2018 Proposed Amendment to The Protection of Traditional Knowledge and Cultural Expressions Act

TK and TCE Act Kenya Amendment Bill 2018

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.

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Proposed Amendments to Seeds and Plants Varieties Act

KEPHIS Seeds and Plant Varieties Amendment Act Bill 2015

Article 11 of the Constitution of Kenya recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation and includes science and indigenous technologies and intellectual property (IP) rights of the people of Kenya within the scope of elements of culture that are recognised. The Constitution goes further and states in Article 11(3) (b) as follows:

“Parliament shall enact legislation to recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya”

It is this constitutional imperative that has resulted in the recently proposed amendments to the Seeds and Plant Varieties Act (Chapter 326 Laws of Kenya). A copy of the Seeds and Plant Varieties Amendment Bill, 2015 is available here.

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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.