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.
On 31 August 2016, President Uhuru Kenyatta (pictured above) assented to the Protection of Traditional Knowledge and Cultural Expressions Bill, No.48 of 2015. The Bill was published in Kenya Gazette Supplement No. 154 on 7 September 2016 cited as the Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016. The date of commencement of the Act is 21 September 2016, which means the Act is now in force. A copy of the Act is available here.
In previous blogposts here, we have tracked the development of this law aimed at creating an appropriate sui-generis mechanism for the protection of traditional knowledge (TK) and cultural expressions (CEs) which gives effect to Articles 11, 40 and 69(1) (c) of the Constitution. This blogpost provides an overview of the Act with special focus on the issues of concern raised previously with regard to the earlier Bill.
On May 11th 2016, the International Convention for the Protection of New Varieties of Plants (UPOV Convention) of December 2, 1961, as revised on March 19, 1991 entered into force in Kenya. As readers know, Kenya was the first country in Africa to join Union internationale pour la protection des obtentions végétales (UPOV) when it became a member on May 13th 1999 and subsequently domesticated the 1961 Act of the UPOV Convention in the Kenya Seed and Plant Varieties Act Cap 326.
Previously this blogger highlighted the recently adopted ARIPO Arusha Protocol and the draft SADC Protocol which are both modelled around UPOV 1991 standards. In this connection, the entering into force of UPOV 1991 in Kenya is a significant development for both plant breeders’ rights as well as farmers’ rights.
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.
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.
In November 2012, the Nigerian Copyright Commission (‘the Commission’) formally launched the Reform of the Copyright System. The key objective of the reform was to re-position Nigeria’s creative industries for greater growth; strengthen their capacity to compete more effectively in the global marketplace, and also enable Nigeria to fully satisfy its obligations under the various International Copyright Instruments, which it has either ratified or indicated interest to ratify.
Since the formal launch of the Reform, the Commission has undertaken a number of activities, including review and comparative analysis and case studies of similar national reform efforts; stakeholders’ consultations; collation of commentaries; and analysis of stakeholder feedback.