‘AFRICA’S GIFT TO THE WORLD’ In the early 1960s, Eli Lilly, a major
pharmaceutical firm, was permitted
to market vincristine and
vinblastine in the United States.
These patented drugs are used to treat
childhood leukaemia and Hodgkins
disease. They have earned the company
around $100 million a year since
then.
The source for this powerful
and profitable treatment was the rosy
periwinkle, a flower growing wild in
Madagascar. Traditional healers there
used it to treat diabetes.
In the 1950s
they shared their knowledge with ethnobotanists
who fed the discovery into
Lilly’s massive research laboratories.
But none of the profits has been shared
with the healers or their community.
Ironically this kind of contribution has
been called ‘Africa’s Gift to the World’.
In the mid-2000s a few cases of attempted
misappropriation of iconic
East African culture were highlighted
in the Kenyan media.
One was an
attempt by a UK-based company to
register a trademark in the UK for the
word ‘KIKOY’, which would have restricted
its importation into the UK by
other companies from Kenya, affected
the market for specialist traditional
woven cloth.
Although this particular
registration failed, it would be technically
possible in the UK where the
term ‘kikoi’ is not generally used as
a description of the cloth.
This case
raised awareness of the importance
(and difficulty) of protecting Kenyan
cultural expressions abroad, and highlights
the fact that Kenyan traditions
are often shared regionally.
NATIONAL RESOURCES
Historically it was presumed that
the physical, intellectual and cultural
wealth of countries in Africa were part
of ‘the common heritage of mankind’,
available for exploitation by any incomer.
International law has moved
away from this position in recent decades,
however.
The 1992 Convention
on Biological Diversity recognizes the
sovereign right of states over their
own resources, providing they protect
practices needed to sustain biodiversity.
It obliges themto sets up systems for
obtaining the prior informed consent
of local communities before resource The Convention has been implemented in
Kenya, but it is largely focussed on the
extraction of material resources: for
example, the enzyme removed from
Lake Bogoria by UK scientists fifteen
ago and licensed to Proctor and Gamble
for use as a fading agent in their
detergent powder ‘Tide’.
It does not
directly address threats to cultural
resources like that in the Madagascar
case and the kikoi.
COMMUNITY RIGHTS
Kenya’s Traditional Knowledge and
Cultural Expressions Act 2016 seeks to
fill this gap by enabling communities to
control the use of culturally significant
and economically valuable knowledge
and expressions.
It does this by creating
a new form of intellectual property
right (IPR), held by community itself.
The Act meets a Parliament’s constitutional
obligation on to pass legislation
ensuring that ‘communities receive
royalties for the use of their cultures
and cultural heritage’ (Article 11( 3(a)).
It puts Kenya at the forefront of states
in the global south protecting national
resources and the interests of local
communities.
This movement is most
active at the World Intellectual Property
Organization (WIPO) in Geneva,
which is currently debating a treaty
to protect traditional knowledge (TK)
and traditional cultural expressions
(TCEs).
WIPO has encouraged countries
to take the initiative nationally as
Kenya and Zambia have recently done.
Intellectual property rights are useful
in two ways.
Positively: empowering
communities to charge outside
companies a fee for permission to
commercialize the knowledge or cultural
expression.
Defensively: stopping
others from obtaining IPRs which
would exclude members of the community
from benefitting from its own
heritage unless they were licensed to
do so. Why is a new type of right needed?
Standard IPRs, like patents and
copyright, are based on the idea of individual
invention or artistic creativity.
But TK and TCEs are collectively produced
and passed on from generation
to generation.
They are typical of the
community, important to its identityand
sense of history. Rights in TK and
TCEs thus need to be collective, not
individual. They also need to protect
‘moral’, not just economic, interests by
insisting on correct attribution of their
sources and culturally appropriate use.
The Act also sets up a system to ensure
that the rights are effectively protected.
Misuse of TK and TCEs is now
a criminal offence. Communities are
given the power to stop misuse by obtaining
a court injunction forcing companies
to pay over any profits where
the commercialization of TK and TCEs
has not been agreed in advance.
Responsibility
for operating the system
lies with the county governments
and ultimately the Attorney General,
as well as the Kenya Copyright Board,
which has championed the legislation
and vigorously represented Kenya in
the debates at WIPO.
CHALLENGES
Will the Act be effective? Much depends
on the willingness and ability
of different levels of government to
work together and enforce community
rights. Experience with developing
and protecting community land rights
under the 2010 Constitution has been
mixed.
Robust institutions focused on the objectives of the Act will be essential.
Beyond this, we see four issues
that will need to be addressed.
First, the Act defines ‘community’
very broadly as a group with any of
the following attributes: shared ancestry,
language, culture, community
of interest, ecological or geographical
space.
Since communities may consist
of millions of people stretching from
remote rural areas to city suburbs, decision
making about consent and benefit
sharing may be difficult.
Second, the fact that TK and TCE are
now potentially wealth generators for
communities provides an incentive for
leaders to seek exclusive control and
to talk-up inter-ethnic competition,
when in fact many of these resources
are shared between groups.
Disputes
over ownership may be difficult to
settle using customary law or othermeans, as the Act provides .
Third, there is a tension in the Act
between local interests and those of
the nation as a whole. Biodiversity and
indigenous knowledge are important
resources for Kenya’s economic development,
as recognized in the Constitution
(Article 11( 2 )(c)).
Bodies such as
the Kenya Medical Research Institute
and the National Museums of Kenya
have been doing impressive work on
developing exportable products out of
traditional knowledge.
‘Compulsory
licensing’ provisions in the Act would
allow the government to bypass the
community in permitting commercialization
where TK or TCEs are not
being ‘sufficiently exploited’.
While
this power is constrained by checks
and balances, it could allow the national
interest to take priority and
should be subject to fuller debate.
Fourth, TK and TCEs are often
shared with communities in neighbouring
countries.
However, the Act
does not make sufficient provision
for cross-border cooperation mechanisms
to assist in dispute resolution
or management and enforcement of
rights in transboundary or foreign TK
and TCEs.
This may increase conflict
between countries and within transboundary
communities, and reduce
regional bargaining power in enforcing
community rights over TK.
The
forthcoming national culture legislation
may fill some of these gaps.
LEADING IN AFRICA
Kenya’s new Act represents a bold
and forward-thinking effort to improve
the livelihoods and protect the
cultural heritage of communities in
Kenya by preventing the misappropriation
of their traditional knowledge
and cultural expressions.
There are
many challenges to implementing the
Act. In doing so Kenya will certainly
provide much useful guidance to other
countries seeking to achieve the same
result within Africa and beyond.