5
ISSUE
36
Challenges in Software and
Mobile App Protection in Kenya
By Wycliffe Jaketch
K
enya has seen tremendous growth
in the use of computer software and
Mobile Applications over the last
decade. The realisation of efficiency of tech-
nology and deepening of access to services
in the sectors such as finance, transport,
agriculture, education among others are some
of the factors behind the accelerated advance-
ment which appears not to be ending any time
soon.
Software and Mobile Applications devel-
opers deserve prosperity just like any other
creative artists. However, economic gains from
their creativity largely depend on how well
their works are protected under the law. With-
out proper legal protection it is possible to have
such works used, misused and abused without
any economic benets to the developers.
Legal protection of software and Mobile
Apps takes a multifaceted approach in the
sense that various aspects of such works are
protected under diverse regimes of law. For
instance, source code, object code, graphics
and text component are eligible for protection
under copyright law, whether registered or not,
so long as they are original and are in tangible
form.
Other components of such works such as
logo or name are protected under the trademark
law. In this case a search clearance is necessary
before registration to conrm the availability of
the trademark so as to create a trademark that
will exclusively protect the owner and to avoid
the infringement of other existing trademarks.
In software and Mobile App development,
there could be a method or a process embodied.
Such may meet the protection under patent law
or protection as a utility model which may be
equally useful to the developers.
This multipronged approach to rights pro-
tection in the digital creative environment is
ably facilitated by the Copyright Act, 2001
(as amended in 2019), Industrial Property Act,
Trademark Act and the WIPO copyright Treaty.
These regimes take into account the unique-
ness of the creativity that goes into software
and mobile apps development. Besides, the
regimes catalogue into detail the enforcement
mechanisms for the protected rights to address
potential or actual threats of infringement or pi-
racy which would otherwise be detrimental to
the developers.
It should be remembered that the end that
the developers seek with their works in most
cases is to make money. In a bid to do that,
they must engage in commercial transactions
either in the form of instructions to develop for
a specic usage, sale of an existing software
or mobile App or licensing of the same. These
kinds of transactions in most cases are outside
the purview of intellectual property rights pro-
tection underscored above. That is because
such transactions are purely contractual guided
under the notorious principle of freedom of
contracted. The software and Mobile Apps de-
velopers are called upon to embrace and under-
stand the contractual protection of their com-
mercial interests involving their creative works.
It is noteworthy that the Kenyan jurisdiction
has a compressive legal regime that protects
lawful contractual relationships of whatever
kind. It is upon the developers to negotiate their
contracts properly and insist on favourable con-
tractual terms. That would bar the users from
taking advantage of the users of the software
and Mobile Apps.
KNOW THE LAW