A Look at Kenya’s Draft Bill on Protection of Traditional Knowledge and Expressions of Folklore

As many may already know, this blogger has been particularly keen on the developments around Traditional Knowledge (TK), Genetic Resources (GRs) and Traditional Cultural Expressions (TCEs) both in Kenya and the region as is evident from his posts on the ‘IPKenya’ blog available here.

This week, this blogger came across the working draft legislation on traditional knowledge (TK) in Kenya. A copy of this draft is available here. With this background in mind, this blogpost will identify some of the key issues for Kenyan policymakers with the help of certain key texts namely, the ARIPO Swakopmund Protocol, Kenya’s National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions, and a proposed TK Bill drafted for South Africa by Prof. Owen Dean, Chair of Intellectual Property at Stellenbosch University.

The starting point for legislative protection of TK, TCEs and GRs in Kenya is the Constitution of Kenya 2010. The relevant provision reads as follows:

Article 11 – Culture

11.(3) Parliament shall enact legislation to—
(a) ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and
(b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

Below are some of the key highlights of the proposed draft law dubbed: “Protection of Traditional Knowledge and Expressions of Folklore Bill”.

The Draft Bill makes two broad distinctions: TK and Expressions of folklore (EF). Although the draft offers two alternative definitions for both TK and EF, the first of each of the definitions seems most suitable:

“traditional knowledge” shall refer to any knowledge originating from a local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, where the knowledge is embodied in the traditional lifestyle of a community, or contained in the codified knowledge systems passed on from one generation to another. The term shall not be limited to a specific technical field, and may include agricultural, environmental or medical knowledge, and knowledge associated with genetic resources.

“expressions of folklore” are any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof:
i. verbal expressions, such as but not limited to stories, epics, legends, poetry, riddles and
other narratives; words, signs, names, and symbols;
ii. musical expressions, such as but not limited to songs and instrumental music;
iii. expressions by movement, such as but not limited to dances, plays, rituals and other performances; whether or not reduced to a material form;
iv. tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, basketry, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms;

Conditions for protection:
The Draft Bill states that the protection of TK and TCEs shall not be subject to any formality.
However, it could be argued that a basic condition for protection of TK should be that the TK must be reduced to a material form by or on behalf of the originating traditional community.

Traditional cultural rights in TK and Expressions of Folklore:
The scope of these rights are defined as follows:

(i) manufacturing, importing, exporting, offering for sale, selling or using beyond the traditional context the product;
(ii) being in possession of the product for the purposes of offering it for sale, selling it or using it beyond the traditional context
(iii) making use of the process beyond the traditional context, where the traditional knowledge is a process

In addition to all other rights, remedies and action available to them, the draft Bill also provides that owners shall have the right to institute legal proceedings against any person who carries out any of the acts mentioned above without the owner’s permission.
Finally in relation to the traditional cultural rights conferred, the draft Bill makes it clear that these rights do not affect, any rights that may subsist under any law relating to copyright, trademarks, patents, designs or other intellectual property.

Independently of the traditional cultural rights, the draft bill also proposes that the traditional owners of traditional knowledge or expressions of folklore should be the holders of the moral rights in the traditional knowledge or expressions of folklore. This sui generis moral rights provision is modeled on the copyright system as it provides for right of integrity, right of paternity in addition to the right not to have ownership of traditional knowledge or expressions of folklore falsely attributed to them.

Limitations to traditional cultural rights in TK and EF:
With respect to TK, the draft Bill provides for a system of compulsory licensing “where protected TK is not being sufficiently exploited by the rights holder, or where the holder of rights in traditional knowledge refuses to grant licences subject to reasonable commercial terms and conditions, on the recommendation of the national competent authority”

With respect to EF, the draft Bill creates a list of exceptions and limitations to protection of EF whereby protection must NOT:-

a) restrict or hinder the normal use, development, exchange, dissemination and transmission of expressions of folklore within the traditional or customary context by members of the community concerned, as determined by customary laws and practice.
b) extend beyond uses of expressions of folklore taking place outside their traditional or customary context

Fair and equitable benefit-sharing:
It is proposed in the draft Bill that the protection extended to traditional knowledge holders includes the fair and equitable sharing of benefits arising from the commercial or industrial use of their knowledge, to be determined by mutual agreement between the parties. In the absence of such mutual agreement, the national competent authority is mandated to mediate between the concerned parties with a view to arriving at an agreement on the fair and equitable sharing of benefits. In this regard, it is submitted that such a provision would also augur well in the new devolved system of government
since county governments would be in a position to benefit from exploitation of TK, GR and TCE.
On the regional front, with the emergence of the EAC, the issue of access and benefit sharing in cases where the resources are spread out in different countries within the EAC may now be easily addressed.

Prior informed consent:
The draft Bill sets out a procedure for obtaining the prior and informed consent of the traditional owners to use their traditional knowledge or expressions of folklore for a non-customary user (whether or not of a commercial nature).
The procedure states that prospective users may apply to the national competent authority to obtain the prior and informed consent and this application is publicly advertised.

National Competent Authority:

The Draft Bill proposes the designation or establishment of a national competent authority which shall implement the provisions of the Bill to be known as the National Traditional Knowledge Authority. Their functions including the following:

-To keep a register of all licences and assignments granted under this section.

– To mediate between the concerned parties with a view to arriving at an agreement on the fair and equitable sharing of benefits.

– To recommend on the granting of a compulsory license in respect to protected traditional knowledge in order to fulfill national needs.

– To create a notification system for certain categories of EF for which protection is sought

– To administer and enforce protection of traditional knowledge, which includes awareness-raising, education, guidance, monitoring, registration, dispute resolution, enforcement and other activities related to the protection of traditional knowledge. In addition the Authority is entrusted, in particular, with the task of advising and assisting holders of protected traditional knowledge in defending their rights and instituting civil and criminal proceedings, where appropriate and when requested by them.

Concluding Comments:

As Kenya moves towards a legislation with sui generis for TK, GRs and TCEs, the short-term measure would be use the existing IP regimes. In the case of contemporary creation and innovation based on TK and TCEs, the copyright and patent laws in Kenya may provide some protection. The copyright system could also assist since it makes provisions for protection of unpublished works of unknown authors. In addition, this system would also cater for related rights protection of recordings of cultural expressions and for “performers of expressions of folklore”. Finally, databases and compilations of TK and TCEs can also be protected under copyright law.

In the same vein, the trademark system in Kenya could also offer some protection for TK. In particular, collective trademarks can be used to protect TK products (eg., foods, agricultural products, crafts). Common law actions and remedies relating to passing off and unfair competition may also be relied upon. Lastly, the law on trade secrets could also provide some protection for confidential information for secret TK and TCEs.

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