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Traditional knowledge remains untapped

FINANCIAL STANDARD
By | October 26th 2010

By Sudi Wandabusi

There is a lot of economic potential that remains untapped from traditional knowledge and genetic resources in this country. For a very long time, this is one aspect of intellectual property that has not been exploited to its full potential. It is yet another resource that both the Government and private sector have turned a blind eye on.

If fully utilised, the custodians of this vital intellectual property stand to make huge profits and the Government shall in turn gain in economic growth. Traditional knowledge and traditional cultural expressions are a body of knowledge vital to the day-to-day life of local communities that is derived and passed on from generation to generation, through living in close contact with nature.

This knowledge is transmitted from one generation to the other informally, through folklore, apprenticeship and even sometimes simply through songs and dances.

A significant part of the global economy is based on the appropriation and use of traditional knowledge and associated genetic resources, particularly in agricultural, environmental and pharmaceutical biotechnology.

Developed countries have realised the potential in this knowledge and made policies and legislation that enables its exploitation. It has been observed that many companies in developed countries are utilising traditional knowledge associated with genetic resources to generate, protect and commercialise intellectual property assets.

Care should, however, be taken not to confuse traditional knowledge with indigenous knowledge. Indigenous knowledge has been defined as knowledge that is held and used by a people who identify themselves as indigenous of a place basing on their prior territorial occupation and their cultural distinctiveness.

Traditional knowledge

On the other hand, traditional knowledge is that which is by members of a distinct culture and/or at times acquired through inquiries using means peculiar to a particular culture and entailing the culture itself or the environment it locally exists. Therefore, while it is true to say that all indigenous knowledge is traditional, not all traditional knowledge is necessarily indigenous.

The complexity in the protection of traditional knowledge emanates from the fact that it is communally owned. Virtually all communities in Kenya possess knowledge of how to treat a myriad of diseases using herbs. For a long time, this knowledge has been passed down informally from generation to generation.

But lately, traditional herbalists have taken a step forward and we now see herbal clinics selling packed herbal medicine, complete with specifications for use. It, however, still remains true that the knowledge is not individually owned but rather communally. The conventional understanding of intellectual property protection is that it is meant to grant exclusive rights to an individual, be it a legal person or natural person.

Most intellectual property legislations therefore emphasise individual protection of rights and not group protection of rights.

The Paris Convention for instance provides in Article 7 that countries can “accept for filing and to protect collective marks belonging to associations the existence for which is not contrary to the law of the country of origin, even when such associations do not possess an industrial or commercial establishment.”

In the Alma-Ata Declaration of 1978, recognition was given to the role of traditional medicine and its practitioners in achieving health for all in Africa. However, 32 years down the line, Kenya is yet to come up with a single legislation on traditional knowledge.

Currently, we only refer to National Environmental Management Authority Legal Notice No 160 on Access to and Information Sharing. The Legal Notice sets the conditions for access to genetic resources, the requirement for prior informed consent from all interested parties and clearance from the National Council for Science and Technology.

It also provides for benefit sharing of any benefits from the right to access, monetary and non-monetary as well as joint ownership of any Intellectual Property Rights that may arise from the research.

There is need for a specific law to provide for ways in which public universities and research institutions can be able to partner with traditional knowledge holders and other collaborators in generating, protecting and commercialising intellectual property assets.

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