Traditional Knowledge Laws: Kenya
|Title||Protection of Traditional Knowledge and Cultural Expressions Act, 2016|
|Subject Matter||Traditional Knowledge; Traditional Cultural Expressions; Genetic Resources|
|Issue(s)||Subject Matter of Protection; Beneficiaries or Rightholders; Scope of Protection; Exceptions and Limitations|
|Type(s) of Legislation||Sui Generis|
Subject Matter of Protection
Article 2 - Definitions
“cultural expressions” means any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise of the following forms of expressions or combinations thereof—
(a) verbal expressions including stories, epics, legends, poetry, riddles; other narratives; words, signs, names, and symbols;
(b) musical expressions including songs and instrumental music;
(c) expressions by movement, including dances, plays, rituals or other performances, whether or not reduced to a material form;
(d) tangible expressions, including productions of art, drawings, etchings, lithographs, engravings, prints, photographs, designs, paintings, including body-painting, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, basketry, pictorial woven tissues, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments, maps, plans, diagrams architectural buildings, architectural models; and architectural forms;
“genetic resources” means microorganisms, plant and animal material including indigenous seeds, genetic plant varieties and traditional animal breeds that contain functional hereditary units and whose management shall also be subject of other relevant legislations;
“genetic material ” means genetic material of plant, animal, microbial or other origin containing functional units of heredity;
“traditional knowledge” means any knowledge—
(a) originating from an individual, local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, embodied in the traditional lifestyle of a community; or
(b) contained in the codified knowledge systems passed on from one generation to another including agricultural, environmental or medical knowledge, knowledge associated with genetic resources or other components of biological diversity, and know-how of traditional architecture, construction technologies, designs, marks and indications.
Beneficiaries or Rightholders
Article 2 - Definitions
“community” means a homogeneous and consciously distinct group of the people who share any of the following attributes—
(a) common ancestry;
(b) similar culture or unique mode of livelihood or language;
(c) geographical space;
(d) ecological space; or
(e) community of interest;
“holder” means recognized individuals or organizations within communities in whom the custody or protection of traditional knowledge and cultural
expressions are entrusted in accordance with the customary law and practices of that community;
“owner” means local and traditional communities, and recognized individuals or organizations within such communities in whom the custody or protection of traditional knowledge and cultural expressions are entrusted in accordance with the customary law and practices of that community;
The owners and holders of traditional knowledge shall have the right to protection of that knowledge.
Scope of Protection
Protection shall be extended to traditional knowledge that is—
(a) generated, preserved and transmitted from one generation to another, within a community, for economic, ritual, narrative, decorative or recreational purposes;
(b) individually or collectively generated;
(c) distinctively associated with or belongs to a community; and
(d) 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.
(1) Every community shall have the exclusive right to—
(a) authorize the exploitation of their traditional knowledge; and
(b) prevent any person from exploiting their traditional knowledge without their prior informed consent.
(2) In addition to all other rights, remedies and action available, the owners shall have the right to institute legal proceedings against any person who exploits traditional knowledge without the owner’s permission.
(3) Every community shall make and adopt its community rules prescribing the procedures for the authorization of the exploitation of their traditional knowledge.
(4) The rules shall be submitted to the county government during the registration of traditional knowledge.
(1) The protection of cultural expressions under this Act shall relate to cultural expressions, of whatever mode or form, which are—
(a) the products of creative and cumulative intellectual activity, including collective creativity or individual creativity where the identity of the individual is unknown;
(b) 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;
(c) generated, preserved and transmitted from one generation to another, within a community, for economic, ritual, narrative, decorative or recreational purposes;
(d) individually or collectively generated;
(e) distinctively associated with or belongs to a community; and
(f) 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.
Exceptions and Limitations
(1) Notwithstanding section 18, the protection of traditional knowledge or cultural expressions shall—
(a) not restrict or hinder the normal usage, development, exchange, dissemination and transmission of traditional knowledge or cultural expressions by members of a particular community within the traditional and in accordance with the customary law and practices of that community;
(b) extend only to uses of traditional knowledge or cultural expressions taking place outside their commercial gain or not; and
(c) be subject to such other exceptions as may be necessary to address the needs of noncommercial use, including teaching and research for educational purposes, personal or private use, criticism or review, reporting of current events, use in the course of legal proceedings, the making of recordings and reproductions of traditional knowledge or cultural expressions for inclusion in an archive or inventory exclusively for the purposes of safeguarding knowledge or cultural heritage, and incidental uses.
(2) A user of traditional knowledge or cultural expressions shall obtain prior informed consent and sufficiently acknowledge the owners by expressly mentioning them or the geographical place from which the traditional knowledge or cultural expressions originated, in the course of use.
(3) The use of traditional knowledge or cultural expressions shall be compatible with fair practice, the relevant community’s customary laws, protocols and practices and the relevant community shall be acknowledged as the source of the traditional knowledge or cultural expressions, and such use shall not be offensive to the relevant community.