Intellectual Property Concerns in Kenya’s Draft National Culture Bill

HASSAN WARIO ARERO

On 27 August 2010, this blogger was among hundreds of Kenyans who witnessed the promulgation of Kenya’s Constitution. On numerous occasions here, we have discussed the far-reaching impact the 2010 Constitution has had on intellectual property laws in Kenya. For the first time in Kenya’s history, intellectual property (IP) norms were constitutionalised with corresponding obligations placed on various arms of the government to ensure that these constitutional provisions are actualised for the benefit of Kenyans.

One of these provisions is Article 11 which 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.

As a result of the above, Parliament is required to enact legislation to ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage. This legislation should also address the recognition and protection of the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

In this connection, the Fifth Schedule of the Constitution requires that the legislation in respect to Culture under Article 11 must be enacted by Parliament within the first five years from the date of promulgation of the Constitution. Therefore the deadline for enactment is no later than August 27, 2015!

In a bid to meet or beat this deadline, the Ministry of Sports, Culture and the Arts has begun the process of formulating a piece of legislation on Culture. The Ministry plans to hold a stakeholders’ workshop on January 30, 2015 at KICD to develop a Bill on Culture that will later be tabled before Parliament. In preparation for this planned workshop on formulation of the National Culture Bill, the Ministry has circulated a zero draft of the Bill available here. This draft is clearly ‘zero’ as it is largely incomplete except from a few provisions relating to a proposed National Council for Culture and the Arts and a National Fund for Culture and the Arts.

This blogger’s reading of Article 11(3) is that the legislation on Culture must address important concerns touching on the promotion and protection of traditional knowledge (TK), traditional cultural expressions, folklore as well as certain in situ genetic resources. In this regard, there may be considerable overlap between the proposed National Culture Bill and the 2013 Bill on the Protection of Traditional Knowledge and Traditional Cultural Expressions Bill, previously discussed here and here. In fact, the Premable of the proposed draft TK Bill reads: “This legislation will give effect to provisions of Article 11 and 40(5) of the Constitution of Kenya 2010.”

Another case of inter-ministerial mis-communication, per chance?

From an IP perspective, this blogger believes that an important question to be answered in the formulation of the Bill on Culture is whether to use the existing IP rights systems including industrial property, copyright and plant breeders rights or to develop a sui generis system for the promotion and protection of Culture.

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