|Get ready for the big switch off|
|Oh dear, they just did!|
You might wonder: where did the CCK derive the power to take this action from? Well, there is no need to look at the controversial Anti-Counterfeit Act and Regulation, rather, see the Kenya Information and Communications Act (KICA) - a wide-reaching 293-page legislation which affects different sectors. The main purpose of KICA is: "...to facilitate the development of the information and communications sector (including broadcasting, multimedia, telecommunications and postal services) and electronic commerce, to provide for the transfer of the functions, powers, assets and liabilities of the Kenya Posts and Telecommunication Corporation to the Commission, the Telcom Kenya Limited and the Postal Corporation of Kenya, and for connected purposes"; but it also, indirectly, protects IP right owners but also serves the overall interest of consumers.
This Leo has not had the opportunity to review KICA in its entirety - and probably would not be able to anytime soon - but, a skim through reveals the following as the key legislation specific to this counterfeit campaign: The Kenya Communications Regulations, 2001, on page 114; The Kenya Information and Communications (Compliance Monitoring, Inspections and Enforcement) Regulations, 2010 (CMIE), on page 205; The Kenya Information and Communications (Consumer Protection) Regulations, 2010, on page 234; and The Kenya Information and Communications (Importation, Type Approval and Distribution of Communications Equipment) Regulations, 2010, on page 258.
These are some of the interesting findings in KICA:
- The role and powers of the CCK shall also be guided by public interest principles including health, environmental and ICT infrastructure protection (see Regulation 5 of the CMIE);
- Mandatory licencing for the supply of ICT equipment and services including for postal operators;
- Approval of all ICT equipment including mobile phones with possible exemptions ;
- Offences for failure to obtain a licence and/or approval and breach of their terms;
- Offence for posting article which infringes IP rights;
- Obligation on broadcasters to respect copyright and allied rights;
- Protection of the rights of domain name holders; and
- The CCK shall also exercise its powers (such as this counterfeit campaign) if a complaint is made before it by any rights holder or their representative (Regulation 6 of the CMIE). ("Basically, Nokia can complain that it is losing revenues from counterfeit phones and the CCK will take action", says Afro Leo)
In order to keep in line with the principles enshrined in Regulation 5 of CMIE, the CCK would also have to ensure that the poor sections of the population are not cut off from access to ICT and mobile services. How? This Leo is not sure to be honest. Perhaps, the CCK would have to: (a) encourage aggressive price competition to ensure affordability of genuine budget phones ("Yes, KICA contains anti-competition provisions too" says Afro Leo); (b) subsidise genuine mobile phones (Afro Leo says, "risky business") or (c) attract genuine mobile phone manufacturers into Kenya.
Counterfeiting is a worldwide problem that would never be eradicated when there are still, at least, a billion living on less than $1.25 per day globally (47.5% in Sub-Saharan Africa as of 2008). A World Bank statistics show that 43.4% of Kenya's population live on less than $1.25 per day as of 2005; while another source reveal that there are over 15 million poor people in its rural areas as of 2010. In such an environment, counterfeits will always thrive.
If the continent is really a dumping ground, would you blame: (a) the governments for failing to curtail the imports in the first instance?; (b) the counterfeiters for satisfying a pressing demand; or (c) the millions of consumers who cannot afford genuine products with their little disposable income?.
| Fake drug: You're fake too & not approved to check me|
Fake phone: Yes, but I'm useful in fighting fake drugs
It appears that the Kenyan government once appreciated the role and contributions of mobile technology in the country's socio-economic development by abolishing VAT on handsets in 2009. (Afro Leo adds that purchases went up by over 200% as a result). Therefore, in order to maintain the progress and momentum already achieved in the sector, the government should aim to mitigate the impact of this campaign on the poor. Ultimately, it is now the turn of genuine manufacturers to ensure affordable quality mobile phones for all who need it in Kenya. ("Afro Leo says: "other countries in Africa should learn from Kenya's experience before adopting a similar initiative. By the way, if your business happens to benefit in any way, shape or form, from the anti-counterfeiting efforts of the EAC, they would like to know here".)
Which mobile phone brand is most environmental-friendly? see here and here
East Africa training hard to enforce IP rights, see here
Mobile phone boosts innovation in Kenya, see here
UNCTAD on Mobile Money for Business Development in East Africa, see here
CCK's press release refusing a further switch off extension, see here
Blackberry finds a home for revival and partner in Nigeria, see here and here
For the research repository on innovation in ICT in developing countries, see here
Apparently, counterfeits threaten the EAC single customs territory, see here
Nokia launches Asha in Kenya: the "affordable" budget smartphone, see here
Nokia serious about the environment with recycling projects in Africa, see here
Sadly, India's Essar Group plans to sell its stake in Kenya's Yu Mobile, see here
Presentations on telecoms equipment standards in Tanzania, see here and here
Despite the scourge of counterfeits, there is hope here, here and here