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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Comments on the Protection of Traditional Knowledge and Traditional Cultural Expressions Bill, 2015

Call for Submission of Memoranda - National Assembly - TK Bill 2015 Kenya

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.

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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

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.