Category Archives: Intellectual Property

Internet Service Providers (ISPs) and Copyright in Kenya: Commentary on the Copyright Amendment Act 2019

18 Friday Oct 2019

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By Caroline Wanjiru

This post forms part one of a two part series focused on the Intellectual Property considerations in the Copyright Amendment Act. The IT considerations, focusing on digital rights will be addressed in a follow up series.

ISPs and Copyright

The Copyright Amendment Act (Amended Act) 2019 has brought in new provisions which have created new obligations and extended rights for some parties within the copyright practice in Kenya.

In the next few weeks, the CIPIT IP Team shall undertake a review of these new provisions in a series of blogs all aimed at informing, analyzing and probably providing a critique to the same. This week’s blog begins with looking at the provisions relating to the liability of the Internet Service Providers (ISPs) in Kenya.

From the onset, it is a matter of common notoriety now that copyright enforcement is an arduous task. It requires concerted effort from all players and 3rd parties as well. ISPs are 3rd parties who provide a vehicle through which the copyright owners can easily distribute their works and the users to freely enjoy the same. Section 2 of the Amended Act defines an ISP;

‘As a person providing information system services or access software that provides or enables computer access by multiple users to a computer server including connection for, the transmission or routing of data.’

Simply put an ISP is a company or entity that provides internet access to its subscribers. How this works is that the owner or holder of copyrighted material reduces it to a format which can be transmitted or carried through the ISP network. The aim is to distribute the works to those who have access to internet. Access of the copyrighted material can be free or paid service. Payment is typically to the owner or an authorized agent. Challenge within the copyright arena arises when the material that should be paid for is accessed for free. Such access would be unauthorized and infringing on the rights of the copyright holder. ISPs are enablers of access, authorized or unauthorized hence their inclusion in copyright enforcement.

ISPs and Internet Freedom

Based on their position, ISPs have the capacity to take down or disable access to sites which are considered to be providing access/accessing infringing materials. As is said, every coin has two, or three sides. So the associated question is, in taking down the content or disabling the content, will the ISP be infringing on anyone’s digital or access rights, limiting the user’s internet freedom? Where is the balance, if any? We shall address this with a post.

ISPs and the Law

From their role in the distribution of copyright works, ISPs can be enablers of infringement or can be the infringers depending on their role. Section 35A provides for scenarios where an ISP shall not be liable for infringement. These include where the ISP:

  1. If it only provides either automatic, intermediate or temporary transmission, routing or storage of content (subject to copyright) in its ordinary course of business on condition that:
  1. It does not initiate transmission
  2. it does not select the addressee/person receiving the content
  3. these functions are automated and technical such as not to select the material;
  4. does not promote the content or the material being transmitted.
  5. For the automatic, intermediate and temporary storage of content for purposes making onward transmission of the data more efficient to other recipients of the service upon their request on condition that the ISP:
    1. does not modify the material;
    2. complies with conditions on access to the material;
    3. complies with rules regarding the updating the cache in conformity with generally accepted standards within the service sector;
    4. does not interfere with the lawful use of technology to obtain information on the use of the material;
    5. removes or disables access once it receives a takedown notice or where the original material has been deleted or access disabled on orders of a competent court or otherwise on obtaining knowledge of unlawful nature of the cached material.

Comment: The above places an obligation on the ISPs to ensure that they do not promote infringing materials under the guise of conducting business. This can be done partly by policing on the content or by requiring the internet content owners to indemnify the ISPs or exonerate them from liability should claims arise.

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Eliud Kipchoge, the breaker of records and Intellectual Property

09 Wednesday Oct 2019

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Image from INEOS

By Caroline Wanjiru

Today we pause our continuing IP series to dedicate this entire blog to the one and only Eliud Kipchoge. Why you ask? How is he related to your core business- IP? Well, there are several reasons as to why we had to do this. Most importantly, Eliud is a Kenyan champion. He is an athlete who holds several titles including 2016 Olympic Marathon Winner , 2018 World Record Holder with 2.01.39 just to name a few. He is personne extra ordinaire. More OF his achievements here. There are many things to write about Eliud but for today we shall discuss his upcoming challenge. You see, no athlete has attempted to break the current world record held by Eliud set in Berlin. So he took it upon himself to break his own record by running the 42km Marathon in a record time of 1.59.59. In this journey which he has documented in his various social media accounts, he has partnered with INEOS who are also the organisers of the challenge. The challenge is set to happen in Vienna, Austria for various reasons including weather and the course for the marathon. The challenge is tentatively planned to happen on 12th October, 2019 with the confirmation of this date from INEOS Performance Team planned for 9th October. From this side of the desk and the whole CIPIT Team would like to wish Eliud nothing but the best and this blogger promises to cheer him to the finish line. As Ben Cyco says, Cheza kama wewe!!

The second reason for dedicating this to Eliud is the commercial aspect that the challenge presents both to him and to the partners, official and unofficial. This part is meant to provoke everyone who reads it and to see the challenge from an IP perspective. In the challenge, Eliud will be wearing brands such as Nike and the event will be live on KBC, Standard group (KTN), NTV and Citizen TV in Kenya. There are other broadcasters all over the world. Nike have further specially designed 3-D printed Nike Zoom Vaporfly 4% shoe for Eliud which is aimed to give him peak performance. With such official sponsorship it is expected that Nike and Eliud, the companies will benefit commercially, directly and indirectly. This could be in the form of increased sales and reputation of the companies and that of the products endorsed by the athlete.

During the challenge, the broadcasters broadcasting to millions of people will not only focus on Eliud and also every other entity whose product which will be exhibited. This is advertising, creating brand presence, consumer awareness which in turn creates consumer loyalty. The resulting effect is a presumption by the consumers is that for an entity to be associated with such a challenge, their products (and services) must be of a certain status or quality. Such impact would ordinary times take time to create. The consumerism, the loyalty and pride resulting from this impact has a direct co-relation with the athlete. It is against this background that this blogger argues that such association should then be accompanied by commensurate commercial value to the athlete as well as the company. 

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Imitations versus Counterfeits in Kenya: Are all Imitations Counterfeits?

17 Tuesday Sep 2019

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By Cynthia Nzuki.

The word counterfeit often denotes a product that is fake and of poor quality. Dictionaries have defined the word to mean an imitation intended to be passed off fraudulently or deceptively as genuine[1].Breaking down this definition, counterfeit goods are intended to trick consumers to believe that that which they purchase are genuine goods; whereas they are unauthorized copies of branded goods presented as the authentic goods. For example, Christian Louboutin high heels are well known for having red bottoms; the sale of high heels with red bottoms and passing them off as Louboutin shoes is a good example of counterfeiting.

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Protecting the gift to the world: Reflections on the state of photography laws in Kenya

12 Thursday Sep 2019

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Photo by Ekrulila from Pexels

By Jentrix Wanyama*

When the French government purchased the first photography patent, photography was declared ‘a gift to free the word’. These words would turn out to be somewhat prophetic, as photography would go on to have a resounding impact on the world.[1] For instance, photography played a role in sensitizing people on the horrors of war, since for the first time, citizens of different countries were able to actually see the ravages of war that had before then seemed so far away.[2] 180 years later, it is interesting to note how the law concerning photography has developed in Kenya.  Does the state of applicable laws show our esteem for this gift or are we stifling it? In this blog, we discuss the law on photography in three broad themes: copyright; image rights and privacy; and security.

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African Traditional Knowledge and Expressions of Folklore: Rethinking Swakopmund Protocol as a Model Law and Sui Generis System

03 Tuesday Sep 2019

Posted by in Copyright, Intellectual Property, Traditional Cultural Expressions, Traditional Knowledge

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Photo by ‘Indigenous Information Network (IIN)‘

By Michael Biko Butera*

Introduction

Traditional Knowledge (TK) is any knowledge originating from a local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, where the knowledge is embodied in the traditional lifestyle of a community and is passed on from one generation to another.[1] TK often forms part of a community’s cultural and spiritual identity, technical, ecological and medical knowledge as well as biodiversity-related knowledge.[2] Folklore expressions (Folklore) on the other hand, are any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested.[3]

Despite clear definitions, there has been a drumming debate whether TK and Folklore should be protected. If not, why? and if yes, how? Would it be through the intellectual property (IP) regime or any other mechanisms? The prevailing and ongoing argument is captured in part two.

The author posits that there is already a starting point to finding a way to protect TK and Folklore given their special nature. This is by rethinking the Swakopmund Protocol as a model law and a sui generis system for African countries to come up with corresponding national laws. Sui generis basically means that of its own kind or class; peculiar.[4]

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#UBUNIFU – CIPIT PANEL ON THE STRATHMORE LAW CLINIC UBUNIFU INITIATIVE (PART TWO)

03 Tuesday Sep 2019

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Capture of the Ubunifu Initiative Brochure

By Caroline Wanjiru and Cynthia Nzuki.

As highlighted in our previous post (here), the Strathmore Law Clinic (website here) began an initiative known as the Ubunifu Initiative, whose main focus is promoting the effective use and exploitation of creativity and innovation through the development and sensitization of intellectual property law and rights. The second session happened on the 30th of August, 2019, where we had one of our own, Ms. Caroline Wanjiru, being a panelist and sharing her expertise.

The focus was still on creatives; in particular musicians, authors and performing artists. The discussions focused on copyrights, copyright protection and related rights of the respective groups’ works. The session began with the panelists giving a brief discussion of intellectual property and intellectual property rights; how to obtain intellectual property rights protection in particular copyright and the associated rights. Questions on fair dealing and fair use; publishing rights; joint ownership/authorship of works; transfer of rights through assignment and licensing; jurisdiction for purposes of enforcement were tackled. Through the CIPIT Blog, we shall endeavor to inform on some of these issues in detail in our continuing IP series.

There are two (2) more sessions (further details) if you wish to attend simply send an email to keli.muema@strathmore.edu to RSVP. Specify whether you wish to attend all the sessions or, if not, which specific sessions you wish to attend.

State Intervention on the Collective Management Organisations (CMO’s) in Kenya: A Commentary on the Copyright Amendment Bill, 2018

30 Friday Aug 2019

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By Caroline Wanjiru.

In our previous post, we addressed the law as is on Collective Management Organisations (CMO’s). Now we’ll analyze the proposed amendments to the Copyright Act and what they mean to the copyright holders and users in Kenya.

The Copyright Amendment Bill (‘Bill’)

This analysis will focus on proposed sections 46 A (10) (11) (12) B-G and 49 of the Bill.

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#UBUNIFU – CIPIT PANEL ON THE STRATHMORE LAW CLINIC UBUNIFU INITIATIVE (PART ONE)

29 Thursday Aug 2019

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Capture of the Ubunifu Initiative Brochure

By Cynthia Nzuki and Jaaziyah Satar*

The Strathmore Law Clinic kick-started an initiative known as the Ubunifu Initiative. This initiative is a project of the Intellectual Property Division of the Strathmore Law Clinic (website here) that is aimed at promoting the effective use and exploitation of creativity and innovation through the development and sensitization of intellectual property law. The initiative was organized as a series of four weekly sessions scheduled on Fridays in the month of August and September. During the sessions, the attendees shall engage in discussions about what Intellectual Property Rights (IPRs) This included what IPRs are; which IPRs would be of interest to them; which IPRs they might already hold; how to secure, protect and register IPRs in Kenya. The conversation will extend to sessions on how to maximize IPR benefits; dealing with government regulators and their specific requirements and any other area of that may be of interest to those in attendance that they wish to address (further details)

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Regulation of Collective Management Organisations in Kenya: Understanding the Law as-is

27 Tuesday Aug 2019

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Icons made by prettycons from www.flaticon.com is licensed by CC 3.0 BY

By Caroline Wanjiru*

From our previous post, we have described the various Collective Management Organizations’ (CMO’s) in Kenya. Briefly, CMOs are not-for-profit membership entities authorized by Kenya Copyright Board (KECOBO) to carry out the business of copyright collection on behalf of their members. Their operations of the CMO’s are regulated by the Members, KECOBO and Law.

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The Collective Management Organisations in Kenya’s Creative Market

26 Monday Aug 2019

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Icons made by Freepik from www.flaticon.com licensed by CC 3.0 BY

As part of CIPIT’s daily interactions with creatives, the Centre is embarking on an Intellectual Property explainer series. Tailor-made for creators. No legalese, no jargon. Just practical information. The main focus of these blogs is the various Collective Management Organisations (CMO’s) that operate in Kenya. In this blog, Cynthia Nzuki, introduces what CMO’s are, what they do and whether they are effectively and efficiently managing copyright on behalf of their members.

By Cynthia Nzuki*

Collective Management Organizations (CMOs) are private not-for-profit entities licensed to collect and distribute royalties for and among its members. In Kenya, there are presently five main CMO’s licensed by the Kenya Copyright Board (KECOBO), as mandated by the Copyright Act of Kenya. They are:

  • The Reproduction Rights Society of Kenya (KOPIKEN),
  • Kenya Association of Music Producers (KAMP),
  • Music Copyright Society of Kenya (MCSK) (license here), and
  • The Performers Rights Society of Kenya (PRiSK) (joint license here).[1]

Over the years, these organizations have received a lot of criticism for alleged misappropriation and unscrupulous handling of their members’ revenue; some more than others.

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