Last week, a team from the Nairobi law firm of Coulson & Harney Advocates gave a talk on the legal position and state of intellectual property (IP) in Kenya. This is at a time when foreign companies are investing in the local tech scene, entering into partnerships, signing up software service & cloud contracts, or acquiring tech companies. The team gave a run down of the due diligence process that should be followed with steps including gap analysis, scoping, and evaluations.
In addition, contracts signed should have clauses that ensure the right licenses are obtained, suitable maintenance, support, indemnities, upgrades, marketplace audits, and intellectual property rights are in place, confidentiality of data is assured, backup processes in place, source code is escrowed, and payment clauses etc. are all defined – and the law firm advises and represents its clients on these as well as on other copyright, domain names disputes (UDRP) and trademark remedies.
Kenya’s judiciary does not deliberate many software and IP cases and the country remains lax in terms of piracy with domestic uses of pirated software being allowed, but companies being liable for piracy if software installed on office computers or used for official purposes.
The lawyers cited a 2010 piracy study which showed that Kenya has extremely high instances of using pirated software at 79%, higher than China 78%, South Africa 35%, US 20&, and much higher than the Middle East & Africa and global averages of 58%, and 42% respectively.
Companies are advised to have appropriate policies in place, as the consequence of these are spelt out in two Kenyan laws; the Anti-Counterfeit Act (2008) and the Copyright Act (2001) .