New dawn for intellectual property in Kenya

By Edwin Sudi

“Certainly, an inventor ought be allowed a right to the benefit of his invention for some certain time. It is equally certain it ought not to be perpetual; for to embarrass society with monopolies for every utensil existing and in all the details of life, would be more injurious to them than had the supposed inventors never existedÉ How long the term should be is the difficult question.” —Thomas Jefferson, 1807

This father of the United States of America recognised early enough the importance of intellectual property. The makers of the American Constitution when further to grant power to Congress under Article 1,Section 8 of the American Constitution: “To promote the progress of science and the useful arts, by securing for limited times and authors and inventors the exclusive right to their respective writings and discoveries.”

This gave congress power to define and to protect intellectual property through measures such as issuance of patents and copyrights. History has proved them all right going by the economic gains the US has had from intellectual property.

However, while intellectual property is one of the commonest aspects that we encounter in our day-to-day engagements, it has for a very long time been obliterated in Kenya.

Things were not made any better when no mention of this important form of private property was made in the old Constitution. It is, however, one of the major gains of the new Constitution that it has been expressly recognised as a form of property that should be protected in Kenya. Article 40(5) of the new law specifically provides that the State shall support, promote and protect the intellectual property rights of Kenya.

But the important question is whether Kenyans are in a position to exploit their intellectual property, and in turn make it one of the key contributors to the economic development.

Economic potential

Is the mere recognition of intellectual property rights in the Constitution an end in itself? There is need for the government, the private sector and learning institutions to do more towards the realisation of the full economic potential in intellectual property.

To realise the full potential of intellectual property there is need for the government to come up with an elaborate national IP strategy setting out the infrastructure and capacities that will support inventors of IP to develop, exploit and protect their inventions. This shall be possible only if the government shall establish and implement effective IP systems, including support structures and policies to support generation and filing of all IP assets to encourage IP generation; support structures and policies that promote the commercialisation of IP rights; the enactment of strong IP laws clearly outlining the depth and breadth of IP rights, and offer sufficient protection of IP rights by establishing a dispute resolution mechanism and appropriate sanctions for IP infringement; and strong IP administration structures for IP rights like granting and filing of existing rights.

In terms of IP protection laws Kenya has taken important steps by enacting laws covering the areas of Trademarks, Copyright, Plant Breeders Rights and Patents.

There is, however, need to strengthen these laws to be able to cope with the modern challenges to IP law with the globalisation of the world.

Traditional knowledge

There are, however, other areas of IP that are yet to be legislated in this country. We need legislation on areas like geographical indications and traditional knowledge transfer.

A significant part of the global economy is based on the appropriation and use of traditional knowledge and associated genetic resources, particularly in agricultural, environmental and pharmaceutical biotechnology.

However, in Kenya, access to genetic resources and associated intangibles is only managed through the science technology and innovation policy and the NEMA legal notice no.160 of 2006. These two are very instrumental since they address issues concerning genetic resources, indigenous or traditional knowledge and intellectual property rights. But to be able to be more effective, there is need for strong legislation to provide for the protection of this important indigenous intellectual property.

Clear laws

Close co-operation by the government agencies, institutions of higher learning and the custodians of traditional knowledge shall be crucial if Kenya is to be able to protect this very important intellectual property. This is also only possible if there are clear laws that set out modalities for such cooperation, as well as ensuring that all the players benefit from the information sharing.

—The writer is a lecturer at Inoorero University.