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May 1, 2019
RAMCO GROUP: Use Of IP To Protect TK And TCEs Of Folklore

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 stipulated the manner with which members of the communities who held the TK and TCEs could use them.

However, there has been an increased interest 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 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. However, for TCEs being expressions such as artefacts, they may enjoy copyright work upon application of the test set out.

Secondly, Trademark Law requires the application of a distinctive or mark that has been 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.

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

Fourth, 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.

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.

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