Zambia- International treaties – Nagoya
RATIFIED INTERNATIONAL INSTRUMENTS
Zambia
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization
Art. 1
The legal framework provides for the fair and equitable sharing of the benefits arising from the utilization of genetic resources (GR), including by appropriate access to GR and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Preamble. An Act to provide for a transparent legal framework for the protection of, and use of, traditional knowledge, genetic resources and expression of folklore [...] to promote fair and equitable distribution of the benefits derived from the exploitation of traditional knowledge, genetic resources and expressinon of folklore Section 20(1). The protection extended to a holder includes benefit sharing arising from the commercial of industrial use of the holders' traditional knowledge as determined by an access agreement between the holder and user. (2) The court may, in the absebce of an access agreement, as specified in sub-section (1), determine the extent of benefit sharing in accordance with section forty-two. (3) The right to benefit-sharing may include non-monetary benefits, such as contribution to community development depending on the material needs and cultural preferences expressed by the traditional community Section 21. 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 manner that respects the traditional values of the holder. Section 41. Access to traditional knowledge and genetic resources shall, subject to other provisions of this Act, be effected by way of an access agreement between the holder and permit holder. Section 42. The nature and amount to be shared by the holder in the benefits derives from the exploitation of genetic resources or traditional knowledge shall be as prescribed in section twenty or as may be determined on a case by case basis. |
Art.2
The legal framework provides definitions consistent with those of the Convention on Biological Diversity and the Nagoya Protocol.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Preamble. An Act to [...] give effect to any other relevant international treaty or Convention to which Zambia is a State Party, Section 2. In this Act, unless context otherwise requires- "biodiversity" means the variability among living organisms from all sources of ecosystems and all ecological complexes of which they are part and includes diversity within species, between species and 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; [...] "ex-situ" means a condition in which a genetic resource is found outside of its natuarl habitat or ecosystem; [...] "genetic resources" 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 terresterial, aquatic and any other origin which may be used by the holder to obtain specific pratctical outputs in any human field or derivative; [...] "in-situ" means a condition in which a genetic resource is found in its natural habitat or ecosystem [...] "protected area" means a geographical area that is protected in accordance with any other law [...] "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 biological diversity, thereby maintaining its potential to meet the needs of the present and future generations. |
Art.3
The legal framework defines the scope as comprising:
- GRs falling within the scope of the Convention on Biological Diversity and the benefits arising from the use of these resources;
- the traditional knowledge associated with these GR and the benefits arising from the use of this knowledge
- GRs falling within the scope of the Convention on Biological Diversity and the benefits arising from the use of these resources;
- the traditional knowledge associated with these GR and the benefits arising from the use of this knowledge
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 2. "benefit sharing" means the equitable and just sharing of benefits, whether monetary or non-monetary, from the utilization of traditional knowledge, genetic resources and expression of folklore, as the case may be; [...] "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; [...] "traditional knowledge" means any knowledge not limited to a specific subject area, technical or medical field associated with genetic resources, originating from traditional community, individual or group that is the result of intellectual activity and insight in traditional context and where the knowledge is embodied in traditional lifestyle of a traditional community or is codified in knowledge systems and passed from generation to generation. |
Art.4-1
The legal framework does not modify the rights and obligations arising from part of an existing international agreement, except in the event that their exercise would cause serious damage to, or pose a serious threat to, biological diversity.
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No relevant elements identified/documented |
Art.4-2
The legal framework does not prevent the development and application of other relevant instruments, provided that they do not contradict the objectives of the convention.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Preamble. An Act to […] give effect to African Regional Intellectual Property Organization (ARIPO), Swakopmund Protocol on the Protection of Traditional Knowledge and Expression of Folklore, 2010, the World Trade Organization Trade-Related Intellectual Property Rights Agreements (TRIPS) 1994, and any other relevant international treaty and convention to which Zambia is a State Party. |
Art.4-3
The legal framework encourages complementarity with other relevant instruments as well as the taking into account of useful and relevant work or practices underway within the framework of these instruments or international organizations.
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No relevant elements identified/documented |
Art.5-1
Legislative, administrative or policy measures are planned to ensure that the benefits arising from the use of GR as well as subsequent applications and commercialization are shared fairly and equitably with the Party providing the resources (country of origin of the resources or party who acquired them in accordance with the Convention), under mutually agreed terms (MAT).
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 5. The Agency is responsible for the administration of this Act. Section 6. Without prejudice to the generality of section five, and subject to 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 expression of folklore. Section 20(1). The protection extended to a holder includes benefit sharing arising from the commercial of industrial use of the holders' 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 forty-two. (3) The right to benefit-sharing may include non-monetary benefits, such as contribution to community development depending on the material needs and cultural preferences expressed by the traditional community Section 21. 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 manner that respects the traditional values of the holder. Section 41. Access to traditional knowledge and genetic resources shall, subject to other provisions of this Act, be effected by way of an access agreement between the holder and permit holder. |
Art.5-2
The legal framework provides for legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilization of genetic resources that are held by indigenous and local communities, in accordance with domestic legislation regarding the established rights of these indigenous and local communities over these genetic resources, are shared in a fair and equitable way with the communities concerned, based on MAT.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 5. The Agency is responsible for the administration of this Act. Section 6. Without prejudice to the generality of section five, and subject to 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 expression of folklore. Section 20(1). The protection extended to a holder includes benefit sharing arising from the commercial of industrial use of the holders' 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 forty-two. (3) The right to benefit-sharing may include non-monetary benefits, such as contribution to community development depending on the material needs and cultural preferences expressed by the traditional community Section 21. 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 manner that respects the traditional values of the holder. Section 41. Access to traditional knowledge and genetic resources shall, subject to other provisions of this Act, be effected by way of an access agreement between the holder and permit holder. |
Art.5-4
The legal framework provides that the benefits referred to in Art.5-2 may include monetary and non-monetary benefits, including but not limited to those listed in the Annex.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 20(1). The protection extended to a holder includes benefit sharing arising from the commercial of industrial use of the holders' 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 forty-two. (3) The right to benefit-sharing may include non-monetary benefits, such as contribution to community development depending on the material needs and cultural preferences expressed by the traditional community. |
Art. 5-5
The legal framework provides for legislative, administrative or policy measures, as appropriate, in order that the benefits arising from the utilization of traditional knowledge associated with GR are shared in a fair and equitable way with indigenous and local communities holding such knowledge. Such sharing shall be upon MAT.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 20(1). The protection extended to a holder includes benefit sharing arising from the commercial of industrial use of the holders' 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 forty-two. (3) The right to benefit-sharing may include non-monetary benefits, such as contribution to community development depending on the material needs and cultural preferences expressed by the traditional community Section 21. 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 manner that respects the traditional values of the holder. Section 41. Access to traditional knowledge and genetic resources shall, subject to other provisions of this Act, be effected by way of an access agreement between the holder and permit holder. |
Art. 6-1
The legal framework provides for that access to GR for their utilization shall be subject to the prior informed consent (PIC) of the State providing such resources that is the country of origin of such resources or a Party that has acquired the genetic resources in accordance with the Convention, unless otherwise determined by that Party.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 35(2). Access to genetic resources under multilateral treaty to which Zambia is a State party shall made in accordance with the terms, conditions and procedures prescribed by statutory instrument. |
Art. 6-2
The legal framework provides that the PIC or approval and involvement of indigenous and local communities is obtained for access to genetic resources where they have the established right to grant access to such resources.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 27(1). Subject to this Act, a traditional community has the following rights over its genetic resources- (a) the exclusive rights to regulate access to regulate genetic resources; (b) an inalienable right to use its genetic resources; (c) the exclusive right to share the benefits arising from utilization of its genetic resources; (d) the right to assign and conclude access agreement. Section 28(1). Any access, authorization, assignment or license granted in respect of genetic resoources shall be in writting and, if no so done, is void. (2) An access agreement for the purpose of sub-section 1 shall be approved by the Agency, if not so approved, is void. (3) the Agency shall keep a register of all access agreements, authorization, assignments, and licenses granted in accordance with sub-section (1). |
Art. 6-3(a)
When PIC is required, legislative, administrative or policy measures, as appropriate are taken to provide for legal certainty, clarity and transparency of their domestic access and benefit-sharing legislation or regulatory requirements;
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 27(1). Subject to this Act, a traditional community has the following rights over its genetic resources- (a) the exclusive rights to regulate access to regulate genetic resources; (b) an inalienable right to use its genetic resources; (c) the exclusive right to share the benefits arising from utilization of its genetic resources; (d) the right to assign and conclude access agreement. Section 28(1). Any access, authorization, assignment or license granted in respect of genetic resoources shall be in writting and, if no so done, is void. (2) An access agreement for the purpose of sub-section 1 shall be approved by the Agency, if not so approved, is void. (3) the Agency shall keep a register of all access agreements, authorization, assignments, and licenses granted in accordance with sub-section (1). Section 53(1). The owner of the expression of folklore shall be entitled to the sharing of benefits arising from commercial and industrial use of the expression of folklore as determined by mutual agreement between the owner and the user.(2) The court may, in the absence of a mutual agreement as specified in sub-section (1), determine the benefit sharing. (3) the right to benefit sharing may extend to non-monetary benefits such as contributions to community development depending on the material needs and cultural preferences expressed by a tradtional community. |
Art. 6-3(b)
When PIC is required, legislative, administrative or policy measures, as appropriate are taken to provide for fair and non-arbitrary rules and procedures on accessing GR;
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 25. Any authorization or license 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 authorization to access genetic resources derived from that traditional knowledge. Section 28 (1) Any access, authorization, license or assignmnet granted in respect of genetic resources shall be in writting if not so done, is void. (2) An access agreement for the purpose of sub-section (1), shall be approved by the Agency and if not so approved, is void. (3) the Agency shall keep a register of all access agreements, authorizations, assignments and licenses granted in accordance with sub-section (1). |
Art. 6-3(c)
When PIC is required, legislative, administrative or policy measures, as appropriate are taken to provide information on how to apply for PIC;
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No relevant elements identified/documented |
Art. 6-3(d)
When PIC is required, legislative, administrative or policy measures, as appropriate are taken to provide for a clear and transparent written decision by a competent national authority, in a cost-effective manner and within a reasonable period of time;
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No relevant elements identified/documented |
Art. 6-3(e)
When PIC is required, legislative, administrative or policy measures, as appropriate are taken to provide for the issuance at the time of access of a permit or its equivalent as evidence of the decision to grant PIC and of the establishment of MAT, and notify the Access and Benefitsharing Clearing-House accordingly;
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No relevant elements identified/documented |
Art. 6-3(f)
When PIC is required, legislative, administrative or policy measures, as appropriate are taken to, where applicable and subject to domestic legislation, set out criteria and/or processes for obtaining prior informed consent or approval and involvement of indigenous and local communities for access to GR;
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No relevant elements identified/documented |
Art. 6-3(g)
When PIC is required, legislative, administrative or policy measures, as appropriate are taken to establish clear rules and procedures for requiring and establishing MAT. Such terms shall be set out in writing and may include, inter alia:
(i) A dispute settlement clause;
(ii) Terms on benefit-sharing, including in relation to intellectual property rights;
(iii) Terms on subsequent third-party use, if any; and
(iv) Terms on changes of intent, where applicable.
(i) A dispute settlement clause;
(ii) Terms on benefit-sharing, including in relation to intellectual property rights;
(iii) Terms on subsequent third-party use, if any; and
(iv) Terms on changes of intent, where applicable.
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No relevant elements identified/documented |
Art. 7
The legal framework provides that traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 29(1). The rights of a traditional community to regulate access to its genetic resources shall include the following: (a) the exclusive right to give prior informed consent for access to its genetic resources; (b) the right to refuse consent when it believes that the intended access shall be detrimental to the integrity of its cultural or natural heritage; (c) the right to withdraw or place restriction on any prior informed consent given for access to its genetic resources where the consent is likely to be detrimental to its socioeconomic life or natural or cultural heritage; and (d) the right to demand the restriction or withdrawal of any prior informed consent given by the Agency for access to its genetic resources where it is found that the prior informed consent is likely to be detrimental to its socioeconomic life or natural or cultural heritage." |
Art. 8
Access and benefit-sharing legislations or regulations include:
a) promotion of research which contributes to the conservation and sustainable use of biological diversity, b) consideration of cases of present or imminent emergencies that threaten or damage human, animal or plant health, as determined nationally or internationally,
c) consideration of the importance of genetic resources for food and agriculture and their special role for food security.
a) promotion of research which contributes to the conservation and sustainable use of biological diversity, b) consideration of cases of present or imminent emergencies that threaten or damage human, animal or plant health, as determined nationally or internationally,
c) consideration of the importance of genetic resources for food and agriculture and their special role for food security.
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No relevant elements identified/documented |
Art.9-I
The legal framework encourages users and providers to direct benefits arising from the utilization of genetic resources towards the conservation of biological diversity and the sustainable use of its components.
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No relevant elements identified/documented |
Art. 11
The legal framework provides for transboundary cooperation in cases where a) the same genetic resources are found in situ within the territory of more than one Party, b) the same traditional knowledge associated with genetic resources is shared by one or more indigenous and local communities in several Parties, with the involvement of indigenous and local communities concerned.
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No relevant elements identified/documented |
Art. 12-1
The legal framework provides for measures which take into consideration indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 4(5). The following principles and concepts shall apply to, and be, a basis for, access and use of, traditional knowledge, genetic resources and expression of folklore- (a) recognition of social, cultural, spiritual, economic, intellectual, scientific, ecological, agricultural, medical, technological, commercial, and educational value of, and respect for, tradtional knowledges systems, and genetic resources and expression of folklore; (g) promotion of the use of traditional knowledge for a bottom up approach to development; (e) support traditional knowledge system; (h) prior informed consent; (i) 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; (j) the use of patent system to protect innovations in trdational knowledge, genetic resources and expression of folklore; [...] (l) recognition of customary laws and practices which define how traditional communities develop, hold and transmit traditional knowledge, including custodianship of traditional knowledge, genetic resources and expression of folkllore. |
Art. 12-2
The legal framework provides for effective participation of the indigenous and local communities concerned, inestablishing mechanisms to inform potential users of traditional knowledge associated with genetic resources about their obligations, including measures as made available through the Access and Benefit-sharing Clearing-House for access to and fair and equitable sharing of benefits arising from the utilization of such knowledge
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No relevant elements identified/documented |
Art. 12-3
The legal framework provides for the development by indigenous and local communities, including women within these communities, of:
(a) Community protocols in relation to access to traditional knowledge
associated with genetic resources and the fair and equitable sharing of
benefits arising out of the utilization of such knowledge;
(b) Minimum requirements for mutually agreed terms to secure the fair and
equitable sharing of benefits arising from the utilization of traditional
knowledge associated with genetic resources; and
(c) Model contractual clauses for benefit-sharing arising from the utilization of
traditional knowledge associated with genetic resources.
(a) Community protocols in relation to access to traditional knowledge
associated with genetic resources and the fair and equitable sharing of
benefits arising out of the utilization of such knowledge;
(b) Minimum requirements for mutually agreed terms to secure the fair and
equitable sharing of benefits arising from the utilization of traditional
knowledge associated with genetic resources; and
(c) Model contractual clauses for benefit-sharing arising from the utilization of
traditional knowledge associated with genetic resources.
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No relevant elements identified/documented |
Art. 12-4
The legal framewok does not restrict the customary use and exchange of genetic resources and associated traditional knowledge within and amongst indigenous and local communities in accordance with the objectives of the Convention.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 4(5). The following principles and concepts shall apply to, and be, a basis for, access and use of, traditional knowledge, genetic resources and expression of folklore- (a) recognition of social, cultural, spiritual, economic, intellectual, scientific, ecological, agricultural, medical, technological, commercial, and educational value of, and respect for, tradtional knowledges systems, and genetic resources and expression of folklore; (g) promotion of the use of traditional knowledge for a bottom up approach to development; (e) support traditional knowledge system; (h) prior informed consent; (i) 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; (j) the use of patent system to protect innovations in trdational knowledge, genetic resources and expression of folklore; [...] (l) recognition of customary laws and practices which define how traditional communities develop, hold and transmit traditional knowledge, including custodianship of traditional knowledge, genetic resources and expression of folkllore. |
Art.13-I
The legal framework provides for the designation of a national correspondent for access and benefit-sharing (contact details are provided to the Convention Secretariat).
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No relevant elements identified/documented |
Art.13-II
The legal framework provides for the designation of one or more national authorities responsible for access and benefit-sharing (this entity can combine the functions of national correspondent and competent national authority; its contact details are communicated to the Convention Secretariat. ).
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No relevant elements identified/documented |
Art.15-I
Effective and proportionate legislative, administrative or policy measures are planned to ensure that access to GR used under the jurisdiction of the country has been the subject of a PIC and that ACCs have been established.
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No relevant elements identified/documented |
Art.15-II
Appropriate, effective and proportionate measures are planned to deal with situations of non-compliance with the measures adopted in accordance with paragraph 1 above.
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No relevant elements identified/documented |
Art.15-III
The legal framework provides for cooperation with other States in the event of an alleged violation of internal laws or regulations relating to access and benefit-sharing mentioned in paragraph 1 above.
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No relevant elements identified/documented |
Art.16-I
Effective and proportionate legislative, administrative or policy measures are planned to ensure that access to traditional knowledge associated with GR used under the jurisdiction of the country has been subject to PIC or the agreement and participation of indigenous and local and that ACCs have been established.
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No relevant elements identified/documented |
Art. 16-II
Appropriate, effective and proportionate measures shall be provided to deal with situations of non-compliance with the measures adopted in accordance with paragraph 1.
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No relevant elements identified/documented |
Art.16-III
The legal framework provides for cooperation with other states in the event of an alleged violation of internal laws or regulations on access and benefit-sharing mentioned in paragraph 1 above.
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No relevant elements identified/documented |
Art.17
The legal framework provides for appropriate measures to monitor the use of genetic resources and increase transparency regarding their use.
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No relevant elements identified/documented |
Art.18
The legal framework provides for measures to encourage providers and users of GR and / or traditional knowledge associated with GR to include dispute settlement provisions in the MAT.
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No relevant elements identified/documented |
Art.19
The legal framework provides for measures to encourage the development, updating and use of standard sectoral and cross-sectoral contractual clauses for MAT.
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No relevant elements identified/documented |
Art.20
The legal framework provides for measures to encourage the development, updating and use of voluntary codes of conduct, guidelines and good practices and / or standards related to access and benefit-sharing.
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No relevant elements identified/documented |
Art.21
The legal framework provides for awareness raising of the importance of genetic resources and traditional knowledge associated with genetic resources, and related access and benefit-sharing issues.
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The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act [No.16] 20160606
Section 6. Without prejudice to the generality of section five 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. |
Art.23
The legal framework provides for collaboration with other states on research and development programs, including biotechnology research activities.
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No relevant elements identified/documented |