A new study, Roots of Innovation, shows that actual enforcement of IP laws in Kenya is weak, with regulatory bodies lacking the right expertise and resources.
The study says the judicial system is sluggish in determining cases before them and innovators largely rely on the four specialised IP tribunals which are faster than regular courts.
Artists, software developers and other IP owners in Kenya are now able to list their works online on an automated system.
Globally, 2016 was the most challenging for global IP policy, according to the report.
Kenyan innovators burning the midnight oil in various incubation hubs across the country are battling many intellectual property protection hurdles standing in their way, a new study reveals.
Learning institutions and major towns host an army of youth that comes up with tools to solve every day challenges. However, while the innovation pipeline is getting busier by the day, enforcement of laws protecting these creations is relaxed, exposing the innovators to exploitation and outright theft of their ideas.
A new study, Roots of Innovation released a fortnight ago by the US Chamber of Commerce outlining the international intellectual property (IP) index, shows that actual enforcement of laws in Kenya is weak, with regulatory bodies lacking the right expertise and resources.
“Significant barriers to enforcement against counterfeits exist. Despite the introduction of the anti-counterfeiting Agency in 2008, counterfeiting remains a major problem with little real recourse available,” the study says.
Kenya was ranked at position 31 out of the 45 world economies where the study was conducted. The dismal performance, according to the study, was due to the weak and judicial system dogged by case backlog, gaps especially in the digital space and ambiguous legislation.
The study says the judicial system is sluggish in determining cases before them and innovators largely rely on the four specialised IP tribunals which are faster than regular courts.
However, the report lauded Kenya for making notable steps in the new copyright registration system, developing the basic IP framework that are sector-specific and improving business environment with reduction in IP-related market barriers.
The digital system, IP Hub unveiled in 2014 by Microsoft and Kenya Copyright Board (Kecobo) replaced the manual process of registering intellectual property. The system involves downloading registration forms, paying via M-Pesa and submitting the forms at the Kecobo offices.
Artists, software developers and other IP owners in Kenya are now able to list their works online on an automated system. The services are available through Huduma Centres. Artists pay Sh1,000 as registration fees.
The report says Kenya loses an estimated $80 million (Sh8.2 billion) in tax revenues, capital flight and public safety risks due to IP infringement. The report cites the pharmaceutical sector, where it says 30 per cent of medicine sold in the country are fake. Border enforcement was blamed largely for the entry fake goods into East Africa.
Statistics form Kecobo estimates that 98 per cent of music and one in every three books is reproduced while software piracy was high despite efforts to encourage use of legal software.
Globally, 2016 was the most challenging for global IP policy, according to the report. New data reveal that counterfeiting has more than doubled since 2008 amounting to $461 billion (Sh47.1 trillion) annually. Kenya’s Copyright Act is not sufficient to prevent infringement of copyrights and related rights that include web hosting, streaming and linking. The law lacks provisions to curb online piracy, according to report.
The ICT Act amendments, according to the study, are not aligned to the international best practices because they rely on the involvement of the infringing parties and fail to adequately outline the responsibility of the Internet service providers. The Act stipulates that online hosts respond to court orders when claims that their content is illegal arise.
LEGAL FEES
The Parliament passed the Protection of Traditional Knowledge and Cultural Expressions Act, last March, but it is still awaiting for the presidential assent.
Patents in Kenya are granted by both the Kenyan Industrial Property Institute (KIPI) and the African Regional Intellectual Property Organisation — international applicants.
According to KIPI, patenting has remained low over the last 15 years.
Innovators decry delays and barriers to patenting where the agency’s average grant is 3.5 to 4.5 years. Of all the innovators seeking to patent their work, 45 per cent found it hard to obtain patent, according to a Scinnovent Centre survey.
The Industrial Property Rights Acquisition in Kenya: Facts, figures and trends report published in 2015 found that KIPI awarded patent to 26.4 per cent of Kenyan nationals, companies and institutional applicants between 1990 and 2013.
The study also found out that it took local innovators 55 months to have their patent requests processed while international applicants took 42 months.
While a patent keeps copy cats at bay, its application process is a nightmare requiring the input of a lawyer costing an arm and a leg.
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