That dude making the deadly bench/ table combo on Ngong’ Road. Why E-Sir is protected well beyond the grave. Nursery schools with dodgy paintings of Mickey Mouse on the wall. The legal theory behind the greatest rap song ever.

What do they have in common?

Ka-UZI

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Yes, this is a thread about intellectual property, or IP. What is it? Why does it matter? Where do lawyers and judges come in, when all I want is to paint my kiosk, or copy a design in a furniture magazine, or call my business ‘Coca-Cola Shoes’?

IP is remarkably important.

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First, some definitions. Today’s are more important than usual, because of how often things get confused. There are three types of IP (protection), depending on the nature of what is being protected. Each is different from the other. Understanding which is which is crucial.

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Musicians, writers and originators of other creative works are protected by copyright. So if you compose a song, or write a book (or even an article), or paint a painting, you would seek copyright protection. This is where Mickey Mouse comes in, or Mejja’s ‘Niko Poa’.

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Patents apply (typically) to technological inventions and advances. So those students who developed a ventilator would seek a patent for that. Or Mr. Odhiambo’s famous picnic bench/ table ninihino. He should register a patent for it.

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If yours is a word, or phrase, that identifies and distinguishes your work, company or goods from another entity, then you’re into the realm of trademark. So, for instance, ‘Ka-Uzi by Wallace Kantai’ can be a trade mark, fully protected. Jaribu ku-copy ujipate kortini.

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Bado tuko pamoja? Good. So anyone who tells you, after you crack a hilarious joke that you should patent it does not know what they are talking about. (Also, technically, saying ‘Huyo mtoi ni copyright ya budake’ is legally wrong. But ‘Buda amepatent mtoi’ sounds dodgy)

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Why is it important to understand IP, and why is it important to distinguish the different types?

Simply, creators need legal protection, so that they can be recognised as the creators and, crucially, PROFIT FROM their creations.

But the law treats each differently.

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(The legal stuff here applies in . Different countries have different IP laws)

Copyright applies for the lifetime of the author plus 50 years. E-Sir’s ‘Mos Mos’ will be under copyright protection until March 2053.

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Patent protection is for twenty years from the date of filing the application. Thus Ngong’ Road’s Mr. Odhiambo can file for a patent for his bench/ table thingie, and until 2040, no one can copy that design without his say-so. But he can license his patent to others.

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Trade marks are renewable every ten years. So you (or your lawyer) needs to keep very good records, because after ten years, someone can apply for and register an expired trade mark. Ole wako even if it is a well-known one (but with some very crucial exceptions. See below)

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Now, what does ‘protection’ mean? It means that the holder of the IP has the full right to enjoy the creative and economic rights to their works. If I want to create a choral version of ‘Mos Mos’, with violins and cellos, I have to speak to Issah Mmari’s heirs.

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This is where the law gets interesting. Written works are somewhat simple. To the author goes the copyright. But what about music? The person who performs a song may not be the one who wrote it. In that case, copyright may be split between the composer, singer and producer

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Other interesting issues, especially in copyright and trade mark law, abound. This is because of the peculiar nature of the creative process, and often the tension between creativity and the dictates of business. Also the nature of the globalised world.

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Jackie, Tito, Jermaine, Marlon and Michael Jackson were known as the Jackson Five. They became global superstars under that name. But when they left Motown Records for Epic Records in 1976, they had to be renamed The Jacksons, because Motown owned the rights to the name.

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If you start a business in Kenya and call it MacDonald’s Hamburgers, si ni sawa? After all, there is no McDonald’s in Kenya, innit? Nope. There is something known as Well-Known Trademark Protection under international law. Wewe na hio kiosk yako tafuteni jina ingine.

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At this stage, everyone and their baby sister will jump into my timeline shouting about *that* hotel that shares a name with a famous coffee chain. I don’t think watasumbuana sana, but if the hotel decided to be ambitious and create a chain of coffee shops, watagongana.

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Ingine: The doctrine of Fair Use, under copyright law. You may, for limited purposes e.g. education, use a portion of a copyrighted work without seeking the holder’s permission. But it is LIMITED. You cannot copy a whole book, or sample a whole song, and call it fair use.

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Fair Use was tested to infinity by rap artists in America. For example, ‘Get Money’ by Tupac and the Outlaws samples ‘Don’t Look Any Further’ by Dennis Edwards. It created the greatest (and dirtiest) rap song ever, which was an entirely new work. Copyright ni ya nani?

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What about Mr. Odhiambo? We agree that his bench/ table thingamajig is protected (but only if he files a patent). But what if the idea came from an employee? In this case, Odada, the KYM, will be listed on the patent, but the patent (and its rights) belong to Odhiambo Ltd.

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Final one. Remember that list that was circulating earlier this week from KIPI (stop it, you dirty mind - it’s the Kenya IP Institute) about expiring trademarks? Yes, your protection lasts only so long (ten years, as we said up there). If you don’t renew, inapotea.

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Intellectual property and the associated rights are a fascinating matter. Were we to take them seriously, people here would be fabulously wealthy. ‘Friends’, the TV show, stopped airing 16 years ago. But each actor still makes $20 mill a year (2 BILLION shillings)...

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...from something called ‘residuals’, which is payments every time the show airs. Imagine how well-off the Vitimbi or Vioja crew would be if we took IP rights seriously in this country.

(But set aside the fact that ‘Friends’ was an idea cribbed from ‘Living Single’)

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So there you have it. The law is much more intricate and complex, but maybe this primer helps.

Thanks to my old classmate Dr. @petermunyi, as well as current deskie Dr. Marisella Ouma for the legal guidance.

(I actually consulted people who know their...ummm...stuff).

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