We recently published a post about Kenya’s decision to put intellectual property rights into its proposed constitution, noting that this probably wasn’t great for Kenya or other countries (who have likely been pushing Kenya to include those features). Amelia Andersdotter (who is supposed to be a member of the European Parliament, but still technically hasn’t been given her seat due to what can only be described as bureaucratic incompetence on a continental scale) has written up a guest post, giving her analysis of why Kenya’s move makes little sense

A review of the Kenyan constitution has been undergoing for a long time, and only now has a final draft proposal for a new constitution been released. But, despite the stated aims of freedom, democracy, participation and the free exchange of ideas (pdf), the released draft seems far from that ideal: Kenya is taking the Euro-American route to heavier information restrictions, including more copyright, more patents and more private knowledge monopolies, instead of keeping their legal environment open to creativity, participation and sharing.

From the perspective of someone working with information policies in the European Union, I can only see this harming Kenyan interests. While many sub-Saharan African countries still have relative freedom with regards to information sharing, this is being diminished by pressure from external groups. Most prominently, American and European corporations. Moving the Kenyan legislation towards the European will shift power from Kenyan entrepreneurs to European big business. Ownership concentration is one of the most harmful tendencies we have seen with intellectual property rights in Europe.

What is more, I worry that this will damage my home turf. The complexity of international trade has made it almost impossible for any single country to pass any law into effect without it affecting other nations, and as long as nations around the world keep changing their laws to accommodate for restrictive innovation and creativity policies, we will find it difficult to see new art, communication and new businesses flourish.

History

Intellectual property rights are quickly morphing out of hand in the European Union. They’re used to motivate breaches of freedom of speech, privacy of communication and proper judicial course. We’ve seen proposals enter and get approved by parliaments that wish to send people to jail or shut them off communication networks for listening to music, and laws that have made it very difficult indeed to be (or to remain) a small-scale entrepreneur.

These proposals are often pushed by very large and rich industries, but not always to their own advantage. In the industries that rely the most on patents, innovation is decreasing (pdf), and in the European Union we have a unique experience with the Database Directive that, while certainly creating more intellectual property rights, did not stimulate European economical development (pdf) or the European population. On the part of the music industry, they have managed to make their customers resent them.

Big business does not always know what it ought to want, and if legislators want to promote culture and innovation, my experience is they should try and do that instead of trodding down roads that already failed a trial and error test.

Kenya has previously only protected property in general, and not intellectual property in particular, leaving it up to the legislator to decide whether commodification of common cultural goods or knowledge heritage is appropriate or not. And while European and American politicians have started to discover copyright problems with fair use, orphan works and common cultural heritages, Kenya and other African nations have been urging for exceptions for education, libraries, general dissemination, higher access to medicines and more possibilities for small scale entrepreneurship (such as domestic innovation not consisting of state of the art technology, but adapted to the educational and economical development of a local and regional market).

Small scale businesses: opportunities and possibilities

Most regions in the world where the economic growth is the largest is where the intellectual property protection has been the lowest, or least enforced. These regions typically also have a thriving climate for small and medium-sized entrepreneurs (pdf).

Those considerations are sadly lacking in the European economic policies. While small and medium sized enterprises stand for 50% of the European economy, and employ more than 90% of the European population, in policy making they’re made to be only worth their existance to the extent that they can grow or be incorporated in larger enterprises (pdf).

The tactics of making legislation that re-affirms the strong players’ place in the market may be useful in the short-term, especially for the strong players. For economic development and the growth of a domestic industry without previous strong actors, it can’t be. The effects may, in the worst case, make the Kenyan economy benefit the European economy more than it benefits Kenyans.

From the European perspective, such a course by Kenya would signal a success of the European legislative tactics and lock our economic development in with the strong players as well. A need for rejuvenation and adaption of the European economy to the time of instantaneous information transfer would fall on its head and turn European business practises into practises of channeling Kenyan gains into themselves.

Collective rights

But what about the community-protecting parts of the constitutional draft?

The reformed constitution also aims at protecting the traditional knowledge of Kenyan socities by introducing collective rights for cultural heritage. It’s certainly experimental. It’s not present in European constitutional culture to specify types of intellectual property and their extent in constitutions. Creating collective intellectual property rights hasn’t been tried at all in Europe, to my knowledge. It would likely be an ineffective way of protecting Kenyan cultural heritage against trademarking and patenting in European and American economies. Intellectual property law is still based in the nation state so the Kenyan jurisdiction can’t touch those who wish to exploit their traditional knowledge or genetic resources. Considering the few advantages I see with such a right, I would be cautious about introducing it into a constitution.

The European experience to me is also that double intellectual property rights protection is more likely to stay double, rather than negate the effects of one or the other.

A Kenyan collective right is likely to be applicable only where a European company with a trademark or patent in Europe is active also on Kenyan soil, or to the extent that the Kenyan collective can withstand law suits. Neither scenario is likely, and once again, from where I’m standing, keeping the information flows as open as possible is that which will bring the greatest remedies to the cultural robbery plight.

Conclusion

Intellectual property law is still based in the nation state, but is very much shaped globally. A reform in one part of the world does not go without consequences in other parts, but, contrary to what some may imagine, the effects are rarely beneficial to either party.

An approval of the intellectual property rights provisions in the Kenyan constitution could come to be an example of that.

At best, they will not benefit European and American industries so much that they completely strangle Kenyan innovation, and they will not lock Europe and America on the path to democratic failure induced by our own intellectual property law reforms. At worst, and as often happens, a law reform in Kenya will create a precedent for reform in the entire East-African region, and become part of a global web that will lock in East-Africa, Europe and the Americas in an information policy of law suits and power concentration, harmful to creativity as well as innovation.

Hopefully, I have provided a European perspective that may make Kenyan policy makers consider the implications of reforming the constitution in this way one more time.