Fashion Law Review: The Traditional Knowledge and Traditional Cultural Expressions Act (2016)

Source: Endelea

In August 2016, Kenya introduced the Traditional Knowledge and Traditional Cultural Expressions Act (TK and TCEs Act), a significant legal step aimed at preserving and protecting Indigenous cultural heritage, particularly as it pertains to traditional knowledge (TK) and traditional cultural expressions (TCEs). These cultural elements, which have long been integral to the identities of communities such as the Maasai, are often incorporated into the fashion industry, both locally and internationally. From the use of distinctive textiles and patterns to the inspiration derived from Maasai beadwork and attire, Kenya’s fashion scene has long drawn on Indigenous cultural expressions. However, the commercial use of these cultural assets often occurs without the permission or benefit to the communities from which they originate. The TK and TCEs Act seeks to address this issue by providing a legal framework to protect such cultural expressions from misuse.

Under the Act, TK and TCEs are defined as being collectively owned and passed down through generations, reflecting the shared values, traditions, and knowledge of a community. The law provides communities with the ability to control and protect the use of their cultural heritage, including in industries like fashion, where traditional symbols, textiles, and artistic elements are frequently commercialised. By criminalising the unauthorised use of these cultural expressions and allowing communities to demand royalties for their exploitation, the Act ensures that any fashion enterprise using such cultural elements must first obtain consent from the community and provide compensation for their use.

The Act also empowers communities to protect their rights by seeking legal recourse, including injunctions to prevent the unauthorised use of their cultural assets. This is especially pertinent in the context of the fashion industry, where elements of TK and TCEs are often incorporated into designs without the community's involvement or approval. For example, Maasai beadwork or motifs from traditional clothing might be used by designers without any regard for the cultural significance of these items. Through the TK and TCEs Act, communities now have the legal means to address such issues, ensuring that their cultural heritage is not exploited without their consent.

However, while the Act provides significant opportunities for the protection and promotion of cultural heritage within the fashion industry, several challenges remain. First, documenting TK and TCEs for the purpose of asserting rights under the Act can be a complex and resource-intensive process. Fashion designers, companies, and legal professionals must work closely with communities to ensure that traditional cultural expressions are appropriately recorded and recognised under the law. Second, the enforcement of these protections may be hindered by weak judicial and policing structures in Kenya, which could delay or undermine efforts to hold those who misuse these cultural elements accountable. Furthermore, political resistance from dominant groups that benefit from the appropriation of Indigenous cultural expressions could further complicate the law’s implementation.

Another complication arises from the Act's broad definition of "community," which encompasses groups with shared ancestry, culture, language, or geographical space. While this inclusive approach aims to protect a wide range of cultural groups, it could also lead to disputes between communities over the ownership of specific traditional knowledge or cultural expressions. In the fashion industry, this could manifest in conflicts over who has the right to licence or commercialise certain cultural elements, especially when these elements are widely recognised and used beyond their original context.

Additionally, the management of any income generated from the commercialisation of TK and TCEs raises important questions about benefit sharing and internal governance. As the fashion industry begins to recognise the economic potential of Indigenous designs, there is a need for clear, fair systems to ensure that the wealth generated is distributed equitably within the community. Without such mechanisms, tensions may arise over the allocation of royalties or the control of commercial ventures involving traditional cultural assets.

In conclusion, while the Traditional Knowledge and Traditional Cultural Expressions Act offers critical legal protections for Indigenous communities whose cultural expressions are utilised in the fashion industry, its successful implementation requires careful attention to documentation, enforcement, and governance. By ensuring that communities are adequately compensated and have control over how their cultural heritage is used, the Act presents a valuable opportunity for fashion brands to engage ethically with Indigenous cultures, fostering a more sustainable and respectful approach to cultural exchange in fashion.