Intellectual property is the creation of the human mind. It is the protection accorded to human creativity. The Law of Intellectual Property recognizes and protects the work of human mind through rewards, incentives as well as legal mechanisms for the enforcement or vindication of these rights incase of infringement.
This protection is accorded to innovation, ideas and information that are of commercial value. The holder has exclusive rights to the creative work, commercial symbol, idea, invention or information. He has the right to preclude any person from exploring the protected property by making, importing, offering for sale, selling or using the property.
The rationale for protection of intellectual property is to stimulate and promote further creativity.
In the recent past, cases of infringement of intellectual property rights have been on the rise. Most people are familiar with the term piracy especially in the music industry and counterfeit in the manufacturing industry. Counterfeiting has a negative effect on both the manufactures and the consumer. For the manufacturer, he loses large profits and may even end up closing the business enterprise. The consumers on their part suffer from substandard products which may have negative repercussions. Example include the counterfeit drugs which pose serious health problems, pirated music and films, illegal computer software that may end up crashing your system etal.
Many of us are still ignorant of the fact that out creativity and innovation need to be protected and only learn of it when a ‘more enterprising’ person purpots to ‘’enjoy the fruits of the work of our mind’’. Consider an example of a first time artist who spends a long time composing songs and invests heavily in producing his music expecting to reap the great rewards. As soon as his music hits the street, it is pirated and sold to the non-suspecting member of the public and huge profits end up going to the wrong hands.
It is therefore necessary to understand and appreciate the concept of intellectual property rights and the protection accorded to the owners of creative work by the law as well as the procedures involved in obtaining and securing such protection.
Classification of Intellectual Property Rights
Intellectual Property is classified in the following major categories:
- Industrial Property Rights which comprise:
- Industrial designs
- Utility models;
- Geographical Indications.
- Copyright, which comprise literary and artistic works.
- Protection of new varieties of plans (plant breeders rights).
The term patent refers to a right granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. A patent is not a right to practice or use the invention. Rather, it provides the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term when the patent is subsisting.
A trademark is a distinctive sign or indicator used by an individual, business organization or other legal entity to identify that the products and/or services to consumers with which the trademark appears originate from a unique source of origin, and to distinguish its products or services from those of other entities. The sign may consist of one or more distinctive works, letters, numbers, drawings or pictures, monograms, signatures, colours or combination of colours etal or a combination of any of the said elements.
The Industrial Property Act 2001 defines an industrial design as: ‘’any composition of lines or colours or any three dimensional form whether or not associated with lines or colours, provided that such composition or form gives a special appearance to a product of industry or handicraft and can serve as pattern for a product of industry or handicraft’’. An industrial design consists of the creation of a shape, configuration or composition of pattern or colour, or combination of pattern and colour in three dimensional form containing aesthetic value. It is concerned only with the outward appearance of articles as defined by their shape, configuration, pattern or ornament.
Utility model refers to any form, configuration or disposition of element of some appliance, utensil, tool, electrical and electronic circuitry, instrument, handicraft mechanism or other object or any part of the same allowing a better or different functioning, use, or manufacture of the subject matter or that gives some utility, advantage, environmental benefit, saving or technical effect not available in Kenya before.
It is an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the protected invention, without his authorization, for a limited period of time. Utility models are considered particularly suited for small and medium enterprises that make ‘minor’ improvements to, and adaptions of, existing products.
A geographical indication (GI) refers to a name or sign used on certain products which corresponds to a specific geographical location or origin (for instance a town, region, or country). The use of a GI may act as a certification that the product possesses certain qualities, or enjoys a certain reputation, due to its geographical origin. Geographical indications law restricts the use of the GI for the purpose of identifying a particular type of product, unless the product or its constitute materials originate from a particular area and/or meet certain standards.
Copyright is defined as the exclusive right of creator to reproduce, prepare derivative works, distribute, perform, display, sell, lend or rent their creations. It refers to the legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work. Copyright applies to any expressible form of an idea or information that is substantive and discrete.
The intent of copyright is to allow authors to have control of and profit from their works, thus encouraging them to create new works and to aid the flow of ideas and learning.
Administration of Intellectual Property In Kenya
Intellectual property rights in Kenya are administered under three government bodies. Kenya Industrial Property Institute (KIPI), a body corporate in the Ministry of Trade and Industry administers the Industrial Property Act 2001 of the Laws of Kenya covering Patents, Trade marks, Service marks, Industrial designs and Utility models.
Copyright is administered by the Copyright Board of Kenya, an office in the Attorney General’s Chambers under the Copyright Act 2001 of Kenya.
The Seed varieties Act of Kenya of 1975 is administered by the Kenya Plant Health Inspectorate Services KEPHIS.