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June 4, 2019
RAMCO GROUP: Use of IP to protect TK and TCEs

Traditional Knowledge and Traditional Cultural Expressions were protected under the customs, practices, and protocols (“rules of protection”) of the various communities from which they originated. These rules of protection stipulated the manner with which the members of the communities that held the TK and TCEs could use them.

Traditional Knowledge and Traditional Cultural Expressions were protected under the customs, practices, and protocols (“rules of protection”) of the various communities from which they originated. These rules of protection stipulated the manner with which the members of the communities that held the TK and TCEs could use them.

However, there has been an increased interest and focus on the exploitation of TKs and TCEs held by the various communities in the developing world. Unfortunately, these proprietary rights are not aptly protected as creations and/or innovations within the parameters of conventional Intellectual Property regime.

First, Copyright Protection protects creations which are the product of original work and created as a result of fixation in an original form, upon expending sufficient effort and skill. TK is in the nature of skill, knowledge and know-how and conventional copyright law may be inapplicable. However, for TCEs being expressions such as artefacts, they may enjoy copyright work upon application of the test set out.

Second, Trademark Law requires the application of a distinctive mark or one adapted to distinguish goods or services in the course of trade. The protection around TK and TCE in this instance would only concern the mark affixed to the TK and/or TCE, and not the TK or TCE proper.

Third, Patent Law protection requires the satisfaction of three pre-requites before conferring protection i.e. novelty, inventive-step and industrial applicability. To accord Patent protection, TK and TCEs would need to satisfy these tests with the obvious limitation on novelty.

Fourthly, Trade Secrets require that the subject of protection be secret, reasonable measures be undertaken to keep it secret and that the subject of protection has economic value. Some TK may be classified as secret but for TCEs the protection would certainly be unavailable, as often they are neither secret and neither have they sought to be kept secret.

Fifth, on petty patents (i) Utility models, are concerned with functionality while (ii) Industrial Designs, are concerned with the protection of the aesthetic outlook of products – these would not protect the underlying TK but the product may be subject to protection.

Sixth, Geographical Indicators would require development of the product in a particular area or substantial production and/or manufacturing packaged in the particular area to which the name is attached. TCE may qualify for this protection but certainly not TK which would remain exposed.

Lastly, Plant Variety Protection concerns the protection of plant varieties which must satisfy the four test of newness, distinctiveness, uniform and stability. The TK and TCE in absence of newness would not be able to secure protection under this regime. It is apparent that IP regime is inadequate to protect TK and TCE. In addressing the specificities of TK and TCE it is imperative that a sui generis law be generated, as has been done in Kenya under the Protection of Traditional Knowledge and Cultural Expressions Act and regionally under ARIPO, the ARIPO Swakopmund protocol

However, there has been an increased interest and focus on the exploitation of TKs and TCEs held by the various communities in the developing world. Unfortunately, these proprietary rights are not aptly protected as creations and/or innovations within the parameters of conventional Intellectual Property regime.

First, Copyright Protection protects creations which are the product of original work and created as a result of fixation in an original form, upon expending sufficient effort and skill. TK is in the nature of skill, knowledge and know-how and conventional copyright law may be inapplicable. However, for TCEs being expressions such as artefacts, they may enjoy copyright work upon application of the test set out.

Second, Trademark Law requires the application of a distinctive mark or one adapted to distinguish goods or services in the course of trade. The protection around TK and TCE in this instance would only concern the mark affixed to the TK and/or TCE, and not the TK or TCE proper.

Third, Patent Law protection requires the satisfaction of three pre-requites before conferring protection i.e. novelty, inventive-step and industrial applicability. To accord Patent protection, TK and TCEs would need to satisfy these tests with the obvious limitation on novelty.

Fourthly, Trade Secrets require that the subject of protection be secret, reasonable measures be undertaken to keep it secret and that the subject of protection has economic value. Some TK may be classified as secret but for TCEs the protection would certainly be unavailable, as often they are neither secret and neither have they sought to be kept secret.

Fifth, on petty patents (i) Utility models, are concerned with functionality while (ii) Industrial Designs, are concerned with the protection of the aesthetic outlook of products – these would not protect the underlying TK but the product may be subject to protection.

Sixth, Geographical Indicators would require development of the product in a particular area or substantial production and/or manufacturing packaged in the particular area to which the name is attached. TCE may qualify for this protection but certainly not TK which would remain exposed.

Lastly, Plant Variety Protection concerns the protection of plant varieties which must satisfy the four test of newness, distinctiveness, uniform and stability. The TK and TCE in absence of newness would not be able to secure protection under this regime.

It is apparent that IP regime is inadequate to protect TK and TCE. In addressing the specificities of TK and TCE it is imperative that a sui generis law be generated, as has been done in Kenya under the Protection of Traditional Knowledge and Cultural Expressions Act and regionally under ARIPO, the ARIPO Swakopmund protocol.