African Highlights from Access to Knowledge A Guide for Everyone

African Highlights from Access to Knowledge A Guide for Everyone

By Afro Ng'ombe   Friday, September 10, 2010   No comments:

The 1709 Blog has a post giving an overview of the 2nd Edition of Access to Knowledge A Guide for Everyone (large pdf file), but Afro-Leo wanted to make special mention here of a number of portions of the book specifically highlighting Africa.

Anti-Counterfeiting in East Africa

The book discusses the EAC Anti-Counterfeits Bill, Uganda’s Counterfeit Goods Bill and Kenya’s Anti-Counterfeit Act of 2008 in terms of the Millennium Development Goals,

“East African countries were facing the risk not attaining the millennium development goal (MDG) on universal treatment of people living withHIV and AIDS, malaria and other diseases if the region’s parliaments adopted the anti-counterfeits policy and bill under consideration in the region, the IPS report also noted.”

Afro-Leo recommends reading the excellent coverage by fellow Lions on Kenya’s Anti-Counterfeit Bill with follow-up.

Internet Access

Intellectual property laws are not the only barrier to accessing knowledge.  When resources are legally available but physically unattainable, they knowledge remains as inaccessible.  In relation to this, the book discusses the recent improvements in internet access across the continent (p. 110).  But, as the book points out, internet without opportunities to access it or an understanding of how to use it is useless.  The Kenya Education Network Trust is given as an example of good institutional support for use of the internet, and promoting information and communication technologies. [Another source, Technology Times reports that Nigeria is also working nationally on this issue, potentially appointing a Minister of ICT.

In addition to national programs like the one in Kenya, many people in African countries also have the opportunity to learn about and use the internet through the large number of non-governmental organizations operating across the continent.  As connection points and knowledge about how to utilize the internet increase, the cost of computers are decreasing, resulting in more opportunities for people to actually use the internet on a regular basis.

New Types of Patents

The book address three types of patents with distinct ramifications for Africa and other parts of the developing world: pharmaceutical patents (p. 51), agricultural patents (p. 53), and biopiracy-based patents (p. 55).  Most people following intellectual property issues in Africa are familiar with the debates around pharmaceutical patents: Preventable diseases go untreated because patented medicines are expensive, but if drug developers aren’t rewarded with patent rights, will they make the huge investments required to discover new breakthroughs.  The book discusses the history of patents and phrama and puts for some alternative systems.

“One view on the abuse of pharmaceutical patents is that perhaps patents were the wrong mechanism for funding pharmaceutical production all along.”

Agricultural patents, like pharmaceutical patents, deal with an important component of daily survival, food security.  As new types of seeds are patented, seeds that produce sterile plants, farmers are faced with the possibility of having to pay large amounts of money for seeds they used to just keep from the previous year’s harvest.  Although most African farmers still save their seeds and replant, these countries may move closer to the industrialized country model of planting sterile-plant seeds as companies develop seeds specifically for the various unique growing conditions across Africa.

Biopiracy-based patents are patents generally obtained by companies in industrialized countries who have ‘discovered’ some new compound or plant that a local community has been using for a very long time.  This is an area that overlaps greatly with Traditional Knowledge and Genetic Resources.  While the book acknowledges this as a problem - “The failure to address issues related to traditional knowledge and bioresources even whilst ratcheting upward the protection granted to new inventions doubly jeopardises developing countries.” – this is one place where there’s no potential solutions offered.

Broader Level Points

Other areas of the text that may be of interest with respect to Africa (page numbers or of the pdf, not the printed numbers on the page):

• Background discussion of the Doha Declaration and Development Agenda, p.23.
• Libraries as players in Access to Knowledge, with mention of Bibliotheca Alexandria in Egypt, p. 28
• Academia as a player in Access to Knowledge, with mention of the Wits University LINK Centre in South Africa, p. 29
• Section 2.1.1 Copyright law and developing countries, p. 41
• The United State’s Special 301 Report’s effect on developing countries, p. 63
• Open Access activities in developing countries, p. 78
• Electronic libraries in developing countries, p. 76

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Kenya: Anti-counterfeit Bill published

Kenya: Anti-counterfeit Bill published

By Njuguna   Monday, August 04, 2008   1 comment:

The Anti counterfeit Bill, 2008 has been published for introduction to the National Assembly. According to the memorandum of objectives and reasons, the Bill seeks to “prohibit trade and all manner of dealings in counterfeit goods”. An electronic version of the Bill is available here.

The Bill appears to be more of an arm for enforcing against infringement of IP rights available under various pieces of law in Kenya. The provisions of the Bill also seems to be geared towards domestication or fulfilment of the requirements of part III of the TRIPS agreement, which in essence obligates members to put in place enforcement procedures and remedies to deter infringement of intellectual property rights.

The Bill defines counterfeiting in terms of various actions done “without the authority of the owner of any IP right subsisting in Kenya or elsewhere in respect of protected goods”. The Bill further recognizes intellectual property right as any right under (a) the Copyright Act, 2001, (b) the Seeds and Plant Varieties Act (plant breeders’ right), (c) the Trade Marks Act and (4) the Industrial Property Act, 2001[patent, utility models and designs]. Considering that IP rights are territorial, it does not make sense why the Bill would require an IP right to subsist “in Kenya or elsewhere”.

It is evidently clear that the Bill is heavily in favour of IP right holders; indeed going to the extent of laying down certain presumptions in favour of the right holder in as far as tendering evidence is concerned. For example, where a person lays a complaint against some counterfeiting activity and the existence of an IP right becomes an issue, the Bill requires that the complainant be presumed to be the owner of that right until the contrary is proved.

Anti-Counterfeit Agency

The bill also provides for the establishment of an Anti-Counterfeit Agency to oversee implementation of the Bill once enacted into law. In order to attain the objectives of the Bill, the Agency is expected (among other functions) to (1) educate the public on matters relating to counterfeiting, (2) combat counterfeiting and trade in counterfeit goods in Kenya (3) co-ordinate with other regional and international organizations involved in combating counterfeiting. This last mandate is quite interesting taking into consideration the Anti-Counterfeiting Trade Agreement being secretly negotiated by some developed countries. What if the negotiating countries establish the proposed governing body in the league of WTO or WIPO? Would this provision in the Bill be deemed to have inadvertently anticipated or recognized such a body and in the process putting an obligation on the Kenyan Agency to co-ordinate with such an international governing body?

Inspectors
Clause 22 of the Bill proposes appointment of inspectors who will be mandated to enforce the provisions of the Bill. In performing their duties under the Bill, the inspectors notably have been given massive powers including full police powers.

The powers of the inspectors, captured in clause 23, for example include authority “at any reasonable time” to enter and inspect any place or vehicle “reasonably suspected” to have counterfeit goods. The inspectors also have the power to search, detain and arrest, without a warrant, any person suspected of having committed any of the offences prohibited under the Bill.

Whereas the Bill provides for the inspectors to be appointed in writing, the proposed pool of candidates for appointment as inspectors is worrying, and may give rise to conflict of interest and abuse of the system. The pool includes trade development officers, industrial development officers, trade mark and patent examiners who because of the nature of their work have the mandate of making certain decisions in their respect roles. There is danger that giving these officials additional roles more so the duty of enforcing IP rights may open a can of warms, in light of the sweeping powers enjoyed by an inspector under the provisions of the Bill.

Boarder measures
Another notable inclusion in the list of inspectors is customs officers, who under the directions of the commissioner customs or acting on his own initiative may seize and detain all suspected counterfeit goods, which are being imported into Kenya. In the same breath, the Bill however safeguards against wrongful detention of goods by providing that any person who suffers damage or loss as a result of false or negligent seizure is entitled to claim compensation.

Penalties
Some of the proposed penalties for those convicted of counterfeiting offences include:
· For a first offence- 5 years imprisonment and/or a fine of not less than 3 times the value of the prevailing retail price of the goods.
· For a second and subsequent offence- 15 years imprisonment and /or a fine not less than 5 times the value of the prevailing retail price of the goods.

After combing through the Bill and not finding a definition for the phrase “prevailing retail price of the goods”, Afro Leo wonders whether that phrase means the retail price of the counterfeit goods.

Hopefully some of the anomalies will be rectified before the Bill is enacted into Law.

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Kenya's Anti-Counterfeit Bill - progress

Kenya's Anti-Counterfeit Bill - progress

By Darren Olivier   Thursday, June 26, 2008   No comments:

According to Daily Dispatch, Kenya's Anti-Counterfeit Bill will be re-introduced in Parliament and introduced into law by the end of the year. Kenyan Industrialisation Minister Henry Kosgey said he would ensure that the Bill passed through the House. The Anti-Counterfeit Bill, 2007 was introduced in the last Parliament and only reached the first reading stage before the House was dissolved. As a result, all pending legislation has to be re-introduced. According to the draft Bill, dealers in counterfeit goods risk either 15 years in jail or a fine five times the value of the fake goods. It is estimated that manufacturers whose goods are affected experience losses in operating capacities of up to 30 per cent and associated loss in employment opportunities of above 27 per cent. Cases are reported of imported counterfeits but there is also a level of locally manufactured counterfeits. Beauty products, batteries and detergents are the most commonly imitated products. In addition Afro Leo notes previous reports on the scale of counterfeiting Kenya, particularly with respect to drugs, external pressure from pharma companies, from KIPI, from the ACCK and from IP Kenya.

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