#ipkenya Weekly Dozen: 27/07

CISAC AFRICA COMMITTEE REGION 2018 DjGrq71XsAA8DYh

  • Improving creators’ royalty collections in Africa: CMOs gather in Abidjan for CISAC’s Africa Committee [Official]
  • Figures of the week: Africa’s energy innovation landscape [Brookings]
  • 5th Global Congress on IP and the Public Interest, Sept 27-29 Washington DC [Register Now]
  • Nigeria announces national airline, didn’t register domain names [iAfrikan]
  • South Africa’s Proposed Copyright Fair Use Right Should Be A Model For The World [InfoJustice]
  • Kenya: MCSK asks MPAKE to stop collecting royalties [Pot Calling Kettle]
  • Africa Has an ‘Uber’ Opportunity to Disrupt Farming Technology [AGRA]
  • Poor e-commerce policies slow the uptake in Africa [The Star]
  • How broke public universities can change fortunes [Captain Obvious]
  • Does the fourth industrial revolution call for a sui generis form of IP protection? [A+ Bunch of Lawyers]
  • Comesa to set up team on digital free trade area [East African]
  • Time for a Sui Generis Technology Importation Right? [Afro-IP]

For more news stories and developments, please check out #ipkenya on twitter and feel free to share any other intellectual property-related items that you may come across.

Have a great week-end!

#ipkenya Weekly Dozen: 29/06

First Volkswagen Assembled in Rwanda June 2018 DgsNALgXcAAGlJ_

  • The Continental Free Trade Area: A game changer for Africa [The East African]
  • Crunch Time at WIPO-IGC: A Last Attempt to Draft a New Genetic Resources Text? [ABS Canada]
  • Zimbabwe Launches National IP Policy & Implementation Strategy [AllThingsIP]
  • Ethiopia: Whose injera is it anyway? [Mail & Guardian]
  • Strengthening African Science [Project Syndicate]
  • South Africa: Marked improvements on the IP landscape [Lexology]
  • Google is throwing its weight behind artificial intelligence for Africa [Quartz]
  • Enabling intellectual property and innovation systems for South Africa’s development and competitiveness [Sibanda’s 2018 PhD Thesis]
  • Nigeria: Food Security In Africa: Is Genetically Modified Technology A Pathway? [Leadership]
  • Number of patents is a poor measure of innovation in ARIPO and Kenya [AfroIP]
  • Emojis and intellectual property law [WIPO Magazine]
  • Ten Years Later: Dismal Performance Scorecard for Kenya’s Anti-Counterfeit Agency [Captain Obvious]

For more news stories and developments, please check out #ipkenya on twitter and feel free to share any other intellectual property-related items that you may come across.

Have a great week-end!

2018 Proposed Amendment to The Copyright Act

2018 Amendments to Copyright Act Kenya KECOBO Bill

The Statute Law (Miscellaneous Amendments) Bill, 2018 seeks to make various, wide-ranging amendments to 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 changes proposed to The Copyright Act.

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A Look at the East African Community Creative and Cultural Industries Bill, 2015

East African Community Flags Burundi Kenya Rwanda Tanzania Uganda

“Although the East African region has the potential to develop new areas of wealth and employment as it is rich in cultural heritage and inexhaustible pool of talents, the region still remains a marginal played in the global market. While the East African Community (EAC) Partner States produce world-renowned artists, still the contribution of creative and cultural industries to our economy has remained insignificant. Likewise, due to lack of incentives, financial, educational, infrastructure and technology support from the EAC Partner States and the business community, our local creative industries are not yet fully developed.

Nurturing and exploitation of creative and cultural industries in the EAC through an effective regional legal framework can contribute to job creation, income generation and poverty alleviation.” – Hon. Dr. James Ndahiro (Rwanda), Member – East African Legislative Assembly.

On 27th January 2015, the EAC Creative and Cultural Industries Bill, 2015 was read for the first time and committed to the Committee of General Purpose during the Fourth Meeting of the 3rd Session of the 3rd Assembly plenary session held in Arusha, Tanzania.

Between the 9th and 10th of March 2015, this Committee has been covering all EAC Partner States holding public hearings to sensitise stakeholders on the Bill and receive views and contributions from them to be incorporated into the Bill.

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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.

Draft Bill Ready For Comments: The Protection of Traditional Knowledge and Traditional Cultural Expressions Bill 2013

kenya tk bill 2013

This month was the unveiling of the Protection of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) Bill, 2013.

The draft Bill is available for download here.

This Bill was adopted by the participants at the National Validation Stakeholders Seminar and the Inter-Ministerial Committee responsible for drafting this Bill are now inviting comments and contributions from stakeholders and members of the public. Please send your comments to the Kenya Copyright Board (KECOBO) at kenyacopyright@gmail.com on or before August 21,2013.

This blogger has looked through the draft Bill and will now make comments on the provisions sequentially.

Title of the Act

The word “protection” conjures up notions of protectionism and conservatism whereby Kenya seeks to jealously guard its TK, whereas it forms part of the common heritage of humanity. The word protection must go hand in hand with words like “promotion” especially in the context of TK and TCEs, since Kenya hopes that its communities will benefit from the exploitation of TK and TCEs by all.

Header

This legislation only gives effect to Article 11 of the Constitution and not Article 40(5). This position is reaffirmed by the Fifth Schedule of the Constitution which provides a time specification of five years from the promulgation date for the legislation in respect to Article 11(3) to be enacted by Parliament.

Definitions

Fundamentally, the definitions of TK and TCEs must be revisited. These definitions refer to both intangible and tangible TK & TCEs objects as protected subject matter.

The definition of appropriate authority appears to have been copy-pasted from an international instrument because of the use of the terms “authorised by the State” and “party to this Act”. It is proposed that the appropriate authority be defined any body or agency created under the Act.

It is proposed that the term “Act” be defined to include the Act itself and any regulations issued by the Cabinet Secretary under it from time to time.

It is noted that the Bill does not provide definitions for “owner”, “holder” which are used interchangeably throughout the Bill. The definition of “beneficiary” is also missing.

It is proposed that the terms: traditional knowledge rights and rights in traditional cultural expressions be defined in respect to the subject matter of protection namely, TK and TCEs respectively.

It is proposed that the term “holder” be included and defined as holder of traditional knowledge rights and rights in traditional cultural expressions. Further, the definition of “owner” would be the communuty representative or proxy delegated by the community to hold the latter’s rights in TK and TCEs. The definition of community could thus remain unchanged

The terms artistic works, cultural creativity, intangible cultural heritage, traditional cultural rights are all superflous and it is proposed that they are deleted.

National Competent Authority

This name totally lacks a descriptive character. The name becomes even more problematic because the national competent authority in the Bill is defined as the Kenya Copyright Board (KECOBO) – whose name is even further removed from the theme of TK and TCEs. It follows that a descriptive name like the National Commission for (Protection of) TK and TCEs would be more fitting.

More fundamentally, issues may be raised about whether KECOBO is fit to be the national competent authority under this Bill. As we know KECOBO is created under the Copyright Act of 2001 and therefore it is not advisable for it to have statutory functions and mandates emanating from a different piece of legislation.

The Bill also creates the National Cultural Agency which is considered to be the implementer of the Bill. However questions may be raised over the need to have two separate government bodies carrying out more or less the same functions under the Bill.

Protection

Section 5 provides the conditions for protection of TK. However this section simply describes the various recognised origins of the protected TK but it fails to provide how TK is to be protected, especially where it is in an intangible or inchoate form.

Formalities

This section states that protection of TK shall not be subject to any formality. However subsections a) and b) appear to appoint KECOBO as “the Registrar of TK”, as it were by providing for registers and records of TK to be maintained and administered by KECOBO. There is therefore need to rethink this section.

More fundamentally, there is need to rethink the position that protection of TK shall not be subject to any formalities. Given the nature of TK, certain formalities may be necessary in order to clearly identify the traditional rights holders while notifying the rest of the world that the TK is both “owned” and “protected”.

Rights conferred to holders of TK

The Bill proposes that rights conferred to TK owners shall depend on whether the TK is a product or a process. For most, this typology appears to have been borrowed from section 54 of Industrial Property Act, 2001. There is need to revisit this provision given that the problematic definition of TK provided by the Bill which includes both tangible and intangible subject-matter.

Traditional Cultural Expressions

This Part VI lists a number of uses of TK or TCEs that would require the prior and informed consent on the traditional owners. However, the sticking point for some remains the issue of tangible vs intangible subject matter. For instance the Bill’s first restriction states “to reproduce the TK or TCEs”. One wonders whether how reproduction of an intangible subject-matter can be proved.

Exceptions and Limitations

This section borrows heavily from the ‘fair dealing’ provisions in section 26 of the Copyright Act, 2001. However this appears to be a closed list that excludes several other important exceptions including public interest. Ideally this list should be general in nature and allow for other exceptions that may arise from time to time.

Moral Rights

Under copyright law, moral rights protect an author’s non-economic interests. In the context of TK and TCEs, moral rights appear to be able to meet some of the needs of holders of TK and TCEs. However the rights to paternity, attribution and integrity all depart from the premise that the subject matter under protection is tangible!

Duration of Protection

This section creates an important distinction between situations where the duration of protection is indefinite and where it is time-bound. However there is a flaw in the criteria for the distinction. The first section seems to relate to collectively owned TK however the protection criteria under section 5 refers to both individually or collectively held TK under 5(2)(d).

In conclusion, this blogger applauds the Inter-Ministerial Committee for coming up with this draft Bill. However, there are some fundamental flaws in the document that must be addressed in order to ensure consistency and practicability. It is contended that intangible TK and TCEs must be protected retrospectively once they are reduced to a material form by or on behalf of the originating traditional community on condition that the latter is recognised by the State as the originating community. The definitional issues in the draft bill would be dealt with once the subject matter of protection for TK and TCEs is both tangibly identifiable and the rights flowing from this protected subject-matter is clearly delineated.

The Bill also fails to recognise the new system of devolution which many have argued would be an important catalyst in Kenya’s efforts to identify, promote and protect TK and TCEs throughout the 47 Counties.