The Act is divided into eight parts which provide for inter alia the criteria, duration and formalities of protection fo
The Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016 The Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016 (the “Act”) was passed to not only provide a framework for the protection and promotion of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) but to also give effect to some of the provisions of the Constitution of Kenya, 2010, amongst them the right to property. Initially, there was no harmonised legal framework and only the National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions, July 2009 existed (the “National Policy”). Protection mechanisms among the community mainly included secrecy, which cannot be recommended as a means of protecting the TK or TCE. In addition, as a majority of the TK or TCE is not documented, there was a danger of losing this knowledge. Without proper records it would be difficult to have reliable precedents for communities to be able to argue for their intellectual property rights successfully. The Act is divided into eight parts which provide for inter alia the criteria, duration and formalities of protection for TK and TCE. Borrowing heavily from the Swakopmund Protocol, 2010, the regional protocol on the protection of traditional knowledge and expressions of folklore, the Act addresses the challenges faced by the holders/owners of TK or TCE as laid out by the National Policy. The challenges include: lack of a comprehensive database on TK, TCEs or genetic resources, the lack of an institutional framework for the exchange of information and the lack of a mechanism for the protection, access to and benefit sharing arising from TK, TCEs or genetic resources. The Act provides for the protection of a digital repository to store the information registered by the counties. The creation of a database will be a useful tool; however, it is important to note that such a database could be the target of illegitimate use. The Act also provides for inter alia the criteria for protection of TK and TCEs. The duration of protection is subject to the TK or TCEs fulfilling these criteria. Further, the Act also grants various rights to the owners/holders of the TK and TCEs, including the right to institute legal proceedings against those who exploit their TK or TCEs without the authorisation of the holder/owner. In addition, the Act provides not only provides for offences and penalties but also for civil actions and alternative dispute resolution mechanisms as means of addressing any disputes that may arise. The development of a sui generis system ensures that there is a comprehensive and appropriate mechanism for protection of rights arising out of the use and or exploitation of TK and TCE. Lastly, Kenya is the only country in East Africa to have legislation that specifically targets TK or TCE. The protection of TK and TCE from massive exploitation and derogation remains of critical importance and the passing of the Act is a step in the direction. For further assistance please contact John Syekei, Partner – Head of Intellectual Property at Bowmans.
