Tuesday 20 September 2016

Afro Ng'ombe

Zambia's New Traditional Knowledge, Genetic Resources and Expressions of Folklore Act.

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.

Afro Ng'ombe

Afro Ng'ombe

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5 October 2016 at 13:32 delete

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