Kenyan Intellectual Property Law

• Intellectual property (IP) law in Kenya governs the rights relating to intellectual creations
• The objective is to protect and enforce the rights of creators and owners of intellectual property
• IP law aims to foster creativity and innovation

Sources of Law

• The Constitution of Kenya
  • Article 40(5) recognizes and protects intellectual property rights.
• Statutes
  • The Copyright Act
  • The Industrial Property Act
  • The Trade Marks Act
  • The Anti-Counterfeit Act
  • The Seeds and Plant Varieties Act
  • The Films and Stage Plays Act
• International Treaties
  • Kenya is a member of the World Intellectual Property Organization (WIPO)
  • Kenya is a signatory to treaties such as the Berne Convention, the Paris Convention, and the TRIPS Agreement

Copyright Act

• Copyright protects literary, musical, artistic works, audio-visual works, and sound recordings
• Copyright protection extends only to expressions, and not to ideas, procedures, or methods
• Copyright owner has the exclusive rights to reproduce, distribute, perform, and adapt the work
• Duration of copyright:
  • Life of the author plus 50 years for literary, musical, or artistic works
  • 50 years from the end of the year in which the recording was first published for sound recordings
  • 50 years from the end of the year in which the broadcast took place for broadcasts
• Exceptions to copyright:
  • Fair use for criticism, comment, news reporting, teaching, scholarship, or research
  • Use by institutions for educational purposes
  • Use for judicial proceedings

Industrial Property Act

• The Act protects inventions through the grant of patents
• An invention must be new, involve an inventive step, and be industrially applicable to be patentable
• The patent owner has the right to prevent others from making, using, or selling the invention
• Duration of a patent is 20 years from the date of filing
• Utility models (minor inventions) are also protected under the Act
• Industrial designs protect the appearance of products
• Registration of an industrial design grants the owner the right to prevent others from making, importing, selling items incorporating the design
• Term of protection for industrial designs is 10 years, with the possibility of renewal for another 5 years

Trade Marks Act

• Trademarks are signs used to distinguish goods or services of one undertaking from those of other undertakings
• Trademarks can consist of words, logos, symbols, or a combination of these
• Registration of a trademark grants the owner the exclusive right to use the mark in relation to the goods or services for which it is registered
• Registration is for 10 years, renewable indefinitely for further periods of 10 years
• A trademark can be revoked if it is not used for a continuous period of 5 years
• Well-known trademarks are given special protection
• Passing off is prohibited, even if the trademark is not registered

Anti-Counterfeit Act

• The Act prohibits dealing in counterfeit goods
• Counterfeit goods are those that infringe intellectual property rights
• The Act provides for measures to prevent and suppress dealing in counterfeit goods
• Penalties for dealing in counterfeit goods include fines and imprisonment
• The Anti-Counterfeit Authority is responsible for enforcing the Act

Seeds and Plant Varieties Act

• Protects the rights of breeders of new plant varieties
• Grants breeders exclusive rights to produce, sell, and market the propagating material of the new variety
• Requirements for protection include novelty, distinctiveness, uniformity, and stability
• Duration of protection varies depending on the plant variety involved

Films and Stage Plays Act

• Regulates the making and exhibition of films and stage plays
• Requires registration and licensing of filmmakers and exhibitors
• Aims at controlling the content of films and stage plays to ensure that it does not undermine public morals or national security
• The Kenya Film Classification Board is responsible for enforcing the Act through classification of films to protect children, and examination and approval of film scripts, and stage plays ready for public exhibition

Enforcement of IP Rights

• IP rights can be enforced through civil and criminal proceedings
• Civil remedies include injunctions, damages, and account of profits
• Criminal penalties include fines and imprisonment
• Border measures are used to prevent the importation of counterfeit goods
• The police, customs officials, and the Anti-Counterfeit Authority are involved in enforcing IP rights

Challenges

• Counterfeiting and piracy are widespread
• Lack of awareness of IP rights
• Weak enforcement of IP laws
• Limited capacity of IP institutions
• Lengthy and costly court proceedings

Recent Developments

• Efforts to strengthen IP laws and enforcement mechanisms underway
• Increased awareness campaigns to promote respect for IP rights
• Use of technology to combat counterfeiting and piracy
• Regional and international cooperation to address IP challenges