Nestled in the leafy suburbs of Karen lies Jomo Kenyatta University of Agriculture and Technology (JKUAT) School of Law on the outskirts of Nairobi. On this chilly Thursday morning of 13th July 2017, JKUAT School of Law was making history: it’s first ever law conference! The theme chosen for this inaugural conference was: “Protecting Intellectual Property Rights: Justifications, Prospects and Challenges” (the official twitter hashtag for the conference is #JKUATLawIP). In the midst of this blogger’s moment of deja-vu over CIPIT’s inaugural conference way back in 2012, the JKUAT Management kicked off the conference with welcoming remarks that immediately began to raise eyebrows.
In the VC and DVC remarks, the repeated mention of ‘Kiondo patent’ and the ‘theft of M-PESA’ may not have been the provoking opener that the intellectual property (IP) scholars and practitioners gathered at #JKUATLawIP were expecting. It seems the “myth of the Kiondo patent”, as Kenya Industrial Property Institute (KIPI) Managing Director Mr. Sylvance Sange puts it, has not yet died in the minds of many Kenyans even those in academia! To put it plainly, there is no such thing as a Kiondo product patent! If the concern was a Kiondo process patent then that’s a totally different line of argument as Sange explains:
“A patentable invention has to prove presence of three main patentability criterias, namely: novelty (new), inventive-step or non-obviousness (challenging) and industrial application (useful). A process patent is simply characterised by protection of a ‘new way of making an old thing’. In this case, product kiondo having been in the public domain together with the original way of weaving it, a different way of arriving at the same, which is industrially applicable would qualify for a process patent protection. It is only the kiondos which are proven to be woven through that protected method that infringe the process patent in Japan. But that becomes a different issue from the Kenyans’ concern.”
Another trap the opening remarks from senior JKUAT management walked right into was the so-called ‘M-PESA theft’ narrative. According to this popular narrative, a young man allegedly developed M-PESA which was later ‘stolen’ by the giant mobile network operator, Safaricom. The appeal of this narrative is that it provokes Kenyans to guard their ideas and protect their concepts from appropriation by employing the IP system, notably patents. This takes us back to CIPIT’s inaugural conference where we considered the issue of software patentability and whether or not M-PESA could be categorised as a business method for purposes of the Industrial Property Act. This narrative pales in comparison to the mainstream version of events that one Nicholas Hughes, the current chairman of M-KOPA and ex-employee of Safaricom’s parent company, Vodafone, actually developed M-PESA from concept to launch:
“At the outset of the M-PESA journey in 2003, while working on how to repay microfinance loans, we observed a much bigger opportunity, which was, very simply, transferring money ‘person-to-person’ using nothing more than a $10 phone. We then pivoted the business model, simplified the technology, worked with the regulators to define the rules of operation and launched M-PESA. The customer uptake was phenomenal. Eight years after its launch, M-PESA has transformed the way money moves around in Kenya and the model is being replicated in many other countries.”
Aside from those distractions in the opening ceremony, the keynote speech was delivered by Pamela Andanda (Front row, dressed in white) who is Professor of Law from University of the Witwatersrand. Her speech was clear, concise and filled with great insights. Andanda’s presentation was on managing IP issues in research contracting and partnerships in Africa to foster technology acquisition. Andanda’s message was to shine a light on the seemingly murky legal framework for tech transfer such as that under the Agreement on Trade-Related Intellectual Property Rights (TRIPs). Andanda argued that, through smart contracting and strategic management of partnerships, all African creators, rights holders, researchers, inventors or communities should be involved and benefit in an equitable manner. The video of Kofi the Mouse (below) was used by Andanda to bring out this important theme.
Andanda’s rich background in Law and Bioethics came to the fore as she gracefully weaved the areas of IP, biotechnology, health law, policy analysis and governance of research into her lively presentation. From her immense wealth of knowledge and experience, Andanda shared two examples of strategic management of IP issues in research contracting and partnerships in Southern Africa namely the Human Genome Project and the San Council Code of Research Ethics. Andanda shared behind-the-scenes insights from her involvement in both these projects. Overall her presentation was well received by the audience and even after the keynote, her interventions in the plenary sessions throughout the day were thought-provoking and incisive.
The second part of the morning session was devoted to copyright law with a focus on the digital environment and other emerging issues. Leading the panel was none other than Marisella Ouma, who has recently been appointed Deputy Solicitor General, Legal Advisory and Research Division at the Office of the Attorney General and Department of Justice. Ouma compressed into 15 minutes a summary of the copyright law course she teaches at Africa University in its WIPO-supported Master in Intellectual Property (MIP) programme in Mutare, Zimbabwe. Paul Kaindo, who spoke on behalf of Edward Sigei, Executive Director of Kenya Copyright Board (KECOBO) highlighted some of the emerging challenges and opportunities from the copyright office’s perspectives including the launch of an online copyright registration platform as well as a lull in copyright enforcement occasioned by political uncertainty over the upcoming General Elections next month. Last but not least, Caroline Mwaura, a long-time friend of CIPIT and Law Lecturer at Kenyatta University delivered an exciting presentation on the interplay between exceptions and limitations in copyright law in the digital environment highlighting the role of fair dealing as well as Kenya’s recent ratification of the Marrakesh Treaty on Visually Impaired Persons. For those interested in the topic of fair dealing and recent developments from the Supreme Court of Kenya, please check out this blogger’s latest article titled: “In the Public Interest: How Kenya Quietly Shifted from Fair Dealing to Fair Use” available for download here.
The first session of the afternoon focused entirely on the recently enacted the Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016 in Kenya. Lereko Obonyo of JKUAT Law provided an analysis of traditional knowledge (TK) and traditional cultural expressions from a comparative review of Kenyan and South African legal regimes. Faith Omondi gave us a good overview of the basic underpinnings of TK and TCEs with useful historical, socio-economic and cultural tid-bits from Western Kenya. Thereafter Peter Kamero of Hamilton Harrison and Mathews, Advocates gave an enlightening exposition of the challenges and prospects of a sui generis regime for TK and TCE using practical examples such as the Maasai IP Initiative (MIPI), Maasai Music Pilot Project and the
Local Context Project, among others. The climax was a detailed and enthralling presentation by fellow Strathmore Law colleague, Francis Kariuki, on the problematic concept of “ownership” in the protection and promotion of TK and TCEs from environmental law and customary law contexts. For those interested in an overview and critique of Kenya’s Act on TK & TCEs, please check out this blogger’s comments here.
The final session of the afternoon tackled human rights and IP as well as plant breeders rights vis-a-vis farmers’ rights. The astute PhD scholar and lawyer Japheth Odhiambo spoke on the constitutional intellectual property rights in Kenya followed by fellow doctoral candidate and JKUAT Law lecturer Dennis Ndambo who made a case for a human rights-based modification of the IP rights system looking at the individual versus societal benefit. Tom Kabau, law don at JKUAT, presented a riveting analysis on the implications of the Arusha Protocol for the Protection of New Varieties of Plants administered by African Regional IP Organization (ARIPO) focusing on the topical issue of food security. Day 1 came to a close with a confident and thoughtful presentation by a final year LLB student Bilhah Omulama on the topic of navigating between breeders’ and farmers’ rights in plant variety protection in Kenya. It is commendable that Omulama is the only undergraduate student in the entire 2-day programme for the conference. For those interested in the Arusha Protocol and the contest between farmers’ rights and plant breeders’ rights, please check out this blogger’s comments here.
Tomorrow we will recap the second and final day of the conference which will cover big data, image rights, patents, access to medicines, IP valuation and IP and tax law.