Come up with rules to breathe life into cultural protection laws
Women dressed in traditional regalia. PHOTO | JEFF ANGOTE
Kenya, and indeed most of Africa, has a rich cultural heritage that needs to be preserved for several reasons. There was also a lot of pilferage of the rich culture especially during colonial times. Today pilferage happens when persons who are not part of a community commercialise the cultural expressions often without authority. The local community ends up losing.
Protection enables a community to gain financially from any third party usage of its cultural expressions and traditional knowledge. Some of the communities that are rich in cultural expressions and traditional knowledge can commercialise some of that through means of authorisation agreements and licences for financial gain. The community can then use the money earned for development projects.
Last year the law to enable this, the Traditional Knowledge and Cultural expressions Act 2016 was passed. The Constitution also has a lot of provisions that protect culture and is reputed to be the best globally when it comes to protecting intellectual property rights. Not only does it expressly provide for the recognition of intellectual property rights, but places an onus on the State to uphold intellectual property rights.
Furthermore, it contains a lot of provisions on culture as espoused in Article 11, 44 and 69. Article 11 places an obligation on the State to promote culture and recognise the role of indigenous science in development. Communities should receive royalties from use of their culture and also from usage of their seeds and plant varieties. Article 44 allows citizens to practice the culture that they wish to.
The law on culture protects the following; stories, legends, poetry, names, symbols, songs, music, dances, drawings, designs, paintings, artifacts like carvings and sculpture, costumes, musical instruments and buildings. There has been a lot of commercialisation of some aspects of culture for example the “Akamba carvings,” or the “Kisii soapstone cultures.
Maintain database
Music has also been commercialised a lot for example the “chakacha” music that belongs to the coastal region. Cultural costumes such as the “Maasai” shuka and ornaments have also been commercialised. The law provides for management of such cultural expressions and for compensation of the communities that own such cultural expressions.
The county and national government are expected to collaborate when it comes to culture protection. The county government is expected to compile information related to cultural expressions and traditional knowledge and the national government to maintain a database at the Kenya Copyright Board. The Cabinet Secretary in charge of culture is also supposed to receive a copy of every agreement authorising usage of traditional use and culture to third parties. For something to qualify as traditional knowledge or cultural expression, it has to be distinctively associated to the community and be an integral part of its cultural identity such that it is held by a custodian of the community.
Easy access
The law sets out what happens when a community claims the same cultural expression or traditional knowledge with a foreign community. For example we have the Kenyan Maasai and the Tanzanian Maasai who share the same culture. However, it is not very clear what would happen when a community seeks to enforce against a third party that is located out of the country. Many times some of the third parties that use culture without authorisation are foreign entities.
Intellectual property rights are territorial in nature such that the rights are protected within national jurisdiction only. It is difficult to enforce against foreign infringers in as much as the law provides remedies such as fines and civil remedies. This is enhanced by rise in technology where access to traditional knowledge without having a physical presence is possible.
The law is welcome as we wait for regulations to operationalise it.
