Plant Variety Protection in Kenya: A Case of Self-Sabotage

By Keziah Auma.

Agriculture is the backbone of the Kenyan economy, accounting for over 20% of the country’s GDP, with 75% of this agricultural output being attributed to smallholder farmers. [1] These farmers rely on traditional farming methods, including customary practices of saving and exchanging seeds, to sustain their farming activities. These practices play a crucial role in food security as well as the maintenance and improvement of biodiversity. Despite this, the Seed and Plant Varieties Act, 2012 has made it increasingly difficult for smallholder farmers to continue these practices by blindly adopting the provisions of the International Convention for the Protection of New Varieties of Plants, 1991 (UPOV Convention) in particular regarding the farmers' privilege. This article will briefly examine the Plant Variety Protection in Kenya and its impact on Smallholder farmer's practices.

Plant Variety Protection in Kenya

Plant Variety Protection (PVP), also known as plant breeders' rights, is a form of intellectual property right granted to individuals or organizations that develop new varieties of plants, which are often superior to their parent varieties. These new varieties typically exhibit enhanced traits, such as improved quality, increased yield, greater resistance to viruses, fungi, or bacteria, and extended storage life for the harvested crop.

An example of this is the genetically modified (GM) cassava event 4046, which was developed by the Kenya Agricultural and Livestock Research Organization (KALRO).[2] Assuming that KALRO sought Plant Variety Protection (PVP), they would then apply for registration of this new plant variety with the Kenya Plant Health Inspectorate Service under the Seed and Plant Varieties Act of 2012. Provided that the requirements for registration are met, KALRO would be registered as the owner, or as referred to in the Act, the ‘Breeder’. As the breeder, they acquire a set of exclusive rights to the use, sale, and production, reproduction, offering for sale, exportation, importation, and storage of the plant variety. Unless an entity or individual obtains authorization from the breeder to exercise the breeder's rights, such actions would constitute infringement, which is subject to legal action.

Like most intellectual property rights, PVP also has exceptions. The UPOV Convention of 1991, which serves as a model for the Seeds and Plant Varieties Act, provides for two types of exceptions to the breeder's rights under Article 15: compulsory and optional. The compulsory exceptions include:

i.      Acts done privately and for non-commercial purposes.

ii.     Acts done for purposes of breeding other plant varieties.

iii.    Acts done for purposes of research.

The optional exception known as the farmers’ privilege permits farmers to utilize propagating materials (seeds) from the harvest of a protected variety exclusively on their own land, within reasonable limits, while safeguarding the legitimate interests of breeders.

Contracting parties are required to ensure that compulsory exceptions are included in the National Plant Variety Protection legislation. However, the decision to incorporate the farmers’ privilege is left to their discretion, provided they establish reasonable limits and protect the legitimate interests of the breeder. Kenya has chosen to include both exceptions under Sections 20(1) and 20(1E) of the Seed and Plant Varieties Act No. 3, with the provision on farmers' privilege being an exact replica of the corresponding provision in the UPOV Convention.

Plant Variety Protection and Small holder farmers

Before the advent of technological innovation, farmers employed traditional methods to breed new plant varieties, including grafting, selection, layering, micro-propagation, and cutting. They then disseminated seeds through a system known as Farmer Managed Seed Systems, also referred to as Informal Seed Systems. This process involved the exchange of seeds among farmers, the saving of seeds for future planting, the sale of farm-saved seeds at local markets, and the sale of surplus crops at these markets.[3]Through the Farmer Managed Seed System, farmers have gained increased access to diverse crop varieties, which enhances ensure food security and helps maintain and improve local biodiversity, as well as genetic resources.[4]  

However, the introduction of laws governing seed development and production has interfered with the operations of smallholder farmers, as these laws dictate who can produce and sell seeds as well as the varieties that may be offered for sale. [5] These laws have unfortunately failed to acknowledge that the informal seed systems employed by farmers also play a vital role in food security and crop diversity. Over time, they have progressively tightened loopholes that could benefit small-scale farmers. This is evident in the fact that the provisions designed for smallholder farmers are merely optional exceptions, and that this exception is the only provision addressing farmers' rights in both the UPOV and the corresponding national legislation.

Kenya's seed laws have a detrimental effect on smallholder farmers' ability to engage in seed production. These laws limit their access to, availability of, and use of protected varieties. Additionally, they criminalize informal seed systems by imposing jail terms and substantial fines on any farmer found utilizing these systems.

Plant Variety Protection overlooks the fact that commercial seed developers rely on the crop diversity preserved by smallholder farmers for the development of new varieties. Furthermore, that the crop diversity and the associated knowledge maintained by smallholder farmers are often transmitted through generations and may qualify as protected Traditional Knowledge.

It is unrealistic to expect that these farmers will be able to sustain their agricultural activities when they are restricted from utilizing informal seed systems and encounter difficulties in accessing seeds of protected varieties. These challenges are further compounded by additional environmental issues that are aggravated by climate change. Enhancing the productivity and agricultural output of smallholder farmers has been recognized as a critical component of Kenya’s agricultural development objectives—will remain an insurmountable task as long as such stringent, non-inclusive, and ill-suited seed laws persist.[6]

Way forward and Recommendations

The question then arises: what can be done to genuinely protect the interests of smallholder farmers? I have some ideas, not new but something worth considering.

i.      Amend the Seed and Plant Varieties Act

As previously mentioned, Kenya has done what many Kenyan women refer to call 'the ‘bare minimum’ when it came to the enactment of farmers' privilege. By following the example set by the European Union, Kenya can amend the Act to clearly articulate provisions that protect farmers' rights through the farmers' privilege. The UPOV Council published explanatory notes on how contracting states, such as Kenya, could legislate farmers' privilege by considering factors such as land area size, crop value, proportion of harvested crops, crop variety, and even remuneration for the crops. [7] The Seed and Plant Varieties Act may then be amended to include a provision addressing these factors. Additionally, an amendment could be introduced to mandate disclosure requirements for plant variety registration applications when the plant variety in question is derived from the genetic material of indigenous or farmer varieties. The Act also needs to be amended to align with the Protection of Traditional Knowledge and Cultural Expressions Act, 2016.

ii.    Leave the UPOV Convention

Alternatively, Kenya may opt to leave the UPOV as it is possible to withdraw from a treaty or convention. Article 54 of the Vienna Convention[8] provides for this possibility, while Article 39 of the UPOV Convention outlines the necessary procedures. Withdrawing from the convention does not imply that Kenya will cease to offer Plant Variety Protection. Kenya will still be obligated to provide such protection under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS); however, it will not be required to adhere to the provisions of the UPOV Convention. India’s Plant Variety Protection and Farmers Rights of 2001 is an example of an alternative sui generis system that recognizes and protects not only the rights of commercial plant breeders but also those of farmers. Their Act recognizes farmers are also plant breeders allowing them to register their varieties and also protects the traditional practices of farmers of saving and reusing seeds. [9]

Conclusion:

In conclusion, Kenya's current approach to plant breeder protection demonstrates a significant misalignment with the realities of its agricultural sector, especially concerning smallholder farmers. By prioritizing inflexible intellectual property protections over the traditional practices that underpin food security, Kenya risks jeopardizing its own economic development objectives. The customs of African farmers are essential to biodiversity, innovation, and rural livelihoods; therefore, any legal framework must acknowledge and integrate these contributions.

 

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[1] Survey Report on the Agricultural Sector 2024, Central Bank of Kenya available at https://www.centralbank.go.ke/uploads/market_perception_surveys/588251064_Agriculture%20Survey%20May%202023.pdf accessed on 23 September 2024

[2] ‘Kenya National Biosafety Authority Approves Genetically Modified Cassava’ 2021 accessed via Press Releases (kalro.org) on 31 July 2024

 

[3] Seed Change, ‘Farmer Seed Systems: A Critical Contribution to food sovereignty and Farmers Rights’ (2023) available at https://weseedchange.org/wp-content/uploads/2020/05/Farmers-seed-systems-EN-a-critical-contribution-to-food-sovereignty-and-farmers-rights.pdf accessed on 27 September 2024

[4] Almekinders, Conny & Louwaars, Niels. ‘The Importance of the Farmers' Seed Systems in a Functional National Seed Sector. Seed Policy, Legislation and Law: Widening a Narrow Focus’ (2002).

[5] Dr Phillipe Cullet, ‘Food Security and Intellectual property rights in Developing Countries’ 2003 available at  http://www.ielrc.org/content/w0303.pd accessed on 01 October 2024.

[6] Agricultural Sector Transformation and Growth Strategy 2019-2029 available at https://kilimo.go.ke/wp-content/uploads/2022/03/ASTGS-Long-version.pdf accessed on 27 September 2024.

[7] P.Munyi and B. De Jonge, ‘Farmers and Breeders Rights; Bridging Access to and IP Protection of Plant Varieties in Africa’, African Journal of Information and Communication, Issue 16, 2015

[8] Vienna Convention on the Law of Treaties 1969

[9] Drishti,  ‘The Protection of Plant Varieties and Farmers’ Rights Act’ available at  https://www.drishtiias.com/daily-updates/daily-news-analysis/the-protection-of-plant-varieties-and-farmers-rights-act   accessed on 15 July 2024

Disclaimer:  This blog article is purely meant for educational discussion of legal products and issues. It contains only general information about legal matters.It is not legal advice and should not be treated as such. 

You must not rely on the information on this website as an alternative to legal advice from your advocate/lawyer or other professional legal services provider. If you have any specific questions about any legal matter you should consult  your advocate/lawyer or other professional legal services provider.

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Understanding Content Usage Clauses in Influencer Agreements under Copyright Law in Kenya

by Keziah Auma

Over the last few years, social media has slowly become one of the primary medium for businesses and companies to advertise and market their products to consumers. Companies have resorted to using of social media, social media influencers, or digital content creators to promote their products and/or services to the public.

In engaging these influencers or content creators, companies enter into contracts that outline the duties and obligations of the parties involved. One of the primary issues that such agreements address, aside from payment, is the ownership and use of the content created. Such concerns constitute what is known as a content usage clause. This clause will form the crux of this article as it briefly examines its definition, significance, and legality.

Content Usage Clause and Its Importance

A Content Usage Clause is a provision that specifies the authorized users of the content, the permitted usage, and the duration of such usage. It is now a key feature in influencer/digital content creator agreements, regardless of whether the content creator is granting a license to a company to use their pre-made content or creating original content for the company. This is also applicable in instances when influencers are collaborating with each other.

Content usage clauses are crucial for establishing expectations and ensuring that content creators are adequately compensated for their work.

There are two types of content that may be created which can form the subject of a content usage clause, i.e., content that is eligible for copyright protection and content that is not eligible for copyright protection. In order to be eligible for copyright, a creation needs to satisfy the requirements for protection. It must qualify as a work, be original, created by a Kenyan national, and expressed in material form. Once eligible, the creator/owner is awarded certain rights under the law that they can exploit to the exclusion of others.

For content that is not eligible for copyright protection, content creators or influencers may rely on the law governing image rights to ensure that their interests are protected. This article, however, will specifically address such clauses with respect to content that is eligible for copyright protection.

Usage Rights under the Copyright Act of Kenya

Under the Copyright Act of 2001, a person who creates content that is eligible for copyright is granted rights over their creation: economic rights and moral rights. Economic rights are the rights that enable the creator of the work to commercially exploit their work, such as the right of reproduction, publishing, adaptation, distribution, and making it available. Moral rights, on the other hand, are rights that ensure that as the creator, you receive credit for coming up with the work, that your content is not distorted in a way that compromises the integrity of your creation.

As the creator of the work, you are allowed to commercially exploit your work for a specified period. For instance, the creator of a dramatic work has copyright protection for their lifetime plus 50 years after the year of their death. The creator of an audio-visual (film) work has a period of 50 years from the date their creation is first made available to the public or when it is first published.

It is the combination of all the above, i.e., economic rights, moral rights, and the time for exploitation that constitute what we are referring to as usage rights.

While the default position under the Copyright Act is that if you create or are responsible for a creation, you own it, this is not always the case. There are instances where, even though you created the work, you will not own it. Therefore, the economic rights mentioned earlier will not be available for use by you as the creator. These include employment situations and where one is hired or commissioned to create content. In such instances, the creator retains the authorship of the content/work and is entitled to moral rights, while the employer or hirer owns the content/work and is entitled to economic rights.

Content Usage Clause in Influencer Agreements

So, what does this mean for usage clauses in influencer contracts that are drafted in a way where the influencer assumes ownership of copyrighted content? Are they legal? Can they be enforced? No. It is important to note that when an influencer or content creator is hired to create content, they do not own any copyright in the work created. The content creator can claim authorship (creator-ship) of the work, but the hirer owns the copyright and therefore all the economic rights. Consequently, when attempting to draft a clause that aims to limit the duration for which an owner can use their copyright or the circumstances under which they can use the content, such a provision would conflict with the law. A usage clause drafted in such a manner will be unenforceable, even if the rest of the contract remains valid and binding. Including a usage clause framed in such a manner is pointless and does not help the content creator.

Is there some way to solve this? Yes, the foundation of every usage clause lies in the ownership of the copyright. The Copyright Act provides that while the ownership of any copyright in commissioned content is automatically transferred to the hirer, the parties can agree whether or not to exclude such a transfer or limit the transfer. Therefore, as a content creator or influencer, one can negotiate with the hirer to retain some of the economic rights. This would give the content creator the authority to dictate how long the content will be used, the extent to which the rights licensed or transferred will be used, as well as the context of use, etc.

Conclusion

Understanding the intricacies of copyright law and its relationship to the business of content creation is crucial for drafting a usage clause that effectively protects the interests of content creators and influencers. Equally important is understanding that while not all content may be eligible for copyright, this does not make the Usage Clause irrelevant in instances where the content is ineligible for copyright protection. One can still seek refuge under the law governing image rights in Kenya and craft the usage clause to reflect the protections offered under the relevant laws.

 

Disclaimer:  This blog article is purely meant for educational discussion of legal products and issues. It contains only general information about legal matters.It is not legal advice and should not be treated as such. 

You must not rely on the information on this website as an alternative to legal advice from your advocate/lawyer or other professional legal services provider. If you have any specific questions about any legal matter you should consult  your advocate/lawyer or other professional legal services provider.

 

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