US citizens seeking to explore business opportunities in Kenya have cited copyright infringement within the digital space as a major put-off hurting the country’s efforts to attract the much-needed foreign direct investment (FDI).
In its annual review of foreign trade barriers, the Office of the United States Trade Representative (USTR) notes that American investors have called on Kenya to ratify the World Intellectual Property Organisation (WIPO) Internet treaties as a measure to curb the trend.
“Stakeholders have also raised concerns regarding the distribution of copyright-infringing content online…Kenya signed the WIPO Copyright Treaty in 1996 but has yet to ratify it,” the report says.
Formed in July 1967, WIPO is one of the 15 specialised agencies of the United Nations (UN) mandated to promote and protect intellectual property across the world by cooperating with individual nations as well as other global organisations.
The body is headed by a director-general who is appointed by the General Assembly of member states following nomination by the coordination committee, for a fixed term that’s not less than six years.
WIPO’s activities include hosting forums to discuss and shape international intellectual property policies and rules, resolving related transboundary disputes as well as helping interconnect intellectual property systems through uniform standards and infrastructure.
Who are WIPO member states?
Kenya is listed among current 193 states that have signed the WIPO Copyright Treaty. The members determine the direction, budget and activities of the organisation through various designated committees and decision-making organs.
WIPO membership is open to any of the UN or any of its specialised agencies, as well as members of the Paris Union for the protection of industrial property and the Berne Union for the protection of literary and artistic works.
Nations can also be invited by the WIPO General Assembly to become member states.
What are the WIPO Internet treaties?
WIPO administers the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonogram Treaty (WPPT), known together as the ‘Internet treaties’, which set international norms aimed at preventing unauthorised access to and use of creative works on the internet or other digital networks.
The WCT deals with protection for authors of literary and artistic works such as writings and computer programmes, original databases, musical and audiovisual works as well as works of fine art and photographs, while WPPT deals with protection for authors rights of performers and producers of phonograms.
“The purpose of the two treaties is to update and supplement the major existing WIPO treaties on copyright and related rights, primarily in order to respond to developments in technology and in the marketplace,” reads a write-up on the WIPO official website.
“Both treaties require countries to provide a framework of basic rights, allowing creators to control and/or be compensated for the various ways in which their creations are used and enjoyed by others.”
Why is Kenya currently not bound by the treaties?
While Kenya signed the WCT in 1996, this did not establish consent to be bound. It indicated the country’s willingness to continue being part of the treaty-making process, qualifies the country to proceed to the ratification stage.
It also created an obligation on Kenya to refrain from acts that would defeat the object and the purpose of the treaty. To ratify the accord, Kenya is required to deposit an instrument of ratification or accession with the WIPO director general, who will then grant the necessary time-frame for the country to seek the required approval at the local level which involves enactment of the necessary legislation to give domestic effect to the treaty.
What benefits will local creators draw upon Kenya ratifying the WIPO treaties?
The WIPO Internet treaties are designed to ensure that rights owners are adequately and effectively protected when their works are disseminated through new technologies and communications systems such as the Internet.
In addition to creating new online rights, the treaties clarify that existing rights continue to apply in the digital environment.
The treaties require member countries to not only provide the rights themselves, but also ensure adequate legal protection and effective remedies against circumvention of technological measures - such as encryption - used by right holders to protect themselves.
