Although International IP law is largely silent on the protection of traditional knowledge, Zambia has put in place a legal framework that seeks to protect access to, and use of, traditional knowledge, genetic resources, and expressions of folklore. The law, which is both defensive and positive in nature is known as the ‘The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act No. 16 of 2016.
It is defensive, in the sense that it seeks to ensure that third parties are prevented from obtaining Intellectual property rights for the use of traditional knowledge, associated genetic resources, or the expressions of folklore. It is also positive in the sense that it prohibits access or use without the prior informed consent of the holder.
Traditional knowledge is defined under the Act as “any knowledge, not limited to a specific subject area, technical or medical field associated with genetic resources, originating from a traditional community, individual or group that is the result of intellectual activity and insight in a traditional context and where the knowledge is embodied in the traditional lifestyle of a traditional community or is codified in knowledge systems and passed on from one generation to another”
Like many other African countries, Zambia is endowed with a rich cultural heritage and local communities generally possess valuable traditional knowledge which is often misappropriated for commercial purposes without any benefit to the holders. For this reason, the Act provides a holder has the exclusive right to authorise the exploitation of the traditional knowledge and to prevent anyone from exploiting the traditional knowledge without the holder’s prior informed consent. Further, the Act has made provisions for ensuring that benefits arising from the commercial or industrial use of traditional knowledge are shared with the holder of the traditional knowledge through an access agreement between the holder and user.
Genetic resource means any genetic material of a biological resource containing genetic information having actual or potential value for humanity and includes derivatives, fauna, and flora of terrestrial, aquatic, and any other origin which may be used by the holder to obtain specific practical outputs in any field of human activity or derivative.
Though Genetic Resources are by nature not intellectual property rights, the Act has provided for the protection of Genetic Resources based on the access and benefit-sharing regulations within the international frameworks defined by the Convention on Biological Diversity and its Nagoya Protocol. In that regard, the Act prohibits access to genetic resources without the prior informed consent of the traditional community in which the genetic resources concerned is located. Further, the Act requires that the traditional community shall obtain a fair and equitable share of benefits arising from the utilisation of its genetic resources.
Expressions of Folklore
Expression of folklore is any form, whether tangible or intangible, in which traditional culture and knowledge is expressed, appears or manifests. This includes verbal expressions such as stories, poetry, riddles and other narratives, or musical expressions in form of songs; expressions in form of dances or plays, as well as tangible expressions such as drawings, designs, paintings, body painting, etc.
The protection of expressions of folklore is irrespective of the mode or form of expression provided it is the output of collective creativity or individual creativity and it has been developed, maintained or used by the community in accordance with customary laws and practices.
Expressions of Folklore are seen as integral to the cultural and social identities and heritage of indigenous and local communities, reflecting core values and beliefs. Therefore, like Traditional Knowledge, the Act seeks to protect expressions of folklore against misappropriation, misuse and unlawful exploitation. Some of the acts which are prohibited under the Act without the prior informed consent of the traditional community include:
- broadcasting, public performance, communication, distribution, rental, making available to the public, and fixation of the expression of folklore or any derivative of the expression of folklore;
- any use of the expression of folklore or adaptation of the expression of folklore which does not acknowledge, in an appropriate manner, the traditional community as the source of the expression of folklore or any derivative of the expression of folklore; or
- The acquisition or exercise of intellectual property rights over the expression of folklore or adaptations to the expression of folklore.
However, the holder or Agency may grant authorisation to exploit expressions of folklore on conclusion of a licensing agreement.