Industrial Property Rights Bill Runs Into Trouble

By Judith Achieng', IPS, 28 May 1999

NAIROBI, May 28 (IPS) - Kenyan rights groups say a new Industrial Property Rights (IPR) Bill, which has been drafted to conform with the requirements of the World Trade Organisation (WTO), will be controlled by powerful multinational corporations, if passed into law.

They say the bill, which has been read once and awaits two more readings in parliament before it replaces the Kenya Industrial Property Act, would not only erode the country's sovereignty by reducing the government's regulatory powers but also threaten food security.

"We are not convinced that the Industrial Property Bill safeguards the interests of our small-scale farmers," said Thomas Joseph, the director of Actionaid, a non-governmental organisation (ngo), at a news conference in the capital Nairobi recently.

Kenya, along with 100 other developing countries, has signed for membership in WTO.

As a signatory to the 132-member body, the East African country is under a binding obligation to implement its numerous trade agreements, which include the Trade Related Aspects of Intellectual Property Rights (TRIPS), as part of a binding code for its members.

IPR allows the patenting of parts of animal or plant products which come as a result of biotechnological processes. Modification of any life-form, such as hybrid seeds or cattle are patentable, under the Bill.

The Bill does not recognise the right of communities to their orally preserved traditional knowledge of seeds and other natural resources.

The definition of a patentable bill drawn from TRIPS, has angered rights groups. TRIPS demands that for an invention to be patented, it must be new, involves an inventive step and industrially applicable.

Otieno Odek, a Kenyan human rights lawyer, says this definition, which requires there has to be a clear inventor who can be identified, knocks off indigenous people who have been using invented arts and technologies for generations.

"This definition almost immediately dismisses the knowledge systems and the innovations of indigenous people and farmers because they innovate communally over time, and even inter generationally," he says.

Ironically, Kenya has also signed the Convention on Biological Diversity (CBD) which recognises indigenous rights to their resources, in contradiction with TRIPS.

"We are keen on seeing that community rights over control of biodiversity are clearly acknowledged, protected and rewarded so that legislation on Intellectual Property Rights is not skewed in favour of official private profit," says Joseph.

Non-governmental organisations (ngos) like Actionaid argue that food and medicinal products are basic needs and should not be subjected to monopoly pricing associated with patents and plant breeders rights.

"The truth is that the knowledge of farming and of plants, known to our farmers for generations, is being appropriated with impunity by northern Transnational corporations," says Joseph.

A Nairobi-based ngo, 'Econews Africa', says the change in patent protection duration from the original seven years to 20 years in the new bill, would virtually bring to a halt industrialisation process in most developing countries like Kenya, which aims to industrialise by 2020.

Econews' Jagjit Plahe argues that 20 years of protecting a patent from copying or readapting goes against the spirit of competition which the globalisation process is all about. "TRIPS violates all principles of liberalisation. Its all about control, and making profits at all costs," she says.

Odek say the Bill, which remains vague on issues of national interests, encourages technological dependency on developed countries.

For instance, out of the more than 400 patent applications made in the field of biotechnology by 1991, less than one percent were filed outside developed countries, a figure which shows that developing countries would have to pay fees and royalties to their counterparts in developed nations if they need results of these innovations.

"The developmental goals of a country cannot be left to a vague legal regime," Odek says. "A legal regime conducive to a country's socio-economic development must be internal and national in outlook and must provide incentives to its citizens and at least it should treat its residents better than non- residents."

However, all is not lost for Kenya's indigenous people, despite the little time left, for it to domesticate TRIPS. After its adoption in 1994, developed countries had one year within which to comply with the requirements of TRIPS while developing countries were given a five-year grace period. Least developed countries, like Kenya, were given six years.

Article eight of TRIPS permits members to insert in the national Industrial Property rights regulations, measures to protect public health and nutrition as well as promote sectors of vital importance to their economies, according to Odek.

Under this provision, known as the 'Sui Generis Code', developing countries could develop systems to protect their indigenous knowledge.

So far only the Philippines and South Africa have applied it in their national constitution, to protect all their local patents and plant varieties, and also protect through patents, their folklore and traditional medicine knowledge.

Origin: Harare/KENYA/

[c] 1999, InterPress Third World News Agency (IPS)
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