ADVOKS GLOBAL · KENYA
Protection of Traditional Knowledge and Cultural Expressions Act
2. Interpretation
Edition: 2022-12-31 · In force
2. Interpretation
In this Act, unless the context otherwise requires—"authorized user agreement" means a written agreement entered into under section 32 of this Act;"Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to culture;"community" means a homogeneous and consciously distinct group of the people who share any of the following attributes—(b)similar culture or unique mode of livelihood or language;(e)community of interest;"cultural expressions" means any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise of the following forms of expressions or combinations thereof—(a)verbal expressions including stories, epics, legends, poetry, riddles; other narratives; words, signs, names, and symbols;(b)musical expressions including songs and instrumental music;(c)expressions by movement, including dances, plays, rituals or other performances, whether or not reduced to a material form;(d)tangible expressions, including productions of art, drawings, etchings, lithographs, engravings, prints, photographs, designs, paintings, including body-painting, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, basketry, pictorial woven tissues, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments, maps, plans, diagrams architectural buildings, architectural models; and architectural forms;"cultural heritage" means—(a)tangible cultural heritage including—(i)movable cultural heritage;(ii)immovable cultural heritage; and(iii)underwater cultural heritage;(b)intangible cultural heritage;(c)natural heritage including natural sites with cultural aspects such as cultural landscapes, physical, biological or geological formations; or(d)heritage in the event of armed conflict;"customary context" refers to the utilization of traditional knowledge or cultural expressions in accordance with the practices of everyday life of the community, such as, for instance, usual ways of selling copies of tangible expressions of folklore by local craftsmen;"customary use" means the use of traditional knowledge or cultural expressions in accordance with the customary laws and practices of the holders ;"customary laws and practices" means customary laws, norms and practices of local and traditional communities that are legally recognized in Kenya;"derivative work" means any intellectual creation or innovation based upon or derived from traditional knowledge or cultural expressions;"derogatory treatment", includes, in relation to traditional knowledge or cultural expressions, any act or omission that results in a material distortion, mutilation or alteration of the traditional knowledge or cultural expressions that is prejudicial to the honour or reputation of the holders, or the integrity of the traditional knowledge or cultural expressions;"exploitation" means the employment of the greatest possible advantage of traditional knowledge and cultural expressions for selfish purposes, taking advantage of unwary traditional knowledge and cultural expressions holders and advertising or a publicity program, including—(a)where the traditional knowledge is a product—(i)manufacturing, importing, exporting, offering for sale, selling or using beyond the traditional context the product; and(ii)being in possession of the product for the purposes of offering it for sale, selling it or using it beyond the traditional context;(b)where the traditional knowledge is a process—(i)making use of the process beyond the traditional context; and(ii)carrying out the acts referred to under paragraph (a) of this subsection with respect to a product that is a direct result of the use of the process;"genetic resources" means microorganisms, plant and animal material including indigenous seeds, genetic plant varieties and traditional animal breeds that contain functional hereditary units and whose management shall also be subject of other relevant legislations;"genetic material" means genetic material of plant, animal, microbial or other origin containing functional units of heredity;"holder" means recognized individuals or organizations within communities in whom the custody or protection of traditional knowledge and cultural expressions are entrusted in accordance with the customary law and practices of that community;"intangible cultural heritage" means the practices, representations, expressions, knowledge and cultural spaces associated therewith that communities, groups and, in some cases, individuals recognized as part of their social cultural heritage;"Repository" means the Traditional Knowledge Digital Repository established and maintained by the national government under section 8(3);"owner" means local and traditional communities, and recognized individuals or organizations within such communities in whom the custody or protection of traditional knowledge and cultural expressions are entrusted in accordance with the customary law and practices of that community;"person" means a natural or legal person;"prior informed consent" means the giving of, by the prospective user, complete and accurate information, and based on that information, the prior acceptance, by the owners, to the use of their traditional knowledge or cultural expressions;"traditional context" means the mode of using traditional knowledge or cultural expressions in their proper artistic framework based on continuous usage by the community;"traditional knowledge" means any knowledge—(a)originating from an individual, local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, embodied in the traditional lifestyle of a community; or(b)contained in the codified knowledge systems passed on from one generation to another including agricultural, environmental or medical knowledge, knowledge associated with genetic resources or other components of biological diversity, and know-how of traditional architecture, construction technologies, designs, marks and indications.