Africa IP highlights 2023: Reforms in IP policy, legislation and administration

This post is the third and final instalment in the “Africa IP Highlights 2023" series of posts highlighting some of the key developments in IP in Africa in 2023. The first 2 posts covered copyright and trade marks.

As previously stated, the Africa IP Highlights 2023 is the result of collaboration between myself and Clarisse Mideva; Rita Chindah; and Jessie Mgonga.

This post is about reforms in IP policy, legislation and administration.

January: In Kenya, prospective importers were required from January 1, 2023 to declare particulars of intellectual property rights for goods to be imported into the country. It is now an offence for any person to import into Kenya any goods or items bearing an IP right that has not been recorded with the Kenya Anti-Counterfeit Authority (ACA). The ACA had issued a public notice in 2022 announcing the commencement of mandatory Recordation of Intellectual Property Rights through the Anti-Counterfeit Authority Integrated Management System (AIMS). IPR Recordation was introduced through the Statute Law (Miscellaneous Amendments) Act of 2018 under Section 34B of the Anti-Counterfeit Act which requires all intellectual property rights relating to goods imported into Kenya to be recorded with the ACA. The Anti-Counterfeit (Recordation) Regulations 2021, were then published in the Kenya gazette on 23rd July 2021 under Legal Notice Number 118 of 2021. Under the Regulations, IPR owners who import goods into Kenya will be required to record their IPR with the ACA. Once recorded, a recordation mark will be issued, giving the IPR owner an exclusive right to import into Kenya any goods/products bearing the recorded IPR.

Also in January in Kenya, a call for public participation on the Draft Copyright Tribunal (Procedure) Regulations, 2022 was issued, allowing the public to review and comment. The regulations outline the procedures for disputes under the Kenya Copyright Act, which empowers the Copyright Tribunal to handle disputes related to copyright registration and appeals against Copyright Board decisions. The draft regulations propose inter alia, the creation of a tribunal secretary responsible for daily operations and proceedings coordination, requiring expertise in copyright matters. These draft regulations are meant to guide and assist rights holders, applicants and respondents who want to move to the tribunal and have their matters heard and decided upon.

In Tanzania, it was highlighted that Tanzania, though displaying positive figures and a promising outlook in the technology industry, it still continued to lag behind its peers in terms of attracting tech financiers and making tech wins known on the local scene. To change the status quo, the Ministry of Information, Communication and Technology collaborated with the Tanzania Communications Regulatory Authority (TCRA) to support innovation and entrepreneurship by launching several initiatives that are aimed at providing funding and technical assistance to local start-ups.

April came with the news that the Tanzanian government is prepared to launch a Regulatory Sandbox for start-ups which is aimed at testing innovative products and services. In taking further steps towards fostering innovation in financial technology, the government, through the Bank of Tanzania (BoT), had issued the Regulatory Sandbox Regulations 2023 for public feedback till April 15th, 2023. (A Regulatory sandbox is a controlled environment in which businesses, particularly Fintech start-ups, can test novel products, services or business models without being exposed to the full range of regulatory regulations). It should be noted that unlike its counterparts in the East African Community (Kenya and Rwanda), Tanzania does not have a specific policy or legal landscape for start-ups. This has resulted in start-ups improvising the existing legal and regulatory regimes which have been proven to hinder growth of start-ups. The Sandbox Regulations are expected to address this.

In June, the Cabinet Secretary for Youth Affairs, Sports, and the Arts in Kenya approved the new consolidated Music Tariffs covering January 1, 2023, to December 31, 2024. These tariffs, published in Kenya Gazette Supplement No. 102, outline the criteria for Collective Management Organizations to determine license fees for music usage. License payments are due annually, and joint invoices must be settled within one month of issuance. Each license remains valid for one year from the date of issue. Non-compliance incurs a penalty of 5% of the tariff, compounded for the duration it remains unpaid.

In September, the Kenya Copyright Board announced the initiation of the Blank Tape Levy collection, effective from September 15th, 2023, as outlined in Section 28(3)(6) and 30(6) of the Kenya Copyright Act and the Second Schedule part B of the Copyright Regulations 2020. This levy is a fee applied to items capable of carrying copyright-protected content for personal copying and is payable at the point of entry or initial local manufacture. It is levied on the sale of blank media and devices like CDs, DVDs, USB drives, and smartphones, which have the potential for personal copying of copyright-protected material. The purpose of this levy is to compensate copyright holders for potential revenue loss resulting from individuals making private copies of their copyright-protected works, such as music, movies, or software.

In August, Kenya’s Copyright Board tabled the Copyright and Related Rights Bill, 2023 before Parliament. This Bill aims to repeal the Copyright Act 2001 in its entirety. With two separate amendments to the Copyright Act in 2019 and 2022, one is hoping that with this 2023 Bill, the third time’s a charm and we can look to implementation.

And one of the things this Kat is keeping 3 of the 5 senses, alert for is: South Africa’s National Council of Provinces passed the Copyright Amendment Bill and sent it to the National Assembly for adoption. Per the most recent Katpost on this, the Bill’s long walk continues in 2024…


… And with this, comes the end of Africa IP Highlights 2023. All the best to everyone over the holidays and see you in 2024.