Does Kenya Really Need a National Intellectual Property Policy?

Many will recall that last year, CIPIT took part in a series of consultative meetings on the Draft National Intellectual Property Policy and Strategy for Kenya which took place on two separate occasions in the second half of 2012. These meetings were hosted by the Kenya Plant Health Inspectorate Service (KEPHIS) and various stakeholders were invited including WIPO, KIPI, KECOBO, ACA, the Attorney General’s Office, KEMRI, MCSK, KAMP, PRISK, KOPIKEN among others.
Recently, this blogger spoke with CIPIT Director Dr. Rutenberg about these meetings and asked him to comment on the on-going developments:
Nzomo: What is your take on these consultative meetings thus far?
Rutenberg: My take is that there are a lot of people in Kenya right now desperate for direction and guidance in IP. But there are also a lot of resources in the country, particularly in the area of people skills and knowledge.
Nzomo: Do you think these consultative meetings will bear any fruit in 2013?
Rutenberg: Yes, I believe so. However, I think a better approach would have been to form an association of IP professionals, and then have the association direct the generation of the IP policy. This is nothing against those who were selected to direct the process – they were (and are) very competent and knowledgeable. But one of the problems is getting the right IP people to join the process. For example, the second meeting had to be canceled and rescheduled (and, ultimately, a different format for the meeting was adopted) because only about 10 people arrived. I think an Association of IP professionals would have been a better first step and then would be able to see through any implementation of the policy.
Nzomo: Does Kenya really need a National Intellectual Property Policy?
Rutenberg: Yes. There aren’t a whole lot of countries with centralized IP policies. Malaysia has one and it seems to be pretty successful. I’m not opposed to the idea and in fact I think it’s great that the Government of Kenya has recognized the importance of IP. In some areas, such as funding big fundamental research programs, it is imperative that government get involved. To have the government keen on Kenyans acquiring IP resources, in my mind, can only help the country on the international scale.
It is not disputed that Kenya needs a series of measures developed and implemented by a government to stimulate and facilitate the effective creation, development, management and use of IP as an efficient tool for economic, social, cultural and technological development. This blogger has previously discussed the special recognition accorded to IP in Kenya’s Constitution. As previously noted, the common thread in all these constitutional provisions is the positive obligation imposed on the State to “promote” and/or “support” and/or “protect” and/or “enhance” the IP rights of the people of Kenya. It is for this reason that this blogger differs with the widely held view that Kenya needs a National IP Policy. Instead this blogger argues that what Kenya needs is for each state-run IP stakeholder to develop specific policies (in line with its statutory mandate) geared towards giving full effect to the IP provisions of the Constitution
In Kenya, we have three main state IP agencies namely KIPI, KECOBO and KEPHIS dealing with the administration of industrial property rights, copyright and related rights and plant and seed variety rights respectively. In addition, they are a number of important state agencies that deal with aspects of IP enforcement namely the Anti-Counterfeit Agency (ACA), Kenya Revenue Authority (KRA), Kenya Bureau of Standards (KEBS) and others. Not to mention Kenya’s public universities and publicly funded research institutions like KARI, ILRI, ICIPE, KEMRI and others that play an important role in the generation and commercialisation of intellectual property. All these agencies must be the ones to develop their own policies that will ensure that intellectual property of the people of Kenya is protected, promoted and supported. These policies to be developed by the agencies must be guided by the framework laid out in the Constitution.
Therefore it is this blogger’s view that instead of a national IP policy, Kenya may wish to turn its time and resources towards developing more focussed and precise institutional IP policies that not only give effect to the supreme law of the land but more importantly integrate IP within Kenya’s larger development agenda.

  1. Chebet
    This has been an insightful blog. Thanks Isaac-I tend to agree with you, and less with the blogger. I feel that the efforts of the various IP bodies-KIPI, KECOBO, ACA, KEPHIS-would be best achieved by developing and implementing a broad IP framework/strategy with each form of IP being accorded its place in the framework. This strategy/policy document so developed would better steer the country's IP legislation. In my view, the IP bodies cannot, under law, steer the country's IP policies under their various mandates. KIPI, for example, is a 'granting' body in the sense that it grants rights under the Trade Marks Act and under the Industrial Property Act. Its mandate is primarily to grant and accord protection for IP that meets the set criteria and the Act. I do not think the best way to steer trade marks and industrial property policy is to have KIPI come up, on its own, with requisite policy on trade marks and industrial design. I think KIPI is certainly a stakeholder, but public interest would best be served by KIPI working in conjunction with the other IP bodies to develop the best strategy because there is a lot of common ground among these bodies. Obviously in conjunction with other stakeholders. In my view, leaving the IP bodies to themselves, and on their own, as Nzomo/blogger suggests ("All these agencies must be the ones to develop their own policies that will ensure that intellectual property of the people of Kenya is protected, promoted and supported", to develop IP policies, would take these bodies from their primary role of 'rights granting' (and for ACA 'rights enforcement') to the role of a law/policy maker, judge and one who effects the guillotine.
  2. tom
    I appreciate this discourse fronted by Victor. ACA is truly the enforcing Agency but has a broader mandate as the lead government Agency that deals with protection of IP infringement in the country. It has a coordination role that umbrella the other government agencies efforts in the fight against counterfeits as it is the only specialist agency in IP Protection. The other agencies have IP protection as secondary role( or is ad hoc?). Unluckily or luckily the we are going to witness the merger of ACA, KIPI AND KECOBO to one Kenya Intellectual Property Office. Either way you look at it was more informed by fiscal restraint rather than streamlining the country’s IP policy.
  3. Code254
    The multiplicity of agents you mention in the report in my opinion justifies the importance of a national comprehensive IP policy. Any ideas on the progress of the policy?
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