Be Careful What You Wish For: Now That Kenya's Been Pushed To Recognize IP, It's Starting To Protect More

from the look-at-that dept

IP maximalists should be careful what they wish for. As we noted in China, where after years of diplomatic pressure, China's "crackdowns" on IP infringement seems to have hurt foreign companies, it looks like something similar may soon happen in Kenya. Last year we discussed how Kenya had been pressured into an anti-counterfeiting treaty (similar to ACTA) that was leading to problems where legitimate generic drugs were being destroyed. However, Amelia Andersdotter alerts us to the news that Kenya's new proposed constitution includes a special section saying that "the state shall support, promote and protect the intellectual property rights of the people of Kenya."

What's that going to mean in practice? Well, a Kenyan lawyer's discussion of the new section of the constitution suggests that this is not about creating incentives for greater creation or innovation. No, instead, it's about trying to put a price tag on anyone else building off of Kenyan culture:
This provision seeks to ensure that Kenyan communities are protected from exploitation and the loss of elements of their cultural heritage to the wider world. Examples of such loss include the patenting of the kiondo -- a hand-woven bag made from sisal with leather trimmings, originating in Kenya and mostly associated with the Kamba and Kikuyu communities -- by an unknown Japanese entity; and the attempted registration of the word 'kikoi' as a trademark by a company in the United Kingdom. A kikoi is a traditional cloth garment mainly found in East African countries such as Kenya and Tanzania and is used as a wrap by women.
Really? So Kenya wants to patent a design of a traditional bag so that no other country can make it? That's not intellectual property, whose purpose is to create incentives for new creativity and innovation. It's blatant protectionism against foreign competition. And then taking control over a word used in a totally different country? Again, that has nothing to do with creativity or innovation. 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.

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  1. identicon
    Graysouth, 14 Jul 2010 @ 10:58pm

    Re: Patenting traditional designs

    I am South African. In the case of South Africa, a similar issue saw a woman in the US trademarking the name of the herbal tea, Rooibos, made from a bush that is indigenous to South Africa. The leaves of the bush are also used for beauty and health products. This meant that in the US market, South African manufacturers could not sell their products under the name that they had built up over decades, to the detriment of local farmers and manufacturers. It cost the SA government a fortune to contest this trade mark in the US and have it overturned.
    I don't like the idea of patenting and trade-marking products in the developing world to protect them from Northern piracy, but it is understandable that this is the way that some countries are thinking.

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