This blogger has learnt that the Protection of Traditional Knowledge and Traditional Cultural Expressions Bill, 2015 has undergone Second Reading at the National Assembly as it nears enactment as a law in Kenya.
Other than the detailed commentary sent out last month by Prof. John Harrington and Dr. Lotte Hughes on the Bill, there has been no other substantive reactions or comments on the Bill excluding this recent piece on an earlier draft of the Bill.
A copy of the Bill tabled in Parliament is available here.
The commentary and response by Harrington and Hughes on the Bill reads in part:
“…the bill freely mixes ideas from conventional IP protection, sui generis regimes for TK and TCEs and the 2003 UNESCO Convention on the Safeguarding of the Intangible Heritage without trying to harmonise them or limit problematic consequences from the different approaches taken. The resulting system of protection may have some unintended consequences.”
What follows are some of this blogger’s thoughts on the Bill including some of the same issues raised by Harrington and Hughes.
The title of the Bill refers only to “protection” yet its enabling constitutional provisions in Articles 11, 40 and 69 refer to both “protection” and “promotion”. Furthermore the provisions of Bill itself make several references to both protection and promotion of TK and TCEs of communities in Kenya.
The definition of “artistic works” appears to be superfluous since the definition of “traditional cultural expressions” includes “tangible expressions” which covers most works of art.
It is not clear which Cabinet Secretary is responsible under the Bill since the bill refers to the “Cabinet Secretary responsible for matters relating to intellectual property rights” which could be either the Attorney General or the Cabinet Secretary of Industrialisation and Entreprise Development or maybe perhaps the Cabinet Secretary of Agriculture? However, at the county government level, the Bill is explicit that the responsibilities belong to the county executive committee responsible for “matters relating to culture”.
The definition of “community” appears to be quite broad. The focus of the definition ought to be a homogeneous and consciously distinct grouping of people that have a common language and customs, which exists in Kenya within a recognised structure.
The definition of “exploitation” in the Bill is curious because it makes no reference to the prior informed consent of the communities thereby contradicting other provisions in the Bill that grant exclusive rights to communities to authorise exploitation of TK and TCEs.
There are slight but confusing nuances between “holder” and “owner” as defined in the Bill. Both definitions appear to refer to the same type of person namely a community proxy, who is essentially delegated to
represent, and to act and to own particular TK/TCE right(s) for and on behalf of, a particular community. Nonetheless, unlike the “holders”, it is clear from the Bill that the “owners” include the communities themselves. The Bill is not clear on how “holders”are identified and the precise duration and nature of their mandate.
With regard to the responsibilities of both the national and county governments, there may be need to have an institutional framework in place at the national level to oversee and support the CECs in the 47 county governments. As we shall see throughout the Bill, no implementing body or body corporate is established instead a vacuum is created with everything left to the Cabinet Secretary to decide.
With regard to the protection of TK and TCEs, the criteria leaves out an important requirement namely material embodiment. If the TK and TCEs are not reduced to a material form by or on behalf of the originating community then how will they be registered in the TK Digital Repository established under the Bill? Furthermore it is curious that the Bill provides for the compulsory licensing of TK while leaving out TCEs.
In the case of concurrent TK and TCE ownership claims from different communities, the Bill does not provide a clear dispute resolution process and mechanism, including the role of community-based dispute resolution practices, the hierarchy of determinations by county and/or national governments as well as options for appeal or review of these determinations.
As alluded to earlier, the Bill seems to shy away from creating a self-executing framework for protection and promotion of TK and TCEs. Instead the Bill contains numerous provisions of this nature:
“The national government shall establish mechanisms that enable the communities to prevent the misappropriation, misuse…of TK and TCEs..”
“The Cabinet Secretary shall establish mechanisms to ensure that where the use or exploitation is intended to be gainful… the use or exploitation is on terms determined and agreed with the relevant community”
“The Cabinet Secretary shall establish mechanisms to ensure that communities have the means to prevent the unauthorised….”
“The Cabinet Secretary shall make rules to guide…”
As a result, if the Bill is enacted, the Cabinet Secretary (who as explained above is not clearly defined) will have to create several enabling regulations and rules to give effect to the Bill and make it operational for TK and TCE owners in Kenya.