IP & Innovation - Centre for Intellectual Property and Information Technology Law

High Tech Hubs and Innovation

HIGH TECH HUBS AND INNOVATION

PERIOD: 2014-2021

PARTNER: OPEN AFRICAN INNOVATION RESEARCH (OPEN AIR)

ABOUT THE PROJECT

The Open African Innovation Research (Open AIR) Partnership is a Pan-African research project involving Strathmore University along with four other leading universities – the University of Ottawa in Canada, the University of Cape Town in South Africa, the Nigerian Institute for Advanced Legal Studies, and the American University in Cairo, Egypt. Open AIR’s primary goal is to uncover new insights to ease tensions between IP and access to knowledge.
Open AIR is currently focused on three priority research themes. The first explores the nuances of innovation at high technology hubs, explaining how and why new business are likely to succeed or fail across Africa and in Canada. The second research theme, which dovetails with the first, is informal sector entrepreneurship, where resilience and innovative practices are often attributed to a shared spirit of openness and collaboration. Finally, the network is researching and collaborating with indigenous communities, which have a long history of collaborative knowledge production. In all of these areas, Open AIR is working to create new and improved intellectual property policies, performance metrics and management practices. We are the East Africa hub for Open AIR and the research lead for the high technology hubs theme.

OUTPUTS

A framework for assessing technology hubs in Africa. Read full Journal here

Copyright Handbook

Copyright Protection in Kenya. A Simplified Guide for Creatives and Intellectual Property Law Practitioners

Summary

Kenya has seen and is experiencing growth in its arts and creative industry. This is evidenced by the increased number of series, plays, music, and art produced and published; and the increase in support from various key stakeholders to elevate and expand the industry. Even so, there is still an awareness gap when it comes to understanding the rights that protect and govern these creative works.

Intellectual property (IP) rights protect and enhance the value of intangible assets or creations of the mind. Copyright law is a form of intellectual property right(s) that protects literary and artistic works. As such, copyright is important to the owners and users of copyrighted work. It protects the owners of copyright making it possible for them to control how and who uses their works. On the other hand, it enables 3^rd parties to lawfully use copyright-protected work through authorization from the owner, or through exempted uses provided under the law. Copyright law gives the owners the exclusive right to permit 3rd parties to use, reproduce or adapt their copyrighted work for commercial gain. By copyright compensating or rewarding the owner, it incentivizes them to keep creating new work. This cycle of creation, protection, authorisation for use, and generation of new work is fostered by Copyright. Moreover, as a creative, it is important to have the necessary knowledge and tools to protect one’s work(s), and in turn, make money from them. A copyright owner should maximize their copyright, through protection, registration, use of contracts, enforcement, and monetization.

Therefore, in an effort to bridge the awareness gap, the Centre for Intellectual Property and Information Technology Law (CIPIT) has put together a copyright handbook. Authored by Cynthia Nzuki and Chebet Koros, this handbook is a simplified guide for creatives and intellectual property practitioners on copyright protection in Kenya. We hope this handbook provides sufficient information and insight into copyright law in Kenya.

Copyright Protection in Kenya. A Simplified Guide for Creatives and Intellectual Property Law Practitioners

The Right to Research and Copyright Law: Text and Data Mining

Summary

Text and Data Mining (TDM) technology is a valuable tool in research, enabling the analysis of large amounts of data quickly. TDM involves a four-step process of identifying relevant documents, converting them to machine-readable format, extracting structured data, and mining the data for new knowledge. However, conducting research using TDM in Kenya presents several challenges, such as the absence of a supportive legal framework, limited access to reliable internet connections, a shortage of AI experts, and insufficient financial resources. TDM research often involves the use of copyrighted materials, requiring either consent from the copyright owners or exceptions in copyright law. While some countries have amended their laws to provide specific exceptions for TDM, Kenya’s copyright law lacks clarity in this regard. Kenya’s copyright framework has an exception for scientific research, but there is a lack of clarity on whether TDM research falls under this exception. Comparisons with South Africa’s copyright amendment law highlight the need for more specific and flexible exceptions. This research found that Kenya’s copyright exceptions and limitations should be updated and expanded to accommodate TDM research and other technology-based research. International guidelines are also needed to address the application of copyright to TDM technology. Read more on our research findings and recommendations in this Policy Brief and White Paper.

WHITE PAPER

POLICY BRIEF

Intellectual Property and Artificial Intelligence

Exploring How Artificial Intelligence Impacts Patents, Trademarks, Copyrights and Trade Secrets

The convergence of Artificial Intelligence (AI) and Intellectual Property (IP) rights marks a new era of innovation and creativity. AI’s advanced algorithms are swiftly reshaping industries, yet their integration presents a complex tapestry of challenges and unprecedented possibilities within the IP domain.

In the realm of patents, AI-generated innovations challenge traditional notions of inventorship, raising questions about novelty and inventiveness. The case of DABUS, an AI system that sought patents without human intervention exemplifies this complexity. Different jurisdictions have a varied stance on this, with the US and EU rejecting AI as inventors, and Australia initially accepting it before reversing its decision. On the other hand, South Africa granted a patent to DABUS. Notably, Kenya’s law maintains a human inventorship requirement. Read more on this here.

In the domain of trademarks, AI revolutionizes administration by enhancing evaluation and registration processes through image recognition and classification. However, as AI influences consumer experiences, particularly in tailored recommendations, its role in trademark law becomes more complex. AI’s impact on consumer decisions complicates infringement cases, challenging established confusion standards. Read more on this here.

In copyright, AI’s creative potential intersects with existing laws. Different jurisdictions diverge on whether AI can be an author, with Europe emphasizing the requirement for the “author’s own intellectual creation,” the US, Australia, and Kenya requiring human authorship, and the UK uniquely protecting AI-created works. Read more on this here.

AI components find protection in trade secrets, which safeguard algorithms and know-how. The advantages of trade secrets over patents include immediate protection and lenient requirements. However, proving infringement in trade secrets is challenging. Read more on this here.

Navigating the fusion of AI and IP demands precise legal frameworks and ethical guidelines. Collaborative efforts among policymakers, legal experts, and stakeholders are also crucial to balancing innovation, rights, and ethics as AI reshapes industries.

Read more about the practical impact of AI on IP here and here.

Industrial Intellectual Property Rights Database

CIPIT has developed a user-friendly industrial intellectual property (IP) rights database to consolidate information on formalized industrial IP rights in Kenya. This comprehensive database covers a diverse range of industrial aspects, including industrial designs, patents, trademarks, and utility models. Industrial designs protect the look and feel of products, while patents offer exclusive rights for inventive solutions to technological problems. Trademarks serve as recognizable symbols distinguishing businesses’ goods or services, and utility models provide protection for incremental innovations.

The database is a valuable tool for accessing and understanding information about registered industrial IP rights in Kenya, contributing to innovation and protection within the industrial sector. It serves as a centralized hub for inventors, legal professionals, businesses and policymakers seeking information on registered IP rights in the industrial domain.

The Industrial IP Database is an indispensable resource that facilitates informed decision-making and encourages innovation within the industrial landscape by providing comprehensive information and valuable search tools. The database is available here.

Intellectual Property Publications

Over time, CIPIT has contributed IP articles to numerous journals, aiming to unravel the complexities of IP law, broaden its scope, inspire innovation, and equip creators and businesses with the tools to safeguard their intellectual property efficiently.

‘A Critical Review of Intellectual Property Rights in the Kenyan Tea Sector’ authored by Dr. Isaac Rutenberg examines the role of intellectual property rights (IPRs) in Kenya’s tea sector, considering its economic significance and cultural importance. The paper explores how IPRs, including patents, plant variety protection, and trademarks, are utilized in the tea industry, with a focus on both local and foreign entities. It highlights a recent shift towards greater local ownership and participation in tea-related IPRs, with a broader spectrum of innovation. While trademarks have traditionally been dominated by local entities, the study also points out the absence of tea-related IPRs held by non-Kenyan, Africa-based entities, which could have implications for regional trade agreements.

“Towards a National Intellectual Property Policy in Kenya” is an article authored by Victor Nzomo and Dr. Isaac Rutenberg, discussing the need for an IP policy in Kenya. The article highlights the crucial role of IP in driving socio-economic development, particularly in knowledge-based economies. Kenya currently lacks a centralized policy framework for coordinating IP-related matters, with multiple government agencies involved in IP issues. The proposed vision for a national IP policy aims to bolster sustainable economic, social, and cultural growth and enhance the well-being of Kenyan citizens by effectively harnessing the IP system. This policy should address key challenges, promote flexibility, encourage responsible IP usage, engage various stakeholders, and remain adaptable to evolving needs while undergoing regular monitoring and assessment.

‘A Framework for Assessing Technology Hubs in Africa’ authored by J De Beer, P Millar, J Mwangi, V Nzomo, and I Rutenberg is an article that delves into the significance of technology hubs in driving innovation, catalyzing social transformation, and nurturing economic opportunities, not only within Africa but also on a global scale. It encompasses a comprehensive analysis and synthesis of insights drawn from a diverse interdisciplinary body of literature. Complementing this, it integrates qualitative data obtained through interviews and fieldwork. Within this context, the article categorizes hubs into three distinct archetypes: clusters, companies, and countries, employing Kenya as an illustrative case study. Furthermore, it explores the potential for collaboration, conflicts, and competition among these hub archetypes, concluding with recommendations for future researchers in the field.

‘Utility Model Protection in Kenya – The Case for Substantive Examination,’ authored by I. Rutenberg and L. Makanga, discusses how the Kenyan government ceased examining applications for utility model certificates (UMCs) in 2014, following two decades of examination. This decision led to a sudden and significant increase in the number of granted UMCs. The authors conducted a review of various UMCs, including those granted after substantive examination and those granted without it. They discovered errors in both categories, resulting in an overall decline in the quality of granted UMCs after substantive examination was discontinued. As a result, the authors argue that reinstating substantive examination of UMC applications would be beneficial to Kenya’s innovative ecosystem and recommend the resumption of such examinations.

‘Do Patents and Utility Model Certificates Promote Innovation in Kenya?’ authored by I. Rutenberg and J. Mwangi examines the role of patents and Utility Model Certificates (UMCs) in fostering innovation in Kenya. While many developing countries in Africa face challenges with ineffective patent offices, Kenya stands out as an exception with a well-equipped patent office and extensive experience in substantive examination. However, the study reveals that, despite a substantial number of applications, the number of granted patents and UMCs in Kenya remains remarkably low. Furthermore, a significant proportion of applications come from individual applicants, indicating limited participation from corporate sectors and universities in the country’s innovation landscape. This prompts a reconsideration of the effectiveness of patents and UMCs in stimulating innovation within the Kenyan context.

‘Patenting the Un-patentable: Lessons for African Patent Systems from a Review of Patent Subject Matter Exclusions in Kenya,’ co-authored by I. Rutenberg and V. Nzomo, explores the grant of Kenya’s first post-independence patent in 1994 for a tick larvae-derived protein. Notably, this patent included claims related to animal treatment, despite statutory exclusions. It delves into the fundamental trade-off of the patent system, where inventors disclose knowledge in exchange for a limited monopoly, assuming expert evaluation of patent claims based on statutory criteria. Subject matter eligibility limits in patent law minimize societal burdens. Deviating from this norm risks making the patent system more exploitative than beneficial. The article traces historical subject matter exclusions from patents, using Kenya as a case study, and presents preliminary data on patents with excluded subject matter claims. It aims to guide other African countries in strengthening their patent systems for the public good.