As the world celebrates World Intellectual Property Day on 26th April, it’s important to take a moment to reflect on the importance of intellectual property (IP) protections, particularly in the context of emerging technologies and modern business partnership models.
Emerging Areas in IP Law
The world of IP law is constantly evolving, particularly in the context of emerging technologies such as blockchain and artificial intelligence. For example, blockchain technology has the potential to revolutionize the way we think about copyright and ownership. By providing a secure way to register works and prove ownership, blockchain could enable creators to monetize their works more easily. Similarly, artificial intelligence can help identify prior art and speed up the patent application process, but it also raises questions about who owns the patents created by AI systems.
Consequently, the question remains whether existing legislation, policies and dispute resolution procedures have the capacity to deal with these emerging areas.
Modern Business Partnerships
Modern business partnership models, particularly those that involve collaboration between multiple parties and the sharing of intellectual property (IP) assets, can raise layered IP issues. These issues arise due to the complex relationships between the different parties involved and the overlapping IP rights that may exist.
One example of a modern business partnership model that raises layered IP issues is open-source software development. Open-source software is typically developed collaboratively by a community of developers who contribute code and ideas to a shared codebase. While the code itself may be freely available for use and modification by anyone, the underlying IP rights can be complex.
Another example of a modern business partnership model that raises layered IP issues is joint ventures. Joint ventures involve two or more parties pooling their resources and expertise to create a new business entity. IP issues can arise when the parties contribute IP assets to the joint venture or create new IP assets together.
Payment Processing Partnerships between Fintechs, Tech Companies, MNO’s and Banks are common in Kenya where the different parties work together to enable seamless and secure payment processing for customers.
Open Banking which is a system that allows third-party financial service providers to access customer financial data through application programming interfaces (APIs) brings to the fore the complex IP issues. This can include data such as transaction history, account balances, and credit scores. The Data Protection Act, 2019 provides data subjects with the right to obtain a copy of their personal data in a structured, commonly used, and machine-readable format. This right, also known as the right to data portability, allows individuals to easily transfer their personal data from one organization to another.
There are measures that can be adopted to enhance protection of IPR.
IP Protection Strategies
1. Database ownership rights: In today’s digital age, databases and data have become valuable intangible assets for many businesses. In this context, a database refers to a structured collection of data that is stored electronically in a computer system. It is designed to allow for efficient storage, retrieval, and management of large amounts of data. Databases are used in many different applications and industries, such as business, finance, healthcare, education, and government. Examples of databases include customer databases, financial databases, medical databases, and government databases, among others. IP protections, such as copyright and database rights, can help businesses protect their databases and data from unauthorized copying and use. Database rights and IP protection laws aim to protect valuable data and information that is stored in computer systems. Cybercriminals may attempt to steal or damage this data, which could result in financial loss, reputation damage, or other negative consequences. The Computer Misuse and Cybercrimes Act, 2018 provides legal remedies for victims of cybercrime and penalties for perpetrators. They also prohibit unauthorized access or use of protected data or information. For example, if an individual or organization accesses a database without permission and uses that information for personal gain, this could be considered a breach of database rights or IP. The Computer Misuse and Cybercrimes Act, 2018 includes provisions that criminalize unauthorized access or use of computer systems or data.
To protect databases in the context of business contractual partnerships, businesses should consider several strategies.
a) One strategy is to include IP ownership clauses in their contracts that specify the ownership of the data and any IP rights associated with it. This can include provisions that restrict the use, copying, or sharing of the data and can provide remedies for unauthorized use or infringement. Notably, database ownership rights are closely related to data protection and privacy rights and duties. Businesses must ensure that, when processing personal data, they comply with applicable data protection and privacy laws specifically the Data Protection Act, 2019 in Kenya and other related laws where one is regulated. It is important to establish clear ownership and contractual rights with respect to databases to ensure that data is protected, and privacy is respected.
b) Businesses can also use licensing agreements to protect their databases and data. These agreements can include provisions that restrict the use, copying, or sharing of the data and can provide remedies for unauthorized use or infringement.
2. Patents: A patent is a form of legal protection that gives the owner the right to exclude others from making, using, selling, or importing an invention for a certain period of time. Patents are typically used to protect new and useful processes, machines, manufacturers, and compositions of matter. The technology, agricultural, manufacturing and creative sectors heavily rely on patents.
3. Trademarks: A trademark is a form of legal protection that gives the owner the right to prevent others from using a word, phrase, symbol, or design that is used to identify and distinguish the owner’s goods or services from those of others.
4. Copyrights: A copyright is a form of legal protection that gives the owner the exclusive right to reproduce, distribute, and perform a work of authorship such as a literary work, musical composition, or software program.
6. Licensing agreements: A licensing agreement is a contract between an intellectual property owner and a licensee that allows the licensee to use the intellectual property in exchange for payment of royalties or other fees.
5. Trade secrets: A trade secret is confidential information that is not generally known to the public and that provides a competitive advantage to the owner. Trade secrets can include formulas, processes, techniques, or other confidential information that is valuable to a business.
7. Non-disclosure agreements: A non-disclosure agreement (NDA) is a contract between two parties that prohibits the disclosure of confidential information to third parties. NDAs can be used to protect trade secrets and other confidential information.
8. Employee agreements: Employee agreements can include provisions that require employees to assign their intellectual property rights to their employer and to maintain the confidentiality of trade secrets and other confidential information.
Remedies for IP and Database Rights Holders
- Civil Litigation: IP and database rights holders can enforce their rights through civil litigation by filing a lawsuit against infringers. The court can order injunctive relief to stop infringing activities, award damages, or order an account of profits. There are still no specialized courts in Kenya to deal with IP matters.
- Administrative Proceedings: Rights holders can also initiate administrative proceedings before relevant government authorities such as the Kenya Industrial Property Institute (KIPI) to seek remedies for IP.
- Criminal Prosecution: Criminal prosecution can be initiated by the state against individuals or entities that infringe IP or database rights. Under the Copyright Act, for instance, infringement of copyrighted works is a criminal offense punishable by fines or imprisonment. Further the computer misuse and cybercrimes Act can also be relied on for cyber crimes.
- Alternative Dispute Resolution (ADR): IP and database rights disputes can also be resolved through ADR mechanisms such as mediation or arbitration. These mechanisms provide a cost-effective and timely way of resolving disputes without the need for lengthy litigation.
- Border Control Measures: Customs officials at Kenya’s borders can seize and detain goods suspected of infringing IP or database rights. This can help to prevent the entry of infringing goods into the country and protect the rights of IP owners. The Kenya Anti-Counterfeit Authority Recordation Regulations of 2021 are a step towards this
Conclusion
As businesses continue to innovate and digitize their operations, it’s important to work with experienced legal counsel to develop and implement effective IP protection strategies. By doing so, businesses can protect their valuable intellectual property assets and maintain a competitive advantage in the marketplace.