KENYA: IP AND TECH DIGEST: UK FINES CLEARVIEW AI £7.5M FOR SCRAPING CITIZENS’ DATA

By John Syekei Tuesday, June 07, 2022
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Snapshot of our Practice

Our IP & Technology Practice, which includes a vibrant Telecommunications practice, has been busy advising on a range of transactions in IP and technology over the past month and we have been briefed on several IP transaction and advisory matters.  We also continue to advise clients on fintech, crypto and payments matters.


Cryptos, AI, Blockchain +

UK fines Clearview AI £7.5M for scraping citizens’ data

Clearview AI has been fined £7.5 million by the UK’s privacy watchdog for scraping the online data of citizens without their explicit consent. The controversial facial recognition provider allegedly scraped billions of images of people across the web for its system. This caught the attention of regulators and rights groups from around the world.

In November 2021, the UK’s Information Commissioner’s Office (ICO) imposed a potential fine of just over £17 million on Clearview AI.

To read more click here

Bowmans comments: The fine imposed by the ICO serves as a key deterrent to firms that employ similar facial recognition (imaging) technology. This announcement also provides a key insight into how regulators in the EU region are handling data scraping and collection processes. The collaboration in the joint investigation between UK’s ICO and the Office of the Australian Information Commissioner serves to reiterate the key role that international co-operation plays in enforcing privacy rights of individuals and supporting effective and proactive regulation. Such collaboration also provides key lessons for regulators in other jurisdictions such as the Kenyan ODPC as they attempt to further develop their capacity.

Source: AI News (23 May 2022)


Updates from Regulatory Bodies

Anti-Counterfeit Authority

Extension of Deadline: Commencement of Recordation of Intellectual Property Rights in Kenya

The Anti-Counterfeit Authority (ACA) has announced the extension of the deadline for the commencement of implementation of recordation of Intellectual Property Rights by six (6) months from 1 July 2022 to 1 January 2023. This extension grants prospective importers and IPR owners adequate time to record the particulars of theirs IPRs in respect of all goods to be imported into Kenya for commercial use. The extension is welcome as concerns had been raised with respect to the manner in which the recordal process was to be implemented and effected.

To read our previous insights on this matter, click here or here.

To read more, click here.


Office of the Data Commissioner

Statement on the IEBC portal for verification of voting particulars

The Office of the Data Commissioner (ODPC) weighed on recent media reports and concerns raised in connection with the portal launched by the Independent Electoral and Boundaries Commission (IEBC) for verification of voting particulars. The ODPC reiterated that data protection legislation is applicable to all stakeholders engaged in the election process including the IEBC, political parties, the Office of the Registrar of Political Parties as well as observers and volunteers. In this respect, the ODPC also raised attention to its guidance note on the processing of personal information for electoral purposes (Guidance Note).

The ODPC also noted that it had received and was reviewing the Data Protection Impact Assessment from the IEBC.

To read more, click here.

To access the Guidance Note, click here.


KECOBO

Advisory on the complaint issued by Sauti Sol Music Group against Azimio Coalition

The Kenya Copyright Board (KECOBO) issued an advisory on the complaint raised by music band, Sauti Sol against the Azimio Coalition (Azimio). The advisory noted that while Azimio has obtained a public performance licence allowing it to play local and international music at its rallies and events, the use of a sound recording is not part of the uses authorized by a public performance licence.

KECOBO therefore noted that collective management organizations have no role to play in the issuance of a synchronization licence and that the use of a sound recording without authority of the copyright owner in the manner alleged by Sauti Sol constitutes infringement and violates Kenyan copyright law.

To read more, click here


WIPO

WIPO Symposium on trade secrets and innovation

The WIPO Symposium on Trade Secrets and Innovation 2022 (2022 Symposium) was held on May 23 and May 24, 2022, at its headquarters in Geneva, Switzerland. The 2022 Symposium centered on the roles of trade secret systems in supporting innovation and knowledge sharing in a rapidly changing innovation ecosystem.

Bowmans was privileged to provide its input in the 2022 Symposium through Mr. John Syekei who was a panelist in the second topic. John discussed the importance of having dedicated trade secrets legislation. He highlighted that even though the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) has been acceded to by the Kenyan government, enforcement remains an ongoing challenge as treaty law has not always been interpreted as primary law by certain commercial courts in the absence of primary dedicated statute. He further noted that the absence of dedicated legislation may raise challenges in employment and competition contexts. For instance, employment contracts that contain restraint of trade clauses are usually struck out by Kenyan employment courts.

Further, he also highlighted that having a trade secrets legislation may also allow aggrieved IP owners to be able to obtain interim injunctive order in disputes. Currently, under the Industrial Property Act and other IP legislation, there is no specific provision that provides for such interim reliefs therefore resulting in parties litigating for a number of years while the infringing party continues to use the intellectual property. An eventual award for damages by the Court therefore does not adequately compensate the IPR owner.

To watch a recording of the symposium, click here.

To read more, click here.


ARIPO

Manual for Geographical Indications (GIs) in Africa

A group of experts under the Africa Intellectual Property Rights and Innovation project in Africa (AfrIPI) has developed a comprehensive manual on GIs in Africa. The manual, being the first of its kind dedicated to the African continent, provides information on the current progress made on GIs in Africa regarding factors considered crucial for a GI to be successful and the key issues to address to improve the performance of GIs in the continent. The manual forms a good starting point to help implement the Continental Strategy for Geographical Indications in Africa (2018-2023).

To access the English manual, click here.

To access the French manual, click here.

To read more, click here.


Developments in the Intellectual Property Arena

Trademarks

UK trademark disputes double following Britain’s exit from the European Union

The number of trademark disputes in the United Kingdom (UK) has soared to record highs due to a surge of trademark applications following it’s exit from the European Union.

According to new research from intellectual property law firm, Mathys & Squire, disputes in the UK more than doubled from 3,584 in 2020 to 8,026 in 2021. The surge comes after the UK left the EU’s trademark system in January 2021, meaning any business hoping to protect their IP in the UK must register their trademark separately with British authorities.

To read more, click here

Source: City A.M (23 May 2022)

Bowmans comments: This research highlights the impact that the UK’s exit from the European Union has had on business’ branding rights. Previously, trademark owners could protect their trade mark across all the EU member states using one (1) application. However, since the UK is no longer covered by an EU trademark registration, trade mark owners now have to file two (2) separate applications in order to achieve the same protection.


Issuance of electronic registration certificates by USPTO

As part of its efforts to move to full electronic processing of trademark applications and registrations, the United States Patent and Trademark Office (USPTO) has announced that it will begin issuing electronic trademark registration certificates on June 7, 2022.

The USPTO noted that the transition to electronic registration certificates will give trademark owners easier access to their registrations and allow them to receive their certificates quickly after their trademark is registered. With this change, trademark owners will have the option to order paper “presentation” copies and certified paper copies of their trademark registrations for a fee.

To read more, click here

Source: USPTO (3 May 2022).

Bowmans comments: The issuance of electronic registration certificates is a positive step towards to ensure quick and efficient protection of IP rights by users and brand owners. This will ensure a decrease in the waiting time and possibly encourage brand owners to file their marks with the USPTO. The move can be regarded as a best practice that should be adopted by other countries globally.


Patents

Court says Google can challenge patents in Google Assistant fight

A U.S. appeals court gave Alphabet's Google LLC a second chance to try to cancel two (2) patents that its Google Assistant technology has been accused of infringing.

Google told the USPTO's Patent Trial and Appeal Board in 2019 that the two (2) virtual assistant-related patents owned by IPA Technologies Inc (IPA) were invalid because they were  based on an earlier paper written by two inventors and an SRI international scientist, Douglas Moran. The board said Moran's contributions to the paper were not significant enough to make it relevant "prior art" that could justify invalidating the patents, considering the other two authors were the inventors themselves.

The Court held that the board wrongly found Moran's testimony about his contribution to the paper was "insufficiently corroborated" and sent the matter back to the board for re-consideration. The U.S. Patent and Trademark Office tribunal must now re-evaluate whether the patents are invalid based on Google's argument that an academic paper disclosed the same inventions.

To read more, click here

Source: Reuters (19 May 2022)

Bowmans comments: The outcome of this case will be significant as it is likely to shape what US courts and IP tribunals consider as prior art in the field of patents. Specifically, the ruling is likely to give greater clarity on what kind of evidence an applicant must adduce in order to prove that an invention was obvious.


Trade Secrets

New report uncovers massive Chinese hacking of trade secrets

Security firm Cybereason has published research on a cyberattack believed to have had the goal of stealing sensitive proprietary information from technology and manufacturing companies mainly in East Asia, Western Europe and North America.

The security researchers stated that that the hackers connected to the Chinese government have attempted to access sensitive information from dozens of global organizations.

The attack is thought by Cybereason to be “one of the largest IP theft campaigns of its kind coming from China.”

To read more, click here

Source: The Hill (4 May 2022)

Bowmans comments: This recent research together with recent indictments by the United States Justice Department highlights the growing rate of international theft of trade secrets through cyber-attacks. This calls for the introduction of specific trade secret legislation which provides for deterrent measures against trade secret theft.

Further, evidence-based research on trade secrets is welcome as it serves to grow the body of empirical evidence on use and misappropriation of trade secrets which has been noted to be underdeveloped.


Copyright

New law gives State more powers over artistes’ royalties

Collective management organizations (CMOs) will have to seek fresh registration according to the proposed amendments to the Copyright Act (No. 12 of 2001) (the Copyright Act). The Statute Law (Miscellaneous Amendments) Bill, 2022 (the Bill) grants new powers to the Kenya Copyright Board to license and supervise CMOs.

The Bill proposes an amendment to Section 46 (1) (d) of the Copyright Act by introducing a new section providing that ‘No person or association of persons shall commence or carry on the business as a collective management organization unless registered as such by the Board…’

To read more, click here

To read the Bill, click here

Source: Standard Newspaper (27 May 2022)

Bowmans comments: The proposed amendments in the Bill come in the wake of concerns raised by artists on the failure by the CMOs to remit royalties. The Bill therefore forms part an increased pattern of state intervention in the management of CMOs. Although these amendments are aimed at addressing certain inefficiencies in the management of CMOs, it is important to keep in mind that CMOs are independent entities. As such, state intervention should primarily focus on regulatory oversight as opposed to being drawn in CMOs’ administrative and managerial disputes.


Technology, Media and Telecommunications

Kenya

Netflix MoU, a first in Africa, sees it invest millions for Kenya Creatives

The Kenyan Ministry of ICT, Innovation & Youth Affairs, and video on demand firm Netflix have signed a two (2) year Memorandum of Understanding (MoU) to jointly deliver efforts to strengthen Kenya’s creative industry and support the development of the next generation of storytellers. 

This is the first MoU for Netflix in Africa, and will be marked skills & capacity development, creative sector infrastructure development, marketing and media spend, digital consumer protection, and local content investment.

To read more, click here

Source: Techweez (4 May 2022)

Bowmans comments: This MoU provides an avenue for the inclusion of local creatives in the entertainment stage. The MoU is expected to provide a forum to air local content whilst boosting the entertainment industry to tap into more local talent and provide growth for creatives.


New infrastructure sharing regulations require telcos to provide 30% extra capacity beyond own use

Legislators are pursuing a draft law named the Kenya Information and Communications (Access and Infrastructure Sharing) Regulations, 2022 (Proposed Regulations). The Proposed Regulations cover guidelines for infrastructure sharing, infrastructure sharing agreements, exemption from sharing of a particular element of the infrastructure, network access, and network facilities, as well as dispute resolution and penalties.

According to the Proposed Regulations, a telco deploying infrastructure for its own use shall provide for at least thirty percent (30%) additional capacity beyond the projected owner’s needs.

The added capacity shall be availed for sharing with other licensees on a non-discriminatory basis. The Proposed Regulations further provide that publicly owned infrastructure shall be operated and availed to infrastructure seekers on the principle of open access and non-discrimination.

To read more, click here

Source: Techweez (25 May 2022)

Bowmans comments: The proposals come in the wake of increased calls by sector regulators in the recent past to introduce legislation to compel carriers to share their infrastructure on a commercial basis. Currently, telco firms that make substantial capital and operational investments in expanding and upgrading their infrastructure are able to maintain a lead over other firms by taking in more customers in areas of the country where other firms lack infrastructure. Infrastructure sharing by telcos could potentially increase efficiencies and boost competition in the telecommunications industry by allowing other carriers to provide services in areas where they have been unable to venture into due to investment requirements, especially rural and marginalized areas.


State seeks to control Safaricom call charges

The rates that Safaricom charges rivals for terminating calls on its network are set to be controlled by the Kenyan government in a bid to protect small telecommunications firms. The new Kenya Information and Communication (Interconnection) Regulations 2022 (the Regulations) seek to bar dominant telcos from making profits from mobile termination rates (MTRs). Safaricom will therefore charge fees to cover only the costs of interconnecting calls from its competitors. The Regulations set the stage for the Communications Authority of Kenya to control Safaricom’s rates of interconnecting calls from its rivals given that the telco controls more than twenty five percent (25%) of mobile services revenues.

A telco is deemed dominant under the Kenya Information Communications Act, 1998 if it controls more than twenty five percent (25%) of the industry revenues or has significant market power that places it at a vantage point against rivals. However, Safaricom’s name must be published in the Kenya Gazette to officially be declared the dominant telco in order to allow the government to control its MTRs.

To read more, click here

Source: Business Daily (17 May 2022)

Bowmans comments: The Proposed Regulations are expected to boost competition by assisting new entrants to compete against the established players in the telecommunications industry. It is also important to note that under the Proposed Regulations, telcos will still be able to negotiate the MTR rates. However, if a dispute arises where the telcos are unable to reach an agreement, the Regulations allow the Communications Authority to set lower rates to allow the smaller telcos to compete with the dominant ones. In this manner, the Proposed Regulations are expected to boost competition without having an inequitable impact on the revenues of more dominant telcos.


Africa

MTN SA Commits R634 Million to deploy new network infrastructure into the Eastern Cape

MTN South Africa has announced an investment of R624 Million in an effort to deploy new network infrastructure into the Eastern Cape region. The company noted that it was investing R624 million into the Eastern Cape to drive upgrades and deploy new network infrastructure across the region this year.

As part of MTN’s “Modernisation of Network South Africa project”, the investment will expand network reach into rural communities, drive 5G expansion and work to restore vandalized network infrastructure. MTN is planning to focus on four hundred and ninety-one (491) towers as part of its network resilience and optimization program, which will see various areas receive increased coverage and capacity.

The extension of MTN’s 5G connectivity in the region will open the door to a world of new connectivity and digital opportunity, at faster speeds with less delay. The province currently has over ninety-four (94) live 5G sites and another eighteen (18) are planned for 2022.

To read more, click here

Source: Tech Africa News (4 May 2022)

Bowmans comments: Increased investment in networks infrastructure by leading carriers is expected to provide a further boost to the campaign for digital transformation in Africa. It is important for regulators to ensure that such investments benefit users in marginalized areas that have faced connectivity challenges in the past. This will serve to ensure that such investments bridge the digital divide and create opportunities for business and individual users.


Global

UK government sets out plans to rein in Big Tech

The UK government has announced that large technology companies such as Google and Facebook will have to abide by the UK’s new competition rules or risk facing huge fines. The new Digital Markets Unit (DMU) will be given powers to clamp down on "predatory practices" of some firms. The regulator will also have the power to fine companies up to 10% of their global turnover if they fail to comply.

Aside from boosting competition among tech firms, the rules also aim to give users more control over their data. As well attempting to hold Big Tech to account, the DMU will look to give individuals more control over how their data is used by tech firms - for example with targeted personalized adverts.

To read more, click here

Source: BBC News (5 May 2022)

Bowmans comments: The proposals to grant statutory powers to the DMU is expected grant more choice and control to consumers over their online experiences. For instance, part of the impact of the proposals is that smartphone users will now be able to switch easily between devices with different operating systems without losing their data. The proposals also aim to ensure that news publishers are able to monetize their online news content and be paid fairly for it, with the DMU being grant power to intervene to solve pricing disputes between news outlets and platforms. The DMU’s experience therefore serves as a key case study for regulators in other jurisdictions in their plans to introduce regulation for digital markets.