Reform Kenya’s intellectual property rights to reap benefits of innovation

Effective IP management should encompass the development of structured licensing regimes and the potential establishment of IP holding companies.

Knowledge is the currency of innovation. When traded, it catalyses collaboration; when sold, it generates wealth; but when protected, it transforms ideas into assets.

The theme of this year's World Intellectual Property Day, Building Our Common Future with Innovation and Creativity, underscores the need to leverage robust IP frameworks in fostering sustainable economic development in Africa, especially as artificial intelligence (AI) becomes more pervasive.

Kenya has long been at the forefront of implementing IP laws on the continent, having established a comprehensive legislative framework early on and adopting nearly all relevant international IP treaties.

Despite this, however, significant challenges persist – especially around the domestication and local enforcement of these treaties. While acknowledging recent advancements in local IP jurisprudence, Kenyan courts still often struggle with these international standards, primarily due to a lack of understanding and the stringent criteria required to classify trademarks domestically.

There is also a tendency to focus excessively on local statutes and sovereignty without adequate regard for the international legal frameworks to which Kenya is a signatory. This hyperlocal perspective can lead to conflicts with international obligations, undermining Kenya’s competitiveness in the global market.

Moreover, the absence of local statutes on geographic indications (GIs), which certify a product's characteristics attributable to its geographical origin, complicates protection for foreign GI holders, such as producers of French champagne.

This lack of protection can lead to local misuse or imitation of these GIs, deterring potential investors. Without assurances that intellectual properties will be protected, sectors dependent on innovation and creativity face significant barriers to growth and development.

Strengthening these laws necessitates a consultative approach that includes public participation from those most affected by these regulations. For instance, in the creative and music industries, it is essential to involve artists, content creators, and authors in the crafting and revision of copyright laws.

Similarly, in areas involving industrial property – such as patents, rights protection, e-commerce, and emerging technologies – stakeholder engagement in legislative updates is crucial.

Furthermore, law firms like Bowmans are intensifying their efforts by partnering with the Kenyan judiciary to enhance legal adjudication in IP disputes. This collaboration has included spearheading initiatives to provide specialised training for judges, aimed at deepening their understanding of key IP issues.

Despite these significant strides, there remains much to be done. The existing training, awareness, and enforcement mechanisms, while established, require substantial amplification to keep pace with the demands of Kenya's growing economy and its evolving role in the global market. This need is particularly urgent with the recent proliferation of generative AI, which poses new challenges and opportunities in IP management.

The AI Effect

The debate on regulating AI and its related IP issues is ongoing, marked by two predominant perspectives. The first cautions against hasty legislation, suggesting a wait-and-see approach to better understand which aspects of new technologies are not adequately covered by existing laws. The second advocates for proactive legislation to pre-empt potential legal gaps that could leave stakeholders vulnerable.

Assessing and amending existing laws to encompass new technological innovations is critical before enacting new regulations that could further complicate the legal landscape. If Kenya does not promptly refine its IP laws to address these nuances, it risks serious competitive disadvantages.

The lack of robust IP protection could allow both foreign and local entities to exploit gaps, potentially leading to the loss of local innovation control and significant economic drawbacks. The focus should be on creating a regulatory environment that fosters innovation while protecting creaters effectively against the new challenges posed by AI.

Businesses and creators need to exercise caution with the data they feed into AI systems, ensuring that it is neither sensitive nor proprietary unless it is well-protected. Additionally, they need to adopt a cautious approach towards relying on AI for critical decisions, particularly without a deep understanding of the underlying technology and the associated legal ramifications.

Shifting Perspectives on IP

Looking ahead, Kenyan businesses, particularly SMEs, need a fundamental shift in mindset regarding the value of IP. The focus should extend beyond merely protecting IP from infringement to actively understanding and leveraging IP for economic gain. This involves recognising the full potential of IP assets and employing strategies like licensing to monetise these assets.

Effective IP management should encompass the development of structured licensing regimes and the potential establishment of IP holding companies. Such strategies are standard in more developed economies and can significantly enhance revenue generation from IP assets through sophisticated deals and financing models based on the value of these assets.

The objective for Kenya should be twofold: to protect IP through robust laws and to empower businesses to utilise IP strategically for commercial advantage.

This dual approach will not only drive economic growth and innovation but also ensure that Kenya fully capitalises on its intellectual and creative resources.

The writer is Partner and Head of the Intellectual Property and Technology Practice Group in East Africa for Bowmans.

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