Over time, the issue of whether and how to protect traditional knowledge of indigenous people has attracted increasing attention in most jurisdictions. This is after the realisation that Traditional knowledge can be used as wealth creation tool.
This has prompted an increasing interest in matters of law and policy in relation to traditional knowledge at national, regional and international level, particularly in biological resources and cultural merchandises.
This may be attributed to among other things evidence of increased commercial exploitation of traditional knowledge in agriculture, pharmaceutical industry and creative industries.
There have been numerous instances of third parties misappropriating traditional knowledge and in some instances to the detriment of the peoples from whom the knowledge originates.
Traditional knowledge (TK) refers to the information that people in a given community, based on experience and adaptation to a local culture and environment, have developed over time, and continues to develop.
This knowledge is used to sustain the community and its culture and to maintain the genetic resources necessary for the continued survival of the community. TK includes mental inventories of local biological resources, animal breeds, and local plant, crop and tree species.
It may include such information as trees and plants that grow well together, and indicator plants, such as plants that show the soil salinity or that are known to flower at the beginning of the rains.
It includes practices and technologies, such as seed treatment and storage methods and tools used for planting and harvesting.
A good example of TK is the knowledge of making the kiondo which has been passed down from generation to generation.
With adequate legislation such knowledge could be protected as valuable TK.
The kiondo was not ‘stolen’ as is widely believed. Kenyans have simply failed to commercialize the Kiondo either as a patent product or even as a design.
However, even if Kenya had filed a patent in respect of the kiondo, the life of the patent under the law would be only 20 years non-renewable.
After this period, the patent falls into the public domain and can be freely used, adapted and copied by others.For a long time, there was no law governing traditional knowledge in Kenya. The Kenyan constitution provided the constitutional basis for this but there have been implementation gaps that still needed to be filled.
At national level, in 2016 Kenya passed the Traditional Knowledge and Traditional Cultural Expression Act. The Kenya Copyright Board (Kecobo) played a leading role in advocating protection of TK and TCE.
At regional level, the ARIPO member states passed the Swakopmund Protocol on the Protection of Traditional Knowledge and Traditional Cultural Expressions in 2010. Policy objectives of the national and regional laws are similar and mainly seek to ensure that traditional knowledge is protected against misappropriation by third parties for commercial purposes and to ensure that indigenous/local communities have control over their traditional knowledge. There is still no agreed international law that aims at protecting TK and TCE.
However concerted efforts have been underway to have an international instrument at different international fora including WIPO through the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional knowledge and Folklore since 2000
The protection of TK is in tandem with Kenya’s “Vision 2030” blueprint that aims at moving Kenya 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 easily commercialize their traditional-based creations. The marketing of artisan products also represents a way for communities to show and strengthen their cultural identity and contribute to cultural diversity.
Paul Kaindo, advocate and a legal counsel at Kenya Copyright Board.