2015 BAKE Kenyan Blog Awards – Submit CIPIT in the Best Education Blog Category!

Featured

BAKE Kenyan Blog Awards logo

The Bloggers Association of Kenya (BAKE) has just announced the launch of its fourth annual Kenyan Blog Awards. These awards recognize exceptional Kenyan blogs that have great and useful content presented in a creative and innovative format.

Among the 18 categories in the 2015 BAKE Kenyan Blog Awards is the newly introduced “Best Education Blog” category. This category rewards blogs about education matters and those run by educational institutions.

Please submit your very own CIPIT Law Blog in the Best Education Blog Category!

To submit the CIPIT Law Blog into the competition, please visit blogawards.co.ke/submit.

About the CIPIT Law Blog

Strathmore Law School’s CIPIT Law Blog is an independent and authoritative voice which explores legal governance issues at the intersection of intellectual property (IP) and information technology (IT). Founded in 2012, the CIPIT Law Blog is the first of its kind in East and Central Africa. It is run and edited by the Strathmore Law School’s Centre for IP and IT Law (CIPIT) and covers on an ongoing basis pressing issues of the day.

IP Picture of the Day: Registered Trade Mark?

image

After getting a close-up of the picture above, several thoughts come rushing to mind. The writing on this exhauster services tanker reads “Trade Mark (R)” which from an intellectual property (IP) perspective means that the word “Trade Mark” is a registered as a trade mark. Such irony!

This blogger suspects that the person behind this writing was probably inspired by all the branded goods and services that surround us on our daily lives. Interestingly though, unlike copyright where “Copyright” “(c)” are often used side by side without creating a repetitious irony, the same cannot be said for trade marks, it seems.

This blogger shared today’s picture of the day with some colleagues and here are some of the comments made so far:

“it’s amazing how ignorant we are of IP, but then again it is good for such mistakes to be made it means we are making headway in terms of awareness….ߘatleast he has a clue about the sign and the word trade mark …..All we need to find him is a trade mark and registered it and he will be good. For starters maybe wira na wira.”

” Ha! it is the wira ni wira that need to be registered as a TM..”

“Has d guy actually registered d mark? Really funny… Is it in Kenya?  Well done with your IP awareness creation”

“That’s the first sign that someone is aware of IP. Sensitization is working, we can start with that!”

Over to you, our readers.

IPCheckin Inaugural 2015 Edition: Reflections of 2014

Macaque-Selfie-2

This blogger is pleased to learn that the monthly intellectual property (IP) discussion forum “IPCheckin” is back with its inaugural edition of 2015 graciously hosted by CIPIT at Strathmore Law School building. The topic of this inaugural edition is: “Reflections of 2014″. Although this blogger will not be able to attend IPCheckin this month, the topic is an important one which would require a few comments in absentia through this blogpost.

First and foremost, this blogger would like to salute CIPIT for reaching several notable milestones in the advancement of IP training, outreach and consulting for the benefit of Kenyans. As many will recall, CIPIT started off 2014 on a high note with the launch of Kenya’s first full text searchable database of patents granted by the Kenya Industrial Property Institute (KIPI) and the African Regional Intellectual Property Organization (ARIPO)! This ground-breaking CIPIT resource is available online for free here.

On Valentines’ Day last year, CIPIT’s Director announced that Kenya’s first IP Moot Court competition was accepting applications from East African Law Schools. The inaugural IP Moot took place without a hitch on April 26, 2014 as part of the hugely successful World IP Day celebrations in Kenya. In addition to the IP Moot, CIPIT was the official host and co-organiser of all the World IP Day celebrations which included the “IP Pavillion” (exhibition stands by various IP stakeholders – including the IP Offices) and a discussion forum on the 2014 theme: “Movies – A Global Passion”. A full recap of Kenya’s World IP Day celebrations is available here.

Throughout the year, CIPIT continued to engage with both government and the private sector in policy formulation, advocacy and capacity building in the area of IP. For the second year running, CIPIT was selected as a host organisation for the prestigious Google Policy Fellowship programme. The list of 2014 Google Policy Fellowship host institutions is quite a who’s-who of tech research institutes from around the world! In recognition of CIPIT’s growing prominence in Africa, the Dr. Rutenberg-led Centre was selected as a host institution for the Open Technology Fund Information Controls Fellowship (along with other institutions such as Princeton and Harvard!). Finally, this blogger is pleased to announce that CIPIT’s Social Media and the Law Project is actively represented on this blog and all enthusiasts are invited to contribute articles in relevant topics of interest.

With this background in mind, this blogger wishes CIPIT great success in 2015!

Outside CIPIT, there have been other important developments in the IP space within Kenya in 2014. All these developments have been analysed by this blogger in over 58 blogposts published throughout the year.

In terms of impact, the biggest IP news story of 2014 in Kenya is undoubtedly the unanimous decision of the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. This case was centred around Kenya’s ‘imminent shift’ from analogue terrestrial broadcasting to digital terrestrial broadcasting on or before the international analogue switch-off date of June 17, 2015. This case is notable as it is the first pronouncement of the Supreme Court on any IP question. The IP question before the court was principally whether the (re)broadcasting of free-to-air programme-carrying signals under the “must carry rule” in the Regulations under Kenya’s Information and Communications Act amounted to copyright infringement. The findings of the Supreme Court and this blogger’s dissenting view can be found here.

A significant IP development in 2014 was the enactment of the Statute Law (Miscellaneous Amendments) Bill, 2014 which introduced four amendments to the Anti-Counterfeit Act, namely sections 2, 6, 16 and 34 as well as four amendments to the Copyright Act, namely sections 22, 28, 33 and 46. This blogger has offered a preliminary analysis of the far-reaching amendments to the Anti-Counterfeit Act and Copyright Act here and here respectively.

In terms of blog readership, the following topics generated a lot of views in 2014:

– The IP dimension of Brazil World Cup 2014 (See here, here and here).

– Sanitam’s ‘notorious’ Sanitary Bin Patent AP 773 ( See here and here).

– Bata’s triumph in Republic v Kenya Revenue Authority Exparte Bata Shoe Company (Kenya) Limited [2014] eKLR (See here).

– Section 30A and the ‘back-door’ introduction of compulsory licensing in copyright law (See here).

– SafePak’s successful track-record of protecting its industrial designs (See here).

– That photogenic monkey and ownership of the selfie (See here)

– Litigation on ownership of IP in television shows (See here).

– That infamous Demand Letter in the Penny Galore v. Amani Women’s Group dispute (See here).

– JB Maina’s Kshs 15.5m settlement with Safaricom in copyright suit (See here).

– Research doctors receive their just dues in Dr. Samson Gwer & 5 others v. Kenya Medical Research Institute (KEMRI) & 2 others Petition No. 21 of 2013 (See here).

With close to 30,000 views generated from all blogposts in 2014, the CIPIT blog continues to grow and as always we are looking for good content and IP enthusiasts willing to blog so if you feel so inclined in 2015, please contact us.

Poor Performance by African Copyright Collecting Societies According to CISAC

CISAC Releases 2015 Global Collections Report

The International Confederation of Societies of Authors and Composers (CISAC) today released its 2015 Global Collections Report, revealing that, against a backdrop of continued economic uncertainty, total royalties collected in the year 2013 on behalf of over three million creators worldwide remained stable at €7.8bn. A copy of the report is available here.

According to CISAC, Africa’s 32 collective management organizations (CMOs) who are members of CISAC in Africa collected a total of 54 million euros, which is a dismal 0.7% of the total collections worldwide.

CISAC 2015 Global Collections Report 2013 2

It is clear that African CMOs need to have a proactive approach to information sharing, portraying the benefits of collective management to rights holders, users and the society at large. It is important that all creative industries – music, text, visual and audiovisual – are served by an appropriate way of rights management. Membership in international non-governmental organizations (NGOs) is a prerequisite for successful management of national and international repertoires and exchange of rights and royalties between countries.

CISAC 2015 Global Collections Report 2013 1

Among the various sources of collections, CISAC considers that remuneration for private copying can play a crucial role in the advancement of collective management in Africa. It recognizes that a number of countries have provisions on private copying remuneration in their law, but implementing legislation is still missing. The role of the government is paramount in ensuring proper legislation and implementation, including good collaboration with the customs authorities. Implementation of resale right for works of visual art and rights in audiovisual works are important topics for African jurisdictions to consider in the area of copyright management. In addition, there must be a continued emphasis on licensing of rights in the online environment is necessary in the ever changing technological environment.

CISAC 2015 Global Collections Report 2013 3

Considering the cultural, social and economic impact that creative industries have on the gross domestic product and on employment creation, it is important that governments fully recognize the huge opportunities at hand and take active measures to facilitate and support continuous growth of creativity. Based on studies carried out in 42 countries between 2003 and 2013 and published by WIPO, the contribution of copyright industries to a country’s GDP is on average 5.2 %. The average contribution to national employment is 5.3 %.

A well-functioning copyright and related rights system lies on the following three pillars: legislation, enforcement and management of rights. They are all needed to generate wealth and employment. There is a shared view among experts that although rights may exist in legislation, effective implementation of rights is often hampered by widespread resistance among users, leading to economic devaluation of rights. For creative industries that depend on copyright protection to make their full contribution to economic growth and job creation, it is necessary that intellectual property assets are paid for at market value remuneration. There is a need for governments to participate more actively and support collective management organizations (CMOs) to ensure that users respect and comply with relevant legislation.

In this regard, commentators note that the development of a Pan-African plan for copyright and collective management would create a framework for future activities jointly and separately. ARIPO is well placed for the development of such a plan. Furthermore, there appears to be need for a forum that can promote information sharing and exchange of best practices among CMOs in Africa.

#iFreeKE: State of Social Media Freedom in Kenya

INTERNET FREEDOM DAY KENYA

This year, Kenya joined the rest of the world to mark #InternetFreedomDay amidst increased cases of criminal prosecutions and civil litigation against social media users and other content creators exercising their freedom of expression through publications on the internet under the belief that Kenyans have a right of access to information.

With regard to criminal prosecutions, we have discussed here the cases of Allan Wadi and Robert Alai. As many will recall, Allan Wadi, an undergraduate student was sentenced to serve 2 years in jail for several posts published on his facebook page against President Uhuru Kenyatta. Alai is currently out on bail after being charged with the offence of undermining the authority of a public officer as result of tweets he published against the President.

Since then, there has been two new cases of criminal sanctions taken against social media users, namely Nancy Mbindalah and Abraham Mutai. According to a media report here, Mbindalah, a 24 year old university student was arrested and detained for allegedly insulting the Embu County Governor on her Facebook page. The details of the offence can be viewed below:

Nancy Mbindalah Martin Wambora

The latest case reported here involved Abraham Mutai, a blogger who was arrested and charged with a similar offence under the Penal Code although the arrest was believed to have been prompted by his recent expose on corruption and the ivory trade. The hashtag #FreeMutai instantly became trending in Kenya.

Outside the Executive branch of government, the Legislature appears to have dealt a near-fatal blow to freedom of expression with the passing of the controversial Security Laws Amendment Bill, 2014 which was assented to by the President towards the end of 2014. We have discussed the impact of this enactment on social media users in Kenya here and we continue to follow the matter which is currently awaiting judicial determination.

It is against this backdrop that the Bloggers’ Association of Kenya (BAKE) recently issued a statement condemning the Government’s prosecution of dissident citizens online. The statement reads in part:

“As an organisation that represents the interest of bloggers in Kenya, we are concerned with the process followed in the jailing and prosecution of Kenyan Bloggers and Online Content Creators. The Kenyan Government is seemingly becoming quite intolerant of voices of dissent and dissident Kenyans who have taken to Social media platforms to exercise their freedom of speech.

While we do not, in any way condone the behaviour of some online content creators, be they our members or not, we find the rulings punitive and a means to discourage free speech online.These three cases of Allan Wadi, Robert Alai and Nancy Mbindalah have brought to light the government’s curtailing of free speech by the Kenyan online community and the limitations to their rights as Kenyan Citizens.

We do not regulate bloggers and we do not plan to. Blogs and social media are tools for self-expression and interaction. They allow Kenyan Citizens and to exercise their right to free speech and expression on the internet. We thus cannot curtail these freedoms. We however do require that our members adhere to a code of conduct especially in regards to plagiarism, defamation and adhere to our country’s laws.

There is increasing pressure to, not only regulate bloggers, but also, to intimidate them into silence for revealing information that the public have the right to know.

Freedom of expression is enshrined in Article 33 of the Constitution of Kenya and includes the right to seek, receive or impart information and ideas, while Article 31 provides for the right to privacy.

It is our hope that the existing laws will work towards the protection of all Kenyan Citizen online as well as protection of free speech rather than its misuse to selectively punish and discourage online discourse.”

With regard to civil litigation, the High Court in the recent case of CfC Stanbic v. COFEK found that an article published by COFEK entitled “How true is this allegation on Stanbic Bank Juba Branch on Foreign Exchange Transactions.” was defamatory and that COFEK, a consumer rights lobby organisation, could not rely on the freedom of expression under Article 33 of the Constitution to justify their publication. Last year, the High Court granted sweeping orders against blogger Robert Alai in a defamation suit.

ndula victor social media govt kenya

In a 2014 report titled “State of Internet Freedoms in Kenya 2014 – An Investigation Into the Policies and Practices Defining Internet Freedom in Kenya” by Collaboration on International ICT Policy in East and Southern Africa (CIPESA), important recommendations are made including:

• Kenya should expedite the enactment of the Access to Information law and the Data Protection law. Civil society should be given opportunity to provide meaningful inputs into these laws.

• The circumstances and laws under which individuals are charged over their online activities need to be clarified. The National Cohesion and Integration Act has improperly been applied to take action against individuals accused of propagating hate speech.

• There should be clear definitions of what constitutes hate speech and ‘causing annoyance’ as grounds for taking legal action against individuals.

• Conversations on what constitutes free speech and the distinction between blind control and respect for freedom of expression online should be fostered and should draw in civil society, the media, religious organisations and government departments.

• Create awareness among the media and human rights defenders on internet freedoms and encourage development of a network of advocates and educators on online freedoms.

• The NCIC, police and other security organs should make public all results of their surveillance of citizens’ communications, as well as investigations and prosecutions of hate speech and other offences and crimes committed via digital technologies.

• The law should clearly specify the responsibilities of intermediaries and other parties in relation to filtering, removing and blocking content, the steps that need to be followed in these processes as well as appeal processes where there is an attempt to filter, remove or block a site or content.

A copy of the report is available online here.

#DigitalMigration Update: Post-Advert Action and Lingering Copyright Issues

gado-7

In the January 2015 update on #DigitalMigration, we focused on a controversial television (TV) infomercial by Royal Media Services (RMS), Nation Media Group (NMG) and Standard Group (SG) on their respective TV channels in which they alleged that GOTv and StarTimes were broadcasting the former’s TV channels without consent thereby infringing on the copyright and related rights of RMS, NMG and SG. The advert went further to advise members of the public not to purchase GOTv and StarTimes set top boxes until RMS, NMG and SG launch their own set top boxes. This advert came in the wake of an order by two judges of the Supreme Court on January 5, 2015 temporarily blocking the Communications Authority of Kenya from switching off the analogue signals of the three media houses after the latter made an urgent application requesting more time to complete the migration from analogue to digital broadcasting.

This month, there have been several developments in the on-going #digitalmigration saga all stemming from the Supreme Court’s controversial decision that the so-called “must-carry rule” under the Kenya Information and Communications Act (KICA) does not amount to an infringement of copyright and related rights of works belonging to RMS, NMG and SG.

Shortly after GOtv and StarTimes successfully obtain court orders to stop the airing of the informercial, the Communications Authority of Kenya (CA) took stern action against RMS, NMG and SG in two ways: first, CA withdrew the temporary authorization granted to facilitate the roll out their digital signal distribution platform (self-provisioning signal distribution infrastructure). Second, CA fined the three media houses Kshs 500,000.00 each for breaching broadcasting regulations. In addition to the fine, CA ordered the three media houses to commit to carry advertisements on digital migration and not to use their channels to carry selective and misleading information; and not to engage in anti-competitive behaviour; and to comply with the type approval procedures. The CA gave the media houses seven (7) calendar days, effective February 6, 2015, to adhere to the conditions and CA would lift its suspension and resume the processing of the self-provisioning licence for the three media houses.

Several legal commentators have come out strongly to condemn CA’s actions as well as the underlying Supreme Court decision on the copyright dimension of digital migration. Hezekiel Oira, former General Counsel and Company Secretary at the national broadcaster Kenya Broadcasting Corporation (KBC) has penned two articles on this subject publishing in the Standard and Nation newspapers available here and here respectively. In his Standard article titled “Communications Authority’s interference with media ill-advised”, Oira deconstructs the concept of a “must carry rule” and demonstrates its problematic existence vis-a-vis KICA, the Copyright Act and the Constitution of Kenya. Oira makes the following poignant remarks:

The [must carry] rule, being a subsidiary legislation, falls foul of the Constitution, Parent legislation, Copyright Act and relevant international instruments. First, section 46 of the Kenya Information and Communications Act enjoins all licensed broadcasters to respect copyright and neighbouring rights. This provision is in conflict with rule 14(2) that gives the authority apparent power to cause licensees to violate the same copyright law.

Article 40(5) of the Constitution enjoins the state to support, promote and protect the intellectual property rights of its people, including those of the three media houses. The CA’s act therefore undermined the constitutional protection of the three organisations. The state has a constitutional duty to ensure that constitutionality prevails in this matter.

Copyright law gives broadcasters a monopoly right of excludability over their broadcasts subject to the prescribed exceptions and limitations. Looking at the advertisements which were placed by the three media houses, they were in accord with the Constitution, Kenya Information and Communications Act, Copyright Act, and Rome Convention.

In his Nation article titled “Using ‘must carry’ cloak to violate TV firms’ copyright”, Oira, a former KECOBO Board Member, re-states his position in the Standard article on the inconsistencies between the “must carry” rule and copyright law in Kenya.

In this regard, Oira notes that:

S.29 of the Copyright Act provides that copyright in a broadcast shall be the exclusive right to control the doing in Kenya of any of the following acts: “fixation and rebroadcasting of the whole or substantial part of the broadcast…”

The Copyright Act finds legal backing in the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, of which Kenya is a signatory directly or by extension through the TRIPs Agreement of 1994.

Article 13 of the Rome Convention obliges Kenya to grant broadcasting organisations exclusive right to authorise or prohibit: Rebroadcasting of their signals; Fixation of their broadcasts; The reproduction:
a) of fixations made without their consent; b) of fixations made for unauthorised purposes; Communication to the public of their TV broadcasts against payment of entrance fee.

The media houses had a right to claim ownership of their broadcasts as well as make it plain that they had not authorised their rebroadcasting, reproduction or retransmission. Such unauthorised retransmissions could also cause secondary infringement of copyright where content is acquired on the basis of platforms of delivery.

Oira concludes his article by differing with the Supreme Court decision which found that “rebroadcasting” under the must-carry rule falls within “fair dealing” under the Copyright Act. In this regard, he states as follows:

The Copyright Law in Kenya has provided a repertoire of exceptions and limitations under which copyrighted works may be used without the consent of the owner. The one cited in the dispute is fair dealing. S.26(1) of the Copyright Act, however, restricts fair dealing to scientific research, private use, criticism or review or the reporting of current events subject to acknowledgement of the source.
The “must carry” rule does not fit into this particular exception and limitation.

At the same time, prominent legal scholar Wachira Maina has belatedly weighed in on the “confusion” created by the Supreme Court in the “muddling” of copyright law in an article available here.

Maina’s argument is thus:

The real issue, though, is that CA has a fundamental misunderstanding of the ‘must-carry’ rule as implemented in other jurisdictions. And the authority’s confusion has been given legs by a Supreme Court decision that got all mixed up about the copyright exception called ‘fair dealing’ and the broadcasting rule called ‘must carry.’

There are three points to make: First, both CA and the Supreme Court are wrong on the ‘must-carry’ rule. Second, the Supreme Court is wrong in treating the ‘must-carry’ rule (a broadcasting matter) and fair dealing (a copyright exception) as mutually inclusive. Third, the Supreme Court was wrong in using subsidiary legislation to limit property rights granted by the Constitution, including intellectual property rights.

The confusion wrought by the authority and fortified by the Supreme Court arises from a failure to distinguish the nature of the broadcasting market and the public interest issues at stake in its regulation.

The #DigitalMigration story took a bizarre turn this month when the three media houses represented by Senior Counsel Paul Muite claimed that they would seek international intervention to address what they considered as contravention of international intellectual property laws and bias by the Government (both the Executive and Judicial branches). Many IP commentators were left wondering: “Is that even possible?” “Which international IP forum/court/tribunal is this? See for yourselves:

ICC 1

ICC 2

ICC 3

The #DigitalMigration saga continues…

Lessons From First Ever United Nations Social Media Day – January 30, 2015

UN SOCIAL MEDIA DAY 30 JANUARY 2015 HASHTAG SOCIALUN

On January 30, 2015, the first ever UN Social Media Day (#SocialUN) was held at the United Nations (UN) Headquarters in New York. The Panel discussions and presentations covered two main areas: digital diplomacy and social media trends for 2015. A full length video of UN Social Media Day 2015 ( all 7 + hours of footage) is available online here.

This blogpost will focus on the last area covered namely, social media trends for 2015 as well as handy tid-bits from the speakers on social media optimisation and best practices generally. The issues discussed on the topic of social media trends for 2015 can all be found in the photo of the list below, tweeted by @sree, the session’s moderator at #SocialUN:

UN SOCIAL MEDIA DAY TRENDS FOR 2015 HASHTAG SOCIALUN

Following the #socialUN discussions, there appears to be an overlap between “Analytics” and “Attention”. “Analytics” came up because it was noted by one of the panelists that social media users are becoming very keen on numbers, statistics measuring reach, influence, viewership, readership and sharing of content on social media. As a result of “analytics”, many companies including social media platforms themselves are paying “attention” to this trend and providing social media users with real-time statistics aimed at encouraging more purposeful and targeted social media use. One such tool is twiangulate. This tool can help twitter users such as CIPIT (@StrathCIPIT) to keep track of its top influencial followers and their combined reach. By clicking on “reach” button, CIPIT is able to see, for instance, that 74 followers out of @StrathCIPIT’s total 772 followers have a combined reach of 364,773 followers on twitter. CIPIT ought to ask itself who are these 74 influential followers and how can it capitalise on their influence to grow its following. Therefore, by using this app and many others like it, CIPIT is able to improve its social media engagement while maximising on its outputs by generating content that is relevant to its key followers.

Another trend likely to continue in 2015 is “paid” in the context of social media. Generally speaking, “paid media” refers to content delivered from a company to consumers by paying to leverage a channel not controlled by the company. For instance, consider a hypothetical scenario where @IPKenya is paid a certain amount of money by @Lhornpublisher to market its latest IP book publication and direct traffic to its online shopping platform. In other words, companies in 2015 will continue to use paid social to boost their reach as opposed to relying simply on organic growth.

An important trend in 2015 is how individuals and companies will push the boundaries of creativity on social media. “Getting creative” involves finding new high-impact ways of interacting with the billions of social media users out there. In a previous post, this blogger discussed the Social Media Awards (SOMA) in Kenya which reward both personal and corporate social media accounts for outstanding creative interaction, creative social media campaigns social media advertising.

One of the biggest trends in 2015 is undoubtedly “mobile” as aptly discussed by the panelists during #socialUN. Consider the following statistics of the mobile market in Kenya as provided by Roamtech: there are 31.3 million mobile subscriptions which is 77% of the Kenyan population with 54 SMS per month, which is: 1.67 billion SMS each month and more than 20 billion each year. Smartphone penetration in the Kenyan market is at 67% of the market.

This blogger believes that the “mobile” trend in 2015 is the main catalyst for several other important social media trends expected in in 2015 namely “video”, “new platforms” “visual social media” and “messaging”. The “video” and “visual” trends relate to the types of content that are expected to dominate social media. The meteoric rise of social media platforms such as instagram (which was recently mentioned by Obama in his State of the Union Address) is a testament to the growing demand and appeal of visual and video content. In this regard, experts at #socialUN expect that 2015 will see the development of new platforms that are designed for the “mobile” market and/or “mobile” friendly. There is no doubt that in 2015 “Messaging” and “Mobile” will go hand in hand with the increased use of platforms such as Snapchat and the popular Whatsapp application.

twiplomacy influence socialun 2015

An interesting social trend to watch for in 2015 is social activation. This is where social media is used as a tool to mobilise public support and action on public interest issues, social causes or humanitarian efforts. An excellent example of social activation is the so-called “ice-bucket challenge” which raised over 100 million US Dollars in just over a month and a half to promote awareness of the disease amyotrophic lateral sclerosis (ALS) and encourage donations to research. It is interesting to note that there was no specific organisation behind the ice-bucket challenge rather it was a ground-swell from social media users across the US and the world.

With the ice-bucket challenge story in mind, two other social media trends to watch for in 2015 are “cool things” and “humanisation”. The “cool things” trend simply means that a large proportion of people will continue to use social media platforms as a means of sharing “cool things” with family, friends, colleagues and their social circles. Therefore digital content is likely to go viral for its “cool” factor as more and more social media users share the content. Websites such as buzzfeed, who were represented at #socialUN, have successfully dominated social media spheres by providing content that is “cool” and “intelligent” which social media users enjoy consuming and sharing with others. In this connection, “humanisation” is expected to be a social media trend in 2015 as more and more companies and brands using social media will try to reach and engage with their consumers as people rather than corporate entities. In Kenya, we have already seen numerous leading entities such as Safaricom, Kenya Power, Equity Bank as well as leading brands such as @DurexKE and @WeetabixKE engaging with social media users as people, using colloquialisms and even adding a touch of wit and flair in their online interactions.

All in all, this blogger believes that social media optimisation is both an art and a science open for all to learn. The UN Social Media Day is thus a great initiative to get us all to appreciate how we can harness the power of social media to make a positive change in the world that we live in. Moving forward, Kenya is indeed privileged to be one of a select number of countries in the world with a United Nations Office. Therefore one hopes that CIPIT will work closely with the UN Office in Nairobi to organise and host an awesome UN Social Media Day in 2016!

January 2015: Social Media & IP Month in Review

share-a-coke-with-ipkenya

This past month, most of the main intellectual property (IP) stories making news happened to have a corresponding twitter hashtag. As an enthusiast of both IP and Social Media Law, this blogger hopes that this confluence of trending IP stories continues throughout the year.

On January 30, 2015, a stakeholders’ workshop on the formulation of a piece of legislation on Culture. This #CultureBillKE topic arises from a constitutional obligation on the Legislature to enact this law on Culture within the first five years from the date of promulgation of the Constitution. Therefore the deadline for enactment of a National Culture Bill is no later than August 27, 2015! In preparation for the workshop, the Ministry has circulated a zero draft of the Bill available here. During the workshop, the participants confirmed this blogger’s earlier concerns that the draft Bill does not address important concerns touching on the promotion and protection of traditional knowledge (TK), traditional cultural expressions, folklore as well as certain in situ genetic resources.

Earlier in the month of January, the topic of #DigitalMigration arose prominently both online and offline. The topic went viral following a controversial television (TV) infomercial by Royal Media Services (RMS), Nation Media Group (NMG) and Standard Group (SG) on their respective TV channels in which they allege that GOTv and StarTimes are broadcasting the former’s TV channels without consent thereby infringing on the copyright and related rights of RMS, NMG and SG. The advert goes further to advise members of the public not to purchase GOTv and StarTimes set top boxes until RMS, NMG and SG launch their own set top boxes. This advert came in the wake of an order by two judges of the Supreme Court on January 5, 2015 temporarily blocking the Communications Authority of Kenya from switching off the analogue signals of the three media houses after the latter made an urgent application requesting more time to complete the migration from analogue to digital broadcasting.This blogger weighed in on the numerous IP-related risks associated with the advert even as GOTv and StarTimes successfully applied for an injunction to stop the airing of the advert.

January 2015 was an exciting month for many Kenyans as the “Share a Coke” campaign kicked off in Kenya. The #ShareACokeKE promotion is part of the Coca Cola Company’s hugely successful “Share A Coke” international promotion which originally started in Australia in 2011 and has since been rolling out around the world, making its African premiere in South Africa towards the end of 2013. This promotion, targetted mainly at teens and millennials, is intended to allow people to take the Coca-Cola script and replace it with their name on a bottle or can of the well-known beverage. For those with less popular or rare names, the digital version of the “Share a Coke” promotion allows users to create a virtual can with their names which is generated in .png format and available for download and social media sharing. This particular story is one that underscores the important intersection between IP and social media. The #ShareACokeKE campaign allows Coca Cola to have unrestricted IP rights to use, modify, copy and store user-generated content not to mention the increased traffic to the Company’s web and social media platforms.

Meanwhile, Kenya’s leading mobile network operator Safaricom Limited launched #ZinduaCafé, an idea submission web portal which allows registered users to submit ideas, applications or prototypes to Safaricom. Once these submissions are made to Safaricom, the telecommunication giant will review them internally and send either a ‘interested’ or a ‘regret’ response to the user. If Safaricom is ‘interested’ in any submission, the user will be offered a non-disclosure agreement and commmercial contract governing Safaricom’s intended implementation of the submission. Although this blogger commends #ZinduaCafé for being an excellent source for unsolicited legal advice on IP rights protection, the portal’s aim is abundantly clear: to coax as many Kenyans as possible to disclosing their creations, innovations and inventions for the benefit of Safaricom.

Other trending topics we discussed this past month include #WTR1000 and #JamboPay.

Social Media in the Public Service: Can Public Officers Express Personal Opinions Online?

Dennis Ole Itumbi on Twitter

The answer to this question is simply: it depends. A good way to unpack this question is to use a live example, say one Dennis Itumbi. For those who do not know Itumbi, a quick google search reveals that Dennis Ole Itumbi is the Director of Digital Communication in the Office of the President of the Republic of Kenya. Therefore, by all accounts, Itumbi is a public officer/state officer as defined in the Constitution as well as several pieces of legislation. For good measure, Itumbi’s twitter bio reads in part: “Currently SNR.Director Digital. Innovations&Diaspora Comms”

In 2013 when President Uhuru Kenyatta come into office, he announced his intent to overhaul how the Presidency communicates and interacts with citizens by establishing the Presidential Strategic Communications Unit (PSCU) to replace the Presidential Press Service (PPS). The PSCU is charged with covering the President of the Republic, the First Lady of the Republic along with research on policy, communication of government policy, digitisation of government communications and branding State events and functions. Itumbi was appointed to his current position (as indicated in his twitter bio) along with four other directors all running various departments within the PSCU, which is headed by a Secretary of Communications who is also the State House Spokesman.

In a recent article by Prof. Makau Mutua titled “It’s unfortunate that abuse of social media extends to state authorities”, he accuses Itumbi of using social media to castigate and vilify critics of the Presidency. Makau personally calls out Itumbi for using social media as a weapon of propaganda against the people, especially those who seek to hold the government accountable. In this regard, Prof. Mutua states:

“One Dennis ole Itumbi, the so-called Director of Digital Communication in the Office of the President, uses his platform to vilify Jubilee critics and civil society. He can’t express “personal” views on social media because the line between the public and the private doesn’t exist for such an official of his status. Kenyan taxpayers buy his ugali and sukumawiki [food]. Neither he, nor any senior official within the state, should castigate critics on social media.”

While Mutua may have his personal reasons for singling Itumbi out in his popular weekly newspaper column, his article raises several interesting issues for enthusiasts of social media and the law. After disclosing his position as a public officer serving in the Executive, the final part of Itumbi’s bio reads: “My Space,My Tweets”. Presumably these words are meant to serve as a disclaimer similar to those found on most twitter bios, such as “Views Are My Own” and “Retweets are not endorsements”. This blogger opines that such twitter disclaimers offer as much false sense of protection from legal liability as the words “no copyright intended” written by users of YouTube when they upload artists’ songs and videos without the latter’s consent. The truth of the matter is that these widely used legal-sounding, bite-sized expressions are not fully understood by social media users vis-a-vis the real legal ramifications of their actions such as uploading, posting and sharing of content on social media.

Dennis Ole Itumbi tweet on murdered ICC witness Meshack Yebei back in 2011

In a previous blogpost here, we discussed the extent to which the law regulates the use of social media by public officers. Looking forward, this blogger would recommend the following: guidelines on social media for public servants, a social media policy for the Public Service and social media training for public servants.

In the case of Itumbi whose salary is paid by the Kenyan tax-payer, this blogger submits that the State would be well within the law to fire or reprimand Itumbi for any tweets published from his twitter account if such tweets are deemed to fall foul of his position in public service. Equally, there is a real likelihood that the State may be exposed to vicarious liability for any tweets by Itumbi that threaten to infringe or infringe on the constitutional and legal rights of any citizen of Kenya.

Social Media and National Security: Impact of High Court Ruling in CORD v. Republic of Kenya Case

president uhuru kenyatta uniform kenya defence forces

“…It is only those provisions which disclose a danger to life and limb or imminent danger to the Bill of Rights at that very moment that the Court may be justified in suspending by way of conservatory orders. (….) Clause 12 of the Act introduces a Clause which limits the freedom of expression and freedom of the media and imposes a hefty fine of Kshs 5,000,000.00 for the offenders or 3 years in prison or both. If implemented, there is imminent danger of the offenders losing their liberty. (….) In the result I grant conservatory orders suspending the following Clauses in The Security Laws (Amendment) Act, No 19 of 2014 together with the amendments to the respective Statutes pending the hearing and determination of these petitions: (1) Clause 12 which inserted section 66A to the Penal Code.” – Ruling by Justice G.V. Odunga in Petition Nos 628 & 630 of 2014.

The recent High Court ruling in the case of Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another [2015] eKLR has received nation-wide attention. In this case, the Coalition for Reform and Democracy (CORD) a coalition of political parties rushed to the High Court as a matter of urgency to challenge the constitutionality of the Security Laws (Amendment) Act, No. 19 of 2014 assented to by President Kenyatta (pictured above) on December 19, 2014. The court in its ruling declined to suspend the coming into force/implementation/operation of the entire Security Law (Amendment) Act, 2014 but granted conservatory orders suspending several clauses in Clause 12. A copy of the ruling and the Act in question are available here and here respectively.

Clause 12 of the Act reads as follows:

Insertion of new section 66A in Cap. 63.

The Penal Code is amended by inserting the following new section immediately after section 66─

66A. A person who publishes or causes to be published or distributed obscene, gory or offensive material which is likely to cause fear and alarm to the general public or disturb public peace is guilty of a felony and is liable, upon conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding three years or both, or, where the offence is committed by a media enterprise, to a fine not exceeding five million shillings.

The primary target of this amendment is no doubt the fourth estate, namely journalists and media houses disseminating information through print, broadcast (TV, radio, online) and other media. However this blogger argues that this amendment also endangers the rights of all Kenyans who use social media to express opinions, beliefs or views that are political in nature. In a previous blogpost here, we highlighted two cases of social media users being arrested and charged with offences under the Penal Code. This amendment appears to create an offence aimed at curtailing freedom of media and freedom of expression which are fundamental rights enshrined in the Bill of Rights of the Constitution.

Generally speaking, the State has a political interest in controlling the activities of the press within its jurisdiction. The rationale for having laws that curtail press freedom is the protection of several categories of interests, namely the interests of the state (especially its security), the interests of the society (especially public health and moral concerns), the interests of justice and the interests of the individual (especially his or her privacy).

Prior to the contested insertion of section 66A, the Penal Code has historically been an important legislation to control the publication of material that are deemed to be detrimental to the interests of the state, particularly on the grounds of national security. One such provision was section 56 on seditious intention and publication. The section pegged the felony of sedition on seditious intention, which section 56 defined as an intention to, inter alia, “rouse discontent or disaffection amongst the inhabitants of Kenya”. The section went on to explain that a seditious publication is a public publication “containing any word, sign or visible presentation expressive of a seditious intention”.
It is widely accepted that section 56 was subsequently repealed as it was deemed repugnant to the freedom of expression and freedom of press.

Follow

Get every new post delivered to your Inbox.

Join 85 other followers