Protecting Intellectual Property Rights in the Digital Space: Part I

 

It is not in doubt that technology has changed the way we live, the way we purchase products, the way we communicate, the way we travel, the way we learn and the way we do business in general. In the world of business, recent advances in technology have changed not just the way that people do business, but also the types of products that businesses are able to produce and sell to their customers, both in Kenya and around the world. These technological advancements have helped businesses and organizations save time and cost of production as well as widen their customer base.

Worth noting, there have emerged digital products, a set of intangible assets that can be sold repeatedly without exhausting the seller’s inventory. These include streamable media, software and other digital literary works. In addition, the emergence of the digital era has brought about the practice of e-Commerce, i.e. electronic transactions that are initiated and completed digitally. E-Commerce relies on intellectual property (IP) in at least two ways. First, it often involves trading in IP-based digital products and, second, the entire e-Commerce industry is based on an amalgamation of technologies, hardware, software and other assets, the use of all of which has various IP implications. 

Consequently, at the heart of these technological developments and the resulting business opportunities is the issue of protection and utilisation of IP rights. IP consists of new ideas, technological innovations, original expressions, distinctive names, new distinctive designs, and appearance that make a business’ products unique and valuable. IP is, via digital products, often traded (or licensed) in its own right without trading in the value of an underlying product or service.

The use of IP to create and trade in new products and in new digital ways has, therefore, presented entrepreneurs and innovators with two major legal issues, namely, (a) how do they ensure that IP in their skill and investment is fully protected in the digital space and (b) how do they ensure that they do not infringe on other peoples’ IP rights in the course of conducting their business in the digital space.

Kenya has a relatively well-developed, albeit new, legal regime for the protection and utilisation of IP in the context of commerce and entrepreneurship. This legal regime may be utilised to provide IP entrepreneurs and innovators with a degree of control of their main asset – IP. The Industrial Property Act protects IP resulting from technological and design innovations. The Copyright Act, in turn, protects original expressions of literary works (such as computer programs, works of literature, audio and audio-visual content). The Kenya Information and Communications Act recognizes transactions initiated and concluded electronically as legally valid and enforceable.

Importantly, Kenya’s legal regime seeks to protect the rights of not only IP owners but also those of duly licensed/permitted third-party users. The importance of this two-pronged approach to IP protection to business operating in the digital space cannot be overstated. 

In the coming days, we will publish on this platform a series of articles that will unravel the current and emerging IP issues in digital business. Have you ever stopped to think about how you can utilise IP belonging to you and to other people to create value for your business and your customers? How can you minimise the legal risks to you and your business that may result from the use and mis-use of IP in the digital era? Please look out for this series of articles, as we will shed light on the law and practice governing e-Commerce and other aspects of carrying on business in the digital space. 

Article by George Kinyua

Please note that this publication is meant for general information only and does not create an advocate-client relationship between any reader and Mboya Wangong’u & Waiyaki Advocates. For particular expert advice on any matter dealt with above, please contact us.

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