Guarding intellectual properties

By Musyoki Kimanthi

Question: There was uproar sometime back when news broke out that kiondo had been patented in Japan and that there was an application in the UK to patent kikoi.

Does it matter that these things are patented elsewhere and does it mean that continuing to manufacture them locally would be contravening some law?

Answer: To add on to the questioner’s dilemma, I could also share a recent experience. I boarded a taxi in town and immediately noticed the car radio had been yanked out leaving a gaping hole and protruding wires. Wondering whether those were actions of common thieves, the driver explained that he had been forced to remove the car radio because he could not afford the annual licence fee that was being demanded by the Music Copyright Society of Kenya. Welcome to the world of intellectual property.

Intellectual property is a number of distinct types of legal monopolies over certain creations, both artistic and commercial and the corresponding fields of law.

Under intellectual property law, owners are granted certain exclusive rights to intangible assets such as musical, literary and artistic works, ideas, discoveries and inventions, words, phrases, symbols and designs.

Common types of intellectual property include copyrights, trademarks, patents, industrial designs and trade secrets.

Copyright laws are normally applied to cover artistic creations and protect creative works such as books, movies, music, paintings, photographs and software. The copyright holder is given exclusive right to control reproduction and adaptation of such works for a certain period of time. Patents are granted for new, useful and non-obvious inventions and give the patent holder a right to prevent others from practising the invention without a licence from the inventor for a certain period of time. A trademark is a distinctive sign, which is used to prevent confusion among products in the marketplace.

An industrial design protects the form of appearance and style of an industrial object from infringement and a trade secret is an item of non-public information concerning the commercial practices or proprietary knowledge of a business.

Several arguments have been advanced as to why intellectual property laws are necessary. Some argue that the monopoly profits reaped by the owners of intellectual property provide a financial incentive for the creation of intellectual property and pay associated research and development costs. Further, the legal monopoly granted by intellectual property laws can be credited with significant contributions toward economic growth.

Need to develop

Critics of intellectual property characterise it as intellectual protectionism and argue that the public interest is harmed by protectionist legislation. Eben Moglen in his dot Communist Manifesto argues that ‘society confronts the simple fact that when everyone can posses every intellectual work of beauty and utility, reaping all the human value of every increase of knowledge at the same cost that any one person can posses them, it is no longer moral to exclude’. In 2004, the World Intellectual Property Organisation (WIPO) was criticised in The Geneva Declaration on the Future of the World Intellectual Property Organisation, which argues that the WIPO should focus more on the needs of developing countries and to view intellectual property as one of many tools for development, not as an end in itself.

In Kenya, intellectual property is governed by the Industrial Property Act, Cap 509 and supervised by the Kenya Industrial Property Institute (KIPI), a Government department under the Ministry of Trade & Industry which was established on May 2, 2002.

To answer the question, it will matter if a patent over what we consider our products is registered elsewhere because royalties will have to be paid to the holder of the patent and failure to do so will be a contravention of the law.