By Kelvin Njuguna Mugwe
The African continent, it has been argued, and justifiably so, is inseparable with foetid traits. These include, but are not limited to, despicable governance, illiteracy and archaic practices, among others. This state of affairs has constantly prompted the proclamation of passionate messages of hope. A notion of imaginary progress is always meticulously draped in the messages in a rather garbled manner. The sad reality, however, is that Africa has remained hopeless and stagnant, and when it moves, it is mostly in a retrograde direction. Seldom are the times that substantial progress is made; yet even in those circumstances, it is characterised by retroactive, reactionary steps.
Kenya is greatly afflicted by this curable malady. The country, just like its contemporaries in Africa, is desirously endowed with rich traditional knowledge (TK) and traditional cultural expressions (TCEs). Despite of this enviable situation, genuine and focused legal protection of the same had remained outrageously absent. The delusional honchos bequeathed with the mandate of safeguarding TK and TCEs watched as these salient elements of our heritage went protected by way of patents, trademarks and at times geographical indications. This yawning gap in protection was gladly exploited by Japan, which registered various aspect of the kyondo (or kiondo), which is an African basket popular among the Kamba, Kikuyu and the Maasai.
In a rare show of being proactive, the Kenya Institute of Industrial Property (KIPI) in 2008 saved Kenya further ignominy by opposing the registration of kikoy as a trademark on the premise that the word kikoy has become a generic term. The need to protect other valuable artefacts such as the shuka, akala, cultural carvings, the soapstone and the nyatiti, among others, is cannot be gainsaid.
Protection accorded for TK and TCEs under patents was susceptible to failure, largely because satisfaction of the novelty test in registering a patent as espoused under Section 21 of the Industrial Property Act was a herculean task. Subsequently, an unnecessary overstretching of the scope of trademark protection would suffice in an attempt to protect TK and TCEs under the Trademark Act. It is against this backdrop that the need of a sui generis legislation to protect TK and TCEs has been predicated upon.
This instrumental step was realised in Kenya through the enactment of the Protection of Traditional Knowledge and Cultural Expressions Act, 2016. The Act is a satisfaction of Article 11 of the Constitution that demands the promotion of culture by the State, coupled by Article 69(1)(c), which requires protection of indigenous knowledge of communities.
The progressive nature of the Act is unmissable. Section 6 (1) safeguards the protection of TK. It does so by providing that Protection shall be extended to traditional knowledge that is (a) generated, preserved and transmitted from one generation to another, within a community, for economic, ritual, narrative, decorative or recreational purposes; (b) distinctively associated with or belongs to a community; and (c) integral to the cultural identity of community that is recognised as holding the knowledge through a form of custodianship, guardianship or collective and cultural ownership or responsibility, established formally or informally by customary practices, laws or protocols. This provision is of monumental importance since it promotes the respective cultures of Kenyan communities. The net effect of this is the inculcation of a positive sense of belonging in a particular tribe. Conflict sufficing out of similar TK either within Kenyan communities or without is addressed by the Act, which mandates county governments to help respective communities to register their TK.
Section 14 (1) of the Act accords protection to TCEs, which extends to characteristics of a community’s cultural identity and cultural heritage that have been maintained, used or developed by such community in accordance with the customary laws and practices of that community. Also protection of cultural expressions that have been generated, preserved and transmitted from one generation to another, within a community, for economic, ritual, narrative, decorative or recreational purposes is asserted. Registration of TCEs is, however, permitted only after the owners have obtained prior informed consent, which has been interpreted as the giving of correct and accurate information.
Section 37 of the Act is illustrative of the adequacy of the protection. It creates offences and penalties in instances where a person possesses, sells, develops or imports goods and services using unauthorised TK and TCEs. Failure to acknowledge the source of TK, prejudicial distortion or unauthorised modification of TK and making of non-customary use of TK or TCEs are other offences espoused in the Act. Its drafters deserve commendation for providing for an expansive range of offences as well as the right to pursue civil action.
The remedies that would arise from such a civil action are novel and expansive as compared to conventional remedies for infringement of intellectual property rights. They include an order for the revocation or invalidation of intellectual property rights inappropriately acquired over TK or TCEs or derivatives thereof, and an order that false attribution of ownership, or derogatory treatment of TK or TCEs, cease or be reversed.
The Act, however, is not without fault. Under Section 4, it obligates the county governments, through respective county executives in charge of culture, to be responsible for the repository, collection and compilation of information relating to TK and TCEs.
Though it is trite knowledge that county governments have a sine quo non-role to play with regard to TK and TCEs protection, avoidable inconsistencies and conflicts during registration are bound to occur. It is not a far-fetched conclusion that some counties do not consider matters touching on culture as essential while other are totally inconsiderate of the same.
Further, The Act, under Section 5, provides that the National government shall be responsible for the establishment and maintenance of a Repository at the Kenya Copyright Board (KECOBO – a creation of Section 3 of the Copyright Act; this makes its application to have a hackneyed value. KECOBO, according to its functions enumerated under Section 5 of the Copyright Act, is tasked with copyright related activities. The scope of copyright only extends to literary works, musical works, artistic works, audio-visual works, sound recordings and broadcasts. TK and TCEs cannot under any circumstances be limited under the realm of the foregoing scope. There is justifiable reason to argue that a unique body, to, be specifically tasked with the responsibility of dealing with the broad range of TK and TCEs, ought to be created.
Finally, aside from the contents of the Act, it is important that an international instrument is ratified for TK and TCEs in order to supplement the Act. The Wold Intellectual Property Organization (WIPO) has established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore that is among other duties, is expected to negotiate for an international convention. The importance of such a convention cannot be overemphasised. This is because it would create a legal structure to regulate how TK and TCEs are to be dealt with by different countries, especially where conflict is likely to arise.
In an era where numerous legislations are passed to safeguard selfish interests of the ruling class, the Protection of Traditional Knowledge and Cultural Expressions Act certainly is a whiff of freshness. It reasonably addresses the numerous deficiencies that arose out of the protection accorded to TK and TCEs under the previous legal regime. However, the Act is miles away from perfection and this makes it susceptible to breaches and inadequacies; further discourse on its improvement it should be encouraged.