Kenya is set to review her intellectual property laws, through the Intellectual Property Bill 2020. The country has been highly ranked as the second most innovative country in Africa. It is home to many global innovations.
Intellectual Property may include innovations and also go further to include trademarks and copyrights. The main classes of intellectual property include trademarks which are distinctive marks used to identify goods and services and attribute the same to a particular enterprise. Therefore trademarks include brand names. Copyrights on the other hand are the class of intellectual property that protect artistic creations of the mind.
The entertainment industry for example contains a lot of copyright that falls into various sub classes such as audio, visual, audio-visual, literary and even computer graphics. The last main class of intellectual property includes the patents, technovations and utility models which are all contained in the Industrial Property Act. The less common types of intellectual property include industrial designs and geographical indications.
Currently, intellectual property law in Kenya is governed through many piecemeal laws like the Industrial Property Act which regulates patents, utility models and technovations; Trademarks which regulate trademarks and Copyrights which regulate the same and related rights. There are also several institutions whose mandate it is to oversee the administration of the various classes of rights.
For example the Kenya Copyright Body (Kecobo) has the mandate of overseeing the administration of copyright and related rights, Kenya Industrial Property Institute (KIPI) administered trademarks, patents and utility models.
The first major proposed change is to harmonise all these pieces of legislation into one known as the Intellectual Property Act (IP Act). The IP Act will include all classes of legislations under one law and will also lead to the creation of one statutory body to administer intellectual property in Kenya, that is, the Intellectual Property Office.
Harmonisation of the law has its strong advantages and is currently the practice in countries like Rwanda whose intellectual property law was drafted with aid from the World Intellectual property Organization (WIPO). There are advantages of harmonising statutes into one. This has been done before in Kenya. For example laws regulating marriage were contained in several piecemeal legislations. These were later merged into one law, the Marriage Act.
Harmonisation of land laws was also done after the new Constitution was operationalised. Before the land laws were contained in several piecemeal legislations however these were later merged into two main laws, the Land Act and the Land Registration Act.
The proposed law provides for an intellectual policy and strategy which the old laws did not have. Any good legislative environment should be backed by a strong policy to guide future changes in the law. Intellectual property is key for the growth and development of an economy.
The mandate of the regulatory authority has been expanded to include fighting counterfeits and promotion of innovations. The regulatory body will not just administer the rights but also participate in enforcement.
A major concern has been raised that the new law has largely omitted the detailed procedures and processes. In my view, the Intellectual Property Bill can be followed by a law providing details on procedures and processes. This was the approach when the land laws were amended. One law provided the substantive law while the following law governed procedure.
As the Bill is passed, it is my hope that sufficient resources will be allocated to the proposed entity as it has a very wide mandate. The Bill is sufficient save that it ought to have a follow- up law on procedures and processes.