Kenya Act or statute

Parliament of Kenya

Protection of Traditional Knowledge and Cultural Expressions Act

Jurisdiction: Kenya
Structure: 44 provisions
Citation: Cap. 218A
Dates: As at 31 Dec 2022

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Dates: As at 31 Dec 2022

Source attribution: Source: Kenya Law

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Purpose and legislative effect

“This Act may be cited as the Protection of Traditional Knowledge and Cultural Expressions Act.”

This Act may be cited as the Protection of Traditional Knowledge and Cultural Expressions Act. Interpretation: common ancestry Anyone dealing with traditional knowledge or cultural expressions must be guided by the national values and principles of governance in Article 10 of the Constitution when performing functions or exercising powers under this Act. County governments are responsible for the primary registration of traditional knowledge and cultural expressions within a county for recognition under this Act. The national government is responsible for establishing and maintaining the Repository at the Kenya Copyright Board.

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PRELIMINARY - 1. Short title

This Act may be cited as the Protection of Traditional Knowledge and Cultural Expressions Act.

Section 1

PROTECTION OF TRADITIONAL KNOWLEDGE - 8. Maintenance of registers

County governments must keep registers of documented traditional knowledge and cultural expressions; the national government must create and maintain a centralized digital Repository, and counties must transmit validated registered information to that…

Section 8

MORAL RIGHTS - 23. Additional rights

Cultural rights in traditional knowledge or cultural expressions are additional to any rights under other intellectual property laws and do not affect subsisting rights; they include rights to maintain, control, protect and develop cult…

Section 23

MANAGEMENT OF RIGHTS - 33. User agreements

Owners of traditional knowledge or cultural expressions must consult their community about proposed user agreement terms before entering into an authorized user agreement; the Cabinet Secretary must make regulations about what to includ…

Section 33

TRANSITIONAL MEASURES AND MISCELLANEOUS - 44. Recognition of other laws

In accordance with reciprocal arrangements, this Act may provide the same protection to traditional knowledge and cultural expressions from other countries or territories as it provides to those originating in Kenya.

Section 44

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Showing 44 of 44 provisions

Provision 40Short titleInterpretationOffence

Part I

PRELIMINARY

§ 1PRELIMINARY - 1. Short titleShort title

This Act may be cited as the Protection of Traditional Knowledge and Cultural Expressions Act.

Section 1. Short title Section This Act may be cited as the Protection of Traditional Knowledge and Cultural Expressions Act.

Section 1Verify source

§ 2PRELIMINARY - 2. InterpretationInterpretation

Interpretation: common ancestry

Section 2. Interpretation Section common ancestry;

Section 2Verify source

§ 3PRELIMINARY - 3. Guiding principlesProvision

Anyone dealing with traditional knowledge or cultural expressions must be guided by the national values and principles of governance in Article 10 of the Constitution when performing functions or exercising powers under this Act.

Section 3. Guiding principles Section In the performance of the functions and exercise of powers under this Act, every person dealing with matters relating to traditional knowledge or cultural expressions shall be guided by the national values and principles of governance set out in Article 10 of the Constitution.

Section 3Verify source

§ 4PRELIMINARY - 4. Responsibility of county governmentsProvision

County governments are responsible for the primary registration of traditional knowledge and cultural expressions within a county for recognition under this Act.

Section 4. Responsibility of county governments Section the primary registration of traditional knowledge and cultural expressions within a county for the purposes of recognition under this Act;

Section 4Verify source

§ 5PRELIMINARY - 5. Responsibilities of the national governmentProvision

The national government is responsible for establishing and maintaining the Repository at the Kenya Copyright Board.

Section 5. Responsibilities of the national government Section the establishment and maintenance of the Repository at the Kenya Copyright Board;

Section 5Verify source

Part II

PROTECTION OF TRADITIONAL KNOWLEDGE

§ 10PROTECTION OF TRADITIONAL KNOWLEDGE - 10. Rights conferred to holders of traditional knowledgeProvision

Holders of traditional knowledge may authorize its exploitation and owners may sue anyone who exploits that knowledge without permission; communities must make rules for authorization and submit them to the county government at registration.

Section 10. Rights conferred to holders of traditional knowledge Section 10(1)(a) authorize the exploitation of their traditional knowledge; and Section 10(1)(b) prevent any person from exploiting their traditional knowledge without their prior informed consent. Section 10(2) In addition to all other rights, remedies and action available, the owners shall have the right to institute legal proceedings against any person who exploits traditional knowledge without the owner's permission. Section 10(3) Every community shall make and adopt its community rules prescribing the procedures for the authorization of the exploitation of their traditional knowledge. Section 10(4) The rules shall be submitted to the county government during the registration of traditional knowledge.

Section 10Verify source

§ 11PROTECTION OF TRADITIONAL KNOWLEDGE - 11. Recognition of traditional knowledge and cultural expression ownersProvision

People who use traditional knowledge or cultural expressions beyond their traditional context must acknowledge the owner, indicate the source (and where possible the origin), and use them in a way that respects the holders' cultural values.

Section 11. Recognition of traditional knowledge and cultural expression owners Section A person who uses traditional knowledge or cultural expressions beyond its traditional context shall acknowledge the owner of the knowledge, indicate the source of the knowledge or expression and where possible, the origin of the knowledge or expression, and use such knowledge or expression in a manner that respects the cultural values of the holders.

Section 11Verify source

§ 12PROTECTION OF TRADITIONAL KNOWLEDGE - 12. Compulsory licenceProvision

The Cabinet Secretary may grant compulsory licences for exploiting protected traditional knowledge under specified conditions (including prior informed consent and Article 40(3)(b)); if parties cannot agree on compensation a court shall determine it; the Cabinet Secretary may refer disputes to alternative dispute resolution; the Cabinet Secretary shall make regulations setting criteria and conditions for compulsory licences.

Section 12. Compulsory licence Section 12(1) Where protected traditional knowledge is not being sufficiently exploited by the owner or rights holder, or where the owner or holder of rights in traditional knowledge refuses to grant licenses for exploitation, the Cabinet Secretary may, with prior informed consent of the owners, grant a compulsory licence for exploitation subject to Article 40(3)(b) of the Constitution. Section 12(2) In the absence of an agreement between the parties on an appropriate amount of compensation for the compulsory licence, a court of competent jurisdiction shall on the application of the parties determine the compensation. Section 12(3) The Cabinet Secretary may, in the case of a dispute where there is no agreement between the parties, refer the matter for determination through alternative dispute resolution mechanisms. Section 12(4) The Cabinet Secretary shall make regulations prescribing the criteria and conditions for the grant of a compulsory licence.

Section 12Verify source

§ 13PROTECTION OF TRADITIONAL KNOWLEDGE - 13. Duration of protection of traditional knowledgeProvision

Traditional knowledge is protected for as long as it meets the protection criteria set out in section 6.

Section 13. Duration of protection of traditional knowledge Section Traditional knowledge shall be protected for so long as the knowledge fulfils the protection criteria referred to under section 6 .

Section 13Verify source

§ 6PROTECTION OF TRADITIONAL KNOWLEDGE - 6. Protection criteria for traditional knowledgeProvision

Defines protection criteria for traditional knowledge as knowledge generated, preserved and transmitted within a community for economic, ritual, narrative, decorative or recreational purposes.

Section 6. Protection criteria for traditional knowledge Section generated, preserved and transmitted from one generation to another, within a community, for economic, ritual, narrative, decorative or recreational purposes;

Section 6Verify source

§ 7PROTECTION OF TRADITIONAL KNOWLEDGE - 7. Formalities relating to protection of traditional knowledgeProvision

County governments must collect, document and register traditional knowledge for recognition; owners must register willingly with prior informed consent; national and county governments must register and keep records where knowledge is shared across borders; respective county governments must register shared knowledge; the Kenya Copyright Board or county governments must consider customary law when concurrent claims arise.

Section 7. Formalities relating to protection of traditional knowledge Section 7(1) Protection of traditional knowledge shall not be subject to any formality. Section 7(2) Notwithstanding subsection (1), county governments shall collect information, document and register traditional knowledge within the respective counties for the purposes of recognition. Section 7(3) The Registration under subsection (2) shall be undertaken willingly by the owners of traditional knowledge upon obtaining prior informed consent but shall not require the public disclosure of the traditional knowledge concerned. Section 7(4) Where a community in Kenya shares traditional knowledge with a community outside Kenya, the national and county government shall register the owners of the traditional knowledge in Kenya and maintain relevant records. Section 7(5) Where more than one community in the same or different counties share the same traditional knowledge, respective county governments shall register the owners of the traditional knowledge and maintain relevant records. Section 7(6) Where concurrent claims arise from different communities, the Kenya Copyright Board or county government shall, while determining the claim, consider customary law and protocol of the communities in question, local information sources and any other means that may be applicable. Section 7(7) Registration shall have a mere declaratory function and shall not in itself confer rights.

Section 7Verify source

§ 8PROTECTION OF TRADITIONAL KNOWLEDGE - 8. Maintenance of registersProvision

Section 8. Maintenance of registers Section 8(1) Every county government shall, establish and maintain a register which shall contain information relating to traditional knowledge and cultural expressions collected and documented by the county government during the registration process. Section 8(2) The registers maintained under subsection (2) may relate to specific forms of protection, and shall not compromise the status of undisclosed traditional knowledge or the interests of holders of traditional knowledge that relate to the undisclosed elements of their knowledge. Section 8(3) The national government shall, in consultation with the relevant county government establish and maintain a comprehensive Traditional Knowledge Digital Repository which shall contain information relating to traditional knowledge and cultural expressions that have been documented and registered by county governments. Section 8(4) Notwithstanding subsection (1), in the interests of transparency, evidence and the preservation of traditional knowledge, the national government and the lead agencies shall, where appropriate and subject to the relevant policies, laws and procedures and considering the needs and aspirations of the traditional knowledge holders, maintain registers or other records of the knowledge in the Repository. Section 8(5) The county governments and other institutions that deal with matters relating to traditional knowledge and cultural expressions shall co-operate with the national government in the establishment and maintenance of the Repository. Section 8(6) Every county shall, upon collecting and documenting information on traditional knowledge and cultural expressions and registering the traditional knowledge or cultural expressions relating to any community, transmit the complete and validated information relating to the traditional knowledge of cultural expressions for entry in the Repository in the form or manner prescribed by the Cabinet Secretary.

Section 8Verify source

§ 9PROTECTION OF TRADITIONAL KNOWLEDGE - 9. Right to protectionProvision

Owners and holders of traditional knowledge have the right to protection of that knowledge.

Section 9. Right to protection Section The owners and holders of traditional knowledge shall have the right to protection of that knowledge.

Section 9Verify source

Part III

PROTECTION OF CULTURAL EXPRESSIONS

§ 14PROTECTION OF CULTURAL EXPRESSIONS - 14. Protection criteria of cultural expressionsProvision

Section 14. Protection criteria of cultural expressions Section the products of creative and cumulative intellectual activity, including collective creativity or individual creativity where the identity of the individual is unknown;

Section 14Verify source

§ 15PROTECTION OF CULTURAL EXPRESSIONS - 15. Formalities relating to cultural expressionsProvision

County governments must collect information, document and register cultural expressions for recognition; owners must willingly register with prior informed consent; national and county governments must register and keep records when expressions are shared internationally; county governments must register and keep records when multiple communities share expressions; where concurrent claims arise governments must consider customary law and local sources.

Section 15. Formalities relating to cultural expressions Section 15(1) The protection of cultural expressions shall not be subject to any formality. Section 15(2) Notwithstanding subsection (1), county governments shall collect information, document and register cultural expressions within the respective counties for the purposes of recognition. Section 15(3) The registration under subsection (2) shall be undertaken willingly by the owners of cultural expressions upon obtaining prior informed consent but shall not require the public disclosure of the cultural expressions concerned. Section 15(4) Where a community in Kenya shares cultural expressions with a community outside Kenya, the national and county government shall register the owners of the cultural expression in Kenya and maintain relevant records. Section 15(5) Where more than one community in the same or different counties share the same cultural expressions, respective county governments shall register the owners of the cultural expressions and maintain relevant records. Section 15(6) Where concurrent claims arise from different communities, national government or county government shall, while determining the claim, consider customary law and protocol of the communities in question, local information sources and any other means that may be applicable. Section 15(7) Registration shall have a mere declaratory function and shall not in itself confer rights.

Section 15Verify source

§ 16PROTECTION OF CULTURAL EXPRESSIONS - 16. Right of protectionProvision

Owners and holders of cultural expressions have the right to protection of those expressions.

Section 16. Right of protection Section The owners and holders of cultural expressions shall have the right to protection of those expressions.

Section 16Verify source

§ 17PROTECTION OF CULTURAL EXPRESSIONS - 17. Duration of protection of cultural expressionsProvision

Cultural expressions are to be protected against misappropriation, misuse, unlawful access or exploitation while they meet the protection criteria in section 14.

Section 17. Duration of protection of cultural expressions Section Cultural expressions shall be protected against all acts of misappropriation, misuse, unlawful access or exploitation for as long as the cultural expressions fulfil the protection criteria set out in section 14 .

Section 17Verify source

Part IV

GENERAL PROVISIONS

§ 18GENERAL PROVISIONS - 18. Protection of traditional knowledge and cultural expressions against unlawful actsProvision

The section prohibits persons from unlawfully accessing, exploiting or using traditional knowledge and cultural expressions in specified ways; owners are entitled to use their cultural expressions; the Cabinet Secretary must set up mechanisms with county governments to help communities protect secret cultural expressions.

Section 18. Protection of traditional knowledge and cultural expressions against unlawful acts Section 18(1) A person shall not, in any way, misappropriate, misuse, abuse, unfairly, inequitably or unlawfully access and exploit traditional knowledge and cultural expressions. Section 18(2)(a) the reproduction of the traditional knowledge or cultural expressions; Section 18(2)(b) the publication of the traditional knowledge or cultural expressions; Section 18(2)(c) the performance or display of the traditional knowledge or cultural expressions in public; Section 18(2)(d) the broadcast of the traditional knowledge or cultural expressions to the public by radio, television, satellite, cable or any other means of communication; Section 18(2)(e) the translation, adaption, arrangement, transformation or modification of the traditional knowledge or cultural expressions; Section 18(2)(f) the fixation of the traditional knowledge or cultural expressions through any process, including making a photograph, film or sound recording; Section 18(2)(g) the availing online or electronic transmission to the public (whether over a path or a combination of paths, or both) traditional knowledge or cultural expressions; Section 18(2)(h) the creation of derivative works; and Section 18(2)(i) the making, use, offer for sale, sale, import or export of traditional knowledge or cultural expressions or products derived there from. Section 18(3) Despite subsection (2), the owners shall be entitled to use the cultural expressions in the ways mentioned in subsection (2) in the exercise of their cultural rights. Section 18(4)(a) the reproduction, publication, adaptation, broadcasting, public performance, communication to the public, distribution, rental, making available to the public and fixation (including by still photography) of the cultural expressions or derivatives thereof; Section 18(4)(b) any use of the cultural expressions or adaptation thereof that does not acknowledge the community as the source of the cultural expressions; Section 18(4)(c) any distortion, mutilation or other modification of, or other derogatory action, in relation to the cultural expressions; and Section 18(4)(d) the acquisition or exercise of intellectual property rights over the cultural expressions or adaptations thereof. Section 18(5) A person shall not use words, signs, names and symbols that are cultural expressions or derivatives thereof, or acquire or exercise intellectual property rights over the cultural expressions or derivatives thereof, in a manner that disparages, offends or falsely suggests a connection with the community concerned, or brings the community into contempt or disrepute. Section 18(6)(a) the relevant community is identified as the source of any work or other production adapted from the cultural expressions; Section 18(6)(b) any distortion, mutilation or other modification of, or other derogatory action in relation to cultural expressions can be prevented; Section 18(6)(c) any false, confusing or misleading indications or allegations which, in relation to goods or services that refer to, draw upon or evoke the cultural expressions of a community or suggest any endorsement by or linkage with that community; and Section 18(6)(d) where the use or exploitation is intended to be gainful, equitable remuneration or benefit-sharing, the use or exploitation is on terms determined and agreed with the relevant community and in the absence of such agreement as determined by the Cabinet Secretary in consultation with the relevant community. Section 18(7) The Cabinet Secretary in consultation with county governments shall establish mechanisms to ensure that communities have the means to prevent the unauthorized disclosure, subsequent use of and acquisition and exercise of intellectual property rights over cultural expressions that are held secret.

Section 18Verify source

§ 19GENERAL PROVISIONS - 19. Exceptions and limitationsProvision

Section 19(2) requires a user of traditional knowledge or cultural expressions to obtain prior informed consent and acknowledge the owners (by naming them or the place of origin); Section 19(3) requires uses to be compatible with fair practice and customary laws, acknowledge the relevant community, and not be offensive.

Section 19. Exceptions and limitations Section 19(1)(a) not restrict or hinder the normal usage, development, exchange, dissemination and transmission of traditional knowledge or cultural expressions by members of a particular community within the traditional and in accordance with the customary law and practices of that community; Section 19(1)(b) extend only to uses of traditional knowledge or cultural expressions taking place outside their traditional or customary context, whether for commercial gain or not; and Section 19(1)(c) be subject to such other exceptions as may be necessary to address the needs of non-commercial use, including teaching and research for educational purposes, personal or private use, criticism or review, reporting of current events, use in the course of legal proceedings, the making of recordings and reproductions of traditional knowledge or cultural expressions for inclusion in an archive or inventory exclusively for the purposes of safeguarding knowledge or cultural heritage, and incidental uses. Section 19(2) A user of traditional knowledge or cultural expressions shall obtain prior informed consent and sufficiently acknowledge the owners by expressly mentioning them or the geographical place from which the traditional knowledge or cultural expressions originated, in the course of use. Section 19(3) The use of traditional knowledge or cultural expressions shall be compatible with fair practice, the relevant community's customary laws, protocols and practices and the relevant community shall be acknowledged as the source of the traditional knowledge or cultural expressions, and such use shall not be offensive to the relevant community.

Section 19Verify source

§ 20GENERAL PROVISIONS - 20. Derivative worksProvision

Intellectual property rights in a derivative work vest in the creator.

Section 20. Derivative works Section 20(1) Any copyright, trademark, patent, industrial design, geographical indication or other intellectual property right that exists in relation to a derivative work shall vest in the creator of the work as provided by the relevant intellectual property law. Section 20(2) Where a derivative work that is based on traditional knowledge or cultural expressions is to be used for a commercial or industrial purpose, an authorized user agreement shall be prepared between the rights holder and the authorised user. Section 20(3)(a) contain a benefit sharing arrangement that provides for fair equitable monetary or non- monetary compensation to the right holders; Section 20(3)(b) provide for identification and disclosure of the traditional knowledge or cultural expressions on which the derivative work based by mentioning the holders or the geographical place from which it originated; and Section 20(3)(c) state that the traditional knowledge or cultural expressions in the derived work will not be subject to derogatory treatment.

Section 20Verify source

Part V

MORAL RIGHTS

§ 21MORAL RIGHTS - 21. Meaning of moral rightsProvision

Owners of traditional knowledge or cultural expressions are the holders of moral rights in that knowledge and those expressions, including attribution, protection from false attribution and derogatory treatment, and protection from false claims to authenticity and origin; these moral rights exist independently of cultural rights and continue in perpetuity, being inalienable or transferable and incapable of being waived.

Section 21. Meaning of moral rights Section 21(1) The owners of traditional knowledge or cultural expressions shall be holders of the moral rights in the traditional knowledge or cultural expressions. Section 21(2)(a) the right of attribution of ownership or paternity in relation to their traditional knowledge and cultural expressions; Section 21(2)(b) the right not to have ownership of traditional knowledge or cultural expressions falsely attributed to them; and Section 21(2)(c) the right not to have their traditional knowledge and cultural expressions subject to derogatory treatment including any act or omission that results in a material distortion, mutilation or alteration of the traditional knowledge or cultural expressions that is prejudicial to the honor or reputation of the traditional owners, or the integrity of the traditional knowledge or cultural expressions; and Section 21(2)(d) the right to protection from false and misleading claims to authenticity and origin. Section 21(3) The moral rights of traditional owners in their traditional knowledge and cultural expressions shall exist independently of their cultural rights. Section 21(4) The moral rights shall continue in force in perpetuity and shall be inalienable or transferable and incapable of being waived.

Section 21Verify source

§ 22MORAL RIGHTS - 22. Assignment and licensingProvision

Owners of traditional knowledge or cultural expressions have the right to assign and grant licences; holders must grant written licences and submit a copy to the Cabinet Secretary and the county executive member, unwritten grants have no effect; parties may seek the Cabinet Secretary's advice; the Cabinet Secretary must keep a register of licences and assignments.

Section 22. Assignment and licensing Section 22(1) The owners of traditional knowledge or cultural expressions rights shall have the right to assign and conclude licensing agreements. Section 22(2) Despite subsection (1), traditional knowledge or cultural expressions belonging to a local or traditional community shall not be assigned without the authorization of the custodian of the local or traditional community. Section 22(3) The holders of traditional knowledge or cultural expressions rights shall grant access, authorizations, assignments or licenses in respect of protected traditional knowledge or cultural expressions in writing and copy submitted to the Cabinet Secretary and the respective county executive committee member in charge of matters relating to traditional knowledge and culture. Section 22(4) Access, authorizations, assignments or licenses in respect of protected traditional knowledge or cultural expressions that have not been granted in writing shall have no effect. Section 22(5) The parties to a licensing agreement may seek the advice of the Cabinet Secretary when drawing up a document for the purpose of this section. Section 22(6) The Cabinet Secretary shall keep a register of all licenses and assignments granted under this section.

Section 22Verify source

§ 23MORAL RIGHTS - 23. Additional rightsProvision

Section 23. Additional rights Section 23(1) The cultural rights in traditional knowledge or cultural expressions shall be in addition to any rights that may subsist under any law relating to copyright, trademarks, patents, designs or other intellectual property and shall not in any way affect the subsisting rights. Section 23(2) These are the rights to maintain, control, protect and develop their cultural heritage, traditional knowledge and cultural expressions as well their manifestations.

Section 23Verify source

§ 24MORAL RIGHTS - 24. Equitable benefit sharing rightsProvision

Owners and holders of traditional knowledge or cultural expressions have the right to fair and equitable sharing of benefits from commercial or industrial use of their knowledge, to be determined by mutual agreement between the parties.

Section 24. Equitable benefit sharing rights Section 24(1) The protection of owners and holders of traditional knowledge or cultural expressions shall include the right to fair and equitable sharing of benefits arising from the commercial or industrial use of their knowledge, to be determined by mutual agreement between the parties. Section 24(2) The right to equitable remuneration might extend to non-monetary benefits, such as contributions to community development, depending on the material needs and cultural preferences expressed by the communities themselves. Section 24(3) The Cabinet Secretary may make regulations prescribing the matters that should be included in a benefit sharing arrangement.

Section 24Verify source

Part VI

MANAGEMENT OF RIGHTS

§ 25MANAGEMENT OF RIGHTS - 25. Authorization for use of Traditional knowledge and cultural expressionsProvision

Owners of traditional knowledge may grant or authorize use of their traditional knowledge and cultural expressions; they must notify the Cabinet Secretary in writing of every authorization; they must not grant authorization before appropriate documented consultations; benefits must be transferred to the relevant community by the Cabinet Secretary or authorised person; the national government may charge fees in accordance with the Act or regulations.

Section 25. Authorization for use of Traditional knowledge and cultural expressions Section 25(1)(a) grant authorization for the exploitation and use of their traditional knowledge and cultural expressions; or Section 25(1)(b) after necessary consultations, authorize the national government, county government or any other person to exploit their traditional knowledge and cultural expressions, on their behalf. Section 25(2) The owners of traditional knowledge and cultural expressions shall notify the Cabinet Secretary, in writing, of every authorization agreements they enter into. Section 25(3)(a) they shall not grant the authorization before undertaking appropriate and documented consultations with the members of the communities, in accordance with their traditional processes for decision-making and public affairs management; Section 25(3)(b) the authorization shall comply with the scope of protection provided for the traditional knowledge or cultural expressions concerned and shall provide for the equitable sharing of the benefits arising from their exploitation and use; Section 25(3)(c) the uncertainties or disputes relating to the determination of the communities should be involved shall be resolved, in so far as is possible, in accordance with customary laws and protocols of the communities involved; Section 25(3)(d) any monetary or non-monetary benefits arising from the use of the traditional knowledge or cultural expressions shall be transferred directly by the Cabinet Secretary or the person authorised under subsection (1)(b) to the relevant community after consultations with the person in charge of matters relating to traditional knowledge and culture in the relevant county; and Section 25(3)(e) the fees that the national government may, where necessary, charge for its services, official publication procedures, dispute resolution, and the terms and conditions governing authorizations that may be granted by the Cabinet Secretary, shall be in accordance with this Act or Regulation made hereunder.

Section 25Verify source

§ 26MANAGEMENT OF RIGHTS - 26. Access to traditional knowledge associated with genetic resourcesProvision

An authorization to access protected traditional knowledge is not itself an authorization to access the associated genetic resources; access to those genetic resources is governed by separate genetic-resources legislation.

Section 26. Access to traditional knowledge associated with genetic resources Section 26(1) An authorization granted under this Act to access protected traditional knowledge associated with genetic resources shall not be an authorization to access the associated genetic resources. Section 26(2) The access to associated genetic resources shall be a subject matter of relevant legislations relating to genetic resources.

Section 26Verify source

§ 27MANAGEMENT OF RIGHTS - 27. Application for consentProvision

Prospective non-customary users must apply to the Cabinet Secretary for consent, meet prescribed application requirements, and the Cabinet Secretary must decide within sixty days; certain access applications by the Cabinet Secretary or County Executive Committee member are free of charge and may involve benefit-sharing; owners must be paid just compensation if authorization is granted.

Section 27. Application for consent Section 27(1) Where the Cabinet Secretary is satisfied that there is need for the grant of a compulsory licence under section 12 , a prospective user of traditional knowledge or cultural expressions for a non-customary use, whether for a commercial or industrial nature or not, shall apply to the Cabinet Secretary for the consent of the holders for the use of the traditional knowledge or cultural expressions. Section 27(2)(a) be in the prescribed form; Section 27(2)(b) specify the manner in which the applicant proposes to use the traditional knowledge or cultural expressions; Section 27(2)(c) clearly state the purpose for which that use is intended; and Section 27(2)(d) be accompanied by the prescribed fee. Section 27(3) The consent shall be obtained on the basis of mutually agreed terms prescribed in the regulations made under this Act. Section 27(4) Despite subsection (2) applications for access to and documentation of traditional knowledge or cultural expressions by the Cabinet Secretary or relevant County Executive Committee member shall be free of charge and may be subject to sharing of financial and other benefits arising from the use of the traditional knowledge or cultural expressions. Section 27(5) The Cabinet Secretary shall upon receipt of the application under this section consider and determine the application within sixty days from the date of receipt. Section 27(6) The Cabinet Secretary may reject an application under subsection (1) if the application does not meet the requirements prescribed under subsection (2) and Article 40(3)(b) of the Constitution. Section 27(7) If an authorization is granted under this Act, just compensation shall be paid promptly in full to the owners or holders. Section 27(8) The Cabinet Secretary shall make rules to guide the determination of just compensation.

Section 27Verify source

§ 28MANAGEMENT OF RIGHTS - 28. Public consultationProvision

Persons claiming to be holders of relevant traditional knowledge or cultural expressions must make a written representation to the Cabinet Secretary within twenty-eight days after the application is published or broadcast; the Cabinet Secretary must record details of such representations in writing.

Section 28. Public consultation Section 28(1)(a) give a copy of the application for consent to the holders of the traditional knowledge or cultural expressions to which the application relates; Section 28(1)(b) publish a notification of the application in a newspaper with nationwide circulation stating the website and other public information centres provided in sections 95 and 119 of the County Governments Act (Cap. 265), where the interested persons may obtain a copy of the application. Section 28(2) Any person who claims to be a holder of the traditional knowledge or cultural expressions, to which the application relates shall, in writing, make a representation to the Cabinet Secretary within twenty-eight days after the application is published or broadcasted, whichever is the later. Section 28(3) The Cabinet Secretary shall record in writing the details of any written representation given under subsection (2).

Section 28Verify source

§ 29MANAGEMENT OF RIGHTS - 29. Identification of holdersProvision

The Cabinet Secretary must determine identified holders and publish a nationwide notification with details on where interested persons can obtain the application.

Section 29. Identification of holders Section 29(1) Where the Cabinet Secretary is satisfied that he or she has identified all of the holders of the traditional knowledge or cultural expressions who are required to give consent before consent can be granted under section 25 , the Cabinet Secretary make a written determination of an application for consent under section 25 containing the details identifying the holders. Section 29(2) The Cabinet Secretary shall publish a notification of the application in a newspaper with nationwide circulation stating the website and other public information centres provided in sections 95 and 119 of the County Governments Act (Cap. 265), where the interested persons may obtain a copy of the application.

Section 29Verify source

§ 30MANAGEMENT OF RIGHTS - 30. Uncertainty or dispute of ownershipProvision

If the Cabinet Secretary is not satisfied they have identified all rights holders or there is a dispute about ownership, the Cabinet Secretary must refer the matter to the parties for resolution; once resolved and holders identified, the holders must inform the Cabinet Secretary and the Authority must record the determination identifying the holders.

Section 30. Uncertainty or dispute of ownership Section 30(1) Where the Cabinet Secretary is not satisfied that he or she has identified all of the holders or that there is a dispute about ownership of the rights, the Cabinet Secretary shall refer the matter to the parties for resolution in accordance with customary laws and practices or such other means as are agreed to by the parties. Section 30(2) Where a dispute has been resolved and all of the right holders have been identified in accordance with customary laws and practices or the means agreed by the parties, the holders shall inform the Cabinet Secretary of the resolution and identification, and the Authority shall record the determination containing and the details as to identify the holders. Section 30(3) The Cabinet Secretary shall publish a notification of the application in a newspaper with nationwide circulation stating the website and other public information centres provided in sections 95 and 119 of the County Governments Act (Cap. 265), where the interested persons may obtain a copy of the application.

Section 30Verify source

§ 31MANAGEMENT OF RIGHTS - 31. No claim to ownershipProvision

If no owner can be identified, the county government must refer the matter to the national government; depending on the national determination the county or national government must hold rights on behalf of the owners or people, and those governments may enter authorized user agreements for benefits to promote and maintain the traditional knowledge and cultural expressions.

Section 31. No claim to ownership Section 31(1) Where a county government is satisfied that there is no owner or agreement about ownership and no owner can be identified, the county government shall refer the matter to the national government for determination. Section 31(2) Where the national government determines that there is no owner and the county of origin is known, the county government shall hold the rights to the traditional knowledge or cultural expressions on behalf of the owners. Section 31(3) Where the national government determines that there is no owner and the county of origin is known, the county government shall hold the rights to the traditional knowledge or cultural expressions on behalf of the people of that county. Section 31(4) Where the national government determines that the county of origin is not known, the national government shall hold the rights to the traditional knowledge or cultural expressions on behalf of the people of Kenya. Section 31(5) Where the national or county government holds the rights under subsection (2) and (3), the governments may enter into an authorized user agreement for use and any monetary or non-monetary benefits arising under the agreement for the promotion, maintenance and improvement of the traditional knowledge and cultural expressions.

Section 31Verify source

§ 32MANAGEMENT OF RIGHTS - 32. Authorized user agreementsProvision

Holders must inform the national government and the county government of their decision in writing; the Authority must inform the applicant in writing of the holders' decision.

Section 32. Authorized user agreements Section 32(1)(a) reject the application; or Section 32(1)(b) accept the application and enter into negotiations for a written authorized user agreement in relation to the application within a specified period of sixty days. Section 32(2) The holders shall inform the national government and the county government, in writing, of their decision and the Authority shall inform the applicant of the holders' decision, in writing.

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§ 33MANAGEMENT OF RIGHTS - 33. User agreementsProvision

Section 33. User agreements Section 33(1) The owners of traditional knowledge or cultural expressions shall, before entering into an authorized user agreement, consult the members of the community on the proposed terms and conditions of the agreement. Section 33(2) The Cabinet Secretary shall make regulations prescribing the matters that should be included in a user agreement and the procedures to be followed before a user agreement is enter into.

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§ 34ProvisionProvision

Section on terms and conditions of a user agreement concerning the sharing of financial and other benefits arising from use of traditional knowledge or cultural expressions.

Section 34. Terms and conditions of user agreement Section the sharing of financial and other benefits arising from the use of the traditional knowledge or cultural expressions;

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§ 35MANAGEMENT OF RIGHTS - 35. Authorized user agreement and prior informed consentProvision

Where a party cannot read or write a verbal agreement may be recorded via video or other formats; the Cabinet Secretary may grant or reject applications for transfer of intellectual property rights and may impose royalties; applications for transfers based on traditional knowledge obtained in Kenya require prior approval of the Cabinet Secretary.

Section 35. Authorized user agreement and prior informed consent Section 35(1) Where a party cannot read or write, or suffers from any physical disability, a verbal agreement may be recorded via video or other communication formats or technologies may be used. Section 35(2) Agreements not registered by the Cabinet Secretary shall be null and void. Section 35(3) In the case of shared intellectual property rights between the holders and the users, such rights shall not be transferred except with the authorization of the Cabinet Secretary. Section 35(4) The intention to transfer such rights shall be communicated in writing or in such a manner as may be prescribed by the Cabinet Secretary. Section 35(5) Upon receipt of the application the Cabinet Secretary may, in consultation with the relevant communities grant approval subject to the terms and conditions it deems fit, including imposition of charges by way of royalties or may for reasons recorded in writing reject the application. Section 35(6) Applications for the transfer of intellectual property rights, in or outside Kenya based on traditional knowledge and cultural expressions obtained in Kenya shall require the prior approval of the Cabinet Secretary.

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§ 36MANAGEMENT OF RIGHTS - 36. Obtained consent from traditional knowledge holdersProvision

Prospective users may obtain prior informed consent directly from holders without applying to the Cabinet Secretary; they must notify the Cabinet Secretary, submit draft and signed agreements (the signed one within thirty days) for registration; when an authorized user agreement exists holders are deemed to have given consent; failure to provide the agreement may render it void.

Section 36. Obtained consent from traditional knowledge holders Section 36(1) A prospective user of traditional knowledge or cultural expressions may obtain the prior informed consent of the holders, under section 25 , without applying to the Cabinet Secretary. Section 36(2) The prospective user shall inform the Cabinet Secretary that the prospective user has sought the consent of the holders and provide the Cabinet Secretary with a copy of the proposed authorized user agreement between the prospective user and the holders for comment, and advice. Section 36(3) The prospective user shall provide a copy of the signed authorized user agreement to the Cabinet Secretary, for entry into the register, within thirty days of the agreement coming into force. Section 36(4) If a prospective user and the holders enter into an authorized user agreement, the holders are deemed to have given their prior and informed consent to the proposed use. Section 36(5) The failure to provide the agreement under subsection (3) may render the agreement void.

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Part VII

SANCTIONS AND REMEDIES

§ 37SANCTIONS AND REMEDIES - 37. Offences and penaltiesOffence

Section 37 creates offences for various unauthorized uses, dealing, import/export, modification, false representation, acquisition of IP rights, and possession of contrivances related to traditional knowledge or cultural expressions and prescribes fines and imprisonment.

Section 37. Offences and penalties Section 37(1)(a) has in possession or control in the course of trade; Section 37(1)(b) manufactures, produces or makes in the course of trade; Section 37(1)(c) sells, barters or exchanges, offers or exposes for sale, disposes, distributes, hires out; Section 37(1)(d) exposes or exhibits for the purposes of trade; Section 37(1)(e) imports into, transit through, trans-ships within or exports from Kenya, except for private, domestic, industrial and commercial use of the importer or exporter, as the case may be; or Section 37(1)(f) in any manner develops any goods or service using unauthorized traditional knowledge or cultural expressions in the course of trade, Section 37(2) A person who without authorization makes a non-customary use of traditional knowledge or cultural expressions whether or not such use is of a commercial or industrial nature, commits an offence and is liable, on conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding five years or both. Section 37(3) A person who fails to acknowledge the source of the traditional knowledge or cultural expression commits an offence and is liable, on conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding five years or both. Section 37(4) A person who distorts mutilates or does other modification or derogatory action in a way prejudicial to the cultural interests of the community concerned commits an offence and is liable, on conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding five years or both. Section 37(5) A person who makes false, confusing or misleading indications or allegations which, in relation to goods and services that refer to, draw upon or evoke the traditional knowledge or cultural expressions, in a way that suggests an endorsement or linkage with the holders commits an offence and is liable, on conviction, to a fine not exceeding two million shillings or imprisonment for a term not exceeding ten years or both. Section 37(6) A person who without authorization acquires and exercises intellectual property rights over protected traditional knowledge or cultural expressions commits an offence and is liable, on conviction, to a fine not exceeding two million shillings or imprisonment for a term not exceeding ten years or both. Section 37(7) A person who without authorization, discloses, subsequently uses or acquires and exercises intellectual property rights over secret traditional knowledge or cultural expressions commits an offence and is liable, on conviction, to a fine not exceeding two million shillings or imprisonment for a term not exceeding ten years or both. Section 37(8) A person who imports an article or other thing into Kenya that relates to traditional knowledge or cultural expressions of Kenya knowingly, or reasonably ought to have known, that the import would contravene this Act had the thing or article been created in Kenya commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding three years or both. Section 37(9) A person who without authorization exports an article or other thing out of Kenya that relates to traditional knowledge or cultural expressions for a non-traditional use whether or not such use is of a commercial or industrial nature commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding three years or both. Section 37(10) A person who makes or has in possession any contrivance used or intended to be used for the purpose of exploiting unauthorized traditional knowledge and cultural expressions an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding three years or both. Section 37(11)(a) shall, when considering which penalty to impose, take into account any risk that may arise from the presence or use of the traditional knowledge or cultural expressions in question; Section 37(11)(b) the source of the unauthorized traditional knowledge or cultural expressions that is the subject of the offence; Section 37(11)(b)(i) the source of the unauthorized traditional knowledge or cultural expressions that is the subject of the offence; Section 37(11)(b)(ii) the identity of the persons involved in the importation, exportation, manufacture, production or making of those unauthorized traditional knowledge or cultural expressions; Section 37(11)(b)(iii) the identity and the addresses or whereabouts of the persons involved in the distribution of the traditional knowledge or cultural expressions; and Section 37(11)(b)(iv) the channels for the distribution of those traditional knowledge or cultural expressions. Section 37(12) Where an offence under this Act is committed by a body corporate and there is proof that the offence was committed with the consent or connivance of, or is attributable to, negligence on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, both the responsible person and the body corporate commit an offence. Section 37(13) A citizen of Kenya, or a person who permanently resides in Kenya, who commits an act outside Kenya that constitutes an offence under this Act if committed in Kenya, commits such an offence and is liable on conviction to the same penalty prescribed for such offence under this Act. Section 37(14) Despite subsection (13) a person may not be convicted of an offence under subsection (12) if such a person has been acquitted or convicted in the country where that offence was committed.

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§ 38SANCTIONS AND REMEDIES - 38. Civil actionProvision

Holders of traditional knowledge and cultural expressions may bring court proceedings (seeking remedies in section 39) against anyone who uses the knowledge or expressions mentioned in section 18 without the holder's prior informed consent.

Section 38. Civil action Section 38(1) The holders of traditional knowledge and cultural expressions may institute legal proceedings in a court of competent jurisdiction seeking any action provided in section 39 against any person who carries out any of the acts mentioned in section 18 , without the holder's prior informed consent. Section 38(2)(a) makes a non-customary use of traditional knowledge or cultural expression whether or not such use is of a commercial nature without the permission of the owner; or Section 38(2)(b) acts in a manner or commits an omission that infringes the moral rights of the traditional owners of that traditional knowledge or cultural expression,

Section 38Verify source

§ 39SANCTIONS AND REMEDIES - 39. Civil remediesProvision

Court may make a range of civil remedies for unauthorized use of traditional knowledge or cultural expressions, including injunctions, damages, declarations, apologies, orders reversing false attribution, profit recovery, forfeiture, delivery up, seizure, revocation of IP rights, or other orders it deems fit.

Section 39. Civil remedies Section 39(1)(a) grant an injunction; Section 39(1)(b) award damages for loss resulting from the unauthorized use; Section 39(1)(c) make a declaration that the cultural rights of the holders have been contravened; Section 39(1)(d) order that the infringer make a public apology for the contravention; Section 39(1)(e) order that any false attribution of ownership, or derogatory treatment, of the traditional knowledge or cultural expressions cease or be reversed; Section 39(1)(f) order the account for profits made by the infringer in exploiting the infringing articles; Section 39(1)(g) order the forfeiture of profits made by the infringer in exploiting the infringing articles to the owner; Section 39(1)(h) order the delivery up or forfeiture to the holders of articles made in contravention of their rights, as provided for under this Act; Section 39(1)(i) order the seizure of any object made, imported or exported contrary to this Act; Section 39(1)(j) order the revocation or invalidation of intellectual property rights inappropriately acquired over traditional knowledge or cultural expressions or derivatives thereof; or Section 39(1)(k) make such other orders as the Court considers appropriate in the circumstances or as it may deem fit. Section 39(2)(a) whether the defendant was aware or ought reasonably to have been aware of the rights of the holders as provided for under this Act; Section 39(2)(b) the effect on the honour or reputation of the holders resulting from the unauthorized use; Section 39(2)(c) anything done by the defendant to mitigate the effects of the unauthorized use; Section 39(2)(d) any cost or difficulty that may have been associated with identifying the holders; Section 39(2)(e) any cost or difficulty in ceasing or reversing any false attribution of ownership, or derogatory treatment of the traditional knowledge or cultural expressions; or Section 39(2)(f) whether the parties have undertaken any other action to resolve the dispute.

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§ 40SANCTIONS AND REMEDIES - 40. Other mechanisms to resolve disputesProvision

Section 40. Other mechanisms to resolve disputes Section mediation;

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§ 41SANCTIONS AND REMEDIES - 41. Other rights and remediesProvision

The rights and remedies given by this Act do not affect any other rights of action or remedies provided under other written laws.

Section 41. Other rights and remedies Section The rights and remedies provided in this Act shall not affect any other rights of action or remedies provided under other written laws.

Section 41Verify source

Part VIII

TRANSITIONAL MEASURES AND MISCELLANEOUS

§ 42TRANSITIONAL MEASURES AND MISCELLANEOUS - 42. TransitionCommencement

Persons previously lawfully involved in exploiting or disseminating traditional knowledge must comply with this Act within twelve months, while pre-existing contracts and licences entered into by traditional owners are not affected by the Act.

Section 42. Transition Section 42(1) Upon the commencement of this Act, any person who, before the commencement of this Act, was lawfully involved in the exploitation and dissemination of traditional knowledge shall be required to comply with the provisions of this Act within twelve months, subject to equitable treatment of the rights acquired by third parties in good faith. Section 42(2) The continued use of cultural expression rights acquired before the commencement of this Act shall, within twelve months of the commencement of this Act, be reviewed and harmonised with the provisions of this Act, subject to equitable treatment of the rights and interests acquired by third parties through prior use in good faith. Section 42(3) This Act does not affect or apply to contracts, licenses or other agreements entered into by traditional owners before the commencement of this Act in relation to the use of traditional knowledge or cultural expressions.

Section 42Verify source

§ 43TRANSITIONAL MEASURES AND MISCELLANEOUS - 43. RegulationsProvision

The Cabinet Secretary may make regulations to implement this Act and, when required to make regulations under the Act, must do so in consultation with the Council of Governors; the regulations may address specific matters listed in subsections (2)(a)–(g).

Section 43. Regulations Section 43(1) The Cabinet Secretary may make Regulations for the better carrying into effect of this Act. Section 43(2)(a) administrative requirements necessary for the implementation of the provisions of this Act; Section 43(2)(b) the procedure for applications of authorization for the exploitation of traditional knowledge and cultural expressions; Section 43(2)(c) fees to be paid by the National Competent Authority and the details of the distribution of part of the fees; Section 43(2)(d) mechanisms for fair distribution of benefits derived from usage of traditional knowledge and cultural expressions; Section 43(2)(e) preventive mechanisms aimed at protecting traditional knowledge and cultural expressions; Section 43(2)(f) forms to be used for matters requiring forms under this Act; and Section 43(2)(g) any other matters that are required or necessary be prescribed in order to give effect to this Act. Section 43(3) Whenever the Cabinet Secretary is required to make regulations or rules under this Act, the Cabinet Secretary shall make the regulations in consultation with the Council of Governors.

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§ 44TRANSITIONAL MEASURES AND MISCELLANEOUS - 44. Recognition of other lawsProvision

Section 44. Recognition of other laws Section In accordance with reciprocal arrangements, this Act may provide the same protection to traditional knowledge and cultural expressions originating in other countries or territories as is provided to traditional knowledge and cultural expressions originating in Kenya. .

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Legislative relationships

4 referenced instruments

Names are derived from the stored provision headings and citation-enrichment layer. Treat this as a research index and verify each relationship against the source text.

A–F

3 instruments

Constitution when performing functions or exercising powers under this Act
Section 3
Constitution. Section 27(7) If an authorization is granted under this Act
Section 27
County Governments Act
Sections 28, 29, 30

T–Z

1 instrument

Traditional Knowledge and Cultural Expressions Act
Section 1

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31 Dec 2022 · currentEnglish

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