Revisiting Intellectual Property and Political Campaigns in Kenya: Of Copyrights and Patents
Campaigns are generally high-pressure, fast-paced situations where politicians have to think on their feet as they try to present themselves as relatable and in touch. Across the world, this tends to bring out their more creative side. Kenya’s combatants are no exception as they clamour to get their constituents to sing their respective tunes and back their diverse agendas. In addition to catch-phrases, politicians have sought to use music and other forms of media. A major challenge when it comes to this disposition is that they tend to play fast and loose with intellectual property (IP) rights.1
In Kenya, there has been a long history of political slogans. Some may recall President Jomo Kenyatta’s “Uhuru na Kazi”, his “Uhuru na Mashamba”,2 and “Harambee”3, President Moi’s “Fuata Nyayo”, a phrase that led to his being referred to by many as “Nyayo”, President Kibaki’s “Kazi Iendelee”, President Uhuru and Deputy President Ruto’s “Tuko Pamoja” (which was subject to a trademark claim in 20164), former Prime Minister Raila’s “Road to Canaan”, and Honourable Ahmed Salat’s “Ndani, Ndaani, Ndaaani”. All sorts of catchy words and phrases have been unleashed upon Wanjiku time and again to capture and keep her attention.
With a greater emphasis on the protection of IP through Article 40 (5) of the Constitution, there has been a move to ensure that those securing votes also internalise the need see these rights secured. In Kenya, the more visible IP issue relates to copyright. The Kenya Copyright Board (KECOBO) in early November 2021 issued a statement advising musicians to “be vigilant” to get their fair share for the use of their works.5 Exercising this vigilance, popular singing group Sauti Sol in May 2022 issued a statement protesting the use of their song ‘Extravaganza’ on the social media (Twitter, Facebook and Instagram) announcement of the former Prime Minister Raila Odinga’s running mate, Martha Karua.6
The issue has seen contrasting responses from KECOBO7 and the Music Copyright Society of Kenya (MCSK).8 The former has put forward that the use of the sound recording (Extravaganza) as a soundtrack with images in an audio-visual production does not fall within the Public Performance Licence that the Azimio camp had already obtained. These are issued by Collective Management Organisations (CMOs) for purposes of playing local and international music at its rallies and events. Among other things, CMOs are in charge of the issuance of public performance licences to play copyrighted music in public.9 The MCSK, however, asserts that in issuing a Joint Copyright and Related Rights Licence (referred to by KECOBO as a Public Performance Licence), CMOs seek to ensure that all rights are covered. The CMOs that issue the licence in this instance are the Kenya Association of Music Producers (Kamp), the Performers Rights Society of Kenya (PRiSK), and the MCSK.
In addition to copyrights, patents have also made a rare appearance in the space. With the cost of living soaring to unreachable heights for many, the 2022 campaigns have taken on an economic tinge with one camp aggressively seeking to carve out its niche in addressing economic inequality through the “Hustler vs. Dynasty” narrative. With a complex topic to address, candidates have been motivated to come up with digestible promises and manifestos to match the gravity of the matter at hand in a manner that the common mwananchi can understand.
One such manifesto has been Deputy President Dr. William Ruto’s ‘Bottom-Up’ economic model. This movement has been so popular as to inspire, among other things, the founding of the “Bottom-up Hotel” in Nyamira county.10 In November 2021, reports came to light of a Mr. Jacob Muting’a Kioko’s (a professional marketer) patent challenge to the use of this economic model as the campaign’s central selling point.11 This complaint against the DP allegedly comes with a patent registration number for the Dichotomous Universal Growth Web Innovation, a framework that seeks to bolster economic growth through facilitating access to capital for low and middle-income earners, the primary premise of the ‘Bottom-Up’ model.12 Secondly, the claim also comes with five letters seeking to show the complainant’s attempts to gain the government’s support for his innovation, including attempts by the claimant to seek audience with the Office of the President and Deputy President back in 2014.13 These are cited by Mr. Muting’a as indicating knowledge on the part of the DP of his invention, a key factor in claiming infringement.14
Mr. Muting’a also claims to hold the advantage of having the Kenya Industrial Property Institute’s (KIPI’s) approval for his patent, in the form of a patent certificate. This would mean that he was able to prove; the existence of patentable subject matter,15 novelty,16 an inventive step,17 and usefulness in the industrial space. Should his allegations be found true, the patent would bestow upon him certain exclusive economic rights such as; the right to sell or licence the patent, the right to produce or manufacture, the right to stock, the right to use, and the right to stop any person from exploiting the protected invention by making, importing, offering, selling, using or stocking the product.18 Being a patent holder also entitles him to institute, as he has done, proceedings against anyone he perceives as infringing these rights.19
In dealing with such a matter the DP and his camp may adopt two approaches; either to ]challenge the validity of the patent, or assert that no infringement has been done. In the first instance, one may question whether there was patentable subject matter, that is, an invention in the field of technology. Beyond this, does it fall within the scope of those inventions excluded from patentability? These include (among others), schemes, rules or methods for doing business, performing purely mental acts or playing games.20 One may also challenge the novelty of the “bottom-up economic model”.
There may also be a claim that no action has been performed infringing on the economic rights of the claimant as the DP hasn’t sold or used the product. This may bring up the question of whether political promotion counts as an economic use. This question was addressed in the United States in the context of trademarks in the case Master Card International, Inc. v. Nader 2000 where the court held that “Political advertising and promotion is political speech, and therefore not encompassed by the term ‘commercial.’ This is true whether what is being promoted is an individual candidacy for public office or a particular political issue or point of view”.21
Beyond the allegations levelled by Mr. Muting’a, he highlights a desire that the court issue an order stopping the “use of the term “bottom-up economy” as a political gimmick, slogan or for other purposes by any party besides the intended aim of promoting the goals of his innovation”.22 To attain this end, Mr. Muting’a may explore the possibility of pursuing a claim for trademark infringement. This is because a trade mark is defined as “a mark used… in relation to goods for the purpose of indicating a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark”.23
Beyond the more technical considerations, these cases, Extravaganza and Bottom-Up, provide an unprecedented opportunity to raise public awareness on matters of intellectual property. They also offer candidates the opportunity to highlight their position on progressive ideals represented by such issues as IP infringement.
14 Rutenberg I, Ouma M and Munyi P, ‘Intellectual Property – Kenya’ in International Encyclopaedia of
Laws, Kluwer Law International, 2019, 77-78, par 215.
15 Section 21, Industrial Property Act (No 3 of 2001).
16 Section 23, Industrial Property Act (No 3 of 2001).
17 Section 24, Industrial Property Act (No 3 of 2001).
18 Section 54, Industrial Property Act (No 3 of 2001).
19 Section 92, Industrial Property Act (No 3 of 2001).
20 Section 21 (3), Industrial Property Act (No 3 of 2001).
23 Section 2, Trade Marks Act (No 51 of 1955).