The implications of using indigenous communities’ cultural heritage in business branding and product development

A high fashion model in Paris wearing a Turkana head dress, a luxury brand pen maker naming a limited edition pen as “Maasai”, a hotelier incorporating Mijikenda cultural symbols and artefacts as part of his hotel decor or a pharmaceutical company basing its creation of a drug on the traditional herbal remedies of certain local tribes.

These seemingly innocent acts are legally termed as misappropriation of cultural heritage and, since the enactment of The Protection of Traditional Knowledge and Culture Expressions Act (No.33 of 2016), have been prohibited in Kenya. Until late 2016, there was no parliamentary legislation in Kenya affording indigenous communities ways in which to control the use of or actively protect their cultural heritage. The Act introduced penal and financial consequences for the misuse, appropriation or exploitation of the traditional knowledge and cultural expressions of local communities. Though it’s debatable whether the Act has gained the necessary traction, WMC Law believes that the Act is relevant in light of the fact that there’s a wave of branding geared towards the merchandising of culture or the commercialising of indigenous art works.

What falls within the scope of traditional knowledge and cultural expression?

Generally, the Act covers all objects, sites, knowledge, innovation and skill whose use has been transmitted from generation to generation and which is attributed to a certain community and is embedded in the community’s culture or embodies their traditional lifestyle. It encompasses artistic and cultural expressions such as folklore, music, dance, ceremonies and handicrafts.

Kenya has 42 tribes, some of which have maintained their traditional way of life, most notably the Maasai. The use of any of these local communities’ traditional knowledge and cultural expressions without their prior informed consent and authorisation is prohibited under the Act.

What rights attach to the owners or holders of traditional knowledge or cultural heritage?

Local communities are empowered under the Act with the following rights:

• the right to protection of their cultural heritage.
• the right to authorise exploitation of their cultural heritage.
• the right to prevent third parties from exploiting their cultural heritage without their prior informed consent and the right to institute legal proceedings against such third parties.
• The right to be recognised or acknowledged as the source or origin of the cultural heritage.

How can one access the use of traditional knowledge or cultural expressions?

A person desirous of using any community’s cultural heritage whether in creating derivative works for commercial or industrial purposes, offering the same for sale, reproducing, broadcasting, filming or even electronic transmission of traditional knowledge or cultural expressions is required to:

• obtain the prior informed consent or authorisation of the local community;
• acknowledge and give recognition to the local community as the owners of the cultural heritage; and
• (where a derivative work is for commercial use) enter into an authorised user agreement to deal with matters such as compensation and sharing of benefits. This agreement must be registered with the Cabinet Secretary in charge of intellectual property matters within 30 days of the agreement or else it is null and void.

Are the penalties for breach of the Act grave?

The Act makes acts in relation to the misappropriation of traditional heritage a criminal offence which upon conviction result in imprisonment or fines or both. These offences include the development of any goods using the traditional knowledge or cultural expressions of a local community, the export out of Kenya of the same, the possession or control in trade, distribution, hiring or acquiring of traditional knowledge or cultural expression without the prior authorisation of the relevant local community. The prison terms range from 3-10 years while the fines from K.Shs.500,000/= to 2,000,000/=

Even where a Kenyan citizen or permanent resident of Kenya commits an offence under the Act in a place outside Kenya, he is still liable for conviction to the same penalties under the Act.

What steps should be taken to mitigate risk?

Digital communication and the availability of cultural content online increases the likelihood of inadvertent misappropriation of traditional heritage especially in branding.

A brand owner should engage their advertising department and a legal professional in the formative stages of a branding concept to ensure that any intended use of a cultural expression is lawful. It is also advisable to investigate the origin of certain imagery and put in place a system of review to ensure that no local communities have claims to knowledge, symbols or artwork intended to be used in an advertising campaign or in relation to your product.

Should you have any queries or need any clarifications with respect to the above, please do not hesitate to contact Divinah Sarange Ongaki (dso@wanjiramwanikilaw.com).