Oral literature veterans such as Taban lo Liyong, Okot p’Bitek, Wanjiku Kabira, Austine Bukenya, Owuor Anyumba, Michael ole Kipusi, among many others, have for years been exploiting the genre of oral literature without minding much about its intellectual property (IP) dimension.
This is about to change, once the Traditional Knowledge and Expressions of Traditional Cultural Expressions (Expressions of Folklore) Bill — 2015, currently before the National Assembly, is passed into law.
The proposed Bill seeks to fulfil constitutional requirements. Article 40 (5) of Constitution obliges the state to support, promote and protect the intellectual property rights of the people of Kenya. In the same breath, Article 69(1) (c) and (e) mandates the State to protect and enhance intellectual property, traditional or indigenous knowledge of biodiversity and the genetic resources of the communities and protect genetic resources and biological diversity.
The Draft Bill proposes the designation or establishment of a national competent authority which shall implement the provisions of the Bill to be known as the National Traditional Knowledge Authority.
The Bill states that “Traditional Cultural Expressions” shall refer to any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, whether verbally as in case of stories, epics, legends, poetry, riddles; other narratives; words, signs, names, expressions by movement, including dances, plays, rituals or other performances. It may also refer to tangible expressions, including productions of art, drawings, designs, paintings, including body-painting, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewellery, basketry, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms.
The proposed law seeks to protect holders of traditional knowledge against any infringement of their rights; protect traditional knowledge and traditional cultural expressions against misappropriation, misuse and unlawful exploitation beyond their traditional context; promote sustainable utilisation of traditional knowledge and traditional cultural expressions and ensure communities receive compensation and/or royalties for the use of their cultures and cultural heritage; promote the fair and equitable sharing and distribution of monetary and non-monetary benefits arising from the use of traditional knowledge and traditional cultural expressions; prevent the acquisition or exercise of intellectual property rights inappropriately acquired over traditional knowledge, traditional cultural expressions and their derivatives; and preserve and promote traditional knowledge and traditional cultural expressions for appreciation of cultural diversity, national pride and identity for posterity, among others.
The national competent authority is mandated to mediate between the concerned parties with a view to arriving at an agreement on the fair and equitable sharing of benefits.
Oral literature practitioners or other users of traditional knowledge or traditional cultural expressions will be expected to obtain prior informed consent and sufficiently acknowledge the traditional owners by expressly mentioning them or the geographical place from which the traditional knowledge or traditional cultural expressions originated in the course of use, provided that in each case, such use is compatible with fair practice and the relevant community is acknowledged as the source of the traditional knowledge or traditional cultural expressions and such use is not offensive to the relevant community.
Section 12 of the Bill prohibits publishing, fixation of traditional cultural expressions in any form, making of derivative works, making public performance by radio, TV, satellite, cable or any other communication, shooting a movie, or adopting a play without prior authorisation. An authorization to exploit traditional knowledge and traditional cultural expressions shall be granted by the holders of traditional knowledge and traditional cultural expressions or where the holders so wish, from the National Competent Authority, on the request and behalf of the holders.