Traditional Knowledge and Traditional Cultural Expressions in Kenya

The kiondo, the Kikoy, now the Maasai Shuka have been ‘stolen’ from Kenya! This is something we read about every other day in the press, over the social networks and commonly discussed. We hear about traditional medicines and therapies, traditional cultural expressions are used in music, artwork and designs. These are all elements of what is known as traditional knowledge.

Kenya, like many other African countries is rich in traditional knowledge (TK) and traditional cultural expressions (TCEs). One may ask why the renewed interest in TK and TCEs in the 21st century? In the traditional systems, traditional knowledge was protected by a system of customs and taboos which ensured the preservation and proper utilisation of resources. Currently, this knowledge is being exploited by third parties for use in pharmaceutical products, therapy, building, arts and craft, music, design and even works of architecture. TK is used in the exploitation of genetic resources.

The defining characteristics of TK and TCEs is that they belong to a particular community(ies) and have been passed on from generation to generation.

Why protect Traditional Knowledge and Traditional Cultural Expressions?

Is there any need to protect TK and TCEs? This is a question that has been raised in several fora the world over. In the recent past, there have been many cases of use of TK and TCEs by third parties for commercial gain without any benefits to the custodians of the knowledge. In some cases, this knowledge is used contrary to the beliefs and practices of the community who are custodians of the same. It is important to protect the moral integrity of the community.

In other cases, this knowledge may be used to preserve natural resources for instance the existence of sacred forests which help maintain the ecosystem and ensure that genetic resources are safeguarded. There are many instances where the TK and TCEs are sacred and require to be protected against misuse and abuse. The main purpose of the protection is thus to guard against misappropriation and misuse by third parties of TK and TCES, preservation of genetic resources and cultural goods as well as protection against unfair competition. The protection will also ensure proper access and benefit sharing for the use of TK and TCEs.

Cases abound where the misappropriation and or misuse of traditional knowledge as it relates to genetic resources the world over normally referred to as bio piracy. Examples include Tumeric, Neem and Ayahausca which have been used by generations in India, South and South East Asia and the Amazon Basin respectively for medicinal and therapeutic purposes. In the case of Tumeric, a patent was granted for the ‘use of turmeric in wound healing’ by the United States Patent and Trade Marks Office (USPTO) The Indian Council for Scientific Research (CSIR) applied to have the patent revoked as the healing properties of Turmeric have been known for thousands of generations. The patent was subsequently revoked. Had the patent been retained, then the patentees would have had the exclusive right to exploit the turmeric plant for its medicinal purposes for a period of 20 years to the exclusion of all others unless. This underscores the need to protect the TK against the misappropriation by third parties.

Closer to home, we have the issue of the Hoodia Cactus which has been used by the San in the Kalahari Desert for centuries as a hunger suppressant. The South African Council for Scientific and Industrial Research (CSIR) patented a Hoodia’s appetite suppressing element (P57). The rights were acquired by Pfiizer to develop a slimming drug and cure for obesity. In March 2002, the San as custodians of the knowledge came to an agreement CSIR on access and benefit sharing.

In the early 1990s, a PhD student from the University of Leicester studied the organisms in Kenya’s Lake Bogoria including an enzyme known as extremophile that was extracted from one of the organisims which was later sold to Procter & Gamble. Procter & Gamble ultimately used the enzyme to develop an extremely successful line of Tide bleach that was used to stonewash denim.

The above cases demonstrate the need to have clear laws and policies to protect traditional knowledge including that related to genetic resources to safeguard against misappropriation and misuse.

Legal Framework

In Kenya, the Copyright Act makes provisions for the use of TCES under section 49 (d) of the Copyright Act Cap 130 of the Laws of Kenya. This section requires any person who wishes to TCEs for commercial purposes has to seek the authority of the Attorney General to do so. Several artists have used this provision to allow them to create performances and recordings that incorporate or are inspired by TCEs and examples are the artist Ms Linda Muthama who used lullabies from the Meru Community for one of her albums, Kayamba Africa who have incorporated traditional folksongs in their albums among others. The amendments to the Copyright Act seek incorporate more provisions for the protection of TCEs.

It is important to note that the protection offered under the copyright Act or in the proposed amendments are separate from the protection offered under copyright. This is because protection under copyright is limits protection to original works of authorship reduced to material form for a specific period of time. The proposed amendments take cognisance of the nature of TCEs.

Other forms of protection that may be accorded to TK and TCEs within the existing intellectual property system include the protection using trademarks, geographical indications, protection against unfair competition and trade secrets. A good example of the protection under Trade Marks is the recent case of the Kikoy. Had the application in the UK Patent Office gone through, most Kenyan’s would not have been able to sell the kikoy under that name. The government of Kenya, though institutions like the National Museums of Kenya should register the Kikoy and other TCEs as trademarks on behalf of the Kenyan citizens.

Geographical indications have traditionally been used to protect products such as wine for example Champagne and cheese. According the World Intellectual Property Organisation, A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods. This may be extended to the protection of TK and TCEs which may be attributed to a particular geographical location.

The other IP regimes are deemed less appropriate and in many cases it is important to come up with a Sui Generis system (its own kind of protection) for protection for TK and TCEs. There are several countries such as India, the Philippines among others that have sui generis systems of protection.

Another way of guarding against misappropriation is to ensure that the TK and TCEs are well documented. A good example is the Traditional Knowledge Digital Library in India. (covered in issue 1 of Copyright News). The digital documentation of such information provides an avenue for dissemination as well as cross checking any applications that may be based on TK. It is also important to explore the use of traditional knowledge commons.

Conclusion

In an effort to get Kenya into a middle income economy by the year 2030, it is important to focus on these areas due to the rich cultural and genetic diversity that Kenya has and the attendant TK. TK and TCEs have played and continued to play an important role in the lives of Kenyans. The use of TK can help in the development of the agricultural sector, preservation of genetic resources as well as bio diversity, the health sector as well as the creative industries. The various government bodies such as the Kenya Copyright Board, the National Museums of Kenya, the Kenya Industrial Property, the Department of Culture, the Kenya Wildlife Society, the Kenya Forestry Service among others should come together to ensure that there are synchronised efforts to ensure the protection of TK, TCEs and genetic resources.

IPKenya is grateful to Dr. Marisella Ouma, KeCoBo Executive Director who wrote this article which can be found in the recent edition of the KeCoBo Newsletter “Copyright News”.

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