Innovation Benefits of Software Patents in Kenya

Abstract

Globally, it is generally accepted that the legal protection of creations of the human mind, such as software, should contribute to technological innovation. In Kenya, software is ordinarily regarded as literary work and therefore protected by way of copyright. Recently, however, there have been suggestions that software should be patented. This raises the problem of whether and how the tension between copyright and patent protection of software can be resolved in a manner that is just, fair and reasonably proportionate to the highly desirable goal of incentivising production and dissemination of technology. This study examines the extent to which software patents in Kenya might be appropriate in light of both the nature of software and the need to foster innovation. Using the capabilities approach as the basic theory and comparative methods, the study finds that patents provide better protection for the idea embodied in software than does copyright and this is in exact accordance with the capabilities Kenyan’s would like the protection to provide for them. It recommends that Kenya should consider improving its intellectual property regime by making provisions for patentability of software or some sui generis right akin to software patents in order to aid in fostering innovation.