On 31^st August 2016, the President signed the Protection of Traditional Knowledge and Traditional Cultural Expressions Bill, effectively giving life to the provisions of the Constitution in regard to protection of traditional knowledge (TK) and traditional cultural expressions (TCEs) as a form of intellectual property right. Indeed article 40 of the Constitution enjoins the government to promote and protect the intellectual property rights of the Kenyan people.

The law provides for the collection of information and maintenance of records relating to TK and TCEs at the county and national levels. The counties are required to collect and compile information regarding traditional knowledge and cultural expressions in the region through the county executive member responsible for matters relating to culture. Similarly, the national government is required to maintain a Traditional Knowledge Digital Repository that would be based on information collected and compiled by the counties.

It is important to note that the law sets out the criteria for protection of traditional knowledge. Protection is extended to TK that is:

1. generated, preserved and transmitted from one generation to another, within a community, for economic, ritual, narrative, decorative or recreational purposes;
2. individually or collectively generated;
3. distinctively associated with or belongs to a community; and
4. integral to the cultural identity of community that is recognized as holding the knowledge through a form of custodianship, guardianship or collective and cultural ownership or responsibility, established formally or informally by customary practices, laws or protocols.

Additionally, protection is extended to TCEs which are:

1. the products of creative and cumulative intellectual activity, including collective creativity or individual creativity where the identity of the individual is unknown;
2. characteristic of a community’s cultural identity and cultural heritage and have been maintained, used or developed by such community in accordance with the customary laws and practices of that community;
3. generated, preserved and transmitted from one generation to another, within a community, for economic, ritual, narrative, decorative or recreational purposes;
4. individually or collectively generated;
5. distinctively associated with or belongs to a community; and
6. integral to the cultural identity of community that is recognized as holding the knowledge through a form of custodianship, guardianship or collective and cultural ownership or responsibility, established formally or informally by customary practices, laws or protocols.

The law then provides for limitations of protection, compulsory licence, moral rights, assignment and licensing as well as management of rights. Besides permitting civil action for protection of TK and TCEs, the law also creates criminal penalties for unauthorized use of TK or TCEs and the penalties range from Ksh. 500,000 to Ksh. 2,000,000 or imprisonment for a period of between three to ten years depending on the nature of the offence.

It is noteworthy that there are no formalities involved in the protection of TK or TCEs. Registration is simply intended to be declaratory and is not intended to confer any rights. There is also no time limit for protection. The TK or TCE is protected for as long as it continues to satisfy the specified criteria for its protection.

Though the successful enforcement of the law remains to be seen, it is a welcome milestone in the protection of intellectual property rights and particularly the protection of our cultural heritage from unauthorized exploitation.

Please contact us at Info@cfllegal.com should you require further information.