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.

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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.

EVENT: Unveiling of Proposed Law on Protection of Traditional Knowledge and Traditional Cultural Expressions in Kenya

On Wednesday 8th May 2013, the Honourable Attorney General Prof. Githu Muigai will officiate the National Stakeholders’ Validation Seminar on the proposed legal framework on Protection of Traditional Knowledge (TK) and Traditional Culture Expressions (TCEs) at the Red Court Hotel, South C, Nairobi from 9:00am to 12:00noon. The legal framework aims to protect holders of TK and TCEs against misappropriation, misuse and unlawful exploitation by third parties for use in pharmaceutical products, therapy, arts and craft, music, design and even works of architecture.

This is a historic achievement for Kenya because it is the first country in the region and Africa, to develop a draft legal framework to validate legislation to protect TK and TCEs. It is also pursuant to Section 11, 40(5) and 69 of the Constitution of Kenya, which requires the State to protect the intellectual property rights of Kenya which includes TK and TCEs. The Kenya Copyright Board recognises that the protection of TK and TCEs is in tandem with Kenya’s “Vision 2030” blue print that aims to move our country to a middle income economy by the year 2030 through wealth creation, increased trade and national development.

Alongside KeCoBo and KIPI, there will be representatives from National Council for Science and Technology (NCST), National Museums of Kenya, State Law Office, ARIPO and WIPO.

Below is the program for the day:

SESSION 1:

0800-0830

Arrival
Registration
Prayer – Dr. Benson Mburu (NCST)

Master of Ceremony/Moderator : Dr. Evans Taracha (National Museums of Kenya)

09:10-09:20

Welcome Remarks:
by Chairman Kenya Copyright Board Mr. Tom Mshindi

Introduction:
by Executive Director KECOBO Dr Marisella Ouma, PhD

09:20-09:30

Overview and Objectives:
by Chairperson Inter-ministerial Expert Working Group, Mrs. Catherine Bunyassi Kahuria

09:30-09:45

Africa Position:
by ARIPO representative from TK Division

09:35-10:00

Opportunities for improvement:
by WIPO representative from TK division

10:00-10:30

Keynote address:
The Hon Attorney General Prof. Githu Muigai

10:30-11:00

Group Photo + Tea Break

SESSION 2:

11:00-11:15

Master of Ceremony/Moderator : Dr. Benson Mburu (NCST)

Presentation of the Draft Bill on Traditional Knowledge and Traditional Cultural Expressions, 2013 – Key Highlights:
by KIPI, Mr. Stanely Atsali

11:15-01:00

Thematic Groups/Plenary Discussion/Q&A

01:00–02:00

Lunch

02:00-03:00

Group Discussion

03:00-04:00

Group reports and Recommendations

04:20-04:35

Tea Break

04:35 – 05:00

Closing Ceremony and Vote of Thanks

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To RSVP, contact KECOBO at info@copyright.go.ke

Kenya Enacts New Law on Science, Technology and Innovation

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In January 2013, the President assented to the Science, Technology and Innovation Act 2012. This is an Act of Parliament to facilitate the promotion, coordination and regulation of the progress of science, technology and innovation in the country. This legislation also aims to assign priority to the development of science, technology and innovation. Finally, this new law is intended to entrench technology and innovation into the national production system.

This new law repeals the Science and Technology Act, Cap 250 of the Laws of Kenya which was came into force on July 1977 with the establishment of the National Council for Science and Technology (NCST).

The process of arriving at this new law concretised in 2009 with the conclusion of the Science, Technology and Innovation (ST&I) Policy and Strategy spearheaded by the Ministry of Higher Education, Science and Technology. This ST&I Policy underscored the importance of mainstreaming science, technology and innovation in all sectors of the economy to ensure that Kenyans benefit from the acquisition and utilisation of available ST&I capacities and capablities to improve their quality of life. This (ST&I) Policy and Strategy provided the framework for creating a knowledge-based economy. It was this (ST&I) Policy and Strategy that was used to develop the draft ST&I Bill in 2009 which was subsequently amended in 2012 to align it with the new constitutional dispensation.

From an intellectual property (IP) perspective, it is important to note the definition of “innovation” introduced in the new law, which reads as follows:

Innovation” includes-

(a) a technovation model, utility model or industrial design within the meaning of the Industrial Property Act, 2001;
(b) a product, process, service or idea which is novel;
(c) an improved use of a new product, service or method in industry, business or society, or
(d) any other non-patentable creations or improvements which may be deemed as deserving promotion and protection or sui-generis intellectual property rights and “innovator” shall be construed accordingly; (Emphasis mine)

The paragraph (d) provision above is important in that it covers inventions and innovations such as business methods (eg. M-Pesa) which may be excluded from protection under the Industrial Property Act.

In addition to the National Commission for Science Technology and Innovation, the new law also introduces two other organs, namely the National Innovation Agency and the National Research Fund.

Among the functions donated to the National Commission, the new law in section 6(2) states that:

The Commission shall have powers to-
(a) apply for the grant or revocation of patents;
(b) institute such action in respect of the patent as it may deem appropriate for the security of the country;
(c) acquire from any person the right in, or to, any scientific innovation, invention or patent of strategic importance to the country; (Emphasis mine)

The paragraph (d) provision above is interesting as it creates a system of compulsory acquisition in intellectual property and must therefore be read together with Articles 40 and 260 of the Constitution.

Under section 29(1) of the new law, the newly created Kenya National Innovation Agency is required to:

(d) scout for and nurture innovative ideas from individuals, training institutions, the private sector and similar institutions;
(…)
(g) increase awareness of intellectual property rights among innovators;
(…)
(o) develop the national capacity and infrastructure to protect and exploit intellectual property derived from research or financed by the Agency;
(…)
(p) facilitate the application for grant or revocation of patents and institution of legal action for infringement of any intellectual property rights;

The new law in section 32 establishes The National Research Fund. The Fund will be managed by a Board of Trustees. In section 32(2), it is stated that the Fund shall consist of-

(a) an initial sum of money amounting to two percent of the country’s gross domestic product, provided by the Treasury; (Emphasis mine)

This provision in the new law is noteworthy as it prescribes a fixed percentage of Kenya’s GDP that should be allocated to Research and Development.

Under section 34(1)(k), the Board of Trustees is required to “initiate liaison with bodies involved in the protection of intellectual property rights”.

Overall, it is clear that this new law aims to ensure that existing Intellectual Property Rights (IPR) regime are strengthened to maximize incentives for the generation, protection and utilization of intellectual property by all types of innovators and foster achievement of Kenya’s national development objectives.

Science, technology and innovation is indeed at the heart of Kenya’s vision to become a globally competitive and prosperous nation as contained in the National Vision 2030 national blue print.

Observers, policymakers and stakeholders alike recognise the urgent need for the government to create an enabling environment through the formulation of policies that promote the use of science and technology, integrating the science policy into our nation’s development agenda and ensuring that adequate funding for the implementation of ST&I policies is available.

A Look at Kenya’s Draft Bill on Protection of Traditional Knowledge and Expressions of Folklore

As many may already know, this blogger has been particularly keen on the developments around Traditional Knowledge (TK), Genetic Resources (GRs) and Traditional Cultural Expressions (TCEs) both in Kenya and the region as is evident from his posts on the ‘IPKenya’ blog available here.

This week, this blogger came across the working draft legislation on traditional knowledge (TK) in Kenya. A copy of this draft is available here. With this background in mind, this blogpost will identify some of the key issues for Kenyan policymakers with the help of certain key texts namely, the ARIPO Swakopmund Protocol, Kenya’s National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions, and a proposed TK Bill drafted for South Africa by Prof. Owen Dean, Chair of Intellectual Property at Stellenbosch University.

The starting point for legislative protection of TK, TCEs and GRs in Kenya is the Constitution of Kenya 2010. The relevant provision 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.

Below are some of the key highlights of the proposed draft law dubbed: “Protection of Traditional Knowledge and Expressions of Folklore Bill”.

The Draft Bill makes two broad distinctions: TK and Expressions of folklore (EF). Although the draft offers two alternative definitions for both TK and EF, the first of each of the definitions seems most suitable:

“traditional knowledge” shall refer to any knowledge originating from a local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, where the knowledge is embodied in the traditional lifestyle of a community, or contained in the codified knowledge systems passed on from one generation to another. The term shall not be limited to a specific technical field, and may include agricultural, environmental or medical knowledge, and knowledge associated with genetic resources.

“expressions of folklore” are any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof:
i. verbal expressions, such as but not limited to stories, epics, legends, poetry, riddles and
other narratives; words, signs, names, and symbols;
ii. musical expressions, such as but not limited to songs and instrumental music;
iii. expressions by movement, such as but not limited to dances, plays, rituals and other performances; whether or not reduced to a material form;
iv. tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, basketry, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms;

Conditions for protection:
The Draft Bill states that the protection of TK and TCEs shall not be subject to any formality.
However, it could be argued that a basic condition for protection of TK should be that the TK must be reduced to a material form by or on behalf of the originating traditional community.

Traditional cultural rights in TK and Expressions of Folklore:
The scope of these rights are defined as follows:

(i) manufacturing, importing, exporting, offering for sale, selling or using beyond the traditional context the product;
(ii) being in possession of the product for the purposes of offering it for sale, selling it or using it beyond the traditional context
(iii) making use of the process beyond the traditional context, where the traditional knowledge is a process

In addition to all other rights, remedies and action available to them, the draft Bill also provides that owners shall have the right to institute legal proceedings against any person who carries out any of the acts mentioned above without the owner’s permission.
Finally in relation to the traditional cultural rights conferred, the draft Bill makes it clear that these rights do not affect, any rights that may subsist under any law relating to copyright, trademarks, patents, designs or other intellectual property.

Independently of the traditional cultural rights, the draft bill also proposes that the traditional owners of traditional knowledge or expressions of folklore should be the holders of the moral rights in the traditional knowledge or expressions of folklore. This sui generis moral rights provision is modeled on the copyright system as it provides for right of integrity, right of paternity in addition to the right not to have ownership of traditional knowledge or expressions of folklore falsely attributed to them.

Limitations to traditional cultural rights in TK and EF:
With respect to TK, the draft Bill provides for a system of compulsory licensing “where protected TK is not being sufficiently exploited by the rights holder, or where the holder of rights in traditional knowledge refuses to grant licences subject to reasonable commercial terms and conditions, on the recommendation of the national competent authority”

With respect to EF, the draft Bill creates a list of exceptions and limitations to protection of EF whereby protection must NOT:-

a) restrict or hinder the normal use, development, exchange, dissemination and transmission of expressions of folklore within the traditional or customary context by members of the community concerned, as determined by customary laws and practice.
b) extend beyond uses of expressions of folklore taking place outside their traditional or customary context

Fair and equitable benefit-sharing:
It is proposed in the draft Bill that the protection extended to traditional knowledge holders includes the fair and equitable sharing of benefits arising from the commercial or industrial use of their knowledge, to be determined by mutual agreement between the parties. In the absence of such mutual agreement, the national competent authority is mandated to mediate between the concerned parties with a view to arriving at an agreement on the fair and equitable sharing of benefits. In this regard, it is submitted that such a provision would also augur well in the new devolved system of government
since county governments would be in a position to benefit from exploitation of TK, GR and TCE.
On the regional front, with the emergence of the EAC, the issue of access and benefit sharing in cases where the resources are spread out in different countries within the EAC may now be easily addressed.

Prior informed consent:
The draft Bill sets out a procedure for obtaining the prior and informed consent of the traditional owners to use their traditional knowledge or expressions of folklore for a non-customary user (whether or not of a commercial nature).
The procedure states that prospective users may apply to the national competent authority to obtain the prior and informed consent and this application is publicly advertised.

National Competent Authority:

The Draft Bill proposes the designation or establishment of a national competent authority which shall implement the provisions of the Bill to be known as the National Traditional Knowledge Authority. Their functions including the following:

-To keep a register of all licences and assignments granted under this section.

– To mediate between the concerned parties with a view to arriving at an agreement on the fair and equitable sharing of benefits.

– To recommend on the granting of a compulsory license in respect to protected traditional knowledge in order to fulfill national needs.

– To create a notification system for certain categories of EF for which protection is sought

– To administer and enforce protection of traditional knowledge, which includes awareness-raising, education, guidance, monitoring, registration, dispute resolution, enforcement and other activities related to the protection of traditional knowledge. In addition the Authority is entrusted, in particular, with the task of advising and assisting holders of protected traditional knowledge in defending their rights and instituting civil and criminal proceedings, where appropriate and when requested by them.

Concluding Comments:

As Kenya moves towards a legislation with sui generis for TK, GRs and TCEs, the short-term measure would be use the existing IP regimes. In the case of contemporary creation and innovation based on TK and TCEs, the copyright and patent laws in Kenya may provide some protection. The copyright system could also assist since it makes provisions for protection of unpublished works of unknown authors. In addition, this system would also cater for related rights protection of recordings of cultural expressions and for “performers of expressions of folklore”. Finally, databases and compilations of TK and TCEs can also be protected under copyright law.

In the same vein, the trademark system in Kenya could also offer some protection for TK. In particular, collective trademarks can be used to protect TK products (eg., foods, agricultural products, crafts). Common law actions and remedies relating to passing off and unfair competition may also be relied upon. Lastly, the law on trade secrets could also provide some protection for confidential information for secret TK and TCEs.