The evening kicked off with a presentation on the existing
global frameworks on taxing the digital economy by Vallarie Yiega of the
Committee for Fiscal Studies, University of Nairobi. The elements of the
digital economy identified included e-commerce, online payment services,
applications, online advertising and cloud computing. Ms Yiega’s presentation
also identified various taxation guidelines in development by organizations
such as the Organisation for Economic Co-operation and Development (OECD), the
United Nations Tax Committee (UNTC) and the African Tax Administration Forum
Following Ms. Yiega’s presentation, a panel discussion was
convened consisting of Anne Salim (Association of Startup & SMEs Enables of
Kenya), Esther Muchiri Otieno (Catholic University of Eastern Africa), Wangoi
Karuga (Anjarwall & Khanna) and Robert Maina (Ernst & Young). The
discussions revolved around the difficulties posed by rapid digitisation of
services where existing laws are not fit for purpose. An interesting debate
emerged on the utility of attempting to tax digital economies, particularly
nascent ones. Some panelists were of the opinion that perhaps the imposition
of taxes on upcoming digital business
are a hindrance to innovation; while others were of the mantra that Caesar
ought to get his due, digital economy notwithstanding.
Contributions were also made regarding the role (or lack
thereof) played by the Global South in the development of an international consensus
on taxing multinationals. As mentioned, different frameworks are in
development. It was sobering to consider whether developing countries have a
seat at these tables, and if so, how much impact they have in shaping the
narrative. Considering Africa’s attractive market,
and the growing presence of multinationals in the region, the desire for an
objective approach is paramount. The need for integration and unity between
developing countries was clear as this would provide a greater bargaining
Questions raised from the audience varied from data
protection concerns, to, humorously, tips on tax evasion. (The latter was
swiftly put to rights by an official from the Kenya Revenue Authority who was
in attendance). There were also entrepreneurs in attendance who wanted to know
more about how to best abide by the law while protecting their businesses. The
panelists together with lawyers and industry players in the audience responded
brilliantly to all questions raised. All in all, the #LawTechMeetUp was a
resounding success, and CIPIT looks forward to taking part in future events.
In the words of Benjamin Franklin Beer
is proof that God loves us and wants us to be happy. However, in an
unhappy turn between Kenyan beer brewers and rivals Keroche Breweries (Keroche)
and the East African Breweries Limited (EABL) before the High Court, Keroche sued
EABL claiming, amongst others, that EABL wanted to patent and own the 500ml euro
brown beer bottle used in the packaging of beer. EABL embossed beer bottles that have the universal
shape with its unique EABL initials to prevent rivals from using them. EABL
also put up an advertisement informing the public of ownership of bottles and
bottle crates that were embossed with their trademark; stating that they would
institute legal action against anyone found using these bottles. Keroche argued
that the exclusive use of the brown bottles was irrational, unreasonable, an
abuse of intellectual property and misuse of dominance. See the news piece here.
of intellectual property rights is that it sets businesses apart from
competitors. The case between Keroche and EABL is a classic example and
illustration of this. EABL products are well distinguishable from those of
Keroche by the use of their trademark. Trademarks are
recognisable signs and symbols that identify certain products to be from a
specific source. The action of EABL embossing their mark on the bottles is an
assertion that the bottles with their marks on them belong to them. Could this
be the case?
The recently enacted Data Protection Act, 2019 has brought about the need to enlighten stakeholders about its implication on personal data. The lawyers Hub training on Data Protection and the General Data Protection Regulation (GDPR) conducted on 22nd January, 2020, focused on expounding provisions of the Act with an intention of incentivizing lawyers on ways to comply. The training also highlighted provisions of the GDPR, from which the Data Protection Act has been heavily borrowed.
The speakers were Dr. Isaac Rutenberg,
Director for the Centre for Intellectual Property and Information Technology
Law (CIPIT), who explained the Data Protection principles and the GDPR;
Grace Bomu, Research Fellow at CIPIT, who took participants through the Kenyan
Data Protection Act and; Rosemary Koech, Legal and Regulatory Officer at
Oxygene Communications Ltd, who demonstrated measures that can be adopted by
lawyers to ensure compliance with the Act.
Dr. Isaac Rutenberg commenced by highlighting
the principles of data protection ,
established to guide data controllers and data processors in the processing of
personal data, and compared them with
the principles laid out in the GDPR, where it was evident that the principles
laid out in the two statutes are similar. He subsequently elaborated the
difference between personal data and
sensitive personal data and gave
a clear cut distinction between the two using illustrations, and emphasizing on
the need for lawyers to appreciate the difference when handling personal data,
to ensure effective compliance with the Act.
Since the turn of the millennium, privacy has increasingly become a major concern within the continent. With most governments embracing technology and putting into action projects on E-governance and Digital IDs, as well as the growing interest that Western technology companies have in the continent, long gone are the days when the rhetoric was, Africa is not concerned about privacy. Unlike other cultures, African democracies are mostly viewed as collectivist, with the larger group holding more priority than the individual. This assumption has led to the deduction that in most African cultures privacy would have no place as it would be in opposition with the communal nature of the society.At the face of it, this position seems sound and many academics have stood by this. However, several authors have a different view and Africans seem to be singing a different tune.
Alex Makulilo, who is a Professor of Law at
Open University of Tanzania, puts forward that Africa has been unfairly judged
and perceived, without proper consideration and scrutiny of the continent’s
historical and economic conditions that have affected its culture and
development. He extensively discusses the role that trade during the Trans-Atlantic
Trade, as well as prior to this, and colonialism had in disrupting the economic
and political structures of African societies. This in turn resulted in a
paradigm where post-colonial states heavily rely on their former colonizing
states not only for financial assistance, but also for development assistance.
Quite often, such assistance comes with conditions requiring policy changes. The
effects of colonialization affected Africa’s social, economic and political
structures, and independence did not improve the situation.
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
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
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.
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.
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
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.
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.
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
So where would these patents be
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.
In Europe, there is European Patent Office
that centrally grants patents.
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
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
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.
 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.
 Section 21 (3) (a) of the IPA excludes discoveries
from inclusion as inventions, hence patentable
 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/
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.