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.

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.

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.

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.

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

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

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.

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 Repository.

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

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;

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.

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

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

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 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.

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

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.

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.

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 cultural heritage, traditional knowledge and cultural expressions and their manifestations.

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.

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.

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.

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.

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.

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

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.

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.

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.

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 include and the procedures to follow before a user agreement is entered into.

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.

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.

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 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.

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.

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 40. Other mechanisms to resolve disputes Section mediation;

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

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.

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).

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.