Effects of Intellectual Property Rights on Trade in Kenya

Abstract

As the Kenyan Parliament and Government stakeholders in the Trade sector seek to enacts new laws, regulations and policies geared to harmonize the current Intellectual Property (IP) regime, importers, retailers, and some consumers have expressed their dissatisfaction with the enforcement of the existing IP laws. This paper examines the roots of the public outcry on the enforcement of IPR on a scale of three complementary hypothesis. First, that the Kenyan IP legal regime is too swingeing and likely to cripple the trade sector. The laws in place are insouciant of the roles importers and retailers play in building the economy. The laws have the potential of shredding business start-ups. Second, although international IP Agreements, Treaties and Conventions like the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) inspired Kenyan legislations like the Anti-Counterfeit Act, the legislations have introduced measures that a way beyond the scope of these agreements. Further, they have set standards that even developed countries have not adopted because of their likelihood to impair the trade sector. Kenyan IP laws like the East African Community Customs Management Act (EACCMA) can be draconian when they should not be, and others like the Copyright Act, 2001 can less effective in the protection of Copyright holders and business entities. Third, to create a proper Kenyan and Afro Centric IP regime, Kenya needs to understand the nature and history of IPR. The Legislature and Policy makers in the trade sector should draw lessons from developed countries. They should also understand the fears and aspirations of developing and least developed countries during the adoption of the Marrakesh Agreement Establishing the World Trade Organization and the Doha Declaration. This paper has validated the three hypothesis and certified that a good IP regime can be a very instrumental apparatus to achieve Sustainable Development. Kenyan legislative and Policy makers well understand the importance of Intellectual Property Rights (IPR) protection to the economy. However, they have been guilty of transplanting foreign or even locally cooking provisions that are likely to work at the detriment of the trade sector. The results have been grotesque. There have been unending complaints from the trade sector on enforcement of IPR. Most scholars and Kenyan business persons are convinced that the enforcement procedure tends to benefit either International IPR holders, IPR agents or brokers more than local IPR holders and businesses. They also have a conviction that the system of laws is also inconsiderate to the Kenyan economic status and penalties tend to impair the economy rather than build it. This owes to the fact that IP rules and norms are not conceptualized to conform to the Kenyan society. The laws impose more obligation on importers, and thus increasing the cost and time of doing business in Kenya