Intellectual Property Rights in Pandemics: The Case of the Novel Corona Virus in Developing Countries

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By Mercy King’ori

Background 

The novel Coronavirus has spread from China to other countries in the world. The virus which was first detected in December 2019 in the Wuhan region in China is not sparing even developing countries. There is no known cure for the disease, however, pharmaceutical companies are working to help develop a cure. There are only numerous clinical trials of drugs being done with the hope that a cure will be found. Currently,  the response to the outbreak in many countries has been to stop flights to and from badly affected areas. At a medical level, the response has been to manage the symptoms of the disease for those infected. Additionally, countries are establishing centres within existing health facilities to deal with any suspected cases. Of particular interest in this pandemic are developing nations whose medical systems are known to be strained. Most African nations categorised as developing are improving their capacity to detect and cope with it. While this is noteworthy, the writer cannot help but wonder whether the same progress will be made in the event a cure is discovered. How accessible will the drugs be to developing nations to deal with a pandemic? 

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The regulation of fake news in Kenya under the coronavirus threat

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By Abdulmalik Sugow, Beatrice Mungai and Jentrix Wanyama

Prelude: This blog post discusses misinformation in light of the recent threat posed to the world by COVID-19. It is not lost on us that widespread sensitization and a joint effort at combating the spread of the virus is crucial to our survival. To that end, kindly find accurate, up to date information about the virus here and here. We wish all our readers good health in this time of uncertainty.

Introduction

In the wake of a pandemic, credible and accurate information serves as a lifeline, helping to ‘flatten the curve’ as some have termed attempts to stem the spread of disease. In recent months, the world has been combating the spread of coronavirus disease 2019 (COVID-19), caused by the latest strand of the long existing coronavirus. At the same time, the World Health Organisation (WHO) has been fighting what it has termed an  ‘infodemic’ i.e., ‘an overabundance of information – some accurate and some not – that makes it hard for people to find trustworthy sources and reliable guidance when they need it.’ 

 On 11 March 2020, the World Health Organization (WHO) declared COVID-19 a pandemic. The very next day, Kenya reported its first case.  Since then, social media has been a flurry of information (both accurate and wildly inaccurate) regarding the spread of the disease in Kenya. Initially, there was little communication from the Ministry of Health and the Government Spokesman about the disease, and Kenya’s plans to mitigate its spread. Meanwhile, Kenyans took to social media using hashtags such as #coronaviruske to discuss the matter and many speculations were made as to the potential outcome of the spread of COVID-19. 

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Blogging and censorship

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By Mitchel Ondili

Defined as the process of ‘imposing checks, direct or indirect, governmental or otherwise on the exercise of one’s right to free speech’[1], censorship is an inhibition of the right to speak one’s mind freely[2]. This right is enshrined in Article 33[3] of the Constitution and includes the freedom to seek and receive information. Read together with Article 32 and international instruments, this includes the right to express opinions without interference in a wide range of areas[4] both private and public.

As defined in our earlier post, blogging is part of web content that allows people to create their own content and interact with content from others. Censorship places limits on the ideas that can be shared as part of that content, for both negative and positive reasons which will be discussed below.

The publication of opinions on the internet has seen two common strands of censorship play out on a digital stage; autonomous censorship and legal censorship both of which are elucidated below.

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BLOGGING & CONTENT LICENSING

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By Cynthia Nzuki

Share your knowledge. It’s a way to achieve immortality.

Dalai Lama

Introduction

In the age of social media and use of online platforms, blogging has proved to be a trail blazer. It has not only expanded the creative industry, but also created jobs for many people and expanded businesses for many companies. A blog is a website containing a writer’s or group of writers’ own experiences, observations, opinions, etc.[1]; this is often represented in words coupled up with images. The content in blogs thus attract intellectual property rights, in the form of copyright. This is because their subject matter are works that are eligible for copyright protection.[2]

In this piece we will look at licensing of the content of blogs and what an entrant blogger should look out for and consider when starting their blog.

What is licensing?

Licensing is the granting of formal permission for one to use something belonging to another without violating their rights.[3] In this case, an owner of a work(s) grants a third party the right to use their work(s) under defined terms and conditions.

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DATA JUSTICE DISCUSSION WITH LINNET TAYLOR

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By Jaaziyah Satar

“In a global data market, the worst-case scenario eventually becomes the standard for all of us.”

The Centre of Intellectual Property and Technology (CIPIT) had the honour of hosting a Global Data Justice seminar on the 18thof February 2020 at Strathmore University. The talk was moderated by Linnet Taylor, Assistant Professor of Data Ethics, Law and Policy at the Tilburg Institute for Law, Technology and Society (TILT). Linnet introduced Global Data Justice – a project that is geared towards that understanding different worldwide perspectives on what constitutes just treatment through data technologies.

The conversation steered towards the Huduma Namba conundrum; those in attendance were asked to share their concerns about the Huduma Namba process. 

These concerns ranged from privacy concerns, to digital insecurity concerns – the website and information on the website could be easily compromised. The way in which data is governed and protected on a local level is through a “counting” system; for example, the Huduma Namba process where the government digitally collects citizen’s information. But this is countered by data activists who state that the collection of digital data is against the rights of a free person.

Fragmented governance

Data justice comprises of: 

  1. Privacy (protection) 
  2. Fair information practices principles
  3. Research ethics
  4. Protection of human rights 
  5. Data protection

Some of the issues arising from a data justice perspective include  transparency, visibility,and non-discrimination.. 

For the seminar participants, their understanding of data justice ranged from personal experiences with e-government to global scandals on social networking sites. A summary of the discussion:  

  1. The fact that it is no secret that our society is becoming increasingly digital; digital rights, a concept that did not previously exist, is being included in national and international laws. Cybercrimes and general cyber insecurity have also escalated. 
  2. Facebook users being exposed to cyber attackers/hackers to Facebook selling user data to third parties. In a situation such as this an issue of Conflict of Laws arises due to the fact that there is no singular entity that can regulate these companies on data protection or data justice.
  3. In Kenya the Right to Privacy can be waived when it is a question of national security– if there is even a small possibility that a terrorist attack may occur and waiving a citizen/resident’s right to privacy is necessary to collect certain information for the good of national security then data protection will be considered a minor issue. 
  4. The concern that arose amongst many Kenyan on the way personal information was being considered, used and even traded as though it was public information; that data protection was not being respected and encouraged. This was also compounded by the role data governance played in politics, which in turn influenced the position of the State towards data protection. 
  5. Historical issues where due to the past ethnic clashes that have occurred in Kenya some attendees felt unsafe sharing information such as their ethnicity, class, gender, marital status and political beliefs. 

From the seminar, it was apparent that data justice is a conversation that will be topical in Kenya for years to come. Many questions are still unanswered: what is the future of data protection on the African continent? Were projects  such as the Huduma Namba beneficial in the long run? Or would the data protection fight around us simply crash and burn?  

The Computer Misuse and Cybercrimes Act Judgment: A Digest

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By Abdulmalik Sugow and Jaaziyah Satar

Snapshot of the judgement

Issue Finding of the court
That the two-thirds gender
rule would not be met in the
National Computer and
Cybercrimes Co-ordination
Committee created under
the Act  
The challenge was premature as the
Committee is yet to be constituted.
Offences of false publication,
child pornography, cyber
harassment, cybersquatting
and wrongful distribution of
obscene or intimate images
were a limitation of
freedom of expression
Freedom of expression may be validly
limited in the public interest, to
preserve rights/reputations of others
and in accordance with the
Constitution.
In this case it was and also validly
limited in creating the offences
(of cyber harassment, squatting and
wrongful distribution of intimate
images).  
Section 24 criminalises child
pornography but omits the
word ‘child’. The provision
also used subjective terms
such as ‘erotic’, ‘lewd’, or
‘designed to arouse sexual
interest’ that had not been
defined
The court took the contextual view
that pornography as defined is focused
on criminalisation of child pornography as stated in the marginal notes. The definition of pornography as such, needed not be definite as the matter is subjective.  
Absence of mens rea in some
of the offences e.g
unauthorised interference
was contrary to the
Constitution as it could result
in prosecution of innocent
conduct
The nature of the offences were
computer integrity crimes and the mens rea could be gleaned from the wording
of the provisions. Use of the words
‘intentional’, ‘unlawful’, ‘willful’ all
connote mens rea.  
Granting of powers to obtain search warrants, make
preservation orders and
intercept information to the
police were an improper
limitation of the Right to
Privacy
The powers were not unchecked and
contained safeguards. Further, nature of cyber offences justified expanding the
tools available to officers.    
Amendment of the Bill during the Committee of the Whole (after it had already been subjected to public participation) denied members of the public opportunity to give input on the new issues The Petitioner read the Standing Order selectively and failed to identify any amendments after the fact that expanded the scope of the Bill. The cou-rt deferred to Parliament to regulate its own internal affairs citing the principle of separation of powers.

Introduction

On 16th May 2018, the President of Kenya assented to the Computer Misuse and Cybercrimes Act (‘the Act’). Its objective is to provide for offences relating to computer systems, enabling among other things, prompt detection and prosecution of computer and cybercrimes. The Act among other things criminalises fake news as well as publication of false information. Shortly after its enactment, the Bloggers Association of Kenya (BAKE), challenged its constitutionality before the High Court of Kenya, resulting in the suspension of 26 sections pending the hearing and determination of the suit. The grounds of the petition was the limitation of various fundamental freedoms by provisions of the Act. On 20th February 2020, Justice Makau gave the final judgment that upheld, in entirety, the constitutionality of the Act. In this blog post, we discuss the highlights of this judgement.

The court addressed five substantive issues:

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Digital surveillance in health emergencies

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By Grace Mutung’u and Dr Isaac Rutenberg

Like many of her African counterparts, Kenya faces unique challenges and opportunities in battling the Coronavirus. Due to high unemployment, many people survive on income from casual and informal employment. Such income is unpredictable, and many people in this situation have no significant savings or other buffers against periods when work is scarce. It may therefore not be practical to put major cities and towns on complete lockdown without inviting potentially unmanageable social problems. Indeed, it has so far proven difficult to close open air markets or stop (the privately owned) public service vehicles from operating. To highlight these challenges, Journalist James Smart used social media to show the difficult balance that is the life of informal traders who now have to stretch their meagre earnings to cover their daily needs, after the middle class to whom they supply their labour retreated to social distancing.

The reality of rural urban migration is that many who come to Nairobi and other town centres in search of work never really settle in the towns. Their souls are rooted in their upcountry homes, as Joe Mopero’s classic hit Naona heri nirudi nyumbani, kwa baba na mama nikawasaidie (“I’ve decided to go back to my father’s and mother’s house, to help”)reminds us. At the slightest sight of insecurity, such as the lack of income brought about by Kenya’s partial lockdown, many city dwellers will travel back home to wait it out. This, of course, presents the greatest means of spreading the Coronavirus throughout the country, and government officials have been begging people to resist from taking that trip to the countryside.

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The Draft Registration of Persons (NIIMS) Regulations 2020

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By Beatrice Mungai

Following the judgement in the case of Nubian Rights Forum & 2 others v Attorney General & 9 others (Huduma Namba case), the Ministry of Interior and Coordination of National Government released the draft Registration of Persons (NIIMS) regulations. The draft Regulation intends to operationalize Section 9A of the Registration of Persons Act that establishes the National Integrated Information Management System (NIIMS). The court ordered that the government is at liberty to proceed with the implementation of NIIMS but on the condition that an appropriate comprehensive legal framework is first enacted.[1]

This blogpost gives a brief overview of the draft regulations and comments on further issues that the regulations should consider in view of the Huduma Namba Judgement.

Comment on the Draft NIIMS Regulations

I

The first of the draft regulation deals with definition of terms and its scope of application. Whereas the part gives a distinction between huduma card and huduma namba, as well as between functional and foundational data, it fails to define several key terms.

The regulations uses “agency” but fail to specify whether this refers only to public agencies. It is also not clear if the regulations also apply to private agencies carrying out authentication using Huduma Namba. The term “biographic data” also needs to be defined so as to specify what kind of data falls under this category, especially since the processing of data may infringe on privacy. Hence the need t have clarity on the exact data types that may be collected. The regulations should also elaborate on what “multipurpose” means so as to provide a clear limit on the purposes for use of Huduma Namba.

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COMMENTARY ON THE DRAFT DATA PROTECTION (CIVIL REGISTRATION) REGULATIONS 2020.

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By Florence A. Ogonjo

The Government of Kenya through the Ministry of Information Technology recently published draft regulations, the Data Protection (Civil Registrations) Regulations 2020 and called for a public participation hearing on 27th February 2020 at KICC, welcoming oral submissions and comments to the draft regulations.

The regulations are divided into six parts covering respectively; Preliminary, Data Protection Principles, Rights of the data subject, Obligations of the civil registration entity, Security Safeguards, and Miscellaneous provisions.

CIPIT took part in the public hearing sessions and took note of debates arising from the process as discussed below. Data Protection Principles

Ensuring that legal frameworks on data protection meet the objective of protecting the collection, processing, and storage of personal data requires that the frameworks are structured to adhere to the principles of data protection. The regulation has focused on two principles – consent and security safeguards, inadequately addressing other core principles on purpose limitation, storage limitation, adequacy, and data transfer.

In order to avoid abuse, there is need for clarity on all the principles. The principles give effect to the rights of a data subject. Abiding by these principles not only guarantees the right to privacy but also legally justifies the processing of personal data in a manner that respects the rule of law.

Processing of Personal Data relating to children.

Children are less aware of the risk involved in the processing of their personal data and therefore merit specific protection when their data is collected and used. Consideration must be given to clarity on privacy notices, reliance on direct consent of a child, the competence of the child in understanding what they are agreeing to, identification of risks and consequences of the processing and the implementation of age-appropriate safeguards.

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Innovation in Kenya: Why Corporations in Kenya/ Kenyan Corporations Should Engage with the Patent System.

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By Mercy King’ori

Typically, corporations more than individual inventors, are known to spearhead inventions and make use of the patent system as a tool of protection. In fact, statistics on patent applications and grants indicate that most patenting activity is done by companies more than individuals.[1] Nevertheless, the situation is not uniform throughout the world. According to a study interrogating whether patents and utility models encourage innovation in Kenya, it showed that the number of individual inventors applying and receiving patents is more than corporations.[2] However, despite more individuals applying and receiving patents, the number of patents is still low and there is a high rate of abandonment of patents.[3]  The study reveals that more individuals were granted utility model certificates than corporations. Additionally, it reveals that despite corporations having fewer patents in Kenya, there is still inventive work happening in the companies.

To anyone who has interacted with news of innovation levels in Kenya, this might come as a surprise since Kenya has been and continues to be hailed as a hub of innovation. Infact, the Global Innovation Index (GII), continuously ranks Kenya among the highest of the African countries.[4] This is despite the mentioned low number of patents. However, this can be attributed to the fact that the level of innovation in a country is not measured by the level of patenting activity only.[5] The 2019 GII indicated that there are other indicators of innovation in a country such as the amount of venture capital deals in a country, level of high technology imports, mobile app downloads and political and operational stability among other indicators.[6] According to GII, patent applications is just one of the sub- indicators under the sub-pillar of knowledge creation which is under the larger pillar of “knowledge and technology outputs”.[7] The GII uses uniform indicators to rank all the countries. For example, under the sub-pillar of knowledge creation where patent applications fall, it shows that Kenya ranks as number 72 out of the 130 countries.[8]

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