Kenya’s Traditional Knowledge and Cultural Expressions Act 2016 seeks to  enable communities to control the use of culturally significant and economically valuable knowledge and expressions. It does this by creating a new form of intellectual property right (IPR), held by community itself. The Act meets a Parliament’s constitutional obligation on to pass legislation ensuring that ‘communities receive royalties for the use of their cultures and cultural heritage’ (Article 11(3(a)). It puts Kenya at the forefront of states in the global south protecting national resources and the interests of local communities. This movement is most active at the World Intellectual Property Organization (WIPO) in Geneva, which is currently debating a treaty to protect traditional knowledge (TK) and traditional cultural expressions (TCEs). WIPO has encouraged countries to take the initiative nationally as Kenya and Zambia have recently done.

Intellectual property rights are useful in two ways. Positively: empowering communities to charge outside companies a fee for permission to commercialize the knowledge or cultural expression. Defensively: stopping others from obtaining IPRs which would exclude members of the community from benefitting from its own heritage unless they were licensed to do so. Why is a new type of right needed? Standard IPRs, like patents and copyright, are based on the idea of individual invention or artistic creativity. But TK and TCEs are collectively produced and passed on from generation to generation. They are typical of the community, important to its identity and sense of history. Rights in TK and TCEs thus need to be collective, not individual. They also need to protect ‘moral’, not just economic, interests by insisting on correct attribution of their sources and culturally appropriate use.

SECTION 26.    Access to traditional knowledge associated with genetic resources
(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.
(2)    The access to associated genetic resources shall be a subject matter of relevant legislations relating to genetic resources.