Wednesday 17 October 2018


Curiosities in Kenya's TK law

Kenya's Protection of Traditional Knowledge and Cultural Expressions Act was passed in 2016 and commenced on 21 September, 2016. On this (approximately) 2-year anniversary of the Act, let us discuss three oddities of the Act.

1. Section 12 provides for compulsory licensing of tradition knowledge. The very notion that a community could be compelled to grant a license to their traditional knowledge is, to this blogger, a bit revolting, but the text of the provision is even more curious.

"12. Where protected traditional knowledge is not being sufficiently exploited by the owner or rights holder, or where the owner or holder of rights in traditional knowledge refuses to grant licenses for exploitation, the Cabinet Secretary may, with prior informed consent of the owners, grant a compulsory licence for exploitation subject to Article 40(3) (b) of the Constitution." (emphasis added)

What, exactly, does "prior informed consent" mean in the context of a compulsory license? If there is consent of the owners, doesn't that mean it's not a compulsory license? This blogger cannot think of any reasonable and sensible interpretation of this provision.

2. Communities/owners may assign their TK. Section 22(1) of the Act states: "The owners of traditional knowledge or cultural expressions rights shall have the right to assign and conclude licensing agreements."  Now, licensing is one thing, but assignment? What exactly does it mean to assign traditional knowledge?  The Act defines an owner of TK as "local and traditional communities, and recognized individuals or organizations within such communities in whom the custody or protection of traditional knowledge and cultural expressions are entrusted in accordance with the customary law and practices of that community". An assignment would mean that the owner transfers ownership to someone else - but how is that possible in this context? It seems that anybody who could be an owner (i.e., could receive an assignment), would already be an owner under the Act.

3. The Act makes numerous references to the "Cabinet Secretary", which in Section 2 is defined as the "Cabinet Secretary responsible for matters relating to Intellectual Property". Who is this? In Kenya, there is no such Cabinet Secretary, per se, but there are several possibilities: the copyright office, KECOBO, is in the Office of the Attorney General; the Plant Breeders' Rights office, KEPHIS, is in the Ministry of Agriculture; and the patent/trademark office, KIPI, is in the Ministry of Industrialization. Another possibility might be the Cabinet Secretary to the Ministry of Sports and Heritage. The identity of this "CS in charge of IP" is important, for example, because the funding for KECOBO's database of TK, required by the Act, would most likely come from that Cabinet Secretary's ministry.  Also, many decisions described in the Act (such as for compulsory licensing, as described above) must come from this mystery CS.

As with any newly enacted law, the Protection of TK Act has some kinks that require attention. Hopefully these will be addressed in the near future.... 



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