Introduction
Before we delve into the deep contents of intellectual property and its expiration aspects, it is crucial to first understand what intellectual property means. As complicated as this may seem, intellectual property has a simple definition ‘intangible property that is a result of creativity’. This article focuses on discussing the various ways that creatives can protect their creativity and how long that protection lasts.
Intellectual property protection
The 2010 Kenyan constitution guarantees the protection of intellectual property under Article 40(5). The government has the mandate to protect and enforce Kenya’s intellectual property. A creative can choose to protect their creative works through patents, trademarks, trade secrets, or copyright.
Intellectual property rights are created through registration. A creative may sue anyone who uses their creativity without their permission. However, these rights do not remain in effect forever. The protection period often expires after a certain period.
Copyright
Copyright is an exclusive bundle of rights granted by law of authors of literary works. It usually protects the expression of an idea from being copied without authority. Works covered by copyright include literary, musical, audio-visual, artistic works, sound recordings, and broadcasts.
Copyright protection varies from work to work depending on authorship and their nature. Its protection lasts for the life of the author plus 50 years. If the author is unknown, the period of protection lasts for 50 years from the day of its publication. If the work is jointly owned, protection will last for the lifetime of the two owners and 50 years after the death of the surviving owner. Audio-visual works, photographs, sound recordings, and broadcasts are usually protected for 50 years from the date of first publication. Once the copyright expires, it falls under public domain.
Trademarks
Trademarks include logos, words, names, symbols, designs, sounds, characters, color schemes, or phrases, among others. A trademark registration lasts for up to ten years from the date of its application. However, the protection can still be renewed before the expiration of the ten years. Creatives are required to apply for renewal six months before the expiration date. The registrar often notifies the creative of the imminent expiry. Thus, the renewal can continue every 10 years upon the payment of a renewal fee. Nonetheless, the registrar can remove the trademark from the register if the owner has not complied with the set conditions.
When a trademark is registered with the Kenyan Trade Marks Office, the trademark will gain protection only in Kenya. If you plan to sell goods or offer services in other countries, you should register your trademark according to the laws of that specific country.
Trade Secrets
A trade secret usually protects a specific form of confidential information that is commercially valuable. Examples of confidential information include secret formulas and recipes. Kenya does not have statutory protection of trade secrets. It has not enacted legislation governing trade secrets like other forms of intellectual property rights. As such, some gaps remain unfilled as no coherent legal framework is provided to guide courts in interpreting legal matters concerning trade secrets.
However, Articles 2(5) and 2(6) of the 2010 constitution and international law grants protection. Moreover, trade secrets can be inferred from common law protection of confidentiality.
Kenya is also a member state of the Agreement on Trade-Related Aspects of Intellectual Property Rights. This agreement dictates that the specific form of confidential information must not be readily accessible to circles that normally deal with that kind of information.
However, the most suitable way of protecting a trade secret is by entering a non-disclosure agreement. It is easier to enforce and does not create a regulatory burden on the inventor. Implementing security measures on employees who can access confidential information is also a good way of protecting trade secrets.
Patents
A patent is an exclusive right granted for an invention. It is a form of intellectual property that gives an owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention.
One can patent inventions in any field of technology. In general, any device, substance, method or process. Any new products or process in the following in main sections of technology can be patented; human necessities, performing operations and transporting, chemistry and metallurgy, textiles and paper, mechanical engineering, physics, and electricity. A patent expires at the end of twenty years from the filing date of the application.
Conclusion
In conclusion, the longevity of intellectual property protection varies across different categories, each governed by distinct regulations. Copyright, safeguarding the expression of creative works, typically endures for the life of the author plus 50 years. Trademarks, representing distinctive symbols or phrases, last for ten years and can be renewed, while trade secrets, despite lacking statutory protection in Kenya, find recourse in constitutional provisions and international agreements. For patents, which secure exclusive rights for inventions, the protection period spans twenty years. The complexities within these expiration timelines underscore the importance of creatives and inventors staying vigilant about renewal requirements and exploring alternative protective measures, such as non-disclosure agreements and security protocols, to ensure the prolonged safeguarding of their intellectual creations. As Kenya actively seeks to foster innovation and creativity, understanding these expiration dynamics becomes paramount for individuals navigating the landscape of intellectual property rights.
Date: January 16th, 2024 By: Vallary Nyala
For more insights pertaining to this matter, you can reach the writer at vallarynyala@mmsadvocates.co.ke . You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke