Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act, 2016

This section gives the Act’s short title and says it starts on a date appointed by the Minister by statutory instrument.

This section defines key terms used in the Act, including access, access permit, holder, traditional community, traditional knowledge, prior informed consent, and user.

This section says the Act does not apply to certain traditional knowledge, genetic resources, folklore, and direct-consumption biological produce, and it exempts educational, research, and experimental use.

This section protects holders’ rights in traditional knowledge, genetic resources, and folklore, and gives holders rights to bring proceedings and use listed benefits and rights.

The Agency administers this Act, and the Registrar exercises the powers and performs the functions given to the Registrar by this Act.

The Registrar must carry out functions to protect traditional knowledge, genetic resources, and expressions of folklore, including awareness-raising, registration, monitoring, enforcement, access information, dispute referral, model agreements, benefits collection, and publication duties.

The Board must appoint assistant registrars, examiners, and other necessary officers, and those officers have the Registrar’s powers while remaining under the Registrar’s control.

Actions done under the Act do not guarantee validity, and Agency Board members, the Registrar, and other Agency officers are not liable for them.

The Agency may delegate its powers and duties to an appropriate institution when it considers this necessary and expedient for better implementation of the Act.

The Agency’s seal must be used for this Act’s purposes, and its impression for those purposes must be accepted as judicially noticed.

The Agency must establish and maintain a Register of Traditional Knowledge, Genetic Resources and Expressions of Folklore.

The Register must be open for public inspection on payment of the prescribed fee during prescribed hours, and the Registrar must provide copies or other particulars from the Register on request and payment of the prescribed fee.

The Registrar must arrange for periodic publication of an Intellectual Property Journal, and may sell copies of it with Board approval on the price and manner of sale.

Traditional knowledge is protected under the Act only if it meets the stated conditions.

Protection of traditional knowledge does not depend on registration, but the Agency may keep registers, and the Registrar must register the holder where a traditional community and a community outside Zambia share the same traditional knowledge.

A benefit derived by a traditional community must be used for the common benefit of that community.

A holder has the exclusive right to authorise use of the holder’s traditional knowledge and to stop use without prior informed consent.

A user of traditional knowledge must get prior informed consent, and the Agency must follow community processes, approve and help with the contract, and pass on any benefits it receives for the holder.

A holder may assign rights and may conclude an access agreement, but traditional knowledge belonging to a traditional community may not be assigned.

A holder’s traditional knowledge may give rise to benefit sharing, usually set by an access agreement; if there is no agreement, the Court may तयermine the extent of benefit sharing.

A person using traditional knowledge outside its traditional context must acknowledge the holder, state the source, and, where possible, the origin, and use it in a way that respects the holder’s cultural values.

Protection of traditional knowledge must not reduce its continued availability in the traditional context for practice, exchange, use, and transmission by its holder.

The Minister may grant a compulsory licence for protected traditional knowledge in limited circumstances, and must set compensation.

Traditional knowledge is protected while it continues to meet the protection criteria, but if it belongs exclusively to an individual, protection lasts 25 years after the individual exploits it beyond its traditional context.

An approval to access protected traditional knowledge does not automatically authorize access to the related genetic resources.

The President must hold ownership of genetic resources on behalf of the Zambian people.

A traditional community has specified rights over its genetic resources, including regulating access, using the resources, sharing benefits, and assigning or concluding access agreements.

Permissions for genetic resources must be in writing, access agreements must be approved by the Agency, and the Agency must keep a register of them.

A traditional community has rights to control access to its genetic resources, including giving or refusing prior informed consent and later withdrawing or restricting consent in some cases. The Minister may set the conditions and procedures for giving that consent by statutory instrument.

Traditional communities may use or exchange their genetic resources for livelihood purposes, and the Minister may grant a compulsory licence in certain cases.

A traditional community’s rights over its genetic resources must be protected under the Act.

People may not access or export genetic resources unless the stated consent and permit requirements are met.

A person may apply to the Agency for an access permit for genetic resources, and the Agency must examine the application and grant the permit if the Act’s requirements are met.

The Agency may deny access to genetic resources and refuse an access permit if listed risk or non-compliance grounds are present.

The Minister may grant a special access permit to a Zambian individual or higher institution of learning for development and academic research, and may set terms and conditions.

An access permit holder must follow a list of permit-use and reporting obligations when collecting genetic resources.

A person must not explore genetic resources unless they have a valid exploration permit from the Agency.

A person may apply for an exploration permit by lodging a prescribed application with the Agency, and the application must state the purpose, genetic resources, location, and time schedule for the exploration.

The Agency must grant an exploration permit when it receives a properly lodged application, after consulting the relevant institution and the holder.

An exploration permit holder must file, follow, report, and disclose permit-related information, and must respect local customs and the laws of Zambia.

Access to traditional knowledge and genetic resources must be through an access agreement between the holder and the permit holder.

Benefit sharing for genetic resources or traditional knowledge may be set under section 20 or case by case, and non-monetary benefits must be specified in an access agreement.

A holder may receive benefits from exploiting genetic resources or traditional knowledge, including fees, payments, royalties, funding, ownership interests, jobs, participation, supply priority, access to products and technology, training, equipment support, or other appropriate benefits.

The Agency may change an access agreement and limit access, and must suspend or terminate access and prohibit it in listed risk or non-compliance situations.

The Agency, or a designated institution, must monitor access agreements. Access permit holders and others involved in collection or research must submit periodic reports, and the Agency must update the holder on research progress and related benefits.

Protections apply to expressions of folklore, no matter the form they take.

The Agency may take evidence-related protection measures for notified expressions of folklore, and the Registrar must register and record a holder in a shared-expression case.

The traditional community is the beneficiary of an expression of folklore if it is entrusted with custody and protection under customary laws and practices and maintains and uses it as part of its cultural heritage.

Expressions of folklore are protected, and several forms of misuse or exploitation are prohibited unless the traditional community has given prior informed consent.

Protection of folklore expressions is limited so it does not hinder normal community use, applies only outside the traditional context, and is subject to non-commercial and other listed exceptions.

Expressions of folklore are protected against misappropriation, misuse, or exploitation while they meet the protection criteria in section 46.

A folklore rights holder may conclude a licensing agreement, but related grants must follow that agreement and be approved by the Agency; the Agency can also grant authorisation and must keep a register.

The owner of an expression of folklore is entitled to benefit sharing from commercial or industrial use, usually by mutual agreement with the user.

Certified certificates and copies from the Register can be used as evidence without further proof.

The Registrar must provide copies of certain public inspection documents, or a certificate for the document, when requested and the prescribed fee is paid.

The Registrar may conduct proceedings for disputes under the Act, manage evidence rules, allow oral evidence and cross-examination, and award and allocate costs.

The Registrar has the same powers, rights, and privileges as commissioners under the Inquiries Act for proceedings before the Registrar.

A person appearing before the Registrar commits an offence if, without reasonable cause, they refuse to be sworn or affirmed, refuse to answer a lawful question, or fail to produce a required document or thing.

The Registrar is not bound by court rules of evidence or procedure when carrying out functions or powers, and may run proceedings and admit evidence as the Registrar thinks fit.

The Registrar may set the time and place for proceedings held before the Registrar.

The Registrar may extend the time for a required act if a person applies and the delay is due to circumstances beyond the person’s control.

If the Registrar must do something under the Act and no deadline is set, the Registrar must do it as soon as practicable.

Any action or proceeding about infringement of a right under this Act must be brought in the High Court.

A person who is dissatisfied with the Registrar’s decision may appeal to the High Court, but the appeal must be filed within three months of receiving the decision unless the High Court allows more time.

If a matter the Registrar must decide raises a complex point of law, the Registrar may refer it to the High Court after notifying the parties, and must follow the High Court’s decision.

In High Court proceedings, the court may call expert assessors in intellectual property or the relevant field.

A traditional community must stop non-members from using or taking protected traditional knowledge and genetic resources without prior informed consent, and must act immediately if an access permit is not produced.

Customs officers must check export permits, demand permits from people leaving with genetic resources, seize non-compliant exports, report seizures, and ensure a labeling statement on exported biological resource products.

Documents that must be lodged, made, or given under the Act may be delivered by hand, sent by registered post, or lodged electronically; documents lodged at the Agency do not require authentication.

Monies needed to administer and implement the Act must be paid from funds appropriated by Parliament.

Section 71 makes it an offence for any person to do the listed prohibited acts and, on conviction, exposes them to a fine, imprisonment, or both.

If a person breaches an Act provision and no specific penalty is provided, that person may be fined up to 400,000 penalty units or imprisoned for up to 4 years, or both, upon conviction.

The Minister may make regulations by statutory instrument for carrying out the Act.

The Schedule’s transitional provisions apply for purposes of this Act.

Old access agreements must be revised to match this Act, and old authorised access must be suspended so the Act’s access process is followed.

Prior exploitation and dissemination of traditional knowledge may continue under the Act, but must comply with the Act within six months of commencement and respect third-party rights acquired by good-faith prior use.

Use of pre-commencement expressions of folklore may continue, but must comply with the Act within six months of commencement, subject to fair treatment of third-party rights acquired through good-faith prior use.