The Protection of Indigenous Traditional Knowledge through the Intellectual Property System and the 2008 South African Intellectual Property Law Amendment Bill

• Author: Amos Saurombe
• Position: North West University, South Africa Amos. Saurombe@nwu. ac.za
• Pages: 196-202

This paper was originally published in Kierkegaard, Sylvia (2008) The Dynamics of Trade.pp.214-222.

Page 196

1. Introduction

The protection of Traditional Knowledge using the intellectual property regime has been a subject of much debate at national, regional and international circles. The South African Department of Trade and industry ¹ through the Bill has tried to adopt the intellectual property style of traditional knowledge protection. The Bill advocates for equal protection across the board, from trademarks, patents, copyright, designs, geographical indications and Traditional Knowledge. The Bill seeks national, regional and international jurisdictions to respect the intellectual property systems that respect Traditional Knowledge and folklore. This paper will demonstrate that the intellectual property system is not the only or best system to protect traditional knowledge. Furthermore, the Bill promotes the use of traditional knowledge across all government departments. However, this paper focuses on the protection that the Bill offers to traditional Knowledge.

1. 1 Problem statement

From the onset, it is important to realise that intellectual property law does not offer protection to traditional knowledge. Traditional knowledge is not considered as an intellectual property protection². As such, the patentability of products or processes derived from traditional Knowledge poses a number of critical questions associated with compensation for Traditional Knowledge and protection against future uncompensated exchange of the knowledge. In South Africa, the current intellectual property system allows individuals to protect their inventions and intellectual property rights, but does not allow communities to collectively protect their traditional knowledge in all areas. In those areas where collective intellectual property registration is possible, communities are not exercising their rights.

Internationally, Article 27 (1) of the Trade Related Aspects of Intellectual Property³ Agreement, in its provisions on what is patentable subject matter glaringly excludes any possibility of patenting Traditional Knowledge. This is especially so when one considers the requirements of novelty, inventive step and potential for industrial application. Article 27 (2) lays down circumstances under which inventions maybe excluded from patentability as for instance the necessity to maintain public order or morality. On the question of the inclusion of Page 197 traditional knowledge, requirements such as disclosure of origin and so forth, would greatly conflict with the TRIPS Agreement by creating another substantive condition on patentability beyond those already provided by the latter.

The aim of this paper is to establish the difficult task before the drafters, legislators and other stakeholders in the making of this law. The challenge is to create legislation that seeks traditional knowledge protection at the highest level notwithstanding the already existing criteria that protects other forms of intellectual property. Furthermore, the definition of traditional knowledge is a disputed matter; hence the difficulty of setting out the parameters and boundaries of what to include in this Bill as all that fall under traditional knowledge. Ultimately, the Bill has to take heed of all national interests, balance them with the regional trends and most importantly seek compliance and compatibility with world legal bodies like the WIPO, WTO and TRIPS.

2. Background

In November 2004, the Indigenous Knowledge Systems (IKS) policy was adopted resulting from efforts to create a guide for the recognition, understanding, integration and promotion of South Africa's wealth of Indigenous Knowledge resources. The Bill emanates from the policy and seeks to protect indigenous knowledge, holders of such knowledge against exploitation. This was meant to ensure that communities receive fair and sustainable recognition and where appropriate, financial remuneration for the use of this knowledge be provided. The framework of the Bill will describe how the various forms of the South African intellectual property system of trademarks, geographic indications, patents, designs and copyright can be used to protect traditional knowledge systems. The international intellectual property system has shaped the national and regional policies and laws.

2. 1 International Practice in Protecting Traditional knowledge

The debate on protection of indigenous knowledge is topical especially for developing and developed countries. Intergovernmental organisations, such as UNESCO, WIPO, WTO, UNEP and UNCTAD, have opened debates on the possible protection of indigenous knowledge using the intellectual property system. Led largely by debate from developing nations, UNESCO formulated the Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions and this has been adopted recently by the member states.

Unfortunately, negotiations at the WTO around amendments to the TRIPS Agreement on Traditional Knowledge have collapsed. Article 27 (3) (b) of the TRIPS empowers member states to consider protection of Traditional Knowledge using intellectual property systems. During discussions on the review of the TRIPS agreement at Dohar, Qatar, developing countries proposed amendments of Article 27 (3) (b) to cater for the protection of the use of Traditional Knowledge that leads to an invention. Developed nations are opposed to this, leading to the collapse of the negotiations. The WIPO has established an Intergovernmental Committee (IGC) to initiate discussions on the protection of Traditional Knowledge, genetic and biological resources and folklore using intellectual property systems. Although treaties can protect these issues under discussion, many developed nations are opposed to formulation of such treaties and negotiations are on the verge of collapse.

The United Nations Environment Programme (UNEP), which is the custodian of the convention on Biological Biodiversity (CBD), has requested WIPO, WTO and FAO to consider protection and benefiting of local communities that have contributed to an invention or intellectual property development. WIPO convened the ICG mentioned above and UNCTAD has voiced support, emphasising the economic value of Traditional Knowledge systems. Regional organisations such as Asia and the Pacific and the African Union have started to issue treaties and conventions regarding the regulation of Traditional Knowledge. Member states of these regions are busy formulating legislation.

2. 2 The South African Scenario

The protection of Indigenous Knowledge in South Africa cannot ignore the international and regional trends, but protection within the South African context is vital and achievable. The Bill proposes protection under the intellectual property system, databases, sui generis laws and registers. The Dti initiated amendments to the Patents Act 1978, now the Patents Amendment Act 2005. The Patents Amendment Act 2005 is being used at the WTO and to a certain extent at WIPO as model legislation in this regard. Trademarks, copyright, designs and geographical indications are earmarked to provide similar protection to traditional knowledge.

The Dti has approached cabinet and the Portfolio Committee for trade and industry for approval and initial...