The Statute Law (Miscellaneous Amendments) Bill, 2018 seeks to make various, wide-ranging amendments to the existing intellectual property (IP) law-related statutes. The Bill contains proposed amendments to the following pieces of legislation: The Industrial Property Act, 2001 (No. 3 of 2001), The Copyright Act, 2001 (No. 12 of 2001), The Anti-Counterfeit Act, 2008 (No. 13 of 2008) and The Protection of Traditional Knowledge and Cultural Expressions Act, 2016 (No. 33 of 2016). The Memorandum of Objects and Reasons for the Bill is signed by Hon. Aden Duale, Leader of Majority in the National Assembly and it is dated 29 March 2018. This blogpost will focus on the proposed changes proposed to The Protection of Traditional Knowledge and Cultural Expressions (TKCE) Act.
In our previous commentary on the TKCE Act (see here), we raised concerns about the lack of an implementation and enforcement framework thus terming the Act as an ‘orphan’ with no clear parent Ministry. Two years later, the 2018 Bill now proposes to amend section 2 of the TKCE to state that ‘the Cabinet Secretary for the time being responsible for matters relating to culture’ shall oversee the implementation and enforcement of the TKCE Act.
This means that the proposed parent Ministry for the TKCE Act is the Ministry of Sports and Heritage (MOSH) formerly known as the Ministry of Sports, Culture and the Arts (MOSCA) and before that, the Ministry of Gender, Sports, Culture and Social Services. Within the Ministry, there are 8 different autonomous and semi-autonomous state agencies namely Sports Kenya, National Sports Academy, National Sports Fund, Kenya Cultural Centre, National Museums of Kenya, Kenya Film Commission, Kenya Film Classification Board and Kenya National Library Service. In our view, none of these agencies, as currently constituted, would be well-suited to oversee the full implementation of all provisions of the TKCE Act.
Article 11 of Kenya’s Constitution recognises culture as the foundation of the nation and cumulative civilisation of the Kenyan people and requires that the government provide national legislation to give full effect to this Article. Further the Constitution guarantees several cultural rights and freedoms in the Bill of Rights. The rationale is that the promotion and protection of cultural diversity can only be achieved if fundamental freedoms of expressions, information and communication as well as the rights to participate in cultural life are guaranteed.
At the international level, MOSH is the custodian and implementer of several key United Nations Organization for Education, Science and Culture (UNESCO) Conventions in the field of culture ratified by Kenya, namely the 1972 World Heritage Convention, 2003 Convention for the Safeguarding of the Intangible Cultural Heritage and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
Readers of this blog will recall that MOSCA through the Department of Culture developed a draft national culture bill (see here) whose main goal was to ensure cultural development. One of the highlights of the draft was the proposed establishment of a National Council for Culture and the Arts and a National Fund for Culture and the Arts. However the draft culture bill appears to have been shelved following the subsequent tabling and enactment of the TKCE Act.
However, last year MOSCA convened a stakeholders’ validation workshop on a draft National Policy on Culture. This draft policy was discussed by this blogger elsewhere (see here). This proposed draft policy discusses IP in the context of economic development and contains the following 3 policy statements: 1) The government shall create conditions, including enactment of new legislation and strengthening of existing laws, for cultures to flourish and to freely interact in a mutually beneficial manner; 2) The government shall protect intellectual property rights by fortifying its intellectual property policies and legislations at national and county level; and 3) The government shall enact legislation to ensure that communities receive fair compensation or royalties for the commercial use of their cultural heritage.
If the proposed amendment to the TKCE Act is enacted, MOSH will have to consider how to administer and enforce the Act. In particular, the State Department for Heritage will have the primary responsibility to advise the Ministry on several key issues including whether the draft national policy on culture adequately provides mechanisms for protection and promotion of traditional knowledge and cultural expressions and whether to pursue the enactment of a stand-alone legislation as opposed to strengthening the existing TKCE Act.