Intellectual property law is interested in protecting the product of human mind or product of creation. IP is sometimes regarded as protecting the physical embodiment of an otherwise intangible asset.
Manifestations of IP
1. Patents – the certificate that you get from the patent office after you have made an invention. The relationship that exists between an inventor on one hand or patentee and the patent office, the estate or society. It is a juridical relationship between an inventor or patent owner on one hand and on the other hand the patent office or the state or society in general. The inventor is that person who has brought out a new process or a new invention. A patent owner is the person who holds the rights. The state here is Kenya and the office is Kenya Intellectual Property Institute (KIPI). To get a patent one must have an invention, it must be new (novel). In the case of Windsurfing v Tabur Marines – a boy used to play with a play boat, later on a company made a similar play boat and wanted a patent on it, they were denied because it was not new. It must constitute an inventive step – this is the doctrine of non-obviousness i.e. is it obvious to PHOSITA (person having ordinary skill in the art), an invention need not be complex for it to constitute an inventive step, it may be simple but not obvious. Patents must be useful (doctrine of utility), it must be capable of industrial application this is the same as utility.
2. Utility Models – these are sometimes called petty patents. The concept is that there are certain innovations that don’t need to be entirely new, it might be new in Kenya but not necessarily elsewhere, the newness need not be absolute and there need not be an inventive step, it must be useful. Kenya has both patents and utility models, Kenya Ceramic Jiko (KCJ) from the metal jiko we realised the need to conserve energy, the idea was that metal was making energy disappear but ceramic would conserve energy. Utility Models can be used to protect Kitenges, Kikoi’s etc which is also a case of copyrights.
3. Copyright: - protects original expressions embodied in material, tangible or fixed form. © it starts with an idea, it is expressed and the expression is then embodied in material form. For example a writer gets the idea to write, writes notes down on a piece of paper and then the book, this is the idea, expression dichotomy. Ideas are not protectable in intellectual property expressions are. Copyright is more dynamic 3 areas where copyright is useful i.e. in software, literature and entertainment amongst others.
4. Trademarks -
5. Trade secret
Look at the:
Ø Industrial Property Act 2001
Ø Trademarks Act Cap 506
Ø Copyright Act 2001
Copyright law is intended to protect and to reward original expressions embodied in tangible material or fixed form. In the first category an idea does not infringe copyright but once it is expressed in some form, then it becomes tangible when expressed, you don’t only have the idea in your head you have expressed it and its somehow in fixed form. Not everything that is new is patentable unless they are original expressions and are in original form.
Subject matter of copyright is divided into two broad categories
1. Primary works; Americans call these works of original authorship. These include literally works, artistic work, musical work ,sound recordings are physical embodiments of primary works.
- Secondary Works – sometimes called neighbouring related or allied.
Primary works include - These include literally works, artistic work, musical work. Literally works are defined under Section 2 of Copyright Act as meaning irrespective of literally quality. When a play is in writing it is a literally work but the moment you perform it is called a performance. A treatise is a book that deals with one subject in great detail. Essays and articles are also copyrightable. Letters are copyrightable. Reports are copyrightable. Memorandum including MOUs are copyrightable, summons are copyrightable. Charts and tables, computer programs or software, tables and compilation of data are copyrightable.
Literally works do not include judicial decisions and statutes. A headnote is copyrightable.
Musical works – means any musical work irrespective of musical quality and includes works composed for musical accompaniments.
Artistic works – means irrespective of artistic qualities, paintings are artistic works, etching, lithographs, woodcarvings and maps etc. photographs which are not comprised in audiovisual works i.e stills, the photographer owns the copyright in a picture for exercising skill and judgment in taking the photo, the poser is not responsible for the composition of the photograph.
An author is the first owner of a copyright.
Payment is not the basic issue in intellectual property, the issue is who exercises skill and judgment. Works of architecture in the form of buildings are artistic works and are copyrightable.
Industrial handcrafts and clothe designs.
Secondary works or neighbouring works – these works do not belong to the cathedral of creativity. Poets, painters, musicians
2. Audiovisual works – a VHS or DVD are audiovisual they are both audio and visual or have both qualities – it is the director who owns the copyright for audiovisual work.
3. Sound recordings - sound recordings are physical embodiments of primary works.
4. Broadcasts – this is any transmission intended to be received whether it is received or not,
What is a performance S. 30 (6) of the copyright Act defines a performance as "performance" means the representation of a work by such action as dancing, playing, reciting, singing, declaiming or projecting to listeners by any means whatsoever;