The Parliament has yet to pass the Protection of Traditional Knowledge and Expressions of Folklore Bill, 2015 even as its term nears the end.
Article 40 (5) of constitution obliges the state to support, promote and protect the intellectual property rights of the people of Kenya. In the same breath, Art. 69(1) (c) and (e) mandates the state to protect and enhance intellectual property, traditional or indigenous knowledge of biodiversity and the genetic resources of the communities and protect genetic resources and biological diversity.
A draft bill was finalized last year, but it has not been given priority.
The draft bill makes two broad distinctions: Traditional Knowledge and Traditional Culture Expressions (folklore). The bill defines “Traditional Cultural Expressions” as any form, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, whether verbally as in case of stories, epics, legends, poetry, riddles; other narratives; words, signs, names, expressions by movement, including dances, plays, rituals or other performances.
It may also refer to tangible expressions, including productions of art, drawings, designs, paintings, including body-painting, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, basketry, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms.
“Traditional knowledge” refers to any knowledge originating from a 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, where the knowledge is embodied in the traditional lifestyle of a community, or contained in the codified knowledge systems passed on from one generation to another.
The definition includes agricultural, environmental or medical knowledge, and knowledge associated with genetic resources.
The Bill will protect holders of traditional knowledge against any infringement of their rights; protect traditional knowledge and traditional cultural expressions against misappropriation, misuse and unlawful exploitation beyond their traditional context.
It will also promote sustainable use of traditional knowledge and traditional cultural expressions and ensure communities receive compensation and royalties for the use of their cultures and cultural heritage
Sharing of Benefits
In addition, it will promote the fair and equitable sharing and distribution of monetary and non-monetary benefits arising from the use of traditional knowledge and traditional cultural expressions; prevent the acquisition or exercise of intellectual property rights inappropriately acquired over traditional knowledge, traditional cultural expressions and their derivatives; and preserve and promote traditional knowledge and traditional cultural expressions for appreciation of cultural diversity, national pride and identity for posterity among others. The national competent authority is mandated to mediate between the concerned parties with a view to arriving at an agreement on the fair and equitable sharing of benefits.
The Draft Bill proposes the establishment of a competent, national authority which shall implement the provisions of the Bill to be known as the National Traditional Knowledge Authority.
Database of Traditional Knowledge
The Authority will maintain registers or other records of the knowledge in a database to be known as the Traditional Knowledge Digital Library. The Library shall be a collaborative program between agencies responsible for copyright, industrial property rights, the Ministry responsible for culture, sports and performing arts, Ministry responsible for education, science and technology, the National Museums of Kenya, the National Commission for Science, Technology and Innovation, the Kenya Plant Health Inspectorate Service, the National Environmental Management Authority and Kenya Medical Research Institute.