Intellectual property rights (IPR) in Kenya are derived from laws on IPR. Local laws are based on international norms on IPR. Although Kenya’s laws on IPR are very recent, these international customs and norms on which local laws are based are very old. To note is that most principles of modern IP laws were developed before the invention of computers. No wonder, most IP laws on software are difficult to understand, and very complicated.
In Kenya, computer software can be protected using the following IP rights: copyright, patents, trademarks and design rights.
In Kenya, sufficiently original software qualifies for copyright protection. “Sufficiently original software” is the standard because parts of code that perform specific functions such as a sort algorithm are likely to lack originality. However, full executable programs with thousands or millions of lines of code are very likely to be original and therefore qualify to be protected by copyright.
Copyright protection enables the author to control reproduction, adaptation and distribution of the source code. It, however, does not give the author exclusive rights to such works. As such, the author cannot prevent independent development of software that performs the same function.
To note is that copyright is inherent to every author of original work – it exists regardless of registration. This means that it is not a legal requirement that an author should register their works, for it to be said that he or she has copyright in those works.
However, where one registers their copyright, they have the advantage of being recognised in other countries which subscribe to the Berne Convention.
Software patents are the most controversial form of protection in the industry. Most cases on IP rights are also based on software patents. They are also the mostly registered IP rights in the world. The Industrial Property Act 2001 allows for registration of software patents in Kenya.
Patents are granted by the Kenya Industrial Properties Institute (KIPI).
To get a software patent, extensive examinations must be done by KIPI. As such it is close to impossible to obtain a patent without help from a professional drafter of patents. At Bitala & Co, we do patent drafting.
A patent, unlike copyright, enables an inventor to prevent other people from registering their software which performs a similar function, even if that software was developed independently. To note therefore is that copyright protection protects copying of the source code, while a patent protects the functionality of the software…
Trademarks are the least technical IP right. They protect the brand of the software, and not the software itself. Though it is the least technical, a well-developed trademark can be more valuable than the software. A trademark can be registered for the name, logo, or slogan applied to a software product.
Where another software copies or imitates a registered brand of another software, the copycat can be removed for trademark infringement. The owner of the brand can enforce the registered brand against all people who may want to pass it off as their own, and he or she is entitled to damages where such imitation causes damages.
Under the Industrial Properties Act, industrial design which is a “composition of lines or colours… provided that such composition gives a special appearance to a product of industry and can serve as a pattern for a product of industry.” Industrial designs are used to protect the visual aspects of software, such as the appearance of an icon and its desktop layout.
Don’t be stuck! Call us today. We shall advise on how to protect your software.
BY SASHA W. MUSIGI
This article appears in our law newsletter Vol 2 Issue 1 of February 10th 2018. To receive The Deuteronomy in real time, click HERE