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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Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act No. 33 of 2016 Comes into Force

uhuru-kenyatta-president-pscu-signs-tk-tces-bill-august-2016-kenya-2

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.

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ARIPO Swakopmund Protocol on Traditional Knowledge and Expressions of Folklore Enters into Force in May 2015

children-circle

As many readers may recall, the Member States of the African Regional Intellectual Property Organization (ARIPO) adopted the Swakopmund Protocol on the protection of traditional knowledge and expressions of folklore on August 9, 2010 at Swakopmund in the Republic of Namibia. Section 27 of the Protocol provides that it shall come into force three (3) months after six (6) states have deposited their instruments of ratification or accession with the Government of the Republic of Zimbabwe.

Since the adoption of the Protocol, the following five (5) states have deposited their instruments of ratification or accession: Botswana, Zimbabwe, The Gambia, Rwanda and Malawi. The sixth and final ratification was deposited (fittingly one might add) by Namibia on February 11, 2015. Therefore, the Swakopmund Protocol shall enter into force on May 11, 2015.

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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.

Protection of Image Rights in Kenya: New Court Cases Against Microsoft, Safaricom and German Embassy

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‘Image rights’ generally refer to an individual’s proprietary right in their personality and the right to prevent unauthorised use of their name or image or a style associated with them. In a previous blogpost here, we have discussed the commercial appropriation or exploitation of a person’s identity and associated images as a commercially valuable asset, particularly for individuals such as actors, musicians and athletes who commercialise their images in association with the promotion of products or services.

The protection of the image of an individual has increased over the years in many jurisdictions, either through case law or through limited inclusion in other Intellectual Property (“IP”) laws such as the Copyright Act in some jurisdiction. However, with the exception of Guernsey, no legislation exists anywhere in the world that is exclusively drafted for the protection of all aspects of someone’s image. In light of this gap, the protection of image rights remains largely a matter of contractual and/or constitutional interpretation, especially in Kenya. Therefore, it follows that disputes relating to the protection of image rights in Kenya may require some ‘judicial law-making’, as it were.

This year, there have been three cases relating to image rights that have arisen and received media attention in Kenya, namely Suzie Wokabi v. Microsoft; Kitosiosio Ole Kutuk v. Safaricom; Tealaso Lepalat v. the German Embassy in Kenya. No rulings and/or judgments have been reported in these cases thus far therefore this blogpost merely highlights the facts and issues presently in the public domain with a view to illustrate some of the challenges in protection of image rights.

In the Suzie Wokabi v. Microsoft case, media reports indicate that Wokabi accuses Microsoft East Africa of misappropriating images of her hands and her son’s foot and using them for billboard advertising of Microsoft products without her consent. According to the media, Wokabi was approached by Muthoni Njomba, a makeup artist and entrepreneur who asked whether she could use Wokabi and her son as models for her artwork. Njomba then got a professional photographer who took photos of Wokabi’s hands and her son’s foot.

Thereafter Wokabi claims she was “shocked” when her husband told her that he had seen the same photo on a Microsoft billboard accompanied by the words “Art Deeper with Windows 8”. Njomba in a media interview reportedly admits that she approached Wokabi but denies the allegations that she sold the photos to Microsoft claiming that the photos belonged to the photographer who had the rights to do whatever he wanted with the photos.

Wokabi has since reportedly gone to court to seek “a declaration that her constitutional right to property was violated by Microsoft, an order for compensation for general damages and compensation for being used as models, taking into account her celebrity status, recognisability and reputation”.

Kitosiosio Ole Kutuk Safaricom 2014

In the Kitosiosio Ole Kutuk v. Safaricom case, it is reported that telecommunications giant Safaricom misappropriated and used a photograph of maasai moran on its GSM Sim Cards. John Ole Muli, the brother of the maasai moran discovered his brother’s photo on the Sim Cards while in Loitokitok town where the the Sim cards were being sold. The maasai moran in question, Kitosiosio Ole Kutuk claimed that the mobile communication service provider did not seek his permission before the photograph was used in the GSM Sim Cards being sold countrywide.

Kutuk therefore sued Safaricom for using his image without his permission or signed contract and it is reported that High Court Justice David Onyancha has heard from Kutuk’s lawyers that there was neither a contractual agreement was entered between Kutuk and Safaricom nor any compensation paid to Kutuk.

German Embassy Tealaso Lepalat Lake Turkana Festival 2012 2013

In the case of Tealaso Lepalat v. the German Embassy, it is reported that the German Embassy in Kenya was a co-sponsor in the Lake Turkana Cultural Festival and that a photo of Mrs Lepalat was allegedly taken and used by the Embassy to promote the Festival. As a result of the photo being taken and used, Mrs Lepalat’s her husband physically assaulted and divorced her for not consulting him before allowing use of her photo to promote the event. Mrs Lepalat also claimed that she has since been cast out of her village because she failed to seek the consent of her husband and elders before having the photograph taken. Mrs Lepalat maintains that she never authorized any person to take and use her photo in connection with the event.

The photograph at the centre of the dispute has since 2012 been used to promote the Lake Turkana Festival, held in Turkana’s Loiyangalani Village every year.

Mrs Lepalat, supported by her brother Gideon Lepalo, has taken the matter to court and is seeking compensation from the German Embassy for her physical and emotional damages she has suffered.

However, the Attorney-General of the Republic of Kenya, who was enjoined in the suit as an interested party, has reportedly told the court that the German Embassy can only be sued if the Federal Republic of Germany waives diplomatic immunity it enjoys in Kenya under the Privileges and Immunity Act. The A-G further contended that that the court has no jurisdiction to hear the matter, as it is barred from hearing the dispute by the Privileges and Immunity Act alongside international laws that protect foreign diplomats.
Therefore the AG asked the court to dismiss the proceedings against the German Government and its Embassy in Kenya.

In rebuttal to the AG’s arguments, Lepalat insists that the the German Embassy waived its immunity when it violated her rights by using the photograph without considering the Samburu community’s beliefs. Lepalat and her family further argue that diplomatic immunity, as per Kenyan laws, does not cover professional or commercial activity. In this connection, Lepalat contends that the Lake Turkana Festival is a commercial activity for which the German Embassy cannot invoke immunity. In addition, the use of her photograph without her consent was not the embassy’s official duty hence cannot be covered by diplomatic immunity.

As these cases proceed to full hearing and determination, this blogger will be keenly following the developments.

Legal Protection for TV Formats: Another Sui-Generis Area of Intellectual Property Law?

Dads Can Cook TV Kenya

Imagine this scenario: You’re a budding creator and film producer who develops this brilliant reality show which is being aired in one of our local TV channels. At the end of the first season of your hit show, the TV broadcaster discontinues your show. One month later, you discover that the same TV channel or a rival TV station has premiered its own show which is a carbon copy of your own show which they discontinued. What recourse would you have under intellectual property law?

At the CIPIT Seminar #KnowUrIP, Mr. Martin Munyua (@MartinMunyua) the editor and creator of the hit TV show “Dads Can Cook” painted this very same scenario drawn from his real-life experiences. The topic of TV format protection in Kenya may becoming pertinent as local creators and innovators continue to create programming content at a level that compares favourably both regionally and internationally. Domestically, the growth and expansion of the TV industry has resulted in cut-throat competition among broadcasting houses who increasingly demand for new and original programming content. Many TV viewers in Kenya may recall the case of two similar shows on two rival networks namely, “Mali” and “Lies That Bind” on NTV and KTN respectively. This case illustrated the level of competition among TV networks and how popular TV shows, concepts, formats and themes can be copied, replicated, modified across these networks to capture a larger share of viewership.

Read the rest of this article at the CIPIT Law Blog here.

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