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Kenya: Technology, Telecoms, and IP Digest – August 2023

22 August 2023
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Overview

  • The third edition of our Bi-monthly Technology, Telecoms, and IP highlights: Regulatory Updates: The ODPC launched a countrywide awareness campaign that seeks to enlighten members of the public on their rights to data privacy; Intellectual Property: The Kenya Industrial Property Institute revoked Practice Note 4A (this move implies that Practice Note 4.3 (A, B & C) which was repealed by Practice Note 4A remains applicable with respect to the appointment of agents for applications for registration, renewal and opposition or expungement proceedings); Technology, Media, and Telecommunications: Internet experts have asked businesses to opt for broadband fibre internet connection to avert cyber threats that come with the use of Wi-Fi networks; and Crypto, AI, Blockchain+: The European Commission announced that it had proposed a legislative plan for a digital euro.

Updates From Regulatory Bodies

Office of the Data Protection Commissioner (ODPC)

Data Protection Office Begins Countrywide Awareness Campaign

On 4 May 2023, the ODPC launched a countrywide awareness campaign that seeks to enlighten members of the public on their rights to data privacy.

The pilot phase, which targets Machakos, Tana River, and Garissa counties, kicked off in Machakos, where the Data Commissioner, Immaculate Kassait, joined Machakos county’s Assistant County Commissioners. The event, which was organized with support from Amnesty International and the Open Institute, is part of the ODPC’s 2022–23–2024–25 strategic plan.

To read more on the awareness campaign, click here.

Source: Capital Business (4 May 2023).


Kenya Industrial Property Institute (KIPI)

Revocation of Practice Note 4A

On 16 June 2023, KIPI announced the revocation of Practice Note 4A, which was published in the Industrial Property Journal on 31 May 2023. Practice Note 4A amended Practice Note 4.3(A, B & C) with regards to the receipt and filing of form TM 1 (Power of Attorney) for the appointment of agents in respect of applications for registration, renewal and opposition or expungement proceedings. The effect of this revocation is that Practice Note 4.3 (A, B & C) remain in force to provide guidance on the procedural rules to be followed regarding the filing of form TM 1 for the appointment of agents.

To read the revocation notice, click here.

Source: Kenya Industrial Property Institute


Ministry of Information, Communication and The Digital Economy  (ICT)

Kenya proposes to abandon the local shareholding rule for tech companies.

The Ministry of ICT has called for public comments on the proposal to remove 30% of local shareholding for foreign ICT-based companies that was introduced via the National ICT Policy Guidelines, 2020. The public notice cited the need to make Kenya a more attractive destination for digital investment companies.  The 30% local shareholding rule required that only companies with at least 30% substantive Kenyan ownership would be licensed to provide ICT services.

The public notice stated, in part, as follows, “For Kenya to be an attractive investment digital hub, it is proposed that the equity participation subsection be deleted from the National ICT Policy Guidelines, 2020. Kenya has a vision to be a globally competitive knowledge-based economy by the year 2030. One of the government strategies to achieve the vision includes the development and promotion of the ICT sector to spur investments and create employment for Kenyans.”

To read more on the issue of the licences, click here.

Source: Developing Telecoms (13 July 2023).


Developments in the Intellectual Property arena

Copyright

Judgment Entered in Publishers, Internet Archive Copyright Case

In an emphatic 47-page opinion, federal judge John G. Koeltl found that the Internet Archive (IA) infringed the copyrights of four plaintiff publishers by scanning and lending their books under a legally contested practice known as CDL (controlled digital lending).

The judge found that the IA’s unauthorized scanning and lending of the 127 in-suit copyrighted books under CDL constitutes copyright infringement, including in the IA’s controversial “National Emergency Library” (under which the IA temporarily allowed for simultaneous access to its collections of scans in the early days of the pandemic, when schools and libraries were shuttered).

This suit highlights the limitations of the fair use doctrine and the need to enter into licensing agreements with the authors of copyrighted works before reproducing such works and distributing them to the public.

To read more, click here.

Source: Publishers Weekly (14 August 2023)

 

Thousands of authors demand payment from AI companies for the use of copyrighted works

Thousands of published authors are requesting payment from tech companies for the use of their copyrighted works in training artificial intelligence tools, marking the latest intellectual property critique to target AI development.

In an open letter they signed, posted by the Authors Guild Tuesday, the writers accused AI companies of unfairly profiting from their work.

“Millions of copyrighted books, articles, essays, and poetry provide the ‘food’ for AI systems, endless meals for which there has been no bill,” the letter said. “You’re spending billions of dollars to develop AI technology. It is only fair that you compensate us for using our writings, without which AI would be banal and extremely limited.”

This article sheds light on the need to develop a legal framework that regulates Artificial Intelligence tools to ensure that intellectual property rights are not violated.

To read more, click here.

Source: CNN (20 July 2023)


Trademarks

Apple vs Apple: iPhone creator wants Swiss firm’s logo changed

Tech giant Apple Inc doesn’t want any other company in the world to use an apple as its logo.

The Fruit Union Suisse is 111 years old. For most of its history, it has had as its symbol a red apple with a white cross—the Swiss national flag superimposed on one of its most common fruits. But the group worries it might have to change its logo because Apple is trying to gain intellectual property rights over depictions of apples, the fruit. According to the World Intellectual Property Organization’s records, Apple has made similar requests to dozens of IP authorities around the world, with varying degrees of success.

This suit highlights the importance of IP protection for brands to prevent trademark infringement and to maintain the distinctiveness and brand reputation associated with the companies’ products or services.

To read more, click here.

Source: Wired (19 June 2023)

 

US Supreme Court tosses Hetronic’s $96 million trademark win against European distributor

Limiting the foreign reach of American trademark law, the U.S. Supreme Court on Thursday threw out a $96 million jury award for Methode Electronics Inc’s (MEI.N) Hetronic International in its fight with its former European distributor for selling Hetronic-branded products with unauthorized parts.

The decision overturned a lower court’s ruling that Abitron Germany GmbH was liable in the United States for trademark infringement that occurred abroad. Abitron had appealed the ruling by the Denver-based 10th U.S. Circuit Court of Appeals. Oklahoma-based Hetronic makes remote-control systems for cranes and other industrial machinery. Hetronic Germany, which was later bought by Abitron Germany GmbH, distributed its products in Europe.

This decision emphasises the territorial nature of trademarks and highlights the need for owners of trademarks to register them in other countries where they have commercial interests.

To read more on the decision, click here.

Source: Reuters (29 June 2023)


Patents

U.S. Loses Key Case on Rights to H.I.V.-Prevention Drugs

A federal jury in Delaware on Tuesday found that the federal government did not have an ownership claim to lucrative drugs to prevent H.I.V. that are sold by the pharmaceutical company Gilead Sciences.

The verdict in an unusual patent infringement case marked a defeat for the government and activists who have pushed it to assert its financial and legal rights more aggressively to medicines developed with the help of public funding. The Trump administration brought the lawsuit in 2019 in part because of concern over the high price Gilead was charging.

The legal dispute centred on who devised the idea of using a Gilead medication for people at high risk of contracting H.I.V., or the human immunodeficiency virus, which causes AIDS. The two versions of the drug — Truvada and the newer Descovy — have generated huge profits for Gilead.

This decision could embolden drug companies to refuse to enter licensing agreements with the government to share in profits that stem from taxpayer-supported research.

To read more, click here.

Source: NYT (09 May 2023)

 

US Senators introduce bills to reform patent laws

Republican Senator Thom Tillis from North Carolina and Democratic Senator Chris Coons of Delaware said in a joint statement that their bill outlining what types of inventions can and cannot be patented would “restore patent eligibility to important inventions across many fields” including artificial intelligence and medical diagnostics.

The legislation is a reintroduction of a bill that Tillis introduced last year. It comes after the U.S. Supreme Court has declined to hear several cases delving into the question of what can be patented despite requests from the Biden and Trump administrations and judges on the patent-focused U.S. Court of Appeals for the Federal Circuit to provide more clarity.

This bill will define the standards of patent eligibility and provide clarity on the procedures for challenging the U.S. Patent and Trademark Office on controversial issues. The bill may also codify the judicial exceptions to patent eligibility such as mathematical formulas, mental processes, unmodified natural materials and inventions that are contrary to public morality.

To read more, click here.

Source: Reuters (23 June 2023)


Trade secrets

Siemens Calls Out EU Draft Data Act Saying It Puts Trade Secrets at Risk

SAP and Siemens, both German companies, expressed concern over the draft EU laws regarding the use of data generated by smart gadgets and other consumer goods. The Data Act, proposed by the European Commission in 2020, is currently being worked on by EU countries and lawmakers.

The legislation aims to regulate EU consumer and corporate data and is part of a larger effort to balance the power of US tech companies and promote the EU’s digital and environmental goals.

US criticisms have included that the proposed law is too restrictive, while the German companies say a provision forcing companies to share data with third parties to provide aftermarket or other data-driven services could endanger trade secrets.

The effect of this proposed EU Data Act is the risk of undermining European competitiveness by mandating data sharing – including core know-how and design data – with not only the user but also third parties.

To read more, click here.

Source: CPI (08 May 2023)

 

How Should Litigators Establish Evidence in Trade Secret Cases? Part One: Liability

Trade secret litigation is set to increase in the coming decades, accelerated by the enactment of the federal Defend Trade Secrets Act (“DTSA”) in 2016. Most cases do not contain direct evidence of stolen secrets, however. Instead, stray pieces of indirect evidence must come together to tell a larger story of theft.

Consequently, lawyers handling this type of litigation must take the time to understand its intricacies and machinations, particularly the specific statutory requirements imposed by the uniform trade secrets acts (such as the Texas Uniform Trade Secrets Act, or “TUTSA”) and the evidence that will and will not satisfy these requirements.

This article highlights the methods that advocates practising as litigators in trade secrets cases should use to adduce evidence that adds value to their cases.

To read more, click here.

Source: JDSupra (12 May 2023)


Technology, Media, and Telecommunications

Kenya

Experts back the use of fibre Internet to cut cyber threats

Internet experts have asked businesses to opt for broadband fibre Internet connection to avert cyber threats that come with the use of Wi-Fi networks.

“Broadband fibre connection is generally considered to be more secure than wireless and WI-FI connections. This is because fibre optic cables are less susceptible to interference and hacking than radio waves. Additionally, fibre optic cables are not easily tapped into compared to wireless networks,” says Stanley Mwangi Chege.

Until recently, most businesses had not prioritised cyber security in their operations leading to several losses including millions of money and even damage to their reputation, a situation that has prompted the need for new technology.

This will be a great step towards curbing cybersecurity threats in Kenya which has become a key target for cyber-attacks due to its heavy reliance on digital services.

To read more, click here

Source: Business Daily (14 August 2023)

 

Africa

KCB, Visa and Thales boost contactless payment in Kenya

Cashless innovation continues across Africa. This time, Kenyan bank, KCB, is partnering with payment giant, Visa, and technology company, Thales, to enable contactless payment transactions.

According to Business Daily Africa, through the service, KCB customers with Android handsets and Garmin wearables will be able to access all transaction information to help them complete purchases. Garmin brings GPS navigation and wearable technology to the automotive, aviation, marine, outdoor and fitness markets. The new service will also allow customers to make in-store payments through the KCB app by tapping their near-field communication (NFC)-enabled phones at participating payment terminals. To access the service, customers will need to digitise their KCB Visa card as a one-off set-up by following instructions in their banking app.

This step will enable Kenyan customers to shop with ease from global shops and market outlets hence promoting international trade.

To read more, click here

Source: Developing Telecoms (22 June 2023)

 

Global

How safe is my data after a hack or leak?

The UK’s elections watchdog revealed on Tuesday it had been the victim of a “complex cyber-attack” potentially affecting millions of voters. It also emerged personal details of police officers in Northern Ireland were published accidentally. But what can you do if you are concerned your data may have been leaked, and how can you prevent issues?

Generally, when public organisations such as the Police Service of Northern Ireland (PSNI) respond to Freedom of Information requests they should remove any identifying data. But in this case, the force published confidential details by accident, leaving some officers and their families with concerns about their safety. However, an average person affected by a data leak or hack should not panic.

This article guides the public on how to respond to a hack or a leak.

To read more, click here

Source: BBC News (10 August 2023)


Cryptos, AI, Blockchain +

European Commission aims for universal acceptance with digital euro proposal

On June 28 2023, the European Commission announced it had proposed a legislative plan for a digital euro, aiming to make it a widely accepted and easily accessible form of payment. The announcement emphasized that allowing individuals to obtain digital euros through their banks upon request ensures easy accessibility and prevents citizens from being left behind. The proposal also includes provisions for free basic digital euro services, privacy protection and offline payments.

In a separate proposal, the commission suggested that banks, insurers and funds should share customer data with fintech companies in exchange for compensation, aiming to promote the advancement of digital finance. Under this proposal, companies holding customer data must promptly and continuously share it with participating companies upon customer request, ensuring real-time access to the information.

This plan highlights the need for customers as well as data protection authorities to be vigilant to ensure that principles of data privacy are adhered to. These include, obtaining the express written consent of the data subjects and limiting the purpose for which the data information is given.

To read more on the European Commission’s digital currency plans, click here

Source: Cointelegraph (28 June 2023)

 

A.I. has a discrimination problem. In banking, the consequences can be severe

When it comes to banking and financial services, the problem of artificial intelligence amplifying existing human biases can be severe. Deloitte notes that AI systems are ultimately only as good as the data they’re given: Incomplete or unrepresentative datasets could limit AI’s objectivity, while biases in development teams that train such systems could perpetuate that cycle of bias. Lending is a prime example of where the risk of an AI system being biased against marginalized communities can rear its head, according to former Twitter executive Rumman Chowdhury.

Consequently, it is important to be cautious while introducing AI systems in the provision of services to avoid possible Logarithmic discrimination which reinforces racial and gender biases.

To read more on  the potential bias of A.I., click here

Source: CNBC (23 June 2023)