Protecting Ghana’s intellectual property rights in <i>kente</i> textiles: the case for Geographical Indications

Michelle Okyere is a Ghanaian-qualified lawyer with the Energy and Infrastructure team at Bentsi-Enchill, Letsa and Ankomah specializing in the commercial, energy, natural resources, infrastructure and intellectual property law. She was awarded her LLM from Nottingham Trent University in 2020 and her LLM dissertation was supervised by Associate Professor Dr Denoncourt. Dr Janice Denoncourt (BA McGill, LLB West. Aust., LLM Murdoch, LLM Bournemouth, PhD Nottingham, SFHEA, Solicitor England and Wales, Australian Trade Mark Attorney) is an Associate Professor at Nottingham Law School in the UK. This article The commercial diversification of Ghana’s traditional and unique kente cloth has resulted in its economic misappropriation in recent times. Lower quality kente textiles are being marketed and sold in other countries as originals. Further, kente cloth is in danger of being viewed as a generic African fabric, instead of being revered as the embodiment of the cultural history of the Ghanaian Ashanti and Ewe communities. Increasing threats to Ghana’s kente textile have intensified the need for its urgent defensive intellectual property (IP) protection. While Ghana’s Copyright Act, 2005 (Act 690) protects the kente styles and designs from being copied, it can neither address the problem of third parties producing kente imitations for sale, nor the cultural misappropriation of Ghana’s textile tradition. Additionally, the world’s largest free trade agreement, the comprehensive African Continental Free Trade Agreement (AfCFTA), has the potential to further damage Ghana’s kente trade where it has no extensive IP protection. This article makes a case for why Geographical Indication (GI) protection should be an important part of a comprehensive IP strategy to protect Ghana’s kente. From a global perspective, the African Union (AU) and European Union (EU) agreed to enhance cooperation through commitment to an AU-EU Continental strategy for Geographical Indications in Africa with an action plan to improve Africa’s GI systems. Notably, the action plan identifies Ghana’s kente as having GI potential. This article argues that supportive pan-African, regional and national GI policies are needed to link people, places and products, and calls for the enforcement of Ghana’s Geographical Indications Act to preserve Ghana’s traditional kente from wider misappropriation. The Republic of Ghana recognizes the importance of the development of a system of Geographical Indications (GI) protection, a type of intellectual property right (IPR), for its food and non-food products.A benefit of developing GI protection in Ghana would be the promotion of sustainable rural development and trade in its traditional products on the local and international markets. One Ghanaian non-food traditional product that requires IPR protection is the kente textile. Kenteconsists of colourful, handwoven strips of fabric, combined by Ghanaian weavers in certain ethnic groups and communities.1 Its colours and unique designs have made it the best known of all Ghanaian, and perhaps even all African textiles.2 Although the origin and meaning of kente is the subject of an ongoing debate in Ghana, it is widely accepted that kente is the characteristic of the Akan and Ewe communities. 3 This article studies how kente could be registered as a Ghanaian GI to support its economic importance and protection from third-party misappropriation in view of the AU–EU Continental Strategy for Geographical Indications in Africa.4 What is kente? For those unfamiliar with this textile, it is a literal and figurative fabric of Ghana’s cultural heritage dating back over 300 years, which embodies the history of specific Ghanaian communities.5 Every design and colour has a distinct name and a meaning that is characteristic of the community in which it is produced.6 Set out below are images which depict examples of the Ghanaian kente cloth. Asante kente is locally produced by generations of the Asante community located in the Ashanti region of Ghana. The design depicted in Fig. 1 is known as ‘Fa hia kotwere Agyeman’, which means ‘seek help from Agyeman’. It is a symbol of hope, faith, sharing and benevolence, because it alludes to the importance of friendship and community.7 Asante kente. Credit: ejisubesease.org Kente from another culturally significant Ghanaian group is depicted in Fig. 2. Ewe kente. Credit: IamFate, Opera News Ghana This type of kente is produced by the Ewe community located in the South-Easternpart of Ghana and is referred to as Adanuvo. The figurative designs in the form of animals, human figures, flowers, trees and household chattels differentiate it from the Asante kente and represent the way of life of the Ewe people. 24 small squares surround each symbol in the cloth. These squares depict the number of days it took the Ewe ancestors to elude King Agorkoli at Notsie in Togo and settle in Ketu in the Volta Region of Ghana.8 Both the Asante and Ewe kente cloth are deeply connected to Ghana’s people and land. Kente has attained a reputation as a quality woven textile cloth, for which consumers are willing to pay a premium price, and this premium must be preserved.9 Kente’s quality is attributed to the techniques used in its production. For example, the double-weave technique used by the Ewe communities creates a thicker and heavier quality kente cloth peculiar to the Ewe community.10 In 1994, exports of kente and other Ghanaian traditional textiles contributed approximately USD 179.7 million to Ghana’s gross domestic product (GDP).11 However, according to the Ghana Investment Promotion Centre (GIPC), the upsurge in mass production and copying of kente and other traditional textiles by countries such as the People’s Republic of China (PRC) has resulted in a consistent annual decline of the contribution of the textile industry to Ghana’s GDP.12 By 2011, the revenue from Ghana’s textile industry had reduced to about USD 53.5 million, which is approximately 30 per cent less as compared to 1994.13 Due to the constant exploitation and imitation of kente both in Africa and beyond, Ghana and the local kente producers have not been able to achieve the maximum economic benefit from the sale of the textile. Also, on the international market, kente is not being granted due recognition as a product of uniquely Ghanaian origin and quality.14 The downgrading of kente, amongst other Traditional Cultural Expressions (TCEs), also known as ‘expressions of folklore’,15 such as Adinkra symbols and Kweku Ananse stories, has encouraged Ghanaian appeals for its preservation and protection on national, regional and international levels.16 At the national level, the National Folklore Board of Ghana17 has been raising awareness for the promotion of legal protection for Ghana's folklore, including kente.18 The government of Ghana has also instituted plans to establish a Kente Museum in the Ashanti Region for the preservation of the Asante kente.19 According to the immediate past Minister of Tourism, Arts and Culture, Mrs Barbara Oteng-Gyasi, ‘the government would invest heavily in the promotion of the kente textile just like other local products to prop up the tourism industry’.20 At the regional and international levels, the AU in collaboration with the EU, the African Intellectual Property Organisation (OAPI), the African Regional Intellectual Property Organisation (ARIPO) and other regional economic communities (RECs) have recognized the need for the development of IPRs, specifically, GIs for food and non-food products to promote sustainable rural development and promote traditional products on local and international markets.21 Such recognition has led to the establishment of a policy framework for a continental strategy for GIs in Africa (the ‘AU–EU Continental Strategy’) and an action plan to be implemented from 2018 to 2023. The main aim of the continental strategy is to develop sound GI promotion and protection strategies through institutional capacity building, public policies, support programmes, strengthened legal and institutional GI frameworks, efficient coordination and partnerships and demonstrative pilots in Africa, by 2023.22 Significantly, the AU–EU Continental Strategy identifies Ghana’s kente as a GI or potential GI.23 have been in Ghana to on Ghana's Copyright Act, 2005 (Act 690) to protect the IPR in kente, it has been agreed because of the unique of kente as a nor is it able protect One of the main of is that type of IPR protection could be in a The the protection of kente it be to have protection to and by the Copyright GIs have been as the best legal means for kente as a a of the Trade Ghana a GI known as the Geographical Indications Act, (Act in with the of Intellectual Property Agreement The out the for the of an as a Ghanaian GI and from its It that an for the of a GI must be made at the Property of the in Although the Act that is not a for a GI to be in Ghana, creates the that the is the where a GI the registered GI about the quality or other characteristic of the that it to its of The kente as an GI to be the is or no being made to the to a comprehensive IPR protection of Ghana’s kente. This is from the at the Law in as as with and at the Ghana Folklore is on the subject of the of GIs to protect the IPR in kente for and cultural This to how kente could be registered as a GI to promote its economic importance and protect it from third-party misappropriation in of the AU–EU Continental The AU–EU Continental Strategy was by the of and in collaboration with the and other and was in as a specific of the AU–EU in It is to to the for sustainable and rural The continental strategy also part of the commitment to the as as the AU In to the of the AU–EU Continental the which from the European and up an action plan for 2020 on (the The for the continental of the that the continental strategy be cooperation on and sustainable through development of an Africa GI an Africa GI and support for GI an African GI has been to GI in Additionally, in an African GI known as was also and implemented by the and the European Union Intellectual Property for an of The aim of this was to and Intellectual Property Africa, in with international and European best and in support of the African Continental Free Trade and the African The AU–EU Continental Strategy specific and for African GI such as kente. It the cloth from and as a non-food which can be by The the for GI of kente by the kente as as the of the Copyright Act in the IPR in kente. GIs have the potential to be used to protect to that the producers and communities of the economic for products by to misappropriation and rural development of the communities. In protection should on the economic of the countries in which communities are a over the kente has the of cultural and commercial misappropriation. as a Ghanaian GI is the of IPR system protection and be in in the The main danger kente is the economic misappropriation of the cloth by third The of Ghana’s kente cloth to the of kente all over the has in and products being in other countries such as the and being sold on international as These imitation have been as being woven with instead of handwoven with and not the quality and of the kente cloth produced by the Asante and Ewe The on kente is attributed to the quality of the cloth, as its as a national and cultural symbol for is by on such as as depicted in Fig. and Asante kente and for a traditional Credit: Credit: designs and The of of products and amongst products are for sale on The sale of kente imitations has reduced the and quality of the Ghanaian kente products are for sale the kente, to economic for the local kente Ghana's and trade exports are kente is no being revered as the symbol and embodiment of the history of the Ghanaian as a The of traditional and of the cloth in recent has led to the of kente as a type of African textile in of the Ghanaian traditional textile cloth that it the that the kente unique that its with the history and of Ghana’s Asante and Ewe are being and its cultural heritage by third-party The mass and quality of Ghanaian kente the need for its protection and preservation from third-party cultural and commercial misappropriation. of the cloth is also to kente imitations from the market, on the trade of traditional textiles in Ghana. textile trade have a on Ghana's and trade the of the Although in Ghana the in kente have been GIs are being by and other international and regional as a and comprehensive form of protection for For an IPR system to be it must a and protection to the protection that the has the right to from defensive protection to the of that third parties not or IP in the In Ghana, the Copyright Act used to protect the IPR in was according to the for the of Folklore It the to the of or her by third by the of the from being protects the of an and not the By not the of a was an form of protection for kente and the other because it for further of and Although the Copyright Act protects kente designs from being copied, which a protection to kente, are in its protection. The Act has not third parties from producing kente imitations for sale and as such not a defensive IPR protection. In other the right specific to from kente the are not from the of by third to the of has been in countries to that a of the intellectual and and has not been from another In it to which the It has been that like kente, not be as because are traditional in and are Additionally, for protection, where an or can be significant of kente is that the be due to the that kente is a product that the of an community or because it have been in the and the is other traditional IPRs, such as and are also not to protect kente because of and Trade are to protect kente because trade are by an or instead of by a is a type of trade Although the can be by of a are to protect a like kente. This is the that a the of the and quality of the product by the it not on the origin of the that is registered as a The and in and the other to protect kente the need for a comprehensive system of protection for the kente cloth. in her article on that the protection for to protect be Geographical Indication or a type of protection through has been a at the that GIs be the best to protect textile such as or Ghana’s The AU–EU Continental Strategy that the cloth from and as a GI it with protection and GI is from all the other traditional because of its It is a or symbol are by all the people in the community in which the product GIs and that the reputation to all the producers of the This makes to protect kente because the traditional kente designs the of an community over generations as the in its reputation should be by all the producers in that a GI is a which to the quality of a product and has the potential of as a product products from a and products of GI protection could help support and which in trade promotion of the instead of GI protection for kente, Ghanaian could be to for the protection of the cloth. However, it is the that is not to protect such as kente, because the of protects the and cultural in This view is by the in its on the National with The of the which the of It is to protection for by as by its is not to protect Copyright protects that have an part of history and to the public in Ghana has a GI known as the has the and protection of GIs in Ghana. The kente as a non-food product or which could be GI protection the the of kente as a GI is the in developing kente as a capacity and need to be for is no action plan in in Ghana for the of the this article as to the that could be by kente such as the Ghana government and the Asante and Ewe communities to kente as a Ghanaian The the of protection as the Agreement to registered as a kente be from third-party misappropriation where such misappropriation would the public as to the origin of the cloth or where the misappropriation in has been the for the of Property as of to in or commercial The in the that the of the the is to in and commercial that to Such which are to with another product or on the as as that a about a product which to the on such to the It also which the and reputation with the have been in and to 24 of the to the GI protection which for and to other products, including a third a GI even is no as to the origin of the and not to no has been It would be for the protection of Ghana’s kente and other international textile products the of GI protection was to However, this is the of GI protection should be to protect kente from third-party misappropriation. kente as a Ghanaian GI could an important in the cultural awareness of the cloth as a uniquely Ghanaian textile. in kente has a reputation as a quality woven textile cloth, for which consumers are willing to pay a premium as a GI would also the to its by third The in the unique of kente the it for GI protection. for GI protection where is a link the and its of Such a link be or or be natural or human characteristic in the of link is a which that the of the is to certain unique of its on the other creates the that the the and its origin is on the and with GIs to protect However, GIs have been used to protect products, such as textiles and other Kente as a because it the of a and However, kente not to an and is being and Its techniques are also and of distinct designs and which are peculiar to the Ghanaian communities that Although also have cloth known as the and kente unique to the people of importance to can be from its as a symbol for the ethnic groups and communities in Ghana It is a culturally significant traditional cloth, which a of national in and a of and even in have no ethnic to The characteristic link kente and its communities is makes kente for GI protection to of the The characteristic be further in by a of Asante kente by way of The Asante kente is deeply with the history of the Asante community in the Ashanti region of Ghana. The the of all the kente weavers in the Asante kente as a of woven cloth with a It is a of the of the Ashanti people, from the of the Asante through to the development of the trade up to It is an Akan and cloth which was in of Asante kente is by strips of or woven on a locally known as and to as depicted in Fig. Kente at on the traditional Credit: The Asante kente cloth designs and which have and on the The design are and by the weavers from including important and of designs and are in and means in the It the need for in and of the Asante Credit: from the attributed to the in the Asante the colours used are also or It is a symbol of that are and for and and and It with the of an as as the that is used in certain for and the of the Kente as a and is for GI protection because of its with the and of the Asante and Ewe communities. The colours and designs the history and way of life of the communities. The and techniques used to the cloth form part of the of the people such that it is to kente cloth communities and be an of unique as a people. This policy for the GI of kente on the AU–EU Continental Strategy and the The continental strategy the importance of of public at the national and regional for the of support system producers in a to the GI For in the of in collaboration with the and the Centre for the of a for the GI of and in the The of this by the on quality to origin to back the GI and international recognition of In the it would be for the government of Ghana and other regional such as the and the to be in the GI of kente. The main the of national and regional is that GI is to be and The of the unique and designs of the kente in the communities also requires which the kente communities not be able to For it be for the Asante and Ewe communities to and groups or to for the protection of kente designs the However, the of a national or regional and such a for communities to the GI for the protection of kente At the national level, could be a or to with the kente groups for the of the kente in Ghana, have been to up a National Kente Board to in the and protection of the kente it is the Board could also be used as a for the of the Asante kente The of the and regional would the and of kente as a registered Ghanaian The in the GI according to the AU–EU Continental is the of the product at the One of the of kente as a GI is to trade development in Ghana's textile that consumers are willing to pay premium for products because of its with For in the EU, consumers are willing to pay and per cent premium for at the of the of The of a kente GI trade in Ghana is on consumers the that the link the product and the region places on the consumers must that a GI in Asante or Ewe kente means that product with that or is a product with specific which be in other is the need to an quality to and that the quality of kente as in the GI not with The AU–EU Continental Strategy that local producers up a of a plan and other for the kente Also, the AU is being encouraged to on to on the GIs and to for the GIs in the all other traditional IP GI protection is a GI be in not in the It to not protect a GI in the of origin also According to the AU–EU Continental African countries are encouraged to international protection to protection of a GI also to the of the of that a generic The Agreement that a GI must be national it can be not such an international system for GI protection and in the of have been a GI can be by GI protection in other Such protection be through of the of protection of GIs in that countries to protect each GIs a is the the European Union and other countries such as and address the international protection of This be through the which a of of origin in all the other through an international It also be through the Agreement the of and the to the (the a GI that has been as a or in the of origin be through the international system for trade by an international with the in have registered GIs on the national level, are registered at the international through the Ghana is not a of the Agreement and is not an is a of the kente as a GI can be registered through the where it is registered on the national as a or kente can be registered as a GI through protection in the in which the GI protection is or through with other In this have how the commercial diversification of Ghana’s traditional and unique kente cloth has resulted in its economic misappropriation quality kente textiles are being marketed and sold by people in countries other Ghana as kente. In that kente cloth being viewed as a African fabric, revered as the embodiment of the history of the Ashanti and Ewe communities of Ghana. Further, reduced for the local kente industry Ghana’s revenue from its local textile Such threats to the kente textile have resulted in the urgent need for the defensive protection of the kente to be In the has been to a system for the protection of such as kente because of unique Its main aim is to a system to the traditional IP system and it to protect such years, it is and a system of protection In the of a this article that the best system to protect kente is to the to the the AU–EU Continental in to the protection by Ghana’s Copyright While Ghana’s Copyright Act legal protection for certain of kente designs by the of kente, combined with GI protection, a of protection protect kente from all of third-party misappropriation. In kente as a GI enhance in trade in Africa and beyond, its reputation for quality textile and further support the local kente textile the and institutional and to kente as a GI for the communities and Ghana as a as a in the to the of kente as a the support the establishment of the National Kente Board to the action by the kente producing The Board could the of kente as a Ghanaian GI as as with regional and international such as the and

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