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 firstname.lastname@example.org 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.
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.
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.
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.
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.
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.