Do you expect France to allow just anyone to use “Champagne” and their other distinctive specialties?

So, now that the western world has pushed Kenya to “recognize” intellectual property, rather than understanding the actual purpose of intellectual property, it seems to be embedding the concept into its constitution in a manner that has nothing, whatsoever, to do with encouraging innovation or creativity.

It sounds like they learned the lesson well.

There’s another perverse angle here, too – in the same way that developing nations sometimes hopscotch wealthier ones in some technical realms by skipping intermediate infrastructures (think cell phones and POTS lines), it looks like Kenya’s skipping the whole let’s-pretend-we’re-encouraging-innovation part, and getting on with the power of the state is for extracting rents program.

Anyway, Horace –

I don’t understand your argument is it that when someone is trying to use IP protection to rip off another person’s creation, the guy ripping off has more rights than the rightful owner, that the guy being ripped off cannot use that same IP protection system to fight back, or what?

Not speaking for Mike, but here’s my answer –

I think you’re making a category error that is common when talking about international law. You’re substituting ‘person’ for ‘nation’. It is important to remember that it is a legal fiction to say things like ‘national interest’. A nation state doesn’t have interests any more than corporations do. Nations don’t exist independent of people. When we talk of nation’s (or corporation’s) interests, what we’re really doing is asserting that the people making the arguments in question are interested in the outcomes, and speaking with the legal authority of a nation state. Other people with (sometimes competing, sometimes aligned) interests like to accept that legal fiction, because the mutual admiration society is useful to everyone concerned.

And that ‘everyone concerned’ bit is important. In this case, who benefits from the assertion that the people operating the legal machinery in Kenya are making that some random folks in the UK can’t use the legal machinery in that country to deny everyone else the use of the work ‘kikoli’? If the Kenyan lawyers get their way, I promise you that the folks who profit aren’t going to be the folks making wraps today. The best possible outcome is some garment mill churning them out under an exclusive license (in practical terms, ‘exclusive license’ means the folks with guns will stop you from selling stuff you made if you haven’t paid them protection money). Garment factory work might be better for real people than the alternative, but (1) it isn’t an attractive long-term trade, (2) it can happen anyway without wasting time and money arguing about the ownership of words, and (3) all this does is enrich the layers of lawyers and politicians who argue this stuff.

The important lesson to take away from this is that a lot of law is abstraction and metaphor piled on top of abstraction and metaphor. And while abstractions and metaphors are useful, they are lossy – the don’t fully capture what you’re talking about. Worse, when you stack them up, they sometimes completely obscure what you’re talking about and lead to perverse results. That happens a lot in IP discussions, and when you remove the abstractions and metaphor, you see that what you’re really talking about is a small group of people trying to use the Men With Guns to stop other people from pointing at something they made and saying “this is called a [Widget]”, or even worse, from stopping people from making a widget in the first place.

Like anything, there are times when that sort of thing makes sense. But those times happen a lot less than the law in most countries recognize, and it is all getting worse instead of better, as this example illustrates.