Towards battling piracy of
Traditional Knowledge
By. Caroline Waithera Thuo
raditional knowledge (TK) has no
agreed international definition. Simply
defined, it is content or substance of
knowledge resulting from intellectual activity
in a traditional context. It is also knowledge
that is passed on to generations that is not
limited to any technical field. It could be agri-
cultural, environmental, medicinal knowl-
edge and knowledge associated with genetic
resources among others. Traditional cultural
expression (TCE) is basically any form, tan-
gible or intangible in which TK or culture is
expressed. This includes songs dances or art
amongst other forms of expression.
Importance TK and TCEs
TK and TCEs provide a sense of identity. They
differ in each community and that becomes the
distinguishing factor. The constitution of Ken-
ya under Article 11 recognises culture as the
foundation of the nation and as the cumulative
civilisation of Kenya as a nation. It mandates
the state to promote and protect TK and TCEs
including promoting intellectual property rights
of the people and ensuring that communities
receive royalties for usage of their culture and
cultural heritage.
The Maasai and the Samburu tribes which
are often misconstrued as one because of their
many similarities can be differentiated by the
manner of beading in their ornaments. The
Samburu, a sub-tribe of the Maasai, can be
distinguished because of the difference in their
cultural expressions.
TK has provided the basis for problem-
solving strategies for local communities. It
represents an important component of global
knowledge on development issues. TK is an
underutilised resource in the development
process. We can improve our understanding of
local conditions provide a productive context
for activities designed to help the communi-
ties through learning from TK and investigat-
ing what local communities know and have. A
common example of such is the use of Neem
Tree extracts for treatment of various ailments.
The Neem Tree (Azadirachtaindica) is found
widely throughout parts of India forming a
central part of Indian communities’ culture and
heritage. The extracts are used by these com-
munities for a vast range of purposes includ-
ing as medicines, insecticides and in fertilizers
amongst other things. In India there are about
0.36 million Ayurveda practitioners, 29.7
thousand Unani doctors and 11.6 thousand
Siddhaspecialists in India. The three use diet,
lifestyle, yoga and fasting for healing. Village
based health traditions are still carried on by
housewives, birth attendants and vaid-hakeems
(herbal healers), making a large percentage of
healthcare in India dependent on traditional
knowledge and practices.
Exploitation of TK and TCEs
Exploitation in simple terms is the use of some-
thing to gain an advantage from it. In this con-
text, we focus on the use of TK and TCEs for
commercial advantage to the detriment of the
indigenous communities who should actually
benet from them. As established earlier, tradi-
tional knowledge and cultural expressions has
proved vital and in need of protection.
There are various ways in which TK and
TCEs have been misused over the years. The
Maasai community is well known for its rich
culture. They are especially known for their
unique neck beading and the shukas. Well
known Designer Brands such as Louis Vuitton,
Calvin Klein and Ralph Lauren have infused
Maasai designs into their clothing and jewel-
lery without their consent. In 2018, Isaac Ole
Tialolo; a Maasai elder and the chairman of the
Maasai Intellectual Property Initiative Trust ini-
tiated legal action to persuade companies using
Maasai products to pay for their usage.
These products have been used even on run-
ways yet the Maasai community does not stand
to gain anything from it. Another example of
exploitation is through patenting of traditional
knowledge by individuals. The global attention
to traditional methods of medicine has exposed
traditional knowledge to bio-piracy. An exam-
ple of this is a patent granted to W. R. Grace
Company for the use of extracts from Neem
Tree (Azadirachtaindica) and Gale of the Wind
(Phyllanthusniruri) for medicinal benefits,
even though this practice has been ongoing for
millennia and can be attributed to indigenous
Indian communities.
Kenya has made steps in protecting TK and
TCEs. In 2016, the Protection of Traditional
Knowledge and Cultural Expressions’ Act was
enacted. This provided a framework for the pro-
tection and promotion of TK and TCEs giving
effect to Article 11 of the Constitution of Ken-
ya. Despite exploitation, TK and TCEs are also
threatened by extinction as generations pass.
Civilisation has made it harder to transfer such
to generations. Younger generations can barely
speak their mother tongues. Westernisation in
particular has rendered such traditional norms
as “uncool” and younger generations tend to
distance themselves from such.
This calls for creation of awareness of TK
and TCEs amongst communities and individu-
als because most are not aware of how such
knowledge could benet the community as a
whole. Our culture is our identity. It deserves of
protection and preservation.