What next for Traditional Knowledge
and Cultural Expressions Act?
he Protecon of Tradional
T
Knowledge and Cultural
Expressions Act, No. 33 of
2016 was assented to by the president
on 31 August 2016. This law aims at
creang an appropriate sui-generis
mechanism for the protecon of
tradional knowledge (TK) and
tradional cultural expressions (TCEs)
which gives effect to Arcles 11, 40 and
69(1) (c) of the Constuon. The
applicaon of the Act commenced on
st
21 September 2016.
Immediately it was passed, the Act
a p p e a r e d d i s p r o p o r o n a t e l y
p ro t e c o n i st w i th l i l e or n o
provisions on s uppor t, access ,
development and promoon of TK and
TCEs. It was also viewed by many as 'an
orphan Act' as it lacked an appropriate
implementaon and enforcement
framework and had no clear parent
ministry.
T h e d e n i o n o f C a b i n e t
S e c r e t a r y ” w a s p a r c u l a r l y
ambiguously defined as the “Cabinet
Secretary responsible for maers
relang to intellectual property rights”.
Th is d e ni on m ay have b ee n
interpr ete d t o cov e r d i e re nt
Ministries namely the Office of the
Ao r n e y G e n e ra l , M in i s t r y o f
Industrializaon, Ministry of Sports,
Ministry of Arts and Culture or Ministry
of Agriculture. Out of these potenal
Ministries, the Office of the Aorney
General might seem to be the most
likely ministry in charge of the Act.
This is so because the Kenya
Copyright Board (KECOBO), is the state
organ under the Office of the Aorney
General, designated under the Act as
host instuon for the Tradional
Knowledge Digital Repository as well as
an arbiter for selement of concurrent
claims to TK by different communies.
To remedy this short coming the
S t a t u t e L a w ( M i s c e l l a n e o u s
Amendments) Bill, 2018 made various,
wide-ranging amendments to the
exisng intellectual property (IP) law
related statutes including the TK and
TCE Act. Secon 2 of the TK and TCE Act
t h r o u g h t h e m i s c e l l a n e o u s
Amendment now states that 'the
Cabinet Secretary for the me being
responsible for maers relang to
c u l t u r e ' s h a l l o v e r s e e t h e
implementaon and enforcement of
the TK and TCE Act.
This means that the proposed
parent Ministry for the TK and TCE Act is
the Ministry of Sports and Heritage
(MOSH) formerly known as the
Ministry of Sports, Culture and the Arts
(MOSCA) and before that, the Ministry
of Gender, Sports, Culture and Social
Services. Within the Ministry, there are
eight different autonomous and semi-
autonomous state agencies namely
S p o r t s K e n y a , N a o n a l S p o r t s
Academy, Naonal Sports Fund, Kenya
Cultural Centre, Naonal Museums of
Kenya, Kenya Film Commission, Kenya
Film Classificaon Board and Kenya
Naonal Library Service. All of these
state agencies as currently constuted
do not appear to be well-suited to
oversee the full implementaon of all
provisions of the TK and TCE Act.
With the amendment to the Act, all
eyes now turn to Ministry of Sports and
Heritage. The ministry has to consider
how best to administer and enforce the
TK and TCE Act. In parcular, the State
Department for Heritage will have the
primary responsibility of advising the
ministry on several key issues including
whether the dra naonal policy on
culture adequately developed by the
ministry provides mechanisms for
p r o t e c o n a n d p r o m o o n o f
tradional knowledge and cultural
expressions and whether to pursue the
enactment of a stand-alone legislaon
as opposed to strengthening the
exisng TK and TCE Act.
-7-
By Paul Kaindo
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PICTORIAL PICTORIAL
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Dagoreti South MP John Kiarie addresses
stakeholders in the music industry during the
public participation forum on licensing of CMOs
on September 11 at NHIF Auditorium.
KECOBO Chief Legal Counsel, Mr. George
Nyakweba training photographers on copyright.
Nile Road Special School Principal Phanice
Mashaiti receiving gifts from KECOBO
during a CSR activity at the School.
KECOBO management team pose for a photo at
Lake Bogoria Spa during a Board retreat
KECOBO Board of Directors and management
team having fun during a Board retreat at Lake
Bogoria Spa.
KECOBO Board Members, Dagoreti South MP
John Kiarie and the day's Master of Ceremonies
Mr Big Ted Kwaka pose for a group photo after
a forum on public participation on licensing
of CMOs organised by KECOBO on September
11 at NHIF Auditorium
The Executive Committee on Anti Illicit Trade when theypaid a courtesy
call on the Chief Justice David Maraga (centre). They are led by
Mr Chris Kiptoo, PS Department of Trade (2nd left), With them are
KECOBO Executive Director Mr. Edward Sigei (left) Dr. John Akoten,
Anti Counterfeit Agency (right) and Sylvance Sange, Managing Director,
Kenya Industrial Property Institute.
KECOBO's Chief legal Counsel Mr George Nyakweba and Ms Lucy
Mumbi, a copyright inspector, interact with pupils when they visited
KECOBO's stand during the Nairobi International Bookfair at Sarit
Centre, Nairobi.
PICTORIAL PICTORIAL
-9-
KECOBO Board members pose for a group photo
after holding a Board meeting as they bid farewell
to some of their colleagues whose term to serve
had expired.
A section of KECOBO Board members keenly follow
contributions by stakeholders in the music industry
during the public participation forum on licensing of
CMOs on September 11 at NHIF Auditorium
KECOBO Board of Directors and management
team pose for a photo during a Board retreat at
Lake Bogoria Spa.
KECOBO Executive Director (middle) when he
appeared before a Parliamentary Committee.
The parliamentary Committee congratulated the
Board for Prudent Management of its resources
and having unqualied audited accounts for four
years running.
KECOBO Board Member Dr Isaac Rutenberg
addresses stakeholders in the music industry
during the public participation forum on
licensing of CMOs on September 11 at
NHIF Auditorium
Kecobo's Chief legal Counsel Mr George Nyakweba
(seated) consults with lawyer Sammy Kariuki
(in blue tie) and Patrick Ogungo of KECOBO
during the Legal Awareness Week exhibition held
at the Milimani Law Courts.
Dr. Donald Otoyo a director with KECOBO who is
also the CEO of Permanent Presidential Music
Commission (PPMC) addresses stakeholders in
the music industry during the public participation
forum on licensing of CMOs on September 11 at
NHIF Auditorium
The Executive Director of Emirates Publishers
Association Mr Rashid Al Kous signs a visitors'
book when he visited KECOBO's stand during
the Nairobi International Bookfair at Sarit
Centre, Nairobi.
KECOBO Legal Counsel Paul Kaindo
addressing artists during Skiza Forum
in Kisumu
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