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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#ipkenya Weekly Recap of Intellectual Property News from Around Africa

This week, IPKenya focused on South Africa’s recently released Copyright Review Commission Report and shed light on some of the emerging issues surrounding copyright administration of collecting societies both in the South and in Kenya. The post is available here.

Here are some of the other important IP-related stories IPKenya came across this past week:

– “Should Colour be Registrable as a Trade Mark in Kenya?” [Strathmore CIPIT Blog]

– Kenya: local artiste DNA sues bank for copyright infringement and passing-off [The Standard]

– “South African photographer – images tell a story, but who owns the copyright?” [Adams & Adams]

– Zambia: Patent and Companies Registration Agency (PACRA) Reviewing Intellectual Property Laws [The Times]

– Kenya: “State warned on ditching copyrighted software” [The Standard]

– Nigeria: Intellectual property rights to get federal government protection [The Business Day]

– “Medals, Models & Moguls” – IP Rights and Fashion Roundup [Stellenbosch Chair of IP]

– Kenya: “Why companies need intellectual property policies” [The Business Daily]

– South Africa: Rev. Abe Sibiya appointed new chairman of SAMRO [SAMRO]

– Africa’s largest collecting society changing from company limited by guarantee to a cooperative? [YouTube]

– “The GAP Widens…” – Ownership and use of the GAP trade mark in South Africa [Spoor & Fisher]

– “Kenya’s M-PESA technology & emerging intellectual property issues” [Cayman Financial Review]

– South Africa: “Patently Wrong – The jury’s verdict in Apple v Samsung” [Stellenbosch IP Chair]

– “Climate change and adaptation in Africa: evidence from patent data” [TradeMark Southern Africa]

– Kenya: Safaricom seeks out-of-court deal in copyright dispute. [The Business Daily]

– South Africa: “CRC Report 2011: DALRO licensing agreements” [Copyright & Education]

Finally, for all IP enthusiasts in Kenya, please note that there’s an upcoming IP Check-in Session on 13th October 2012 at Strathmore University. The discussion topic will be “Cultural Expressions and Traditional Knowledge: Protection Mechanisms, Modalities of Management and Commercialisation, for Community Benefit”
IPKenya urges you all to mark this date on your calendars, come prepared to brainstorm and share ideas on how we should develop this potentially fourth branch of IP in Kenya.

South Africa’s TK Bill Debate: Sui Generis versus Intellectual Property Protection of Traditional Knowledge?

Afro-IP is running a poll here to gather views on South Africa’s Intellectual Property Laws Amendment Bill (the “TK Bill”) which is up for debate before parliament and on the verge of becoming law in South Africa.

As the visibly unhappy Anton Mostert Chair of Intellectual Property at Stellenbosch University explains, the Bill was drafted by taking four of the existing Intellectual Property (IP) statutes, namely the Copyright, Designs, Performers Protection, and Trade Marks Acts, and writing into them provisions aimed at granting protection to traditional works akin to the subject matters of the individual statutes.

There is no doubt that TK is worthy of protection. The five main reasons advanced for its protection are:

Equity. (TK generates value that is currently inadequately recognised and compensated)
Conservation of Biodiversity. (Protection of TK can help conserve the environment and promote sustainable agriculture and food security)
Preservation of Traditional Practices. (Framework for maintaining practices and knowledge embodying traditional lifestyles)
Prevention of Biopiracy. ( for example, US Patent number 5, 401, 5041 in respect of healing properties of Turmeric found in India)
Promotion of the Use and Importance of TK in Development.

However, while there is consensus that indeed TK is worthy of protection, there appears to be some disagreement on HOW best to protect TK, with two main options being put forward:

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