PROTECTION OF TRADITIONAL KNOWLEDGE, GENETIC RESOURCES AND EXPRESSIONS OF FOLKLORE ACT
Arrangement of Sections
1. Short title
3. Extent of application and exemption
4. Extent of protections, benefits and principles
5. Administration of Act by Agency and Registrar
6. Functions of Registrar
7. Appointment of officers
8. Non-warranty and non-liability
9. Delegation of powers and duties of Agency
10. Use of Agency seal
11. Register of Traditional Knowledge, Genetic Resources and Expressions of Folklore
12. Inspection of Register and furnishing of information
13. Intellectual Property Journal
14. Eligibility for protection of traditional knowledge
15. Formalities and measures for protecting traditional knowledge
16. Beneficiaries of traditional knowledge
17. Rights of holder
18. Exercise of rights
19. Assignment and licensing
20. Extent of benefit sharing
21. Acknowledgement of holder
22. Exceptions and limitations applicable to protection of traditional knowledge
23. Compulsory licence
24. Duration of protection of traditional knowledge
25. Access to traditional knowledge associated with genetic resources
26. Ownership of genetic resources
27. Rights of traditional community
28. Assignments, licences, authorisation and access of genetic resources
29. Right to regulate access to genetic resources
30. Right to use
31. Protection of community rights
32. Conditions to access and export of genetic resources
33. Application and grant of access permit
34. Grounds for denial of access to genetic resources
35. Special access permit and multilateral treaties
36. Obligations of access permit holder
37. Exploration permit
38. Application for exploration permit
39. Grant of exploration permit
40. Obligations of exploration permit holder
ACCESS AGREEMENT AND BENEFIT SHARING
41. Access agreement
42. Benefit sharing
43. Types of benefits
44. Regulatory measures relating to access agreement
45. Monitoring of access agreements and research
EXPRESSIONS OF FOLKLORE
46. Protection of expressions of folklore
47. Formalities and measures relating to protection of expressions of folklore
48. Beneficiary of expressions of folklore
49. Protection of expressions of folklore against unlawful acts
50. Exceptions and limitations for protection of expressions of folklore
51. Duration of protection of expressions of folklore
52. Licensing agreements
53. Benefit sharing relating to expressions of folklore
GENERAL AND ENFORCEMENT PROVISIONS
54. Evidence of certain entries and documents
55. Requests for information
56. Proceedings before Registrar
57. Registrar’s powers in obtaining evidence
58. Refusing to give evidence
59. Rules of evidence or procedure
60. Time and place of sitting
61. Extension of time
62. Registrar to act as soon as practicable
63. Infringement of rights
65. References to High Court
66. Assessors to appear in High Court
67. Responsibilities of traditional communities
68. Responsibilities of customs offices
69. Lodging and authentication of documents
70. Expenses relating to administration
71. General offences
72. General penalty
74. Transitional provisions
to provide for a transparent legal framework for the protection of, access to, and use of, traditional knowledge, genetic resources and expressions of folklore, which also guarantees equitable sharing of benefits and effective participation of holders; to recognise the spiritual, cultural, social, political and economic value of traditional knowledge, genetic resources and expressions of folklore of holders; to promote the preservation, wider application and development of traditional knowledge, genetic resources and expressions of folklore; recognise, protect and support the inalienable rights of traditional communities, individuals and groups over their traditional knowledge, genetic resources and expressions of folklore; to confer rights on traditional communities, individuals and groups and promote the conservation and sustainable utilisation of the country’s biodiversity resources; to promote fair and equitable distribution of the benefits derived from the exploitation of traditional knowledge, genetic resources and expressions of folklore; to promote the use of traditional knowledge, genetic resources and expressions of folklore for the benefit of traditional communities, the country and mankind in general; to ensure that exploitation of traditional knowledge, genetic resources and expressions of folklore takes place with the prior informed consent of a traditional community, individual or group; to prevent the granting of patents based on traditional knowledge, genetic resources and expressions of folklore without the prior informed consent of a traditional community, individual or group; give effect to the African Regional Intellectual Property Organisation (ARIPO) Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, 2010, the World Trade Organisation Trade-Related Intellectual Property Rights Agreement (TRIPS), 1994 and any other relevant international treaty or convention to which Zambia is a State Party; and to provide for matters incidental to, or connected with, the foregoing.
[2nd June, 2017]
Act 16 of 2016,
SI 39 of 2017.
This Act may be cited as the Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act.
In this Act, unless the context otherwise requires—
“access” means the collection, acquisition, transfer or use of traditional knowledge, genetic resources and expressions of folklore;
“access agreement” means an agreement to obtain access as specified in section 41;
“access permit” means a permit granted by the Agency to access genetic resources in accordance with section 33;
“access permit holder” means a person holding an access permit;
“Agency” means the Patents and Companies Registration Agency established in accordance with the Patents and Companies Registration Agency Act;
“appropriate institution” means any Ministry having responsibility for, or such public or statutory officer or body having powers under any other law over, the regulation, collection, use, compilation or dissemination of, traditional knowledge, genetic resources and expressions of folklore and includes a Government agency responsible for administering or having special technical expertise on a specific sector of traditional knowledge, genetic resources and expressions of folklore;
“ARIPO” means the African Regional Intellectual Property Organisation;
“benefits” means the value, privileges, consideration, profit or gain derived from the use of traditional knowledge, genetic resources and expressions of folklore, as the case may be;
“benefit sharing” means the equitable and just sharing of benefits, whether monetary or non-monetary, from the utilisation of traditional knowledge, genetic resources and expressions of folklore;
“biodiversity” means the variability among living organisms from all sources of ecosystems and the ecological complexes of which they are part and includes diversity within species, between species and of ecosystems;
“biological resource” includes genetic resources, organisms or parts of these, populations or any other biotic component of an ecosystem with actual or potential value for humanity;
“Board” means the Board of the Agency constituted in accordance with the Patents and Companies Registration Agency Act;
“court” means a court of competent jurisdiction;
“customary laws and practices” means the customary laws, values, norms, protocols and practices of a traditional community;
“derivative” means a product extracted or developed from a natural resource and includes a plant variety, oil, resin, gum, medicine, chemical and protein;
(a) where the traditional knowledge is a product—
(i) manufacturing, importing, offering for sale, selling or using the product beyond the traditional context;
(ii) being in possession of the product for the purposes of offering it for sale, selling it or using it beyond the traditional context; or
(b) where the traditional knowledge is a method or process—
(i) making use of the method or process beyond the traditional context; or
(ii) carrying out the acts referred to under paragraph (a) with respect to a product that is a direct result of the use of the method or process;
“exploration” means an activity to find out the existence or the status of a given genetic resource;
“exploration permit” means a permit granted by the Agency in accordance with section 39;
“exploration permit holder” means a person holding an exploration permit;
“expressions of folklore” means any form, whether tangible or intangible, in which traditional culture and knowledge is expressed, appears or manifests, and includes the following forms of expressions or combinations—
(a) verbal expressions, including stories, epics, legends, poetry, riddles and other narratives, words, signs, names and symbols;
(b) musical expressions, including songs and instrumental music;
(c) expressions by movement or incorporating movement, including dances, plays, artistic forms, rituals and other performances, whether or not reduced to a material form;
(d) tangible expressions, including productions of art, drawings, designs, paintings, body paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewellery, baskets, needlework, textiles, glassware, carpets, costumes, handicrafts, musical instruments and architectural forms; and
(e) any other output of creative and cumulative intellectual activity characteristic of a traditional community’s distinctive cultural identity and traditional heritage developed and maintained by that traditional community, individuals or groups who have the right or responsibility to do so in accordance with customary laws and practices;
“ex-situ” means a condition in which a genetic resource is found outside of its natural habitat or ecosystem;
“fair competition” means any act of competition that is based on honest practices in industrial or commercial matters and includes various acts that do not mislead the public or cause confusion;
“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;
“holder” means a traditional community, an individual or a group, irrespective of the pattern of ownership, and who is the owner of the traditional knowledge, genetic resource or expression of folklore in a traditional and intergenerational context who has a right over or to whom traditional knowledge, a genetic resource or expression of folklore belongs to, in accordance with customary laws and practices;
“innovation” means a product derived from a traditional method or process, whether documented, recorded or in oral form, which introduces a change and includes an alteration, modification or improvement or any component of a biological resource or gene, enhanced use or value through the application of traditional knowledge;
“in-situ” means a condition in which a genetic resource is found in its natural habitat or ecosystem;
“intergenerational” means being or occurring between or across generations;
“plant variety” includes cultivar, clone, landrace, hybrid or strain;
“practice” means a traditional method or process or way of doing things, with regards to traditional knowledge, genetic resource or expressions of folklore;
“prior informed consent” means the giving by a prospective user of traditional knowledge, a genetic resource or expression of folklore, complete information to a traditional community, individual or group and based on the information, the prior understanding and acceptance by a traditional community, individual or group to use their traditional knowledge, genetic resource or expression of folklore in accordance with this Act;
“protected area” means a geographic area that is protected in accordance with any other law;
“Register” means the Register of Traditional Knowledge, Genetic Resources and Expressions of Folklore established and maintained in accordance with section 11 and includes the Register as maintained in electronic form;
“Registrar” means the person appointed as Registrar in accordance with the Patents and Companies Registration Agency Act, 2010;
“sustainable use” means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biodiversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations;
“Swakopmund Protocol” means the ARIPO Protocol on the Protection of Traditional Knowledge and Expressions of Folklore which came into force on the 9th August, 2010;
“traditional community” means a human population living in a distinct geographical area in Zambia which is the creator or recognised, according to customary laws and practices, as the creator and custodian of a traditional knowledge, genetic resource or expression of folklore and the words “community” and “local community” shall be construed accordingly;
“traditional context” means knowledge, practices, know-how, learning, skill, process and method which traditionally or through custom and culture was or is developed, sustained and passed on from generation to generation within a traditional community or by individuals or groups in the community, and which forms part of a community’s cultural or spiritual identity and includes agricultural, medicinal knowledge and biodiversity-related knowledge;
“traditional knowledge” means 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;
“traditional knowledge systems” means the traditional knowledge of a traditional community, including the contributions made by such a community to the conservation of the environment, food security and sustainable agriculture, improvement in the health of populations, progress of science and technology, preservation and safeguarding of cultural heritage, development of artistic skills and enhancing diversity of cultural content and expressions of folklore and other artistic expressions;
“traditional method or process” means discoveries, innovations, practices and technologies made or used by a traditional community, individual or group which are usually not recorded in written form or otherwise and transmitted orally from one generation to another; and
“user” means any person or agent who obtains access.
(1) Despite anything to the contrary, this Act shall not apply to—
(a) the access, use and exchange of traditional knowledge, genetic resources and expressions of folklore by an owner or among traditional communities, as the case may be; and
(b) the sale of produce of biological resources for direct consumption that do not involve the use of genetic resources.
(2) An appropriate institution shall not be required to obtain authorisations, in accordance with this Act, to exploit traditional knowledge, genetic resources or expressions of folklore except that a Ministry or an appropriate institution shall not transfer the traditional knowledge, genetic resources or expression of folklore to a third person, commercially exploit or export the traditional knowledge, genetic resource or expression of folklore unless the Agency so authorises.
(3) Despite the other provisions of this Act, the use of traditional knowledge, genetic resources or expressions of folklore for educational, research and experimental purposes shall be exempt from the provisions of this Act.
(1) This Act protects—
(a) a holder against infringement of the holder’s rights in relation to traditional knowledge, genetic resources and expressions of folklore;
(b) traditional knowledge and expressions of folklore against misappropriation, misuse and unlawful exploitation;
(c) an equitable balance between the rights and interests of holders and users;
(d) genetic resources found in-situ and ex-situ against misappropriation and illegal exploitation; and
(e) improper grant and exercise of intellectual property rights in traditional knowledge, genetic resources and expressions of folklore.
(2) A holder shall have the right to institute legal proceedings against any person who acts contrary to sub-section (1) without the prior informed consent of the holder, including all other rights, remedies and actions available to a holder as specified in this Act.
(3) This Act shall not be construed as limiting or defining the diverse and holistic conceptions relating to traditional knowledge, genetic resources and expressions of folklore in the traditional context but shall be construed and enforced taking into account the dynamic and evolving nature of traditional knowledge, genetic resources and expressions of folklore.
(4) A holder shall enjoy the following benefits and may excise the following rights—
(a) register transboundary traditional knowledge and expressions of folklore in accordance with the Swakopmund Protocol;
(b) be able to record with the Agency their genetic resources;
(c) be able to protect their intellectual property rights relating to traditional knowledge and expressions of folklore;
(d) be able to register their traditional knowledge and expressions of folklore with ARIPO and obtain benefits arising from the commercial use of such knowledge and folklore;
(e) be able to use the alternative dispute settlement procedures at ARIPO to settle disputes arising from traditional knowledge and expressions of folklore shared by different traditional communities across national boundaries; and
(f) give prior informed consent for use of information relating to traditional knowledge and expressions of folklore licensed with ARIPO.
(5) The following principles and concepts shall apply to, and be a basis for, access and use of, traditional knowledge, genetic resources and expressions of folklore—
(a) recognition of the social, cultural, spiritual, economic, intellectual, scientific, ecological, agricultural, medical, technological, commercial and educational value of, and respect for, traditional knowledge systems, traditional knowledge, genetic resources and expressions of folklore;
(b) responsiveness to the actual needs of holders by empowering them to exercise due control over their traditional knowledge, genetic resources and expressions of folklore;
(c) repression of misappropriation of traditional knowledge and other unfair and inequitable uses;
(d) protection and promotion of tradition based creativity and innovation and the transfer of technology to the mutual benefit of society, holders and users;
(e) support of traditional knowledge systems;
(f) promotion of benefit sharing;
(g) promotion of the use of traditional knowledge for a bottom up approach to development;
(h) prior informed consent;
(i) fair competition;
(j) use of the patent system to protect innovation in traditional knowledge, genetic resources and expressions of folklore;
(k) use of distinctive signs, including trade marks, collective marks, certification marks and geographical indications; and
(l) recognition of customary laws and practices which define how traditional communities develop, hold and transmit traditional knowledge, including the custodianship of traditional knowledge, genetic resources and expressions of folklore.
(1) The Agency is responsible for the administration of this Act.
(2) The Registrar shall exercise the powers and perform the functions assigned to the Registrar by this Act.
Without prejudice to the generality of section 5 and subject to the other provisions of this Act, the functions of the Registrar are to—
(a) raise awareness, educate, guide, monitor, register, enforce and perform other activities related to the protection of traditional knowledge, genetic resources and expressions of folklore;
(b) collect, analyse and disseminate to holders and users information on access;
(c) advise and assist holders in enforcing their rights;
(d) where a dispute arises between a traditional community and a community outside Zambia, regarding ownership of traditional knowledge, genetic resources, or expressions of folklore, where applicable refer the dispute to a regional or an international body for resolution upon exhaustion of local remedies;
(e) monitor and ensure that access is carried out in accordance with this Act;
(f) prepare model access agreements and, where necessary, collect from users benefits on behalf of holders and other beneficiaries; and
(g) maintain registers and publish journals as required under this Act.
The Board shall appoint assistant registrars and such number of examiners and other officers as may be necessary for carrying out the provisions of this Act and who shall, subject to the control of the Registrar, have all the powers conferred by this Act on the Registrar.
An examination, investigation or any act undertaken in accordance with this Act shall not warrant the validity of such examination, investigation or act and no liability shall be incurred by any member of the Board, Registrar or any other officer of the Agency by reason of, or in connection with, any examination, investigation, act or other consequent proceeding.
The Agency may delegate its powers and duties to an appropriate institution where the Agency considers it necessary and expedient to do so for the better implementation of this Act.
The seal of the Agency, kept in terms of the Patents and Companies Registration Agency Act, 2010, shall be used for the purposes of this Act and the impression made for such purposes shall be judicially noticed.
There shall be established and maintained, at the Agency, a Register of Traditional Knowledge, Genetic Resources and Expressions of Folklore in which shall be entered—
(a) a clear and concise description of the traditional knowledge, genetic resources and expressions of folklore;
(b) the particulars of the applicants for registration of protected traditional knowledge, genetic resources and expressions of folklore and the particulars of the holders;
(c) particulars of access, permits, authorisation, licences or assignments granted for the exploitation of traditional knowledge, genetic resources and expressions of folklore;
(d) notices of all matters which are required by or under this Act to be entered in the register; and
(e) such other matters as the Registrar considers appropriate.
(1) Subject to this Act, the Register shall, on payment of a prescribed fee, be open to inspection by the public during prescribed hours.
(2) The Register shall be prima facie evidence of any matters required or authorised by or under this Act to be entered in it.
(3) Subject to this Act, the Registrar shall, on request of any person and on payment of the prescribed fee, furnish copies of any document lodged in, or any other particulars from, the Register.
(1) The Registrar shall arrange for the periodic publication of an Intellectual Property Journal on traditional knowledge, genetic resources and expressions of folklore that are protected in accordance with this Act and any matter which the Registrar may consider desirable relating to such matters.
(2) The Registrar may sell copies of the Intellectual Property Journal at such price and in such manner as the Board may approve.
(1) Traditional knowledge shall be protected in accordance with this Act if it fulfils the following conditions—
(a) it is generated, preserved and transmitted in a traditional and intergenerational context;
(b) it is distinctively associated with a traditional community, individual or group;
(c) it is integral to the cultural identity of a traditional community that is recognised as holding the knowledge through a form of custodianship, guardianship or collective and cultural ownership or responsibility, whether formally or informally, by customary laws and practices.
(1) The protection of traditional knowledge shall not be as a result of registration or any other formality but shall subsist automatically from the time the knowledge is or was created.
(2) Notwithstanding sub-section (1) and the existence of the Register, the Agency may, in the interest of transparency, evidence and the preservation of traditional knowledge, and subject to relevant policies, laws and procedures and the needs and aspirations of holders, establish and maintain various registers or other records on traditional knowledge.
(3) The registers established, in accordance with sub-section (2), may be associated with specific forms of protection and shall not comprise the status of undisclosed traditional knowledge or the interests of holders in relation to undisclosed elements of their knowledge.
(4) Where a traditional community and a community outside Zambia share the same traditional knowledge, the Registrar shall register the holder of the traditional knowledge in the Register and maintain relevant records.
(5) A registration effected, in accordance with this Act, shall have a declaratory function and shall not involve or require the documentation, recording or public disclosure of the traditional knowledge but such registration may serve as evidence in legal proceedings as to the identity and legal status of the traditional knowledge as registered.
(1) The beneficiary of traditional knowledge shall be the holder.
(2) A benefit derived by a traditional community shall be put to the common benefit of the traditional community.
A holder has the exclusive right to—
(a) authorise the exploitation of the holder’s traditional knowledge; and
(b) prevent anyone from exploiting the holder’s traditional knowledge without the holder’s prior informed consent.
(1) A user of traditional knowledge shall obtain the prior informed consent from a holder or, where the holder so requires, from the Agency who shall act on behalf of the holder.
(2) The Agency shall, in complying with sub-section (1), act in accordance with the traditional decision-making and governance processes of the traditional community concerned.
(3) Where the Agency collects any benefits, when acting on behalf of a holder as specified in sub-section (1), it shall transmit the benefits to the holder together with any written document from the user relating to the amount paid or other benefits granted.
(4) A contract evidencing prior informed consent shall be in writing and shall specify all details of the consent, including the concrete acts permitted, the duration of the uses which have been permitted, the circumstances of the use and the conditions for the consent, such as equitable remuneration or benefit sharing.
(5) The Agency shall ensure the legality of a contract, specified in sub-section (4), and generally provide the required assistance to a holder.
(6) The Agency shall approve a contract specified in sub-section (4).
(7) A contract which is not in writing and approved by the Agency is void.
(8) Where a particular element of traditional knowledge is claimed to be owned by several holders, the Agency shall publicly notify an applicant requiring access so as to enable all holders to make their claims.
(9) Where there is uncertainty or a dispute as to which traditional community is the holder of a particular traditional knowledge and from which prior informed consent is to be obtained, the matter shall be resolved in accordance with the customary laws and practices of the traditional communities involved.
(10) For the purposes of sub-section (1), the Agency may, on request by the holders or on its own volition, act as mediator in any matter specified in sub-section (9).
(11) This section shall not affect a contract entered into before the coming into force of this Act.
(1) A holder shall have the right to assign and may conclude an access agreement, except that traditional knowledge belonging to a traditional community may not be assigned.
(2) Any access, authorisation, assignment or licence granted in respect of traditional knowledge, that is protected in accordance with this Act, shall be in writing and if not so done is void.
(3) An access agreement, for the purpose of sub-section (2), shall be approved by the Agency and if not so approved is void.
(4) The Agency shall keep a register of all authorisation, licences and assignments granted in accordance with this section.
(1) The protection extended to a holder includes benefit sharing arising from the commercial or industrial use of the holder’s traditional knowledge as determined by an access agreement between the holder and user.
(2) The Court may, in the absence of an access agreement, as specified in sub-section (1), determine the extent of benefit sharing in accordance with section 42.
(3) The right to benefit sharing may include non-monetary benefits, such as contributions to community development depending on the material needs and cultural preferences expressed by the traditional community.
A person who uses traditional knowledge beyond its traditional context shall acknowledge the holder, indicate its source and, where possible, its origin and use the traditional knowledge in a manner that respects the cultural values of the holder.
The protection of traditional knowledge shall not be prejudicial to the continued availability of the traditional knowledge within the traditional context for the practice, exchange, use and transmission of the traditional knowledge by its holder.
(1) Where traditional knowledge, which is protected in accordance with this Act, is not being sufficiently exploited by the holder or where the holder refuses to grant access subject to reasonable commercial terms and conditions, the Minister may, in the interest of public security or public health, grant a compulsory licence to fulfil a national need.
(2) The Minister shall fix an appropriate amount of compensation where a compulsory licence has been granted in accordance with sub-section (1).
Traditional knowledge shall be protected for as long as the knowledge fulfils the protection criteria referred to in section 14, except that where traditional knowledge belongs exclusively to an individual, the protection given, in accordance with this Act, shall last for 25 years following the exploitation by the individual of the traditional knowledge beyond its traditional context.
Any authorisation or licence given in accordance with this Part to access traditional knowledge that is protected, in accordance with this Act, that is associated with genetic resources shall not imply an authorisation to access the genetic resources derived from that traditional knowledge.
The ownership of genetic resources vests in, and shall be held by, the President on behalf of the Zambian people.
Subject to this Act, a traditional community has the following rights over its genetic resources—
(a) the exclusive right to regulate access to its genetic resources;
(b) an inalienable right to use its genetic resources;
(c) the exclusive right to share the benefits arising from the utilisation of its genetic resources; and
(d) the right to assign and conclude access agreements.
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