| dc.description.abstract | Article 61 of the Trade Related Aspects of Intellectual
Property Rights (TRIPS) Agreement obliges members
to put in place criminal procedures and penalties for
cases involving willful trade mark counterfeiting and
copyright piracy on a commercial scale through rem-
edies which include imprisonment and/or monetary
fines in ways sufficient to act as deterrent consistent
with the members’ categorization of crimes on the basis
of gravity. Further, the article obliges members, in
appropriate cases, to expand the remedies available to
include seizure, forfeiture and destruction of infringing
goods and materials used in the commission of the
offence. For intellectual property rights (IPRs) other
than trade marks and copyright, article 61 of the TRIPS
Agreement urges, but does not oblige members, to
make available criminal procedures and penalties.
Indeed, in its preamble, the TRIPS Agreement makes it
clear that IPRs are private rights, while in article 41(5),
the Agreement clarifies that it does not in any way call
upon members to make special consideration for
enforcement of laws relating to IPRs as compared to
general enforcement of law in a member’s territory.
In essence, in the language of its article 61, the
TRIPS Agreement incorporated a compromise that rec-
ognized the potential utility of criminal procedures and
penalties for safeguarding the interests of owners of
IPRs while remaining cognisant of the potential costs
that could be imposed upon members, especially devel-
oping countries, in setting up enforcement mechanisms
financed by public resources for the protection of pri-
vate rights which are predominantly owned by enter-
prises based in developed countries. Under article 1(1),
the TRIPS Agreement accords a member the freedom
to choose the method best suited to implement the
Agreement’s provisions within its own legal system and
practice.
Article 61 provides room for members to draft laws
and policies that meet their local contingencies. This
article seeks to evaluate the manner in which Kenya has complied with its obligations under article 61 of the
Agreement and the extent to which it has taken advant-
age of the flexibilities incorporated therein. In particu-
lar, we review the laws relevant to the protection and
exploitation of IPRs in Kenya, also in light of the feed-
back provided by key stakeholders in the prosecution of
offences relating to IPRs in Kenya (officers from the
Kenya Copyright Board, the Anti-Counterfeit Agency
and the Office of the Director of Public Prosecutions). | en_US |
