Intellectual property 101: This is how to protect your ideas

We all have ideas of grand things we would like to do; develop a new drought-resistant seed, a ground-breaking mobile application, or write a master piece, a novel that the world will still be talking about decades after you are gone. If your grand ideas are about to become a reality, there is a question you should have asked by now: “How do I ensure protection of my creation and mint endless cash from it?”

The answer is two words, Intellectual Property or IP. Intellectual Property is defined as creations of the mind, such as inventions, literary and artistic works, designs, symbols, names and images used in commerce. 

IP is protected by Law. Most nations, including Kenya, have an IP Law, which helps convert ideas into IP assets by using regimes in the law to protect an idea.

We spoke to Liz Lenjo-Kags of Kikao Law firm, one of Kenya’s few Intellectual Property Lawyers, who shared insight on the various forms of IP you can take up to protect and financially benefit from, as an individual or as a startup.

1. Copyright

This is the IP that protects the expression of an idea. Not the idea, its expression. Copyright is used to protect expressions of ideas in film, music, movie scripts, paintings, photographs, and some aspects of scientific works such as software.

That means, for instance, that your idea of a TV show, should be expressed in writing in the form of a synopsis or script. What is expressed in writing is what you can protect with copyright. Disclaimer: do not share your idea with an individual, institution or a funder before you protect its expressed form. The same goes for your software code, manuscript, or screenplay. The smartest thing to do to protect your copyright of a creative concept is to ensure your idea is drafted and dated, and that you get a certificate from the Kenya Copyright Board. 

Statutory cost:

Sh1, 000

Application Duration:

5-7 working days

Government Body in Charge:

Kenya Copyright Board (KECOBO)

Ownership duration:

Your entire lifetime + 50 years after your death.

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2. Trademark:

This is the IP that protects exclusive use of a brand name, logo or made up words, for instance Google. You can also protect your brand colours, which restricts you to those colours only. Anyone can benefit from a trademark whatever their industry. Trademarks provide exclusivity to the use of your brand, which also protects the reputation of your brand. What do we mean by exclusivity? For example, Nameless, the Kenyan musician, could trademark his stage name, making him the only “Nameless” in Kenya. And that gives him full control of its use; if another artist or an establishment was to use his name, they would have to seek his permission and pay him for its use or compensate him for the misuse of the name as penalty for trademark infringement.

Trademarking is especially advisable for those in the fashion and entertainment industries. 

Statutory Cost:

From Sh10, 000 upwards, depending on the trademark category.

Application Duration:

Six months

Government Body in Charge:

Kenya Industrial Property Institute

Ownership duration:

10 years and renewable on expiration of the 10 years

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3. Patent

This is the highest form of IP protection. Patents are more common in the scientific community. Owning a patent means you are the only brilliant mind on earth to have created what you created. Your creation is extremely novel, never been seen before, a factor that skyrockets your company’s value. That’s why you find huge corporations like IBM, Canon and Samsung have thousands of patents for different inventions they create for their products.

This also adds more to your net worth as a company. Patents need to be industrially applicable. Your innovation could be in physical form, or in form of a scientific formulae for instance. You own a patent for 20 years and get to renew it every 20 years. What large corporations do is, around the 17th year of the patent, they refine their concepts into another potentially patent-worthy invention. On renewal, a company then renews its initial patent and a second invention as well, based on the last innovation. More patents mean more value for your company.

Statutory cost:

From Sh100, 000 upwards. There is also an annual fee to be paid once it is granted.

Application Duration:

20 years 

Government Body in Charge:

Kenya Industrial Property Institute

Ownership duration:

20 years and renewable on expiration of the 20 years

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4. Industrial Designs

This is IP protection for the beauty of your creation, and combines lines and colour. An example is perfume bottles. If you pay attention to higher end perfumes, different brands have different shaped bottles, which is a signature IP for their unique brand. This also applies to shoe designs, hair clip designs, hats, even unique prints of a fabric, for instance the unique checkered Burberry Fabric. That is an industrial design IP.

Statutory cost:

From Sh15, 000 onwards per design

Application Duration:

4-6 months with several stages of registration

Government Body in Charge:

Kenya Industrial Property Institute

Ownership duration:

15 years renewable, renewal fees paid every five years

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5. Traditional Knowledge

This type of IP protects certain unique creations whose initial creator is unknown, but is part and parcel of a culture. For example the Ghanaian Kente cloth which is a cultural signature of the Ghanaian people. With this, no one can state claim to this  design.

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Sharing your IP

Worth noting is that it is not enough to have registered intellectual property, you still need to have other legal contracts that go hand-in-hand with the IP you own. These contracts depend on the nature of transaction that you are engaging in. The owner of the IP should dictate the terms of engagement because they own the rights to the product.

Intellectual Property protection does not also end with a patent or copyright certificate, you still need to legally protect yourself in two key areas: Disclosure of this information and legal agreements. 

LEGAL AGREEMENTS

This is where you finally put pen to paper, agreeing to allow the use of your IP by a third party. But this seriously needs legal representation by an IP lawyer. It is agreements like these that have seen many Kenyan artistes and innovators denied royalties for their music or software sales because they failed to read or understand the terms of the legal agreement. 

There are some words you need to be wary of in contracts, cautions Liz:

•  Perpetuity – this term generally means forever or to infinity. In an agreement, this could mean that you relinquish your rights forever.

•  Worldwide – this term may refer to the use of your IP globally, which could be fine, but you need to gauge if it is commercially beneficial to you. If it is not, do not sign it. 

There are two key types of legal agreements, licensing and assignments.

a. Assignments – this legal agreement relinquishes all your rights to the receiving party. That means, for example, that you could be relinquishing all rights you may have to royalties from your movie, song, book or software, meaning the party receiving the IP will own it as soon as they pay you a huge sum of money. This is where many young entrepreneurs and artistes, lose out. You may be eager to get the money placed before you in a cheque, but by signing this kind of legal agreement, you will never earn from your IP ever again. Be careful. 

b. Licensing –  This is the most ideal form of agreement for your IP. Licensing allows you to determine just what kind of rights you are offering to a third party, and for how long. It could be you as a musician endorsing a brand or a TV station airing your productions. With this kind of legal agreement, you can determine which countries your IP can be used, how it can be used, and how long a third party entity can have it.

In the case of a TV show for example, you can limit your licensing to one country or territory. For example, if your agreement is with NTV Kenya, you can license them to air your TV show in Kenya only. NTV Uganda would therefore have no rights to air it in Uganda unless it seeks a license agreement from you, the owner, to air your TV Show on their station.

In summary, even if you are negotiating with an entity, be it an angel investor, corporation, media house or production companies, make sure you negotiate the terms through an IP lawyer.

Remember you are giving your IP to a separate entity, so you have the right to determine the use of your IP, whether it is a song, a fashion design, a book, a film, a scientific invention or even software.

And always read the terms and conditions. Keenly.

When disclosing the particulars of your copyright or patent, you need to ensure you protect yourself with a Non-Disclosure agreement. 

DISCLOSURE DOCUMENTS

A non-disclosure agreement contains the following:

1. It is signed and dated, which confirms that a discussion did happen.

2. States who the disclosing party is – the person(s) sharing their creative concept.

3. States the receiving party – the person(s) provided with the information on the creative concept.

4. States the nature of disclosure, for instance a show, a manuscript or screenplay or software application.

5. It also includes a clause stipulating that everything disclosed is part of the disclosing party’s IP and cannot be used by the party receiving the information. And the ramifications faced if the information is used without permission. 

6. Ensure that you print and sign two copies of the agreement: one copy for you, the disclosing party, and another for the party receiving the disclosed information. Never disclose information to people on email, always ensure you do it physically in a meeting and preferably with an IP lawyer present. That way, in case of any potentially damning agreements, it can be quickly mitigated at the meeting by your lawyer.

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WISEN UP 

1. If your copyright is ever infringed, do not go on a social media rant, follow it up legally. If you rant, there is a likelihood that you are walking into a defamation law suit, which only waters down your case. 

2.To prove copyright infringement, there has to be substantial replication of the original copyright to be able to make a claim. That means you need to have proof that the idea was yours first. 

3. No copyright certificate, no non-disclosure agreement - do not disclose your ideas to anyone.