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A Zambian citenge depicting a village scene.
(This is the one Little Leo has with her far from home,
so this is the one that gets pictured.) |
Little Leo promised you a look at Zambia’s new TK, GR and EOF
bill, so here we go. Quite appropriate
timing, too as the WIPO IGC on
those very topics is going on now.
(Though Zambia is not on the list of participants.)
The Protection of Traditional Knowledge, Genetic Resources
and Expressions of Folklore Act, 2016 (Act No. 16 of 2016)
came into force in June of this year. [WIPO
has it listed in their database as “…Folklore Act, 2006,” but that appears to
be a typo as the Act itself says 2016 and references treaties that came into
existence after 2006.] The Act’s
preamble indicates that the Act is meant to implement the ARIPO Swakopmund
Protocol on the Protection of Traditional Knowledge and Expressions of
Folklore, the TRIPS Agreement, and, like the
new Industrial Designs Act, “any other relevant international treaty or
convention to which Zambia is a State Party.”
Unlike the Industrial Designs Act, the traditional knowledge (TK), genetic
resources (GR) and expressions folklore (EoF) act does not replace any existing
law in Zambia; it is brand new.
Little Leo’s first thought upon hearing that Zambia had a
law on EOFs was whether the Nyanja singer Angela Nyirenda’s recording of “Ching’ande,”
a traditional Tonga song, on her album
Malo Abwino would have required permission under this law. Article 3 of the Act seem to answer that in
the negative by excluding from the Act any use of expressions of folklore among
traditional communities. [Little Leo is
rather happy as “Ching’ande” was the reason she purchased that album, even if
she spent more time listening to ”Nimpepako Ma Key” and “Ubwinga.” Amayenge and Mashombe Blue Jeans
aside, there’s not a lot of recorded music available in Tonga.]
Permits Permits Permits
The main gist of the act is that permits are required for
exploring, accessing and using TK, GR and EOFs.
Permits must be obtained from the Patents and Companies Registration
Agency after a written arrangement is worked out with the community that holds
the GR, TK or EOF. The community is not
allowed to authorize anyone to access or use without a permit. (Art. 67.)
There are detailed rules laid out for obtaining and
complying with permits. (Arts. 32, 36,
40 and 45.)
The New System
The structure of the system seems to be somewhat akin to
trademark protection. Registration is optional
but will serve as prima facie evidence in court, and the Registrar will publish
an Intellectual Property Journal on protected TK, GRs and EOFs. It does not look as though there is any opposition
process as in trademarks, however. Registration
does not require public disclosure of secret TK or EOF in order to register for
protection. (Arts. 15(5) and 47(3).) The Register will also contain records of all
licenses, access agreements and other contracts related to use of GR, TK and EOFs. Access agreements must be in writing and
approved by the Agency in order to be valid.
The duties in the Act are overseen by the Registrar
appointed under the Patents and Companies Registration Act. This Registrar is a very busy person
indeed. In addition to the duties
required under the Patents and Companies Registration Act, the Industrial
Designs Act and who-knows-what-other-acts, the Registrar is now also in charge
of administering the TK, GR and EOF act.
In this case, that means also running a lot of education programs about
these topics. Luckily, both the Patents
and Companies Registration Act and the TK, GR and EOF act allow the Patents and
Companies Registration Agency Board to appoint assistant registrars to help out
with all these duties. [That is quite a
mouthful; Little Leo thinks there must be a fun acronym for that board.] The Agency also has the ability to transfer
the TK, GR and EOF duties to another institution if it sees fit. (Art. 9.)
Extensive Definitions
Over a tenth of the Act is definitions. The Act contains very detailed definitions
for many terms that have proven difficult to agree upon in international
settings, such as “expressions of folklore,” “holder” and “traditional
community.” The definition of
traditional community is worth highlighting as it illustrates the local nature
of this law:
“ traditional community ” means a human population living in
a distinct geographical area in Zambia which is the creator or recognised,
according to customary laws and practices, as the creator and custodian of a
traditional knowledge, genetic resource or expression of folklore and the words
“community” and “local community” shall be construed accordingly.
Zambia has approximately 72 local languages with 7 or so
that are recognized as main languages.
The languages, and the cultures with which they go, tend to be
geographically segregated. In general
terms, Bemba in the north east, Kaonde and Lunda in the north west, Nyanja and
Tumbuka to the east, Lozi to the west, Tonga to the south, etc. In other words, nearly all Zambians live in
distinct geographical areas. Lusaka and
the main Bomas (towns) tend to have some people from other tribes, but for the
most part, geographical areas tend to be fairly homogenous in culture.
The concept of “customary laws” contained within the
“traditional community” definition is another term upon which agreement is
difficult internationally, but which makes sense in the Zambian context. In Zambia, customary laws are enforced by
local courts that are integrated into the full national legal system.
It is also worth noting that the definition of Expressions
of Folklore includes “any form, whether tangible or intangible, in which
traditional culture and knowledge is expressed, appears or manifests…” Many discussions in this area use the phrase “traditional
cultural expressions (TCE) instead of Expressions of Folklore. It appears that the Zambian act’s use of EoF
also covers TCE.
Protections Granted
The Act has five enumerated protections listed in Art. 4(1),
with the authority of holders of the relevant rights to bring legal proceedings
granted in Art. 4(2). This makes sense
for four of the protections, but is a little confusing with respect to 4(1)(c),
which protects “an equitable balance between rights and interests of holders
and users.” That sounds like something
that would also need to be enforced by users.
The other four protections are:
·
Against infringement of TK, GR and EOF
·
Against misappropriation of TK and EOF
·
Against misappropriation of GR
·
Against improper grant of IP right over TK, GR
and EOF
The Act also enumerates six benefits and rights that are
granted to holders of TK, GR and EOF. (Art.
4(4).) [The Act says the holder may
“excise the following rights,” but Little Leo is pretty sure that’s a typo and
should be “exercise.”] These rights
include the option of registering TK and EOF with ARIPO and with the Zambian
Patents and Companies Registration Agency.
Registration opportunities extend to those with transboundary rights in
accordance with Article 5.4 of the Swakopmund Protocol.
Rights granted include both economic and moral rights. For example, “distortion, mutilation or other
modification of” expressions of folklore are prohibited. (Art. 49.)
And, holders have the exclusive right to license what they hold, which
is discussed further below.
Somewhat oddly, in the middle of all this protection and
right-granting, there’s a long list of principles that seems like it would
better fit in a preamble. But, hey who
says laws have to be drafted in a certain order? It is unclear what legal effect this list of
principles will have or how the items on the list will play into enforcement of
rights under the Act. Perhaps it will be
used to interpret other provisions of the Act by a court. (The 12-element list can be found in Art. 5.)
Prior Informed Consent and Benefit Sharing
Prior informed consent and benefit sharing are sort of buzz
terms in GR/TK/EOF circles. The Zambian act
pays homage to both by including the terms, although somewhat unnecessarily. All three subject matter portions of the act
allow holders of the relevant items to license access to or use of the
respective materials. As discussed
above, arrangements are only allowed if approved by the Agency through the
permit-granting process. So, there is no
use allowed without prior informed consent, even without the sections that
require prior informed consent. (Compare
Art. 17 giving the holder the exclusive right to “authorise the exploitation”
of TK and Art. 18 requiring users of TK to obtain prior informed consent.)
Benefit sharing is also required, again both through the
exclusive-right-to-license provisions and through explicit
benefits-must-be-shared provisions.
Benefits considered go far beyond money and can be anything the holders
feel would be beneficial to them. A
non-exhaustive list appears in Article 43:
(a) the license fee;
(b) upfront payment;
(c) milestone payment;
(d) royalty;
(e) research and development funding;
(f) joint ownership of intellectual
property;
(g) employment opportunity;
(h) participation of Zambian nationals, the
Agency or appropriate institution designated by the Agency in the research, and
development based on the genetic resource or traditional knowledge;
(i) priority to supply raw materials of the
genetic resource required for the production of products derived from the
genetic resource;
(j) access to products and technologies
derived or developed from the genetic resource or traditional knowledge;
(k) training, both at institutional and
traditional community levels, to enhance local skills in genetic resources or
traditional knowledge, and their conservation, evaluation, development,
propagation and use;
(l) provision of equipment, infrastructure
or technological support; or
(m) any other benefits as may be appropriate
in relation to the genetic resource or traditional knowledge.
Exceptions and Limitations
In addition to the inter-traditional community sharing
discussed above, there is also a broad exception for education, research and
experimentation. (Art. 3(3).) Somewhat surprisingly, there are also
compulsory license provisions akin to what one might find in a patent law. In cases where GR or TK is “not being
sufficiently exploited by the holder or where the holder refuses to grant
access subject to reasonable commercial terms and conditions, the Minister may,
in the interest of public security or public health, grant a compulsory licence
to fulfill a national need.” (Arts. 30
and 23, respectively.) Interestingly, “the
Minister” is mentioned a number of times in the Act, but it is never specified
which Minister this is.
Disputes, Remedies and Enforcement
Disputes under the Act are to be heard by the Registrar,
with the option to appeal to the High Court.
(Arts. 56 & 64.) Little Leo wonders
how difficult it will be to dispute the accuracy or validity of a registration granted
by the Registrar, or the fairness of an agreement authorized by the Registrar,
or the validity of a permit issues by the Registrar, before the Registrar.
There are also criminal enforcement mechanisms similar to those
in the Industrial Designs Act.
Contravening the Act can result in up to 4 years in prison, a fine of 400,000
penalty units (~USD$12,000), or both.
Lastly, Little Leo notes the customs authorities granted in
the act, mainly because many of the things she uses in her daily life that could
potentially fall under the EOF umbrella, from her hand-carved and pyrographic
nsima sticks that she cooks with to the citenges she wears to bike. Customs agents are given the authority to
seize GRs or “any material incorporating traditional knowledge, genetic
resources or expressions of folklore that a person intends to export without
the necessary permits.” (Art. 68.) Those permits are really important.
