By Isaac Rutenberg**
For practitioners and academics in IP law in Kenya, the following questions are asked all the time: “Isn’t IP fairly irrelevant in Africa? After all, African societies are based on sharing and community.” It’s an uncomfortable inquiry, and has been a struggle to answer, perhaps until now.
At a recent party, this Leo observed from a distance his 7-yr old cub playing with friends. At one point a ball changed hands between children, and Mama Leo smiled to me and said “Look how well he is sharing!” I walked over to praise him and, to my surprise, found him crying. “That kid stole my ball!”

A sharing economy is fine, if it’s voluntary sharing. Involuntary sharing is more properly called theft. The difference between “sharing” and “theft” can be obscured by distance or ignorance.
When people look at Kenya and say we should forget traditional types of IP because of our sharing traditions, almost invariably such people are not inventors who have had their own ideas taken and commercialized with no beneficial return for their efforts. In theory, we would all love to have a sharing economy, but in practice, when it is your hard work that is “shared” without your permission, IP law starts to sound pretty necessary. In matters of IP, perspective matters.
This is not to say that there is no place for sharing. The Fremium model is well known as a successful business model for music, software, and other items. Open source and Creative Commons licenses have been successfully used to build large and thriving businesses. These models work in Kenya just as well as they work in the US and EU. The important point is that such sharing should be voluntary and intentional, rather than imposed because of an expectation for a particular society.
 
**Dr Rutenberg is the director of CIPIT at Strathmore University Law School. This article was first published on the Afro-IP Blog here.