In the past, work and labour was measured in terms of how a person applied themselves physically in a given task. It was out of this that remuneration was paid. Over time, man started coming up with inventions aimed at making work easier and improving the quality of life. This made it necessary to recognize another form of labour, which is labour of the mind and come up with ways of owning these products of intellect and regulations to protect them.

Capturing value from intellectual capital and knowledge-based assets has become the new mantra.[1] The battles are not for control on raw materials, but for the control on the most dynamic strategic asset namely, productive knowledge.[2]

What is Intellectual Property?

Intellectual property as the name suggests is property borne or that is as a result of human intellect. Intellectual property may also refer to unique, value adding creations of the human intellect that are as a result of creativity, skill and inventiveness.[3] It may also be defined as a product or the creation of the human intellect which exists in an intangible.[4]

These creations are then fixed in a tangible form and it is this form that we interact with in our everyday lives. The interaction may be in the form of the clothes we buy and wear, the cars we drive, the chain stores we shop at, the restaurants we eat at, the applications on our phones or even the music we listen to. Innovation is central to the concept of intellectual property and intellectual property rights as it leads to bringing of new valuable products into the market.

Need for property rights in intellectual property.

The concept of property rights is as old as society itself. This is because with people living together in organized systems, there was need to define who owns what property and what such ownership meant when it came to how other people in society dealt with the property. Jeremy Bentham in pushing for recognition of ethical principles into property right argued that it is society’s duty to protect the inventor and to also secure him a fair share of reward when exploiting his knowledge and idea.[5] He further argued that it would be immoral if the law let everybody freely use the work of inventors without their permission or compensation.[6]

Following this line of thought and in a bid to encourage innovation and give value to intellectual property, intellectual property rights were born. Intellectual property rights allow creators, owners and inventors to benefit from their inventions. Legal instruments were formulated and adopted setting out these rights. Government agencies were also established to help regulate registration and enforcement of Intellectual property rights.

Intellectual property rights regulation in Kenya

In Kenya, Intellectual property is regulated by Kenya Industrial Property and Institute (KIPI) and Kenya Copyright Board (KECOBO). The following laws provided a legal and regulatory framework for Intellectual property registration and protection in Kenya:-

• Industrial Property Act, 2001;
• The Trademark Act, Cap 506;
• The Copyright Act, No 12 of 2001;
• The Anti-counterfeiting Act;
• The Constitution of Kenya; and
• International treaties on Intellectual property e.g WIPO, ARIPO, NICE Agreement etc.

Intellectual property is normally classified under the following categories:-

• The Industrial Property Act does not define what a patent is but it provides for what is patentable. The Act states that an invention is patentable if it is new, constitutes an inventive step and is industrially applicable.[7]
• Industrial designs- This refers to any composition of lines or colours or any three dimensional form that gives a special appearance to a product.[8]
• Copyright-This refers to literary works, musical works, artistic works, audio visual, sound recordings and broadcasts.[9]
• Trademark-This refers to a mark in relation to goods for the purpose of indicating a connection in the course of trade between the goods and the owner of the mark.[10] For example, brand logos and brand names.
• Service marks- This refers to a mark in relation to services for the purpose of indicating a connection in the course of trade between the services and the owner of the mark.[11]
• Trade secret- This helps businesses protect trade secrets that set their products apart from the rest in the same market e.g a secret recipe. This is done by introducing non-compete and non-disclosure clauses in contracts.

[1] Birgitte Andersen If intellectual property rights  is the answer, what is the question? Revisiting the patent controversies  (2004). Available at http://www.tandf.co.uk/journals.

[2] Ibid

[3] Christopher M. Kalanje, Role of Intellectaul Property in Innovation and new product development. Available at http://www.wipo.int/sme/en/documents/ip_innovation_development_fulltext.html

[4] Ibid

[5] Supra note 1

[6] Ibid

[7] Section 22 of the Industrial Property Act, 2001, Laws of Kenya.

[8] Ibid, section 84

[9] Section 22 of the Copyright Act, No. 12 of 2001, Laws of Kenya.

[10] Section 2 of the Trademark Act, Cap 506, Laws of Kenya

[11] Section 2 of the Trademark Act, Cap 506, Laws of Kenya