Notion of ‘Ownership’ in IP: Protection of Traditional Ecological Knowledge vis-a-vis Protection of T K and Cultural Expressions Act, 2016 of Kenya

The existing intellectual property (IP) regime is, by and large, inapt and inadequate for the protection of Traditional Ecological Knowledge (TEK). One of the reasons behind the IP regimes inappropriateness in protecting TEK, is its anchorage in notions of ‘ownership’. Thus, there is need to examine the notion of ownership in protecting TEK. This article articulates the challenges that are bound to arise in Kenya by applying the concept of ‘ownership’ to TEK protection. An extensive review of literature on TEK and IP is done before an analysis of the Protection of Traditional Knowledge and Cultural Expressions Act of 2016 of Kenya is conducted to illustrate the incongruences, complexities and contradictions that ensue with the usage of the concept of ownership. The article finds that since TEK is holistic, and TEK holders are merely custodians on behalf of past, present and future generations, customary law and traditional governance structures are more suitable in protecting those custodial rights rather than vesting ownership rights on TEK holders. Lastly, the article concludes that there is need to review Kenyan law on TEK so as to clarify the legal status and relationship that exists between TEK holders, their knowledge and their ecosystems.