Traditional Knowledge Laws: Zambia
|Title||The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act, 2016 (Act No. 16 of 2016)|
|Subject Matter||Traditional Knowledge; Traditional Cultural Expressions; Genetic Resources|
|Issue(s)||Beneficiaries or Rightholders; Scope of Protection; Exceptions and Limitations|
|Type(s) of Legislation||Sui Generis|
Subject Matter of Protection
Article 2 - Definitions
“ expressions of folklore ” means any form, whether tangible or intangible, in which traditional culture and knowledge is expressed, appears or manifests, and includes the following forms of expressions or combinations:
(a) verbal expressions, including stories, epics, legends, poetry, riddles and other narratives, words, signs, names and symbols;
(b) musical expressions, including songs and instrumental music;
(c) expressions by movement or incorporating movement, including dances, plays, artistic forms, rituals and other performances, whether or not reduced to a material form;
(d) tangible expressions, including productions of art, drawings, designs, paintings, body painting, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, baskets, needlework, textiles, glassware, carpets, costumes, handicrafts, musical instruments and architectural forms; and
(e) any other output of creative and cumulative intellectual activity characteristic of a traditional community’s distinctive cultural identity and traditional heritage developed and maintained by that traditional community, individuals or groups who have the right or responsibility to do so in accordance with customary laws and practices;
“ genetic resource ” means any genetic material of a biological resource containing genetic information having actual or potential value for humanity and includes derivatives, fauna and flora of terrestrial, aquatic and any other origin which may be used by the holder to obtain specific practical outputs in any field of human activity or derivative;
“ traditional context ” means knowledge, practices, know-how, learning, skill, process and method which traditionally or through custom and culture was or is developed, sustained and passed on from generation to generation within a traditional community or by individuals or groups in the community, and which forms part of a community’s cultural or spiritual identity and includes agricultural, medicinal knowledge and biodiversity-related knowledge;
“ traditional knowledge ” means any knowledge, not limited to a specific subject area, technical or medical field associated with genetic resources, originating from a traditional community, individual or group that is the result of intellectual activity and insight in a traditional context and where the knowledge is embodied in the traditional lifestyle of a traditional community or is codified in knowledge systems and passed on from one generation to another;
“ traditional knowledge systems ” means the traditional knowledge of a traditional community, including the contributions made by such a community to the conservation of the environment, food security and sustainable agriculture, improvement in the health of populations, progress of science and technology, preservation and safeguarding of cultural heritage, development of artistic skills and enhancing diversity of cultural content and expressions of folklore and other artistic expressions;
“traditional method or process” means discoveries, innovations, practices and technologies made or used by a traditional community, individual or group which are usually not recorded in written form or otherwise and transmitted orally from one generation to another;
(1) Traditional knowledge shall be protected in accordance with this Act if it fulfils the following conditions:
(a) it is generated, preserved and transmitted in a traditional and intergenerational context;
(b) it is distinctively associated with a traditional community, individual or group;
(c) it is integral to the cultural identity of a traditional community that is recognised as holding the knowledge through a form of custodianship, guardianship or collective and cultural ownership or responsibility, whether formally or informally, by customary laws and practices.
The following protections shall apply to expressions of folklore, irrespective of the mode or form of expression:
(a) the output of creative and cumulative intellectual activity such as collective creativity or individual creativity where the identity of the individual is unknown; and
(b) characteristics of a traditional community’s cultural identity and traditional heritage which has been developed, maintained or used by the community in accordance with customary laws and practices.
Beneficiaries or Rightholders
Article 2 - Definitions
“ holder ” means a traditional community, an individual or a group, irrespective of the pattern of ownership, and who is the owner of the traditional knowledge, genetic resource or expression of folklore in a traditional and intergenerational context who has a right over or to whom traditional knowledge, a genetic resource or expression of folklore belongs to, in accordance with customary laws and practices;
“ traditional community ” means a human population living in a distinct geographical area in Zambia which is the creator or recognised, according to customary laws and practices, as the creator and custodian of a traditional knowledge, genetic resource or expression of folklore and the words “community” and “local community” shall be construed accordingly;
(1) The beneficiary of traditional knowledge shall be the holder.
(2) A benefit derived by a traditional community shall be put to the common benefit of the traditional community.
The ownership of genetic resources vests in, and shall be held by, the President on behalf of the Zambian people.
The beneficiary of an expression of folklore shall be the traditional community—
(a) to whom the custody and protection of the expression of folklore is entrusted in accordance with customary laws and practices; and
(b) who maintains and uses the expression of folklore as a characteristic of its traditional cultural heritage.
Scope of Protection
(1) This Act protects—
(a) a holder against infringement of the holder’s rights in relation to traditional knowledge, genetic resources and expressions of folklore;
(b) traditional knowledge and expressions of folklore against misappropriation, misuse and unlawful exploitation;
(c) an equitable balance between the rights and interests of holders and users;
(d) genetic resources found in-situ and ex-situ against misappropriation and illegal exploitation; and
(e) improper grant and exercise of intellectual property rights in traditional knowledge, genetic resources and expressions of folklore.
(4) A holder shall enjoy the following benefits and may excise the following rights:
(a) register transboundary traditional knowledge and expressions of folklore in accordance with the Swakopmund Protocol;
(b) be able to record with the Agency their genetic resources;
(c) be able to protect their intellectual property rights relating to traditional knowledge and expressions of folklore;
(d) be able to register their traditional knowledge and expressions of folklore with ARIPO and obtain benefits arising from the commercial use of such knowledge and folklore;
(e) be able to use the alternative dispute settlement procedures at ARIPO to settle disputes arising from traditional knowledge and expressions of folklore shared by different traditional communities across national boundaries; and (f) give prior informed consent for use of information relating to traditional knowledge and expressions of folklore licenced with ARIPO.
A holder has the exclusive right to—
(a) authorise the exploitation of the holder’s traditional knowledge; and
(b) prevent anyone from exploiting the holder’s traditional knowledge without the holder’s prior informed consent.
Subject to this Act, a traditional community has the following rights over its genetic resources:
(a) the exclusive right to regulate access to its genetic resources;
(b) an inalienable right to use its genetic resources;
(c) the exclusive right to share the benefits arising from the utilisation of its genetic resources; and
(d) the right to assign and conclude access agreements.
(1) The rights of a traditional community to regulate access to its genetic resources shall include the following:
(a) the exclusive right to give prior informed consent for access to its genetic resources;
(b) the right to refuse consent when it believes that the intended access shall be detrimental to the integrity of its cultural or natural heritage;
(c) the right to withdraw or place restriction on any prior informed consent given for access to its genetic resources where the consent is likely to be detrimental to its socioeconomic life or natural or cultural heritage; and
(d) the right to demand the restriction or withdrawal of any prior informed consent given by the Agency for access to its genetic resources where it is found that the prior informed consent is likely to be detrimental to its socioeconomic life or natural or cultural heritage.
(1) A traditional community has an inalienable right to use or exchange with other traditional communities its genetic resources for sustaining its livelihood systems in accordance with customary laws and practices.
(2) A legal restriction shall not be placed on the traditional systems of a traditional community for the use and exchange of genetic resources, except where the holder refuses to grant a licence on reasonable commercial terms and conditions.
(3) Where a genetic resource is not being sufficiently exploited by the holder or the holder refuses to grant a licence subject to reasonable commercial terms and conditions the Minister may, in the interest of public security or public health, grant a compulsory licence to fulfill a national need.
(4) Where a compulsory licence has been granted, in accordance with subsection (3), the Minister shall fix an appropriate amount of compensation in the absence of an access agreement between the parties.
(1) An expression of folklore shall be protected against misappropriation, misuse and unlawful exploitation.
(2) Despite the generality of subsection (1), the following acts are prohibited, except with the prior informed consent of the traditional community:
(a) in respect of expressions of folklore other than words, signs, names and symbols—
(i) the reproduction, publication, adaptation, broadcasting, public performance, communication, distribution, rental, making available to the public and fixation of the expression of folklore or any derivative of the expression of folklore;
(ii) any use of the expression of folklore or adaptation of the expression of folklore which does not acknowledge, in an appropriate manner, the traditional community as the source of the expression of folklore or any derivative of the expression of folklore;
(iii) any distortion, mutilation or other modification of, or other derogatory action in relation to, the expression of folklore; and (iv) the acquisition or exercise of intellectual property rights over the expression of folklore or adaptations to the expression of folklore;
(b) in respect of words, signs, names and symbols, any use of the expression of folklore, derivative of the expression of folklore or acquisition or exercise of intellectual property rights over the expression of folklore or derivative which disparages, offends or falsely suggests a connection with a traditional community or brings a traditional community into contempt or disrepute.
(3) The following acts are prohibited in relation to the use and exploitation of expressions of folklore:
(a) any distortion, mutilation or other modification of, or other derogatory action in relation to, an expression of folklore;
(b) false, confusing or misleading indications or allegations which, in relation to goods or services, refer to, draw upon or evoke the expression of folklore of a traditional community or suggests any endorsement by, or linkage with, that community; and
(c) use or exploitation for gainful intent without equitable remuneration or benefit sharing on terms determined and agreed with the traditional community or, in default, as determined by the Agency in consultation with the traditional community.
Exceptions and Limitations
(1) Despite anything to the contrary, this Act shall not apply to—
(a) the access, use and exchange of traditional knowledge, genetic resources and expressions of folklore by an owner or among traditional communities, as the case may be; and
(b) the sale of produce of biological resources for direct consumption that do not involve the use of genetic resources.
The protection of traditional knowledge shall not be prejudicial to the continued availability of the traditional knowledge within the traditional context for the practice, exchange, use and transmission of the traditional knowledge by its holder.
(1) The protection of expressions of folklore shall—
(a) be such as not to restrict or hinder the normal development, use, exchange, dissemination and transmission of expressions of folklore, within the traditional context, by members of the traditional community as determined by customary laws and practices;
(b) extend only to uses of expressions of folklore taking place outside the traditional context, whether or not for commercial exploitation; and
(c) be subject to exceptions which relate to non-commercial uses, such as education, research, personal or private use, criticism, review, reporting of current events, legal proceedings, the making of recordings and reproductions for inclusion in an archive or inventory exclusively for the purposes of safeguarding cultural heritage and other incidental uses.
(2) The uses of expression of folklore referred to in subsection (1) shall be compatible with fair competition and practice, acknowledgment of the traditional community as the source of the expression of folklore and not be offensive to the traditional community.