A BRIEF ON PLAGIARISM AND COPYRIGHT INFRINGEMENT

Plagiarism has been said to involve the use of another’s work without attribution, as if it were one’s own original work. A more detailed definition has been given as, ‘the deliberate or reckless representation of another’s words, thoughts or ideas as one’s own without attribution in connection with submission of academic work, whether graded or otherwise.’ What is key in both definitions is the use of another’s work and the lack of attribution. Plagiarism appears to raise an ethical issue as opposed to a legal one with educational institutions being so averse to it that it has resulted in harsh disciplinary measures being taken against those found to have engaged in it. Academic institutions in dealing with this have not spared even professors. For instance, Marks Chabedi, a professor, plagiarized Kimberly Lanegran’s work and submitted it as his own work. Upon discovery, he was fired from his professorship and his Ph.D. was revoked. This is just one example of the adverse impact plagiarism can have on a person’s reputation. Unfortunately it has become the norm rather than the exception. Noting that plagiarism involves the use of another’s work, it is important to distinguish it from copyright infringement. This is because copyright is the legal term used to describe the right that creators have over their literary and artistic works which include books, music, paintings among others. The Kenya Copyright Act provides for instances where copyright infringement is said to arise. It is important to note that ‘a copyright shall be infringed by a person who, without the licence of the owner of the copyright- (a) Does, or causes to be done, an act the doing of which is controlled by the copyright; or (b) Imports, or causes to be imported, otherwise than for his own private or domestic use, an article which he knows to be an infringing copy.’ When it comes to copyright infringement, since it is a right that is protected under statute, a copyright holder can sue for its breach. An example of this was in the Kenyan case of JOHN BONIFACE MAINA v SAFARICOM LIMITED [2013] eKLR in which the Court found that the plaintiff had copyright to his recording which the defendant was offering to the public for a profit. It therefore granted him an ANTON PILLER ORDERS to ensure that his statutory rights of copyright were salvaged at that point of trial since it must preserve vital evidence necessary during trial. In view of the above, we see that the type of works that are capable of being plagiarized are also capable of being protected by copyright and hence can be infringed. Despite this similarity some few differences may be noted between the two. Firstly, for there to be copyright infringement the plaintiff must illustrate that their work is protected by copyright. This requirement does not attach to plagiarism. Secondly, in respect of copyright, if a person has permission to use the work then he cannot be liable for copyright infringement. With plagiarism, the only consideration is whether or not there is an acknowledgement of the author. Therefore, a person may have permission to use another’s work but if they do not acknowledge the author are present it as their own idea then one is liable for plagiarism. Thirdly, with copyright infringement a person has recourse to legal remedies but this is not the case with plagiarism. Lastly, it has been said that whereas copyright infringement is a construct of the law, plagiarism is a construct of ethics. Feel free to contact us at intellectualpropertyeastafrica@gmail.com for more information or guidance on Copyright and other forms of intellectual property. FOR: INTELLECTUAL PROPERTY EAST AFRICA LLP

PATENTABILITY TEST IN KENYA

The World Intellectual Property Organization (WIPO) has defined a Patent as an exclusive right granted for an invention. A further explanation has been given that a Patent provides the Patent Owner with the right to decide how or whether the invention can be used by others and in exchange, the Patent Owner avails technical information about the invention to the public. The Industrial Property Act Chapter 509 of the Laws of Kenya grants this right for a period of TWENTY (20) YEARS from the filing date of the application. This then begs the question, what must one prove to attain these rights over their invention? The first issue that needs to be determined is what criteria are to be used for something to be considered to be an invention under our laws. This criterion is found under Section 21 (1) of the Industrial Property Act which defines it as a solution to a specific problem in the field of technology. Despite this definition, we find that there are things that fall within this definition but which the law does not consider to be inventions. These include discoveries, scientific theories, mathematical methods, schemes, rules or methods for doing for doing business, performing purely mental acts or playing games, methods for treatment of the human or animal body through surgery or therapy among others. Having established what may be considered to be an invention, we now then interrogate inventions that are patentable and those that are not. It is important to establish this from the onset as a guideline to anyone who wishes to patent their invention. Patentable inventions are: - inventions that are new; - involve an inventive step; and - are industrially applicable or are a new use. On the other hand the following inventions cannot be patented: - plant varieties as provided for in the Seeds and Plant Varieties Act; and - inventions that are contrary to public order, morality, public health among others. PATENTABILITY TEST This will be looked on the basis of the patentable inventions. The first to be considered is the NOVELTY TEST which is the consideration of whether or not an invention is new. An invention is thus considered to be new if it is not anticipated by prior art. What the law considers as PRIOR ART is everything that is made available to the public anywhere in the world by means written or oral disclosure, use, exhibition or any other non-written means. The next is the INVENTIVE STEP which involves attempting to determine whether a given invention is obvious to a person skilled in the art having regard to the state of the art at the filing of the relevant patent application. In this regard, a person skilled in the art is presumed to be a skilled practitioner in the relevant field of technology, who is possessed of average knowledge and ability and is aware of what was common knowledge in the art at the relevant date. The final step is that of INDUSTRIAL APPLICABILITY. The Act provides that an invention is considered industrially applicable if it can be used in any kind of industry, including agriculture, medicine, fishery and other services. It is therefore important for a person who wishes to patent their invention to ensure that it meets the laid out criteria. Signed: For: Intellectual Property East Africa LLP

OPTIMAL AND A TAX EFFICIENT BUSINESS MODEL IN KENYA

When setting up business n Kenya, it is advisable to set up with an OPTIMAL AND A TAX EFFICIENT BUSINESS MODEL, which necessitates professional and structured guidance.

As such, EVEN BEFORE a local or foreign investor INCORPORATES A COMPANY, we would advise that one obtains Business Setup and Tax Structuring & Business Model Optimization Advisory.

You may call us on +254 715 310 677 or email us on info@stralexgroup.co.ke for guidance.

For: Strategic Legal Solutions Group LLP

TAXLEX CONSULTING GROUP - a participating tax and accounting consultancy firm in the SLS GROUP of consultancies