The Protection of Traditional Knowledge in South Africa

South Africa has been examining the legal protection of Traditional Knowledge. The South African Intellectual Property Amendment Laws Bill (2008) is an attempt to protect Traditional Knowledge (TK), an area particularly abundant on the African continent and one which has been vulnerable to misappropriation.  The Bill has been widely criticised for following a traditional intellectual property framework. 

Rather than grappling with TK as something very unique and not akin to intellectual property it follows the ‘square peg in a round hole’ model drawing on traditional principles of intellectual property and trying to force TK to fit within them.  The World Intellectual Property Organisation TK developing instrument has with the influence of the African Group too some degree avoided this (see WIPO/GRTKF/IC/6/12 submission by the African Group).

A preferred model would have followed the enlightened Swakopmund  Protocol adopted by the African Regional Intellectual Property Organisation (ARIPO) which does not use the term’ indigenous’ but refers to the TK of local and traditional communities and includes principles of custodianship, guardianship and collective cultural ownership.

One key area which the South African Bill does not address is medicinal knowledge an area where misappropriation and bio-piracy has occurred. One example of misappropriation from an indigenous group in South Africa is the well documented Hoodia plant patent (P57), a patent utilising the appetite suppressant nature of the plant. The San people, an indigenous African peoples of the Kalahari used the Hoodia plant to suppress hunger on long journeys.  The TK in relation to the plant was invested in the group. The San people were not asked for their consent and initially they did not benefit from the commodification of their plant however eventually a benefit-sharing agreement was set up although not totally without criticism (for more info here).  

The Convention on Biodiversity (CBD) invests sovereignty over biological resources to the State, Article 8(j) require States to ‘respect, preserve and maintain the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.’  The 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 2012 also provides for the fair and equitable sharing of benefits of TK associated with genetic resources.

Free Prior Informed Consent (FPIC) and access and benefit sharing (ABS) in relation to indigenous peoples are important principles. FPIC permeates the 2007 United Nations Declaration on Indigenous Peoples Rights and is evident in articles 11.2, 19, 28, 32.2 and effective redress for breach of the right is contained in 11.2, 28.1 and 32.1.

As far as the writer is aware the Bill has not progressed to the Statute stage. 

Written by Fiona Batt.