Personal Finance

Why Constitution alone not enough to protect IP rights

IP

Protecting your business and intellectual property from unfaithful employees. PHOTO | POOL

The Kenyan Constitution is reputed to be one of the best globally when it comes to recognition, upholding and protection of intellectual property rights (IPRs).

Article 40 (5) of the Constitution places an onus on the State to uphold IPRs. It is a good thing that the rights have been enshrined in the Constitution, considering that it is the supreme law of the land and no other laws or policies can contravene it.

When one reads the entire Article 40, then it is clear that any citizen who qualifies to be awarded an intellectual property right should be granted the right without discrimination.

The State undertakes not to pass laws that would arbitrarily allow the government to compulsorily acquire an intellectual property right or pass laws that would limit one from enjoying the rights.

Despite the provisions of the law, a lot of abuse of IPRs still goes on, especially in the commercial sector. Perhaps because the Constitution places the onus of recognising IPRs on the State and is not a general provision applicable to commercial entities.

The State is, however, allowed to acquire an intellectual property right compulsorily only in certain cases, for example, where the acquisition is for the public good.

Take the case where one holds patent rights over something that is vital such as medicine. The patent right means that this person can control the distribution and commercialisation of products made using his technical know-how as it grants one near monopolistic rights.

Allowing such a patent holder to exercise his intellectual property rights, in limiting distribution of the medicine would be harmful to the public, especially patients who need this drug the most. In such cases, the law would allow the State to acquire the IP right and license a third party to distribute the medicine.

READ: Kenyans face hurdles in search for intellectual property rights

There was a recent Kenyan case a few years ago, which pitted the Anti-Counterfeit Act against the petitioner’s right to health. While it may not be a direct illustration of compulsory acquisition of IP in the Kenyan scene, it illustrates how a court upholds public good over commercial rights.

In the event of a trademark, the compulsory acquisition would apply in the event one person or entity holds a valid trademark over an item contrary to public good.

For example, if a person was granted a trademark over something that is deemed to be cultural or national. This happened in a Rwandan case when the Government of Rwanda compulsorily acquired a trademark owned by a foreign entity. In this case, the trademark represented the national values and cultures of the Rwandans.

Compulsory acquisition cannot be effected without compensation and inasmuch as the intellectual property rights laws may be silent on the mode of remuneration, I believe that fair compensation should be based on the market value of the patent.

It is interesting that constitutions in the world, which have been deemed to be progressive, do not have the provision of upholding IPRs as constitutional rights. Some countries in Africa have this provision.

The provisions of the Constitution could be invoked to minimise or stop pilferage of intellectual property rights in Kenya.