gives a company an economic advantage over its competitors and is often a product of internal research and development.[8] Utility models are patent-like as they protect innovations through a cheaper and easier to obtain and maintain process.[9] They have a shorter grant lag, less stringent than patent requirements and a shorter protection period as registration expires at the end of the tenth year after the date of filing and is not be renewable.[10]  

Industrial designs are concerned with the appearance of a product as they protect the ornamental, or aesthetic aspect of a useful article that can be reproduced in large quantities.[11] They are particularly important as we continue to see articles such as face masks and other PPEs appealing to the eye and feel.

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Licensed Traffic Prioritization? Internet Usage in the Wake of a Pandemic & Net Neutrality

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By Abdulmalik Sugow

Since early this year, the world has been facing a devastating pandemic that has significantly altered how people live and work. Following the World Health Organisation’s (WHO) classification of the coronavirus disease 2019 (COVID-19) as a pandemic, governments around the world have begun to implement mitigative measures such as mandated social distancing, partial lockdowns and travel restrictions. Seeing as there is no cure or vaccine, slowing down the rate of infection appears to be the best bet the world has to weather this storm.

While these measures are crucial, the importance of maintaining productivity so as to prevent future economic woes has also been recognised. A number of schools, universities and employers have altered their programs to accommodate working from home (WFH) schedules. In order to support this, and general social distancing measures, governments such as France and Norway have announced varied lifeline packages ranging from exemptions from utilities payments to welfare stipends to businesses. This type of support explicitly takes for granted certain items as essentials in light of the pandemic: food, water and medical supplies. However, with WFH schedules, access to the internet appears to be rising to the level of a utility worthy of protection/safeguarding. With WFH schedules, it is natural for networks to be overwhelmed with users flooding their internet service providers (ISPs) with requests for data packets ranging from livestreaming to video conferencing leading to a potential gridlock. A gridlock would mean a complete standstill in productivity and would frustrate an already agitated population who are distanced from loved ones, relying on internet connectivity to keep in touch and to meet work deadlines.

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THE USE OF AUTOMATION IN COPYRIGHT ENFORCEMENT: A SLIPPERY SLOPE

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By Godana Galma

INTRODUCTION

The Copyright (Amendment) Act (2019) (the Act)introduced a host of reforms to the national copyright regime. One of the more notable changes was the introduction of a Notice and Takedown (NTD) procedure through which Internet Service Providers (ISPs) can obtain safe harbor upon compliance. This piece follows up on the discussion introduced in an earlier post on the digital rights implications of the NTD structure of the Act.

This piece carries on from the conclusion of the earlier blog by analyzing the implications of ISPs’ use of automation in the discharge of their statutory duties. In this vein, this discussion will centre on the growing use of automated tools and processes and the consequent impacts on the copyright landscape.

ALGORITHMIC ENFORCEMENT: THE NEW COPYRIGHT POLICE?  

As Penney declares, the age of automated legal enforcement is at hand.[1] Technological progress opens a wide breadth of possibilities in which automated tools can make legal processes more efficient and effective. Tools such as predictive policing, cognitive computing and AI based surveillance have been reported to significantly improve the efficiency of enforcement tasks.

Copyright enforcement has traditionally been an arduous task.  Logistical, financial and practicality reasons have often meant that an individual rights holder will often face numerous challenges in attempt to protect his/her original work from being copied, reproduced or otherwise distributed without his/her consent. This difficulty was exacerbated by the dawn of the digital age which raised infringing capabilities significantly. A panacea to these issues has been touted to be the use of automated tools

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