Origin of Man, Creation Theory and Patent Law in Kenya: What would it look like?

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By Caroline Wanjiru

Intellectual property is a product of human creativity. How ideas are expressed. But how far back can we trace creativity? It begun with human beings. Today we theorise on this based on the creation theory supported by the Charles Darwin theory on the origins of man.

The creation theory is based on religion, a divine deity who created everything and is found in most religious books. The Bible, in the book of Genesis, states that in the beginning, the earth was formless, void and filled with darkness and then through proclamation, God-the divine deity, created light, water, skies, living creatures and dry land. The dry land was called the earth. God then made wild animals of every kind and everything that creeps upon the ground of every kind. In Genesis chapter 1:26-27, God said, let us make humankind in our image, according to our likeness; and let them have dominion over the fish of the sea, and over the birds of the air and over cattle, and over all the wild animals of the earth and over every creeping thing that creeps upon the earth. With this God created humankind in their image, male and female, they created them. The creativity here rests wholly in creation of human beings and their complexities including the intricate nervous system, brain, the complex female reproductive system and all human parts. Is this where it began? How does IP law relate to this creativity?

Our discourse begins here today. Intellectual property theories propose that when one reduces their ideas/creativity into a tangible form-expression of ideas, they are entitled to receive periodical and monopolistic rights over the said creation. If the human beings are the result of a creative process of the divine deity, can we argue that the latter owns or at some point owned the IP in the human body, if any?

This blogger theorises that if there were IP rights in a human body, it would include patents, as we know of them today. Patent law protects inventions that are novel, industrially applicable and not obvious. Section 2 of the Industrial Property Act (IPA) defines an invention to mean a new and useful art, process, machine, which is not obvious, or an improvement thereof capable of being used or applied in trade or industry and includes alleged invention. According to the Bible, there were no human beings in existence before the first human being was created; this would make the human body/being novel. It would not be an obvious creation as the existing or prior art comprised of wild animals which although bear some similarities to the humans, the latter bear distinct characteristics such as the female reproductive system. The human being was created and conferred with rights to control and rule over all that was/is on earth, therefore passing the test of industrial applicability of the invention.

The reference to “…let us make humankind in our image, according to our likeness and proceeding to make/create a human being” in the creation story presupposes the involvement of others who are not the creator referenced in the bible. This would raise the concept of joint ownership over the creation. Where an invention is as a result of more than one person, then the ownership in the creation is vested in the persons involved in the process. To claim ownership, one must have contributed through application of skill and labour.  Therefore, if a person simply reviews creative work and makes minimal edits such as spellings and sentence formations, they would not be entitled to joint ownership. However, where such review contributes substantially to the work, then the person making such contribution maybe entitled to claim ownership. Under section 30 of the IPA joint ownership of inventions would be where more than one person jointly make an invention. Section 63 provides that where there are joint owners, exploitation of the patent rights shall be equal amongst them unless otherwise provided. Joint ownership is a question of fact and varies from case to case.

So, for how long would these rights exist? IP Protection is not an eternal right[1]. Section 60 of the IPA, provides that a patent shall expire after twenty years. In the case of human being creation, the divine deity’s probable patent in Kenya would expire after 20 years from its date of application was filed with KIPI. After this period, an invention falls to the public domain meaning that anyone is/would be free to use the invention without infringing on the owner’s rights. The Centre for Genetics and Society defines human cloning to production of a genetic copy of an existing person. In the absence of any laws preventing it, human cloning can be considered infringement where the rights of the divine deity are protected under patent law. In support of the Big 4 Agenda, KIPI periodically publishes a list of expired patents whose technologies are free for commercial use by the public without infringing on the patent owners rights. 

For purposes of computing the term and validity of the patent, the question then arises as to when the creation actually happened. Ideally, a patent application should be filed every time there is an invention or when there is an improvement of the existing invention(s). In the creation theory, each human being is said to be created in the image of the divine deity. This has three possibilities, first, that the divine deity is unique and morphs after every creation making every one human being created in their image a novel invention. Take for instance the fingerprints, it is said that every human being has different or unique design of their fingerprints. Is this an invention? Second, that the first human being created had all the components of a human being all subsequent humans are the same. Third that the subsequent humans are improvements to the first ones invented. In the first and third scenarios where there is an invention but an existing patent, the grant of patent would not be automatic. If the inventions are novel, they would have to be subjected, independently, to the patentability test as discussed above.

Fingerprints as a component of the human body would be considered as an invention capable of patent protection. The concept of the fingerprints in itself would not be patentable, as it has existed with previous human beings, but the process of making or producing the fingerprints may qualify for patent as long as it is novel/unique with each human being. This would be a process patent. The product being the different or unique appearance of the fingerprints in every human being, would be a question for industrial design protection. Industrial design is a form of IP that is available for any composition of lines which gives a special appearance to a product and can serve as a pattern for a product in the industry[2].

Where inventor introduces new aspects to an invention to improve its functionalities, those improvements are considered inventions for purposes of patent protection.  In the case of the human body, genetic mutation is often possible with time and as a response to the environment that the human is in. In the 1800s, Charles Darwin’s publication On the Origin of Species presented a systematic explanation on the evolution of man.[3] Darwin posits that evolution of man (species) is was a result of natural selection where organisms change over time in accordance with the prevalent environmental conditions in order to increase their ability to compete survive and have offspring[4]. It is therefore possible that the human body has improvements which are natural and independent of their creation. Such naturally occurring improvements would not qualify for patent protection[5].

Where improvements qualify as inventions for patentability purposes, their registration allows for the extension of the life of a patent beyond the 20-year period. This practice is called evergreening. Evergreening prevents patents from getting/falling into public domain and results in extending the IP monopoly granted by the State as long as their improvements are registered as patents.

So where would these patents be enforceable?

Patent protection is territorial. This means that patents are limited to the geographical territory/country where a grant has made. Registration must be obtained in all the countries the owner wishes to trade in. For instance, a patent issued in Kenya is not enforceable in Uganda. The concept of an international patent therefore does not exist in law.

There are countries that have adopted one law to govern all of them on patent registration. Such countries often have one office that receives, examines and grants patents on their behalf. Here the patent granted by such an office covers the countries subject to the one law on registration. French speaking African countries have joined hands to form OAPI that administers IP rights in the region[6]. In Europe, there is European Patent Office that centrally grants patents[7].   

To facilitate the ease of filing applications, countries enter international and regional cooperation arrangements where an applicant can apply to register a patent in several countries without having to travel or engage an agent there. In the international scene, we have the Paris Co-operation Treaty (PCT), which allows individuals from the member States to apply for a patent in all its 153 contracting States. Regionally we have the Harare Protocol where individuals in member States can apply for a patent through ARIPO to its 19 contracting States. In the case for PCT and ARIPO applications, the applications are centrally received and forwarded to each member State to examine and either grant or refuse an application. The decision is then communicated through the central office to the applicant. Kenya is a signatory to the PCT convention and the Harare Protocol.

In the case of the divine deity patent, the application must be made in all countries where the human being is to be released.

Can we patent human beings really?

Lastly, it is important to note that section 26 of the IPA Kenya expressly disqualifies inventions contrary to public order, morality, public health and safety, principles of humanity and environmental conservation from patent protection. Human cloning has since its introduction, been consistently and overwhelmingly opposed for various reasons including public morality.  Examples under section 26 would include inventions of disease causing viruses and related methods of production and process of developing or creating a human body.

In the coming blog pieces, we shall endeavour to trace where we are going with human creativity. Specifically we shall explore the related IP questions around artificial intelligence created in the likeness of the humankind. Feel free to send in your thoughts on the same.


[1] It is at times argued that trademark protection is not limited by time as registration of a trademark is renewable for an indefinite period after it is granted.

[2] See Section 84 of the Industrial Property Act

[3] P. Sloan, “Darwin: From Origin of Species to Descent of Man” The Stanford Encyclopedia of Philosophy (Summer 2019 Edition) at https://plato.stanford.edu/entries/origin-descent/

[4] Ibid

[5] Section 21 (3) (a) of the IPA excludes discoveries from inclusion as inventions, hence patentable

[6] OAPI has 17 member States that are signatories to the Bangui Protocol establishing the regional offices and central registration framework for Patents in the region. See http://www.oapi.int/index.php/fr/

[7] EPO has 38 member states including the 28 EU member states. For more see https://www.epo.org/about-us/at-a-glance.html

Looking Back, Forging Ahead: A Look at ICT processes, laws and policies in Kenya, 2019

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By Mercy King’ori

Introduction

The previous year was eventful for Kenya in terms of national processes that relied on information and communication technologies (ICTs) for their execution as well as ICT related legislation and policies that reflected this increased reliance on ICT. The two major processes included: Huduma Namba registration and the National Census. The laws and policies include the enacted Data Protection Act, proposed Social Media Bill and CCTV policy. Huduma Namba registration involved collection of personal information with the aim of issuing Kenyans and residents in Kenya with unique identifying numbers. The process leveraged on biometric technology to collect and store personal information. The use of this form of technology was a key differentiator of this civil registration process compared to others due to the nature of the information collected. The other process was the National Census. This was the first ever Census to be paperless. Enumerators were given tablets which they used to input the information they were collecting. The information was transmitted electronically. In fact, thanks to the use of  ICTs, this year’s census results were released within a record two months. This is because the information was being transmitted to a single area upon collection as opposed to manual records that take time to compute.

Additionally, the legislation and policy making space generated laws and policies that would have an impact on processes that leverage on ICTs such as the Data Protection Act which has provisions on safeguarding personal information, proposed laws relating to social media platforms (amendments to Kenya Information and Communication Act known as “Social Media Bill” ) that aims to regulate the use of social media and a CCTV policy to regulate the use of CCTV cameras in Kenya. The aim has been to regulate the use of ICTs that can undeniably go rogue such as violating constitutionally guaranteed human rights.

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Victims of their own success: Has M-PESA become a generic trademark?

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By Caroline Wanjiru

On 27th November 2019 the President of the Republic of Kenya released the Building Bridges Initiative Report (BBI Report) which is a document prepared and compiled by the Building Bridges to Unity Advisory Taskforce (Taskforce). The mandate of the Taskforce included collecting information from Kenyans on various national matters. To participate in this process, we have opened our Jadili platform inviting comments on the BBI Report to ensure our voices count. To comment or discuss the report please visit the Jadili Website and make your voice count. This post is not about the BBI Report though but on the content of the said report.

A list of abbreviations and acronyms assists the reader to understand how the words have been used and applied in the document. On page 6 of the report under abbreviations and acronyms, there is reference to ‘MPESA-Mobile Money Transfer Service in Kenya’. This reference presupposes that M-Pesa is not proprietary and does not tell the reader who owns it, if any. It leaves room for open interpretation for instance that there M-Pesa is a Kenyan service-owned by Kenya; that there are no other mobile money transfers in Kenya; presupposes that it is a public good, and not related to an individual. These statements may be correct and has associated legal implications for M-Pesa.

So why is this abbreviation/acronym significant?

M-PESA is a mobile-based money transaction service offered by Safaricom. It is proprietary to Safaricom. The service, which is available to all Safaricom subscribers, allows them to deposit, transfer, withdraw and pay for goods and services using a mobile phone. M-Pesa word is a derivation of the words ‘mobile money’ put together as M for mobile and Pesa (Swahili) for money. M-Pesa fame has continuously grown since its launch and has won several accolades especially within the country. See the success of M-Pesa story here. Is this why the BBI Report referred to it?

As mentioned, M-Pesa is owned by Safaricom one of the communications companies in Kenya. As a proprietary right, Safaricom has fought legal battles to protect its rights in the word. However, in 2014 Safaricom removed the exclusivity clauses in all its M-Pesa Agents’ contracts allowing the latter to operate other mobile money transfer services owned by other communications companies in Kenya. The exclusivity removal was a few months shy of the decision by Competition Authority requiring the removal of the exclusivity. This means that an ‘M-Pesa Shop’ can be offering other services other mobile money transfer services. From this, the question becomes, has the word M-Pesa been used so frequently that it has become generic for mobile money transfer service as referred to in the BBI Report?

In ordinary Kenyan conversations, it is possible to hear Kenyans use the word M-Pesa loosely to mean transfer of money on their mobile phones. We pose the question, how many of us have used the following phrases on column A to mean the phrase on column B?

A B
How much
should I Mpesa
you?
Asking how much to transfer to another on
mobile platform
Can I M-Pesa
you?
Asking if payment can be done on the mobile
platform, mostly as an alternate to cash
transaction.
I will M-Pesa you the
balance
Confirming that money will be sent on the
mobile platform
Who should we
M-Pesa?
Asking who should be the recipient of the
monies on the sent on the mobile platform
When is the deadline to M-Pesa? When is the deadline to transfer monies on the mobile platform
I will M-Pesa you from
the bank
Monies will be sent from a bank account
but to a mobile phone

These are a few examples. The phrases under column A utilize the word “M-Pesa’ as a verb to mean ‘transfer of monies over a mobile platform’. Whilst Safaricom owns Mpesa, there are admittedly other platforms owned by the other communications companies whose services in this instance fall under column A. The last phrase has been used to mean that the transferor will send monies from their bank account over the mobile platform and/or that they will be physically in the bank when transferring the monies.  

The BBI Report, a document authored after collecting views nationwide and without referring to Safaricom has used the word M-Pesa as a verb to mean mobile money transfer service in Kenya. On Page 113, the Report explains that ‘M-Pesa enables cash and voucher transfers in every part of the country’. Whilst this is not synonymous to the above uses, one wonders why the authors of the Report could not attribute the platform to Safaricom.

Is it not a good thing that M-Pesa is so used?

Yes and no. It is a good thing that as a brand, M-Pesa has stood out; has been associated with great achievements and has made Kenyan lives better.  However, the above common uses of the word makes M-Pesa synonymous with mobile money transfer. It risks it becoming generic or associated with the ‘act of transferring money over a mobile platform’. Should this happen, there are several risks that come to fore:

  1. The word loses its distinctiveness, which is one of the requirement under law for the registration of trademarks in Kenya. See section 2 of the Trademark Act.
  2. If registered as a trademark for mobile money transfer, the trademark becomes generic, descriptive, and susceptible to removal from the register of trademarks on these grounds.
  3. All other communication companies, financial institutions and generally anyone offering ‘M-Pesa-like’ services become entitled to use the word to describe their mobile money transfer platforms. The trademark now falls in the public domain.
  4.  Safaricom loses the proprietary rights in the word M-Pesa and therefore unable to enforce any trademark rights against any third party who uses the word M-Pesa for mobile money transfer.  
  5. Inclusion of the word M-Pesa in dictionaries- English and Kiswahili as a verb meaning to ‘transfer money over a mobile platform’ and its equivalent in Kiswahili.

In the past, words such as escalator, aspirin, cellotape, Xerox, kerosene were all once trademarks with private rights vested in individual proprietors. Today, these are common words used daily but not to describe the specific goods or services despite that being their original purpose. These words on their own cannot be registered as trademarks as they would be considered descriptive.   

In 2011, Twitter had a similar battle over the word ‘tweet’ where the word was challenged for being used to refer to ‘advertising in connection with Twitter and therefore incapable of serving as a mark owned by Twitter Inc. Even though, this matter was eventually settled out of court, Twitter in its returns to the US Securities and Exchange Commission, reported one of their risks to be that one of its trademarks could lose their value. They ‘risked that the word ‘tweet’ could become so commonly used [generic] that it becomes synonymous with any short comment posted publicly on the internet’. Had this happened, Twitter Inc. could have lost the proprietary rights that came with the trademark ‘tweet’.

In conclusion, we pose the question: Is M-Pesa synonymous to transfer of money over a mobile phone platform in Kenya? Will it become a victim of its own success?

The author would like to recognize open conversations on the subject she had with Mr. Mwangi.

The Finance Act (2019) and the Online Marketplace

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By Mercy King’ori and Jaaziyah Satar

Introduction

The idea of taxing the digital space is now not novel. Many countries in the world have toyed with the idea as a means of increasing their tax base revenue. In fact, others have already implemented these taxes despite initial resistance. Two such countries are Uganda in Africa through imposing social media tax and France in Europe through taxing Over-the-Top platforms. Kenya has also not been left behind in exploring this sphere as a tax generating avenue; from issuing public notices to online businesses to file tax returns to developing corporate plans to discuss how to utilise the digital economy as a means of increasing its tax base.

The tax man is out to have a share of the revenue from this sector. In Kenya Revenue Authority’s seventh corporate plan, 2018/2019- 2020/2021, plans of taxing the digital economy featured heavily as a new channel of revenue to hit its 6.1 trillion Kenya shillings tax base by 2021. The icing on the cake was on 7th November 2019 when the Finance Bill that was tabled after delivery of the 2019/2020 budget was assented into law. The Act has introduced elements of taxing the online marketplace (OM). Prior to the amendment, there was disquiet among the interested parties on the implementation of the taxes. This is because the taxes have the potential of affecting the very core of the operation of an affected e-commerce business. Indeed that has been of concern world over due to the complexities in the OM. For example, most OMs can be accessed anywhere in the world without having a permanent establishment in all those places while most tax regimes place importance on having one for purposes of taxation.

This post seeks to explore these legal amendments and discusses what this means for the Kenyan OM that is characterised by both international and local players and how to navigate these new waters while learning from the forerunners.

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WHAT CAN I GET AWAY WITH? EXCEPTIONS TO COMPUTER PROGRAMME COPYRIGHT INFRINGEMENT

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By Cynthia Nzuki

Introduction

Software and computer programmes have become a huge part of our daily lives. They drive significant elements of our lives. For example, we now use software and computer programmes such as word processing, accounts software, asset management software and so on. This is replicated in schools, homes, social places and so on. The programmes help us carry out various tasks as they make our work easier. Those who develop the software and the programmes expend their time and resources and as such, protection is important.

The Copyright Act defines a computer programme as a set of instructions expressed in words, codes, schemes or in any other form, which is capable, when incorporated in a medium that the computer can read, of causing a computer to perform or achieve a particular task or result.[1] Think of it this way: when a person is instructing another on what to do and how to execute it, the instructions should be in a language that the recipient understands; otherwise, there would be a communication breakdown due to language barrier. Similarly, a software or a computer programme is the language computers understand are able to execute tasks.

In Kenya, protection of computer programmes is within the copyright regime.[2] They are categorized as literary work. Of the various challenges that face the software industry, the major one is infringement or simply put theft and piracy. Principally, any unauthorized copying of software and computer programmes is infringement. Infringers obtain copies of a given computer software through unauthorized means, modify and augment the duplicated software code in undesirable ways, including insertion of malicious logic, backdoors, and exploitable vulnerabilities. This exposes consumers to harm and affects the businesses of software developers and software developing industries.

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CIPIT’s report on the nature of information controls during election processes

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By Jentrix Wanyama

Elections are an area of great interest and concern in equal measure across many parts of the world. The proliferation of the internet and other modern communication technologies has added intrigue to an already-contentious process. While elections are meant to facilitate democracy, their utility is heavily reliant on how they are conducted and whether democratic principles are observed in the process. Adverse use of communication technologies can have a negative impact on this important democratic practice.

The Centre for Intellectual Property and Information Technology Law (CIPIT) set out to analyse information controls in Kenya and Zimbabwe following their respective general elections in 2017 and 2018. The aim of this research was to contribute evidence to the conversation on the relationship between the Internet, human rights and the wider democratic processes.

The study developed a working definition for information controls as follows:

A wilful disconnection of access to the Internet or reduction in quality of connectivity or other form of control by an actor targeting a specific population within a geographical area that affects their ability to access, share information or otherwise participate in the electoral process online during an electioneering period.

The working definition was intentionally broad. This allowed for a study of a range of information controls, which can be generally classified as ‘traditional’ and ‘modern’ methods. The traditional methods of information controls include internet shutdowns and censorship, while modern methods feature fake news and social media taxes.

The research was of an inter-disciplinary nature, looking into the legal/policy environment concerning information controls, and their technical nature as well. Technical measurements of internet shutdowns were achieved in partnership with the Open Observatory of Network Interference (OONI). With this, several tests were employed to determine various variables in the chosen jurisdictions over the electioneering period such as: whether certain websites and instant messaging apps were blocked, whether there were any censorship technologies in the network, and, whether the speed and performance of the networks were interfered with.

The study also sought to delineate the legal and regulatory framework concerning information controls in Kenya and Zimbabwe. This was important for purposes of identifying the legal measures that affected citizens can turn to. A crucial aspect that was investigated in both jurisdictions was the efficiency of available agencies and whether citizens were able to have their grievances resolved in a satisfactory manner.

The findings revealed an evolving information landscape with governments increasingly shying away from disrupting the internet for fear of anticipated political and economic losses. Instead, election manipulation targeted controlling the online narrative as opposed to reducing access. Further, there is a rise in private entities playing a part in information controls, such as Internet Service Providers (ISPs) blocking websites as per international standards, and so   little reported incidences of government-sanctioned information controls during elections. 

The findings of the research have been shared in various media outlets, conferences and workshops worldwide, and can now be found on our website. CIPIT looks forward to advance this research as democracies worldwide continually grapple with the information age.

CAN I GET AWAY WITH THIS? FAIR USE AND FAIR DEALING OF COPYRIGHTED WORK

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By Cynthia Nzuki

“When you have wit of your own, it’s a pleasure to credit other people for theirs.”

― Criss Jami, Killosophy

Introduction

Fair use and fair dealing are exceptions applicable to the use of copyrighted works. These exceptions allow third party use of copyrighted work without the owner’s permission without raising copyright infringement claims. In our continuing series of reviewing the Copyright Amendment Act, 2019 (the Amendment Act) and its provisions, this week we focus on the limitations and exceptions of copyright. The Second Schedule which provides for the limitations and exceptions to rights issued by copyright protection. In the Copyright Act, No. 12 of 2001, these were housed under section 26.

In this piece we will focus on fair dealing or fair use as exceptions to copyright protection.

Is Fair Use different from Fair Dealing?

These two concepts are similar but differ slightly.  Fair dealing on one hand is an exception to copyright infringement laid out in the copyright statutes of common law jurisdictions such as Kenya.   Here the statutes spell out the concept and where  a work is copied for a purpose other than one or more of the statutorily provided ( fair dealing purposes), the copying cannot be a fair dealing regardless of the copier’s possibly beneficial or meritorious goal.[1]

Fair use on the other hand is a limitation on rights in works of authorship granted by copyright law; this doctrine is mainly practiced under U.S. copyright law. The fair use provisions in the U.S. copyright law prescribe four factors that must be included in a fairness determination which are: 

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CIPIT launches checklist on privacy and security in Kenyan legislations

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By Jentrix Wanyama

Over the last couple of years, Kenya has experienced a significant surge in insecurity. Notably, the country has seen a rise in terror attacks and cyber crime in its various forms. On the legislative front, security attacks have been met by a discernible trend: the enactment of a reactionary law, which is then flagged by human rights advocates for infringing on fundamental rights and freedoms. Next, a tedious court process in which the court has to weigh limitations in the law and adjudicate on whether the limitations are constitutional or not.

Pieces of legislation that have followed this cycle include the infamous Security Laws (Amendment) Act (SLAA) and the Computer Misuse and Cybercrimes Act in 2014 and 2018 respectively. More recently, the Statute Law (Miscellaneous Amendment) Act introduced the National Integrated Information System (NIIMS), a system was, and is still being contested in court.

Though separated by time and scope, the issues that arose in court in respect to these laws are cunningly similar. CORD & 2 others v Republic & 10 others successfully challenged the constitutionality of several sections of SLAA for violating a number of constitutional rights.[1] In The Bloggers Association of Kenya (BAKE) v Attorney General & 3 Others,[2] 23 sections of the Computer Misuse and Cybercrimes Act were suspended from coming into force. Lastly, in Nubian Rights Forum & 2 others v Attorney-General & 6 othersis currently challenging the constitutionality of the Statute Law (Miscellaneous Amendment) Act of 2018 for, amongst others, the violation of the right to privacy.

The similarity in the above cases, and more, is telling of a legislative system that perhaps does not take adequate consideration of fundamental rights and freedoms, especially where security needs are involved. This results in a court process which is both time and financially consuming. It is for this reason that the Centre for Intellectual Property and Information Technology Law (CIPIT) sought to bridge the gap by providing a resource of standards to consider when legislating on security provisions. Particularly, we looked at the right to privacy given its prominence both locally and internationally in recent events.

 The project took a multi-stakeholder approach, with respondents from the Judiciary, Parliament, Law Society of Kenya, Kenya Law Reform Commission and civil society represented by Katiba Institute. The result is a ten-point checklist that is based on the proportionality principle as provided under Kenyan law. Through the checklist, CIPIT hopes to provide a practical guideline on how to best ensure proportionality and the rule of law while seeing to the security needs of the country. The checklist can be found here.


[1] eKLR (2015).

[2] eKLR (2018).

‘THE SOCIAL MEDIA BILL’: PROPOSED AMENDMENTS TO KICA TO REGULATE USE OF SOCIAL MEDIA PLATFORMS

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By Jackline Akello

The Kenya Information and Communication (Amendment) Bill, 2019[1] seeks to amend the Act[2] to regulate the use of social media platforms. The Bill introduces stringent rules for bloggers, social media platforms, social media users and social media group administrators that raise questions on the intention of the Bill. Questions as to what the Bill intends to cure are also inevitable.

An analysis of the Bill shows that its provisions are not in line with the provisions of the Constitution as they violate the right to freedom of expression[3], and the proportionality principle[4] which aims to determine whether the limitation/interference of a particular right is justifiable. The Bill provides for; registration of bloggers, licensing of social media platforms, and responsibility of social media users and group administrators.

It starts by defining “blogging” and “social media platforms”. Section 2 of the Bill defines “blogging” as collecting, writing, editing and presenting of news or news articles in social media platforms or in the internet.

This then begs the questions; Are blogs unrelated to news not regarded as blogs within the meaning of the Bill? Are blogs not related to news not regarded as blogs at all? This author’s opinion is that the drafters of the Bill narrowed the scope of this definition with the likely intention of targeting “fake news”[5] and limiting people’s voices and critique of government practices.

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COPYRIGHT AMENDMENT ACT: WHAT’S NEW ON COLLECTIVE MANAGEMENT ORGANIZATIONS?

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By Cynthia Nzuki and Caroline Wanjiru

Introduction

In one of our previous blog posts (here), we tackled the legal framework of collective management organizations (CMOs). At that time, the existing law that informed our discussion was the Copyright Act, No.12 of 2001(the Act). On 18th September, 2019 the President of Kenya signed into law the Copyright (Amendment) Bill, 2019(the Amendment Act) (see here); which introduced a number of changes to the Act. In this piece our focus will be on the changes that affect CMOs.

If one could recall, not so long ago CMOs, and in particular MCSK, were in the hot seat pertaining allegations of issuing out “peanuts” as royalty payment (news piece here). It is notable that the debate on CMOs more often than not, revolve around collection and distribution of revenue. Has the Amendment Act addressed this?

What’s new?

  1. CMO defined

The Amendment Act specifically defines a collective management organization (CMO). Section 2 therein defines a CMO to mean an organization approved and authorized by the Board (KECOBO) which has as its main objectives, or one of its main objects, the negotiating for the collection and distribution of royalties and the granting of licenses in respect of the use of copyright works or related rights. This is the same definition of as that of a ‘collecting society’ provided for under section 48 (4) of the Copyright Act.[1]

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