Saturday, December 10, 2011

Someone please save us from these weird thoughts

Occasionally we hear very strange things coming from the Western world. The latest news coming from the one laptop per child (OLPC) founder, Nicholas Negroponte should have all those like me from the developing countries worried.

Reports indicate that Negroponte has now decided to load the OLPC tablets on helicopters and drop them from the air in remote places in poor countries so that children can pick them and utilize them in their education without the help of adults.

Remember the pictures we normally see on television of people struggling with relief food dropped by helicopter! That has moved to a new level.

A little background to this story is in order for those readers who may not be aware. Nicholas Negroponte is a professor at the prestigious Massachusetts Institute of Technology (MIT) in the US.

In 2005, he came up with a brilliant idea to make cheap rugged laptop computers which would sell for $ 100, though when they were ready to ship, they sold for more than the originally projected price. His idea was to give children in poor countries a chance to work with computer technologies to access knowledge.

Negroponte should actually be congratulated for helping open innovation for cheaper notebooks that led to the proliferating tablet computers now. The OLPC sales did not perform as well as expected.

Only a few countries such as Uruguay, Peru, Mexico and Rwanda got on board with serious orders. Of course there was a political approach to Negroponte’s marketing strategy and so he got a few presidents such as Olusegun Obasanjo to place orders for Nigeria.

However, as we all know Presidents are not the procurement officers for their countries. When time for Obasanjo to leave the seat came, he had to go before getting the supplies. Anyway, the long and short of all this is that OLPC did no do so well.

Fast forward to 2011, and Negroponte after coming back from the drawing board, having revamped the OLPC, he has promised that he will do experiments with children in remote places. The reports available on have it that Negroponte is ready to drop OLPCs in remote places for children to pick and use them for education and then one year later, he will come back with his team to find out what happened.

Apparently he is inspired by two episodes. First, Prof. Sugata Mitra’s “Hole in the wall” concept where young kids taught themselves how to use computers placed strategically in walls in India. Secondly, Negroponte is also inspired by the movie: “The gods must be crazy” where a bottle is dropped from a plane and a Bushman picks it and the events that followed in the movie are known.

This plan by Negroponte and his team at OLPC requires serious consideration and concern. We need to avert a disaster that might be brought upon us, by a professor who must have lost touch with reality.

First of all, how come Negroponte is using a movie produced for entertainment purposes, especially for his kinsmen in western world, and which might not necessarily have depicted he correct reactions and actions; to address a matter of such global importance as lack of access to education?

Exactly what will happen when poor people in developing countries in remote places get hurt by laptops dropping from helicopters? Even worse, when the same people start fighting and killing each other over goodies they could as well have done without?

A more serious concern to me, however, is the thinking that somehow, children in remote places in developing countries can do without teachers. For that matter, just dropping OLPC is enough to give them access education. My last search on this matter confirms that in the Western countries, universities still prepare teachers and that schools still operate with human teachers and not technologies.

Just to let Negroponte know, if he and his people care to read what the people from remote places have to say. There are schools in these remote places. There are some teachers in our remote places.

The dollars that are targeted for hiring helicopters to drop OLPCs from the air can still be used to get teachers in centers through a structured program and achieve better results than this, “The Sods must be crazy” approach as reported by Ryan Paul two weeks back.

Is any one listening out there? May be these helicopters by Negroponte should be declared enemy combatants by our military spokesman!

Finally, it appears Negroponte wants to to do a research on people who lack the basics of life because of where they come from, without considering their ethical rights. Heard of Guinea Pigs!

Brown Bully Onguko: I am a PhD Candidate in Educational Technology at the University of Calgary, Alberta, Canada.

Tuesday, March 29, 2011

Cartoons, Comic Strips and Copyright.

The L A Times in an article sometimes in August of 2008 titled: "Whose Mouse is it Anyway?" wrote that Mickey Mouse "is the world's most famous personality, better known in this country than anyone living or dead, real or fictional. Market researchers say his 97% recognition rate in the U.S. edges out even Santa Claus."

The paper also stated that brand experts reckon his (Mickey Mouse) value to today's Walt Disney Co. empire at more than $3 billion. With such an enormous value, one must truly marvel at the multi-billion dollar industry that constitutes cartoons and comic strips.

Cartoons and comic strips can be registered for copyright and also as trademarks. In regard to copyright, cartoons and comic strips can be registered as visual arts work or literary work, depending on the nature of the work and the way they are presented. Cartoons and comic strips are generally considered works of visual arts. If textual elements are predominant, they should however be registered as literary work.

So what is the scope of copyright protection in a cartoon? It is widely agreed that copyright protection in a cartoon extends to 'copyrightable' pictorial or written expression. A drawing, picture, depiction or written description of a character can be registered for copyright. Copyright protection does not extend to the titles, names for cartoon characters, general theme, general idea or the intangible attributes of the cartoon characters.

Trademark laws will apply in regard to registration of the names and tiles of cartoons. The device (Ornamental pattern) of a cartoon can also be registered as a trademark. 

Monday, March 28, 2011

The Scope of Intellectual Property Rights Protection in the United Nations Convention on the Rights of Persons with Disabilities

Kenya signed the United Nations Convention on the Rights of Persons with Disabilities (adopted In New York on 13th December 2006) on 30th March 2007 and ratified the Convention on 19th May 2008, coming into force on 18th June 2008.

It is not clear to what extent the UN Convention addresses the issue of intellectual property rights vis-a-vis persons with disabilities. The only mention of intellectual property rights is in Article 30 of the UN Convention that provides:

"States parties shall take appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials."

The UN Convention does not define what constitutes cultural materials. In view of this, assistance in regard to the definition can be sought from other UN Instruments. The United Nations Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005 in Article 4 (4) defines Cultural activities, goods and services to refer to: " Those activities, goods and services, which at the time they are considered as a specific attribute, use or purpose, embody or convey cultural expressions, irrespective of the commercial value they may have. Cultural activities may be an end in themselves, or they may contribute to the production of cultural goods and services"

Article 4 (5) defines cultural content to refer to " the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities" 

It follows therefore that the right against "unreasonable or discriminatory barrier" provided in article 30 of the United Nations Convention on the Rights of Persons with Disabilities is limited only to cultural materials. This limited right is not sufficient when it comes to helping poor countries look after the rights of persons with disabilities. This would perhaps explain the ongoing debate at WIPO in regard to access of visually impaired persons of materials subject to copyright.

Wednesday, March 23, 2011

Intellectual Property Provisions in Merchandise Distributor Agreements

In drafting merchandise distributor agreements, be they exclusive or non exclusive, it is possible for parties to gloss over some clauses and give more emphasis to other clauses. There could be many reasons for this. For instance, the distributor agreement may be hurriedly drafted or that the parties simply do not appreciate the implications of failure to include all the necessary clauses in the agreement.

The clause(s) dealing with intellectual property rights in distributor agreements cannot be glossed over. Distributor agreements deal not just with brands but a bundle of IP rights. In fact, a single product that is the subject of such agreement could require protection as a design, patent, utility model, trademark, copyright and even call for protection of trade secrets.

In this regard, the manufacturer may wish to clearly set out in the agreement that all rights to IP in the merchandise; the subject of a distributor agreement, belong to him. This is important because the distributor will be required to make use of the IP; for instance to display the trade marks and handle the operator's manuals that may be subject to copyright protection. The other reason why this is important is that in the event of infringement of IP rights, the manufacturer (owner) will be required to institute appropriate enforcement proceedings. The distributor generally lacks the legal standing to bring proceedings against any person involved in IP infringement. Nevertheless, in limited circumstances the law allows a registered user or licensee to bring such proceedings.

It is also important to set out in the distributor agreement provisions regarding what happens to the IP, in the event of termination of the agreement. By way of example, a termination clause could state that obligations relating to trade secrets protection shall continue and outlive the agreement. The distributor agreement might also state that upon termination, the distributor will hand over any other IP in his possession to the manufacturer. Thus at all times, rights and obligations touching on the IP; the subject of a distributor agreement, must be clearly set out. This helps to minimize any potential disputes that could prove costly to both parties.

Thursday, March 10, 2011

Towards Sustainable Biotechnology in Kenya

The Biosafety Act 2009 of Kenya received Presidential assent on 12th February 2009. The Act, developed within the spirit of the Cartagena Protocol, lays down the legal and institutional framework to govern biotechnology in Kenya.

Prior to enactment of the Biosafety Act of 2009, Kenya had only biosafety regulations and guidelines lacking backing of an Act of Parliament, even though Kenya signed the Cartagena Protocol for Biosafety in 2000 and ratified the Protocol in 2003. Kenya also has in place a National Policy on Biotechnology and Biosafety.

Biosafety refers to a set of measures used for assessing and managing any risks associated with Genetically Modified Organisms (GMOs) and policies and procedures adopted to ensure safety to human and environment in application of biotechnology. While modern biotechnology has enabled researchers to make great strides in medicine and agriculture such as developing superior species with resistance to pests and diseases, there are genuine concerns that without proper biosafety mechanisms in place, biotechnology can result in such adverse effects as harming ecosystems and altering the genetic make-up of organisms and patenting life forms.

Just like many developing nations, Kenya faces many challenges in Research and Development (R&D) and adoption of modern biotechnology. The biggest challenges include inadequate funding of biotechnology activities, weak institutional structures, low levels of awareness and education on issues relating to biotechnology and biosafety and inadequate critical mass of experts in science, technology and other relevant disciplines.

The United Nations Environmental Programme - Global Environmental Facility (UNEP-GEF) has since 1996 been engaged in encouraging biosafety and biotechnology in Kenya. In 1997 the 10th GEF Council approved the first phase of a biosafety enabling activity pilot project for Kenya. It is hoped that with the enactment of the Biosafety Act 2009, Kenya will have in place a sustainable and effective biosafety management system beneficial to all its citizens. 

Sunday, December 19, 2010

Season's Greetings

We wish all our esteemed readers a Merry Christmas and a Happy and Prosperous year 2011.

Monday, December 6, 2010

KENYA – Understanding the Anti-Counterfeit Agency

The Anti-Counterfeit Agency of Kenya is established under section 3 of the Anti-Counterfeit Act, 2008. Headquartered in Nairobi and under the Ministry of Industrialization, the functions of the nascent statutory body are to:-

a) Enlighten and inform the public on matters relating to counterfeiting
b)Combat counterfeiting, trade and other dealings in counterfeit goods in Kenya in accordance with the Act
c) Devise and promote training programmes on combating counterfeiting
d)Co-ordinate with national, regional or international organizations involved in combating counterfeiting
e) Carry out any other functions prescribed for it under any of the provisions of the Act or under any other written law
f)  Perform any other duty that may directly or indirectly contribute to the attainment of the foregoing.

The management of the Agency vests in the Board headed by a chairman appointed by the Minister. The day-to-day functions of the Agency are undertaken by staff headed by the Executive Director. These are appointed by the Board.

Part IV of the Act deals with Inspection. For example, section 22 deals with appointment of inspectors, while section 23 deals with powers of inspectors. Under section 23(1) (a):-

“an inspector may enter upon and inspect any place, premises or vehicle at or in which goods that are reasonably suspected of being counterfeit goods are to be found, or on reasonable grounds are suspected to be manufactured, produced or made, and search such place, premises or vehicle and any person found in such place, premises or vehicle, for such goods, and for purposes of entering inspecting and searching such a vehicle, an inspector may stop the vehicle, wherever found, including on any public road or any public place”.

The Anti-Counterfeit Regulations, 2010 were gazetted vide Kenya Gazette supplement No. 52 dated 20th August 2010. These Regulations are in force.

There have been challenges lodged in the High Court recently by way of Judicial Review directed at the Agency. These cases, mainly challenging the Agency’s powers, are still pending before court.