By John V Sserwaniko
Justice Lydia Mugambe, one of the most respected members of the bench, has justified the need to create a new Division of the High Court to specifically handle Intellectual Property Rights-related disputes which regulator (URSB) says are lately on the increase as more young Ugandans take to innovations as a way of being economically active and meaningfully transform their lives while creating job opportunities for others. In basic terms, Intellectual Property refers to creations of the human mind which could be ideas resulting into songs, art paintings or designs being composed by any given composer. In the Western world this is a big thing including in the US where IP-related initiatives contribute up to 38% of the GDP. In other words Intellectual Property is consistent with the knowledge-based economy National Planning Authority envisages Uganda to become in the next few decades. The biggest threat to IP rights holders are activities like piracy and counterfeiting which, according to UNBS, affect 54% of all products sold in Uganda. So creators, innovators and performing artists whose patented/copyrighted works often get infringed upon these days commonly seek protection by petitioning the regulator URSB or even courts in case of dissatisfaction with URSB decision. The aggrieved IP rights holders sometimes refer the matter to Commercial and Civil Divisions of the High Court which Justice Mugambe says are already congested with backlog of cases leading to delays in parties getting justice.
THE URSB EVENT
Mugambe (who is one of the 4 judges URSB will be sponsoring for participation in a colloquium in Singapore to deepen their understanding of IP rights protection and enforcement) made her case during a one day training workshop URSB organized for the judges. Speaking at the same meeting, Deputy Chief Justice Owiny Dollo noted that with increased awareness resulting from URSB public engagements, more Ugandans are going to become aware about IPRs meaning more disputes will be reported through the court system. Already the Standards, Utilities & Wildlife Court based at Buganda Road is handling all criminal offences relating to IP leaving the High Court to handle the civil disputes. The two judges observed that once sufficient awareness is created, Uganda (which is increasingly becoming a knowledge-based economy) will have many of its citizens exercise remedies provided for in the numerous IP-related laws including the Security Interest in Movable Property Act which URSB’ IP Director Mercy Kainobwisho says will make it possible for innovators, inventors and performing artists to use their IP (once registered) as recognizable collateral when getting bank credit. There is general consensus that since it doesn’t get depleted like natural resources, IPRs-enabled innovations will be the key driver of economic growth and business in future Uganda. Registrar General Twebaze Bemanya says URSB is determined to efficiently regulate and protect IPRs to ensure “intangible ideas of today turn into tangible assets of tomorrow.” Bemanya says: “With the appropriate legislation we have in place, URSB is determined to enforce IPRs and leverage the same into economic growth.” He explained the meeting was convened to discuss and create a common understanding on how judges can contribute to the strengthening of IPRs and their enjoyment to cause Uganda’s economic transformation. That’s the context in which Mugambe, who is one of the few judges with sufficient understanding of the IPRs, made her proposal for the immediate creation of the IP Division of the High Court. She said since there is limited understanding on the bench regarding protection and enforcement of IPRs, creating such a court would make it possible for judges deployed there to concentrate and expeditiously deepen their understanding of the subject. From such experts, the rest of the bench members can benchmark and deepen their own understanding of the same. Mugambe caused laughter when she said in absence of adequate understanding on the IPRs, judges are sometimes left to be confused and getting lost ill-informed arguments made by lawyers. Approached to clarify on her suggestion, Mugambe told Mulengera news that the IP Division’s creation is something judicial officers have openly been discussing for a while among themselves. “It will of course have financial implications on the judiciary budget but many of us are saying let’s start because there will always be challenges when creating such a Division but it will in the all be justified by the resultant benefits for the larger society,” she explained. Gratefully this being a new area, it won’t be difficult to convince bodies like the World Intellectual Property Organization (WIPO) to extend financial support. WIPO could also be willing to finance the training of the Division’s pioneer staff and all that will remain will be for the Principal Judge Yerokam Bamwine to take the decision and begin working on the implementation. Mugambe says that apart from helping to decongest the civil and commercial Divisions (where IP-related disputes are currently reported), the new Division will compliment URSB efforts to grow IPRs as an aspect of economic growth and transformation in line with Uganda’s Vision 2040 which seeks to leverage on the huge young talent in the country. Mugambe added that creating such a Court will be an opportunity to demonstrate readiness to go beyond basic IPRs-related obligations contained in International instruments like TRIPS which Uganda is bound because of its World Trade Organization (WTO) membership. “Whereas all judges are expected to have the required competences to resolve IP disputes brought before them, deployment at the IP Division of the High Court will make them experts,” Mugambe said adding that the new Division can have its own rules and mediation methods. “It’s an opportunity for the judicial officers deployed in that Division to do all the necessary research and be alive to IPRs issues in the country.” Referring to some of the previously decided cases regarding IP disputes (e.g. AG vs. Sanyu Television 1998), Justice Mugambe said there is more than enough jurisprudence for judges deployed at the IP Division to rely upon for the start. She also went through the laws applicable clearly showing Uganda has them in plenty. Because it’s possible to use civil, criminal and administrative measures to resolve any IP disputes, participants at the meeting unanimously agreed that requisite conditions for the development of the best IPRs system abundantly exist in Uganda already. In her submission, Justice Mugambe also commended URSB for innovatively reaching out to Uganda Police Force resulting into the establishment of the IPR Enforcement Unit which Kainobwisho said had positively impacted on the protection and enforcement of IP rights. She said there was increased reporting of IPR-related offences for formal resolution by URSB, a good step towards formalization of the IP rights are exercised in Uganda.
URSB’ VIEWS
During the panel discussion, Mugambe’s view was supported by URSB’ IP Director Mercy Kainobwisho who said the Division’s creation is actually long overdue. She said since IP is a private right, there is need for a remedy-seeking mechanism beyond what URSB currently offers. She said experiences learnt since the November 2017 creation of the Enforcement Unit at URSB are indicative that the creation such a court will increase litigation and grow Uganda’s jurisprudence in the protection and enforcement of IPRs. Kainobwisho added that the fact that URSB has lawyers who have actively been handling cases relating to IP rights infringement is proof there is sufficient legal know how to begin with. She said if their Enforcement Unit would cause over 70 cases to be reported to the Bureau in such a short time, more Ugandans will be inspired to seek formal resolution to their IP-related disputes once the Division is created. She also commended DPP Mike Chibita for granting URSB prosecution license on which its 8 lawyers are now depending to handle cases reported to the Bureau’s Enforcement Unit. For comments, call, text or whatsapp us on 0703164755.
