Towards Legislation on Traditional Knowledge in Kenya

Today’s Daily Nation, Smart Company on page 3 has an article titled:

“If not Kenya or Japan, then who can lay claim to Kiondo?”

As far as the contents of this article go, it’s pretty similar to the views of IPKenya on the Kiondo and Kikoy issues i.e. what really transpired in the respective IP disputes and why both items are not patentable. The author of today’s article therefore rightly rules out trade mark and product patent protection for the Kikoy and Kiondo under the current IP regime. But the position held by IPKenya and others is that obtaining a process patent is possible if someone should come up with a way to make a Kiondo in a manner different than has been done before.

In concluding, the author of the newspaper article makes a very interesting statement:

“The knowledge of making the Kiondo has been passed down from generation to generation and with adequate legislation could be protected as such. For a long time, there have been no laws to govern traditional knowledge in Kenya. The new constitution has provided the legal framework for this but there are implementation gaps that still need to be filled.”

Comments:

Pursuant to Articles 40 and 69 of the new Constitution, the State is required to protect the intellectual property right of the people of Kenya, which includes traditional cultural expressions and traditional knowledge of genetic resources.

The World Intellectual Property Organisation (WIPO) defines ‘traditional knowledge’ (TK) as traditional-based literary, artistic or scientific works; performances, invention, information and all other traditional-based innovations and creations resulting from intellectual activity in all fields. TK includes medicinal knowledge, ecological knowledge, agricultural knowledge and scientific knowledge.

Here at home, the two IP Offices KECOBO and KIPI have taken the lead in developing a legal and administrative framework for the protection of Traditional Knowledge (TK) and they are part of a special TK Taskforce comprising of several other key government agencies appointed and gazetted by the Attorney General. Kenya’s priority in relation to TK is to protect holders of TK against infringement of their rights, protect expressions of folklore against misappropriation, misuse and unlawful exploitation beyond their traditions.

In 2009, the TK Taskforce successfully prepared Kenya’s National Policy on Traditional Knowledge Genetic Resources and Cultural Expressions. Currently, the Taskforce is in the process of translating this National Policy into a Bill to be tabled before Parliament.

The immediate beneficiaries of TK protection include holders of the knowledge in the first place, ethnic communities, most of whom have managed to maintain their TK and folklore to date despite rapid growth of urbanisation and modernisation. Many examples immediately come to mind. The Maasai community has for centuries mesmerised the world with their distinctive way of life, dances, dress, ornaments and traditional medicines, while the Kisii’s have their stone carvings, Kamba’s with their wood carvings, bows and arrows, Kikuyu’s with their baskets, Giriama’s with their well-known fables, Luo’s and Luhya’s with their rich music and dances, among others.

Aside from developing a national legal and administration framework for TK protection, KECOBO continues representing Kenya on the global stage at the WIPO Intergovernmental Committee on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions. This Intergovernmental Committee is nearing the adoption of an internationally-accepted binding instrument on TK. So far, there has been consensus on the subject matter of TK protection, the beneficiaries of TK, the scope of TK protection, sanctions, remedies and exercise of rights under TK, administration of TK rights, exceptions and limitations.

Furthermore, the protection of TK is in tandem with Kenya’s “Vision 2030” blueprint that aims to move our country to a middle-income economy by the year 2030 through wealth creation, increased trade and national development. The use of traditional cultural materials as a source of contemporary creativity can contribute towards the economic development of traditional communities, through the establishment of community enterprises, local job creation, skills development, appropriate tourism, and foreign earnings from community products.

By providing legal protection for traditional-based creativity, communities can commercialise their traditional-based creations using the intellectual property system. The marketing of artisanal products also represents a way for communities to show and strengthen their cultural identity and contribute to cultural diversity. The intellectual property system will assist the communities to certify the origin of their arts and crafts, fight unfair use or misuse of their products and exercise control over how their cultural expressions are used.

In conclusion, it is widely accepted that no society can achieve economic and social development if it ignores its rich cultural heritage which is embedded in traditional knowledge, traditional cultural expressions and genetic resources.

PS: If you recall IPKenya joined in on the heated debate surrounding South Africa Traditional Knowledge Bill, which has now been enacted into law. It is submitted that Kenya should opt for a sui-generis rather than an IP-based mechanism for protection of TK.