Kenyan Reform on Traditional Knowledge and Traditional Cultural Expressions: Two Year On

The protection of traditional knowledge (TK) and traditional cultural expressions (TCEs) by intellectual property law is an ongoing source of debate. The key questions, yet to be fully resolved by national and international policy-makers, are: (i) whether IP law adapts to this type of creativity and innovation and (ii) whether IP law needs to be reformed to be effective in protecting TK or TCEs. The World Intellectual Property Office has been active in promoting discussions on this topic (see here, here and here). Against this backdrop, a number of African countries have already legislated, or are doing so, in this area. 

Kenya is a regional leader in this regard. In 2016, the country introduced the Protection of Traditional Knowledge and Cultural Expressions Act 2016 (“the Act” - here). It is now a little over two years since the commencement of the Act, which seems a good time to consider the successes, failures and drawbacks of the reform. Kat friend Paul Kimani, based at the University of Nairobi and the University of Exeter, shares his thoughts on these questions. 

The 2016 reform 

Let’s start with a brief description of the key provisions of the Act. Paul writes: 

kikoi

“The reform of Kenyan law was motivated by an edict of Kenya’s Constitution, which required the state to promote culture and cultural heritage and to enact legislation in this regard (see, Article 11). The Act thus introduces a new sui generis framework for the protection and promotion of TK and TCEs in Kenya. 

In practice, this means that the Act now comprises the key legal framework through which TK and TCEs are promoted and protected [against exploitation by third parties] following their registration by the community of origin, in Kenya. Under the Act, TK is generally defined as knowledge that is the result of intellectual activity and insight in a traditional context (see section 2 of the Act). 

An example of TK in Kenya is the barefoot technology of the Maasai people (an ethnic group inhabiting Central and Southern Kenya), which is based on the walking posture of the Maasai people and has spurred a successful shoe brand. TCEs for their part are defined as any form, tangible or intangible, in which traditional culture is expressed (see section 2 of the Act). Popular Kenyan TCEs include the kikoi (woven cloth), the lesso (decorative cloth or sash) and the akala (tyre sandals). Under the Act, the ownership of TK and TCEs is vested in the traditional community where a particular TK or TCE derives (see section 9 of the Act). 

The Act calls on the national government through the Kenya Copyright Board (KECOBO) to establish and maintain a “Traditional Knowledge Digital Repository” (TKDR), which shall contain information relating to both TK and TCEs that have been documented and registered by county governments [(see, section 8 of the Act)." 

Lesso dress by the Bantu Girl

Two years on: a success? 

Paul holds a somewhat reserved view on the success of the reform thus far. He writes: 

“In evaluating the success of the reform, it must be borne in mind that the Act has not yet been fully implemented. For example, the TKDR, which as noted will contain information related to TK and TCEs that have been documented and registered, is yet to be put in place. 

Overall, the Act provides the defensive and protective protection necessary for providing a robust legal regime that protects TK and TCEs. The aim of defensive protection is to prevent people outside a traditional community from acquiring intellectual property rights over TK and TCEs. A prominent form of defensive protection is the use of databases or other inventories of the TK and TCEs available in a country, such as the TKDR proposed in the Act. 

Positive protection is the granting of rights that empower communities to promote their TK and TCEs, control their uses and benefit from their commercial exploitation. Positive protection of TK and TCEs is intended to give the holders of TK and TCEs the right to take action or seek remedies against certain forms of misuse of their TK and TCEs. However, the Act offers little, if anything, for promoting the creation of new TK and TCEs, such as a folk song or folk dance based on an existing song or dance. 

Thus, as it currently stands, the Act risks stifling new creative works or innovations based on TK and TCEs because of the wide restriction that it places upon derivative uses of protected content. The Act provides that TK and TCEs shall not be used for the creation of derivative works without the prior informed consent of the owners of the relevant TK or TCE (see section 18 of the Act). The Act defines a derivative work as “any intellectual creation or innovation based upon or derived from traditional knowledge or cultural expressions” (see section 2). The Act therefore appears to include within the meaning of a derivative work, any work that may have been inspired by TK and TCEs. As such, this provision threatens to have a chilling effect on the creation of new TK and TCEs. 

Perhaps the implementation of the TKDR by the government will provide a partial means for assessing the Act’s reception and success thus far. If traditional communities were to register an appreciable number of their TK and TCEs on this platform, it would be a strong indication that they understand the Act.”