The journey of a thousand miles, truly, begins with just one step. In this case, the thousandth mile is tantamount to when the World Intellectual Property Organization¹ (WIPO) finally approved the convening of diplomatic conferences for two proposed international agreements.² This was done following numerous ‘steps’ including years of negotiations on international protection of designs, international regulation of genetic resources, and traditional knowledge related to genetic resources by member states. These steps were finally validated on July 21, 2022.

The two proposed international agreements are ‘The Proposed Design Law Treaty’ and ‘The Draft International Legal Instrument Relating to Intellectual Property’. To begin with, the Proposed Design Law Treaty addresses the protection of designs while the Draft International Legal Instrument Relating to Intellectual Property focuses on the protection of genetic resources and traditional knowledge associated with genetic resources.³

A diplomatic conference is the gathering of member states with the intention to negotiate, adopt or revise a Treaty.⁴ Being a WIPO member state⁵ Kenya’s procedures for the protection of industrial designs may be simplified by the proposed Design Law Treaty, and intellectual property issues related to access, use and benefit sharing of traditional knowledge, genetic resources, and traditional cultural expressions may be addressed in the diplomatic conference.

The approval of diplomatic conferences is worth celebrating for various reasons. Other than it being a vital step in finally concluding the prolonged treaty negotiations, it demonstrates multilateralism as was noted by the WIPO Director General Daren Tang.⁶ More specifically, the proposed Design Law Treaty (DLT) will be beneficial to member states across the world, as it is targeted at assisting designers “attain quicker and less expensive protection for designs” – both locally and internationally.⁷ How will this be achieved? According to WIPO, the proposed Treaty would simplify the universal system for protecting designs by eliminating bureaucracy.⁸ The long-term impact of this treaty is the possible solution to the challenge of obtaining design protection overseas faced by Small and Medium Enterprises (SMEs) in third-world countries. . Considering how well the design industry has contributed to the European economy, we can only marvel at the potential it would have on the Kenyan economy as well. ⁹

The second proposed agreement relates to Intellectual Property (IP), Genetic Resources, and Traditional Knowledge (TK) associated with Genetic Resources. According to WIPO, this new draft treaty would “address certain intellectual property questions related to access to resources and knowledge systems.”¹⁰ For instance, one of the main ideas proposed by this agreement is that “applicants for patents whose inventions use genetic resources and associated TK should disclose that fact and other related information in their patent applications.”¹¹ This newly proposed “patent disclosure requirement”, would be useful for patent examiners in avoiding the grant of inaccurate patents.¹² According to WIPO, proposers of this agreement argue that “it would harmonize diverse national systems, foster the sustainable development of indigenous and local communities, provide legal certainty and predictability for businesses, and improve the quality, effectiveness, and transparency of the patent system.”¹³

What would this mean for Kenya?

At its core, IP protection is intended to foster and promote creativity and innovation. One of the theories that support the IP system is the Social Contract theory. This theory argues that IP is a contract between society and innovators.¹⁴ Society recognizes that innovation is socially beneficial and that the knowledge underlying innovation is intangible.¹⁵ As such, intellectual property rights seek to strike a balance between innovators and the wider public by offering creators and innovators an incentive to invent and create, through the granting of enforceable rights, in exchange for them sharing their works and the information therein with the world.

The protection of designs in Kenya is provided for under Part XIII of the Industrial Property Act, No. 3 of 2001. Founded on articles 11(3)(b)¹⁶ and 69(1)(c)¹⁷ of the Constitution of Kenya, TK and Genetic Resources are protected and provided for under the Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016; while the conservation and sustainable utilization of plant biodiversity are provided for under the Seed and Plant Varieties Act CAP 326 of the Laws of Kenya¹⁸. In reading the objectives of the proposed WIPO legal instruments, Kenya would stand to benefit. How?

Owing to globalization and advancement in technology, the Design Law Treaty (DLT) could open up Kenya’s innovative activities to other markets in the world. Additionally, if executed and achieved well, the treaty’s objective of assisting designers attain quicker and less expensive protection for designs, locally and internationally, by simplifying the universal system for protecting designs, could create a higher incentive for innovation and design in the country as global markets will be more accessible.

Looking at the proposed agreement relating to Intellectual Property (IP), Genetic Resources and Traditional Knowledge (TK) associated with Genetic Resources, the proposed “patent disclosure requirement” for instance will likely reinforce section 25 of the Protection of Traditional Knowledge and Cultural Expressions Act, which provides for the authorization for use of traditional knowledge and cultural expressions; stating under subsection 1 that “the owners of traditional knowledge and cultural expressions may — (a) grant authorization for the exploitation and use of their traditional knowledge and cultural expressions; or (b) after necessary consultations, authorize the national government, county government or any other person to exploit their traditional knowledge and cultural expressions, on their behalf.” Necessitating disclosure could in turn help reduce unfair exploitation of indigenous groups and communities who lack the bargaining power to stand up against big corporations. Additionally, it could help promote and preserve traditional knowledge, related to genetic resources, for future generations.

If the proposed treaties are successfully adopted and Kenya ratifies them, these existing laws would need to be harmonized with the treaties. Effectively, as guided by international law, the proposed agreements would become legally binding to Kenya, warranting changes in the national laws as dictated by the agreements. Additionally, Kenya will have access to and be accessible to other economies. If well enforced, these agreements could positively impact the country’s economy.

Here at CIPIT, we will keep a close eye on the progress of the diplomatic conferences for the two proposed international agreements and keep our audience up to date, discussing and reflecting on what happens.

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