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

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Consideration of a Legal “Trust” Model for the Kukula Healers’ TK Commons or associations (incorporated or unincorporated), a requirement particularly relevant here given the existence of the Kukula Healers. In this regard, a class of persons could be named as the beneficiary of the trust, so long as the class is definitely ascertainable. The beneficiaries could be individual healers, children of the healers and/or the wider community. It is possible that the Kukula Healers Association’s by-laws could define different groups in the Association, with only some constituting trust beneficiaries, e.g. all qualified traditional healers who are registered members of the Kukula Healers’ Association, or those who have been members for more than five years. It must be noted that if the settlor’s designation of beneficiaries was indefinite and made their identification difficult, the trust would fail as a legal entity. 5. Conclusions Faced with uncompensated bio-prospecting, overharvesting of medicinal plants and continued marginalisation, the Kukula Healers have made efforts in recent years to protect their culture and identity, as well as to strengthen their livelihoods as traditional healers, through the development of their BCP and their TK commons. Their BCP and TK commons are attempts to preserve and utilise the values and norms intrinsic to the Kukula Healers’ development and use, for several generations, of medicinal knowledge. The Kukula Healers’ pre-existing commons was one where sharing and transfer of knowledge were conducted through training schools and ancestral communication. The knowledge is often considered sacred and therefore has strict rules associated with its dissemination. A continuing challenge is the matter of how knowledge can flow through the TK commons system of the Kukula Healers in a manner ensuring its protection but not diluting the sanctity of the knowledge and values. In their dealings with outsiders, the Kukula Healers have recently used their BCP and TK commons to engage with a local company. A non-disclosure agreement between the Kukula Healers and the company acknowledges the Healers’ ownership of the knowledge and the necessity of a benefit-sharing agreement should the company’s research result in a commercially viable product. For the future, however, a trust model is a legal mechanism that could be useful to the Kukula Healers in order to more effectively manage their TK commons. It is important to recognise that the actual knowledge could not constitute the “property” for the purposes of a trust (as opposed to the property represented by the actual biological resource). The legal mechanism of a trust potentially offers a dynamic system, a system in which the products or manifestations of 167
Innovation & Intellectual Property their knowledge could be protected and shared among the community of healers under certain clear terms, with benefits flowing back to the beneficiaries. Not only would it be useful to the commons but it is also a legal mechanism utilised by many national legal systems. The options for protecting TK in established international or national IP law are limited, as this body of law was developed to suit innovation and development in countries that were already highly industrialised. As a consequence, TK-holders must consider other means of protecting their knowledge. As we demonstrate here, such protection may have to be indirect, utilising other well-established legal mechanisms such as the trust. Bibliography Primary Sources Legal instruments International: Convention on Biological Diversity (CBD) (1992) 1760 UNTS 79, available at: www.cbd.int/doc/legal/cbd-en.pdf (accessed 30 April 2013). Hague Convention on the Law Applicable to Trusts and on Their Recognition (1985). Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol on Access and Benefit-Sharing) (2010), UN Doc UNEP/CBD/COP/10/27, 29 October, available at: www.cbd.int/abs/ doc/protocol/nagoya-protocol-en.pdf (accessed 30 April 2013). Uniform Trust Code, last reviewed or amended in 2005, United States. South Africa: Bio-prospecting, Access and Benefit-Sharing Regulations of 2008. Kukula Healers (2010), Biocultural Protocol of the Traditional Health Practitioners of Bushbuckridge, available at: http://community-protocols.org/wp-content/ uploads/documents/South_Africa-Bushbuckridge_Biocultural_Protocol.pdf (accessed 30 April 2013). Mpumalanga Witchcraft Suppression Bill of 2007 [draft], suspended in 2008. National Environmental Management: Biodiversity Act 10 of 2004. Traditional Health Practitioners Act 35 of 2004. Trust Property Control Act 57 of 1988, as amended by the Justice Laws Rationalisation Act 18 of 1996. Witchcraft Suppression Act 3 of 1957. 168
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Contents Preface ..................
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Preface This book is among the key
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Preface mandated Train for Trade pr
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About the Contributors Dr Perihan A
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Chapter 2 Frameworks for Analysing
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Chapter 11 The State of Biofuel Inn
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Geographical Indication (GI) options for Ethiopian Coffee and Ghanaian Cocoa

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