Transboundary knowledge and regional cooperation in the protection of traditional knowledge in Kenya

Abstract

... The question of whether and how to provide sui generis intellectual property (IP) protection for traditional knowledge (TK) and traditional cultural expressions (TCEs) has been controversial. In this article, we will not revisit questions about whether traditional knowledge3 deserves sui generis IP protection, or the merits and methods of developing an international legal instrument to do so. Instead, we consider a few of the questions that arise when IP protection of TK becomes a legal reality at the national level, for example under the Kenya Protection of Traditional Knowledge and Cultural Expressions Act of 2016. Most of the commentary on the Act to date has focused on provisions for implementation at the national level.4 It is also very important to consider provisions for transboundary TK and cross-border cooperation because much TK is shared across national boundaries. The shared nature of TK is very evident in Africa, where nineteenth-century colonial administrations negotiated many borders without reference to local settlement patterns. Rights in TK are highly likely to be infringed by third parties across national borders, not just through misappropriation by large multinationals in the global North but also, as African industry grows, within the region. Many African states have passed, or are considering, TK legislation,5 but their laws are very diverse in the absence of an international standard-setting instrument in this area. There is also no strong regional mechanism in Africa for cross-border cooperation on registration and enforcement of rights in TK, or indeed on IP in general.