During a recent visit to Kenya at the behest of The British Council, I spoke with representatives of businesses in the creative sector. They operate in an uncertain legal context: the first statute dealing with intellectual property was only passed in 2001, and the population is still adapting to a world where it is possible, at least in theory, to earn a living from their brains. Despite the difficulties of some aspects of the prevailing culture, the poverty, and the lack of basic infrastructure, there is an overriding optimism about the sector’s future.

At a lecture at one of Nairobi’s universities, I was joined by four local practitioners. One, a civil servant, caused a storm (albeit in a teacup). Despite talking of his government’s open door policy, and offering free advice to businesses, some of the audience was unhappy about the level of support the government had made available, especially when dealing with the country’s cultural assets. Their new intellectual property rules at least recognise the worth of the folk traditions of the country, and create a compulsory licensing scheme which should generate funds for the Kenyan tribes.

Here in the UK, we have no concept of the protection of folk traditions – unless you can count a strange exemption which relates to the story of Peter Pan – and we struggle to deal with any material whose author’s name has been lost or forgotten. The value of these so called orphan works remains untapped for fear of litigation.

Our previous government commissioned a review of the complex rules relating to intellectual property, and some of the subsequent report’s findings were enacted in the Digital Economy Act. Unfortunately, the draft provisions were rushed through parliament as part of the “wash up” procedures, and provisions relating to orphan works were dropped. Other provisions, relating to the regulation of file sharing on the internet were enacted despite widespread criticism.

Rather than tackling these issues, the coalition government has announced an intention to launch another inquiry. Once its terms of reference are set, it will spend at least six months consulting and preparing a report, which will then be presented to government to accept or reject, debate and enact in years to come.

At least in the meantime, the costs of enforcement are set to reduce. Since 1 October, the Manchester courts have had the right to deal with more intellectual property infringement cases. This will hopefully end the expensive reliance on London lawyers, and help us support our home grown talent. This may be a silver lining to a very heavy cloud. Although Kenyan businesses can access free advice from their “man from the ministry”, our creative sector will find it increasingly difficult to access quality advice with funding for the likes of Business Link, Arts and Business, the Arts Council England, and Vision and Media being drastically reduced.

Meanwhile, the skills and experience of my new creative friends in Kenya grow daily. Can Manchester’s creative sector afford the wait, or will the BBC’s next move be from Salford Quays to further afield?

Keith Arrowsmith
Head of Intellectual Property & Media
Ralli