1. Importance of Separate IP Laws

It is important note that Kenya already has up to date intellectual property laws and is also in the process of developing laws in areas such as geographical indications. In most countries, the best practice is to have spate legislation for the different areas of intellectual and this is also reflected in the international norms and treaties. (Please refer to the existing international treaties from the WIPO Website)

This is due to the differences in terms and management of intellectual property. The different laws may be administered by the same office or different offices. This proposed Bill fails to take the unique nature of each type of intellectual property right and makes fundamental errors by deleting very important sections in the existing laws. It is likely to create a problem in implementation.

Furthermore, most of the laws have recently been amended to take into account the recent developments and these are missing from the draft.  This draft is flawed and we should not be the ones to be attempting to re-invent what is already invented.

• Policy framework

The Policy framework is fundamental and needs to be in place before the law is passed as it will also guide the law making process. This cannot be subsumed in the legal framework as done in the draft bill and neither can the strategy be legislated.

• Objective of the Bill

The main purpose of the Bill seems to be the creation of the Intellectual Property Office, merging the functions of the existing offices. This may be done be simply passing the Intellectual Property Office Bill which would create the office that would be in charge of the administration of the existing intellectual property laws: Industrial Property Act, Copyright Act, Anti-Counterfeit Act, Trademarks Act, The proposed Geographical Indications Bill etc.

The various sections of these Acts that create the existing IP offices (KIPI, KECOBO   and ACA) may be deleted and reference made to the Intellectual Property Office instead.

• Intellectual Property Tribunal

It is notable that the tribunals were all moved to the Judiciary and should not be included in the Act and should be left under the Judiciary set up. This part should all be deleted in totality.

	Section	Comments
1.	Section 5 National Intellectual Property Policy	The Bill proposes the development of the policy after the law has been enacted. Ideally, the policy should have been formulated before and would thus be used to guide the development of the law. Policy guides law and not the other way round.
2.	Section 6 National Intellectual Property Strategy	It is not the norm to legislate development of strategy. This should be in the policy document
3	Section 8 Functions of the Intellectual Property Office	The Intellectual Property Office shall be charged with the implementation of the following Acts: The Industrial Property ActTrade Marks ActCopyright ActAnti-Counterfeit ActThe Traditional Knowledge ActAny other Act that may be passed in relation to the administration, management and enforcement of intellectual property rights in Kenya
4.	Section 9 The Council Section 9(1) (a) Section 9(1) (g)	The Chairperson should be a person knowledgeable in the field on intellectual Property Law so as to guide the council accordingly. It is imperative that the three members to be appointed by the Cabinet secretary be experts in intellectual Property Law as below “ three other members, experts in intellectual property law,  not being public officers, to be appointed by the Cabinet Secretary”
5.	Section 13 The Director General of the Office Section 13 (i) (b) (ii)     Section 13(2) (d)     Section 13(2) (4) and (5)	This Section needs to be re written as it is drafted mainly in line with the industrial property rights which are registered. Delete Sub section (b) (i) and rephrase (b)(ii) as follows: “The Council may appoint such number of Deputy Directors General as to assist the Director General in the performance of the Director General’s Functions under this Act   This should be amended to read as follows” has at least ten years of professional in management of intellectual property”   These should be merged
6.	Section 16 Organisation of the Secretariat	This should be reworded to reflect “ Organisation of the Intellectual Property Office” and not secretariat.
7.	Section 27 to 46 IP Tribunal	This should be deleted as all Tribunals were moved to the Judiciary which should guide on the set up of the same
8.	Section 47 to 297	The main purpose of the Act was to create the Intellectual Property Office and thus These should be removed as there are many inconsistencies in the draft which could be avoided by simply making  references to the existing laws.

Unfortunately, the Bill as presented is a cut and paste of existing laws which are already well written and do not need to be merged. The draft indicates lack of knowledge on intellectual property law and existing best practices. Sections 47 to 297 should be deleted and the Bill renamed the “Intellectual Property Office Bill”

Submitted by Marisella N. Ouma PhD, Intellectual Property Expert on April 27, 2020.

Email: mwarsie1@gmail.com or mwarsie@justice.com