Geographical Indication (GI) options for Ethiopian Coffee and Ghanaian Cocoa

The Policy Context for a Commons-Based Approach to Traditional Knowledge
The Industrial Property Act contains some elements that could be built upon
to create a database for defensive protection of TK. The Copyright Act, meanwhile,
gives the Attorney-General the power to authorise and prescribe terms and
conditions governing the commercial use of expressions of folklore (Sect. 49).
With regard to the Trade Marks Act, the provisions relating to legal protection
of collective marks and geographical indications are relevant to this study. One
of the objectives of the National Museums and Heritage Act is the identification,
protection, conservation and transmission of the cultural and natural heritage of
Kenya – provisions relevant to creating a database of TK. (Also potentially relevant,
if they come to fruition, will be the proposed geographical indications law
and proposed TK and TCEs law.)
At the policy level, Kenya has a National Policy on Traditional Knowledge,
Genetic Resources and Traditional Cultural Expressions (hereafter “National TK
Policy”). This National TK Policy, finalised in 2009, provides for a national framework
that recognises, preserves, protects and promotes the sustainable use of TK
to enhance the mainstreaming of TK systems in pursuit of national development
objectives. The Policy recognises that there is a need to ensure that TK is not only
protected but is also accessible for innovative, developmental uses. The Policy envisages
a system that contributes to open innovation and collaborative creativity, while
at the same time ensuring that TK is preserved and well documented. In order to
achieve the above core objectives, the following guiding principles are identified
as forming an integral part of the Policy: respect; full disclosure; prior informed
consent; confidentiality; good faith; compensation; equitable benefit-sharing; sustainable
development; access; and international cooperation. Most of these guiding
principles will be directly relevant to any attempts to establish defined TK commons
arrangements in Kenya. This National TK Policy is, at the time of writing,
being used as the basis for a draft law, the Draft Bill on Protection of Traditional
Knowledge and Traditional Cultural Expressions (hereafter “Draft TK Bill”), which
was published for comment in May 2013. 4
Another policy that has potential bearing on the creation of TK commons
arrangements is the 2009 National Policy on Culture and Heritage. Under this
Policy, the government must:
●
promote culture as the centrepiece and driving force behind human, social
and economic development, and encourage cultural pluralism; and
4 KECOBO convened a national consultative forum on 8 May 2013 where the Draft TK Bill was
presented and discussed by various stakeholders. The Draft Bill was then made available on
the KECOBO website, to allow for further comment before submission to the Office of the
Attorney-General.
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