UPOV 1991 Enters into Force in Kenya: Farmers’ vs Plant Breeders’ Rights

Stephen Ndungu Karau Ambassador and Permanent Representative accession 1991 UPOV Convention Kenya Francis Gurry Director-General World Intellectual Property United Nations Geneva Switzerland 2016

H.E. Amb. Dr. Stephen Ndungu Karau, Ambassador and Permanent Representative deposits the instruments of accession to the 1991 Act of the UPOV Convention on behalf of the Republic of Kenya received by Dr. Francis Gurry Director-General World Intellectual Property Organization – April 11 2016 Geneva, Switzerland.

On May 11th 2016, the International Convention for the Protection of New Varieties of Plants (UPOV Convention) of December 2, 1961, as revised on March 19, 1991 entered into force in Kenya. As readers know, Kenya was the first country in Africa to join Union internationale pour la protection des obtentions végétales (UPOV) when it became a member on May 13th 1999 and subsequently domesticated the 1961 Act of the UPOV Convention in the Kenya Seed and Plant Varieties Act Cap 326.

Previously this blogger highlighted the recently adopted ARIPO Arusha Protocol and the draft SADC Protocol which are both modelled around UPOV 1991 standards. In this connection, the entering into force of UPOV 1991 in Kenya is a significant development for both plant breeders’ rights as well as farmers’ rights.

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Proposed Amendments to Seeds and Plants Varieties Act

KEPHIS Seeds and Plant Varieties Amendment Act Bill 2015

Article 11 of the Constitution of Kenya recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation and includes science and indigenous technologies and intellectual property (IP) rights of the people of Kenya within the scope of elements of culture that are recognised. The Constitution goes further and states in Article 11(3) (b) as follows:

“Parliament shall enact legislation to recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya”

It is this constitutional imperative that has resulted in the recently proposed amendments to the Seeds and Plant Varieties Act (Chapter 326 Laws of Kenya). A copy of the Seeds and Plant Varieties Amendment Bill, 2015 is available here.

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Jurisdiction is Everything: Time to Merge Tribunals for Copyright, Industrial Property, Seed and Plant Varieties

tribunal judiciary kenya cms-image-000005230

As readers may know, a government taskforce had earlier recommended the merger of the three intellectual property (IP) offices dealing with copyright, industrial property and anti-counterfeit matters. The implementation of these recommendations appears to have stalled with no progress made to-date. In addition to the IP offices, there is also the matter of the various IP dispute resolution bodies created under the various IP laws: the Industrial  Property  Act establishes the Industrial  Property  Tribunal, the Copyright Act establishes the Competent Authority (akin to a Copyright Tribunal), the Anti-Counterfeit Act  establishes the Anti-Counterfeit Agency and the Seeds and Plant Varieties Act establishes the Seeds and Plant Tribunal.

Recently, the Judiciary Working Committee on Transition and Restructuring of Tribunals developed a Draft Tribunal Bill 2015 to help domicile all tribunals under the Judiciary. This is an important step that could benefit IP owners and users in the quick and expert settlement of various IP-related disputes.

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