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whether and how to protect
tradional knowledge of
indigenous people has aracted increasing
aenon in most jurisdicons. This is aer
the realizaon that Tradional knowledge
can be used as wealth creaon tool. This
has prompted an increasing interest in
maers of law and policy in relaon to
tradional knowledge at naonal, regional
and internaonal level, parcularly in
bi o l o g i c a l re so u r c e s an d cu l t ura l
merchandises. This may be aributed to
among other things evidence of increased
commercial exploitaon of tradional
knowledge in agriculture, pharmaceucal
industry and creave industries. There
have been numerous instances of third
pares misappropriang tradional
knowledge and in some instances to the
detriment of the peoples from whom the
knowledge originates.
Tradional knowledge (TK) refers to
the informaon that people in a given
community, based on experience and
ada p tao n to a loca l cul t ure an d
environment, have developed over me,
and connues to develop. This knowledge
is used to sustain the community and its
Exploiting Traditional Knowledge
for Wealth Creation
By Paul Kaindo
culture and to maintain the genec
resources necessary for the connued
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
informaon 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
r a i n s . I t i n c l u d e s p r a c c e s a n d
technologies, such as seed treatment and
storage methods and tools used for
planng and harvesng.
A good example of TK is the knowledge
of making the Kiondo which has been
p a s s e d d o w n fro m ge n e ra o n to
generaon. With adequate legislaon 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. Aer this period, the patent
falls into the public domain and can be
freely used, adapted and copied by others.
For a long me, there was no law
governing tradional knowledge in Kenya.
The Kenyan constuon provided the
constuonal basis for this but there have
been implementaon gaps that sll
needed to be filled.
At naonal level, in 2016 Kenya passed
the Tradional Knowledge and Tradional
Cultural Expression Act. The Kenya
Copyright Board (KECOBO) played a leading
role in advocang protecon of TK and TCE.
At regional level, the ARIPO member states
passed the Swakopmund Protocol on the
Protecon of Tradional Knowledge and
Tradional Cultural Expressions in 2010.
Policy objecves of the naonal and
regional laws are similar and mainly seek to
ensure that tradional knowledge is
protected against misappropriaon by
third pares for commercial purposes and
t o e n s u r e t h a t i n d i g e n o u s / l o c a l
communies have control over their
tradional knowledge. There is sll no
agreed internaonal law that aims at
protecng TK and TCE. However concerted
efforts have been underway to have an
internaonal instrument at dierent
internaonal fora including WIPO through
the Intergovernmental Commiee on
Intellectual Property, Genec Resources,
Tradional knowledge and Folklore since
2000.
The protecon 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
creaon, increased trade and naonal
development. The use of tradional
cu l t u ra l m a te r i a l s as a so u rc e of
contemporary creavity can contribute
towards the economic development of
tradional communies, through the
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establishment of community enterprises,
local job creaon, skills development,
appropriate tourism, and foreign earnings
from community products.
By providing legal protecon for
tradional-based creavity, communies
can easily commercialize their tradional-
based creaons. The markeng of arsan
products also represents a way for
communies to show and strengthen their
cultural identy and contribute to cultural
diversity. A good protecon system assists
the communies to cerfy the origin of
their arts and cras, fight unfair use or
misuse of their products and exercise
control over how their cultural expressions
are used.
It is widely accepted that no society
ca n achi e ve e cono mic and so c ial
development if it ignores its rich cultural
heritage which is embedded in tradional
k n o w l e d g e , t r a d i o n a l c u l t u r a l
expressions and genec resources.
In addion to creang financial wealth
TK also encompasses belief systems that
play a fundamental role in a people's
livelihood, maintaining their health, and
p r o t e c n g a n d re p l e n i s h i n g t h e
environment. TK is dynamic in nature and
may include experimentaon in the
integraon of new plant or tree species
into exisng farming systems or a
tradional healer's tests of new plant
medicines.
The knowledge of and uses of specific
plants for medicinal purposes (oen
referred to as “tradional medicine”) is an
important component of TK. Once,
tradional medicines were a major source
of materials and informaon for the
th
development of new drugs. In the 20
century, however, new sources for
pharmaceucals led to a decline in the
importance of ethnobotany in drug
discovery programs. However, new
discoveries of potenally potent an-
cancer agents in plants (such as turmeric
and taxol), as well as a rapidly growing
herbal remedies market, has revived
industry interest in tradional medicinal
knowledge and pracces. As interest in
tra di on a l med i cin e is rek i nd l ed ,
indigenous knowledge of the culvaon
and applicaon of genec resources is
becoming exploited at an alarming rate.
According to the World Bank report on
trade in medicinal plants, botanical drugs
products and raw materials in the
pharmaceucal market was worth US $550
billion in 2004 and is growing at annual
growth rate of about 15% (WHO).
Intellectual property rights should
guarantee both an individual's and a
group's right to protect and benefit from its
own cultural discoveries, creaons, and
products. But Western intellectual
property regimes have focused on
protecng and promong the economic
exploitaon of invenons with the
raonale that this promotes innovaon
and research. Western intellectual
property law, which is rapidly assuming
global acceptance, oen unintenonally
facilitates and reinforces a process of
economic exploitaon and cultural
erosion. It is based on noons of individual
property ownership, a concept that is oen
alien and can be detrimental to many local
and indigenous communies in Africa.
An important purpose of recognizing
private proprietary rights is to enable
individuals to benefit from the products of
their intellect by rewarding creavity and
encouraging further innovaon and
invenon. But in many indigenous world-
views, any such property rights, if they are
recognized at all, should be extended to the
enre community. They are a means of
maintaining and developing group identy
as well as group survival, rather than
promong or encouraging individual
economic gain.
In conclusion there is no doubt that TK
is worthy of protecon for the following
reasons:
Ÿ Equity. TK generates value that is
usually inadequately recognized
and compensated
Ÿ Conservaon of Biodiversity.
Protecon of TK helps conserve the
e n v i r o n m e n t a n d p r o m o t e
sustainable agriculture and food
security
Ÿ P r e s e r v a o n o f Tr a d i o n a l
P r a c c e s . F r a m e w o r k f o r
m a i n t a i n i n g p r a c c e s a n d
knowledge embodying tradional
lifestyles
Ÿ Preve non of B i o pi racy. For
example, US Patent number 5, 401,
5 0 4 1 i n r e s p e c t o f he a l i n g
properes of Turmeric
Ÿ P r o m o o n o f t h e U s e a n d
Importance of TK in Development.
A good TK protecon system helps
in encouraging use of available
resources within the community.
Mr Kaindo, is an advocate and a legal counsel at
Kenya Copyright Board and an intellectual
property expert in Kenya.
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