Intellectual property law protection for traditional knowledge/indigenous knowledge systems in Southern Africa and selected Asian jurisdictions- A view from developing and least developing countries.

Author: Amos Saurombe

ABSTRACT

The discussion of Traditional Knowledge as a subject of intellectual property protection continues to take centre stage at different fora. It is particularly relevant for developing and least developing countries whose Traditional Knowledge mechanisms continue to be exploited without accruing any benefits. The most convenient way to protect Traditional Knowledge is to fit it into the existing intellectual property system. This is difficult to realise as this paper will show. The situation in South Africa is not different. The debate took center stage in December 2007 when the cabinet approved a policy framework entitled ‘The Protection of Traditional Knowledge through the Intellectual Property System’ and a Bill has been drafted that will amend the South African intellectual property laws to make provision for the protection of traditional knowledge. Part one of this paper will deal with traditional knowledge in general. The South African and Malawian experiences form the second component. The third part deals with Asian examples.

Introduction

A universally accepted definition for traditional knowledge has not been found. This is because traditional knowledge may be perceived very differently by indigenous communities, governments, lawyers and international organisations. Despite the difficulty in finding a comprehensive definition, one thing is certain, traditional knowledge has been placed on the international agenda and its entitlement to protection against misappropriation has been recognized. Various methods of protection have been proposed with no clear choice that meets the desired results. The World intellectual Property organization1 is currently using the following definition:

The term traditional knowledge refers to the content or substance of knowledge resulting from intellectual activity in a traditional context, and includes the know-how, skills, innovations, practices and learning that form part of traditional knowledge systems and knowledge embodying traditional lifestyles of indigenous and local communities, or contained in codified knowledge systems passed between generations. It is not limited to any specific technical field and may include agricultural, environmental and medicinal knowledge, and knowledge associated with genetic resources.

International efforts for Protection of traditional knowledge

The debate on protection of indigenous knowledge is topical especially for developing and developed countries. Intergovernmental organizations such as UNESCO, WIPO, WTO, UNEP and UNCTAD2 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 Trade related Aspects of Intellectual Property law Agreement3 on traditional knowledge have collapsed. Article 27 (3) (b) of the TRIPs Agreement 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. TRIPs has undone everything that the Convention on Biological Diversity (CBD) has sought to provide. TRIPS does not allow for the full exercise of national sovereignty over biodiversity because it obliges countries to enact intellectual property rights on plant varieties; it does not allow communities to seek a share of benefits obtained from patented biodiversity since there is no provision requiring patentees to disclose the country of origin of any biological materials; it does not require patentees to fulfill access obligation towards genetic resources, it therefore condones and facilitates biopiracy4. 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, emphasizing 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.

The General Assembly of the United Nations adopted the Declaration on the Rights of indigenous Peoples on 13 September 2007 and this constitutes a seminal document in the field of traditional Knowledge. Article 31 of the declaration states that:
‘Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds medicines, knowledge of the properties of fauna and flora, oral traditions, literature and designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions. In conjunction with indigenous peoples, states shall take effective measures to recognize and protect the exercise of these rights’
Article 27 (3) (b) of TRIPs gives powers to member states to consider protection of traditional knowledge using existing intellectual property systems, as well as geographical indications, community-based rights and sui generis forms of protection. With the importance of the preservation of traditional knowledge recognized on a global scale, there are a few questions that need some considerations: how should traditional knowledge be protected? What do indigenous communities wish to protect and what is the best method of achieving this?

The above questions can be answered only once the objectives and needs of indigenous communities have been ascertained. It may be that these communities wish to benefit from the commercialization of their cultural expressions. They would then require protection in order to be compensated for the use of their knowledge. Others may wish to prevent the unauthorised use of their traditional knowledge and would require the means to control and prevent the use by others who do not form part of the community. Communities may require the recordal of their traditional knowledge in written form, which may require registration.
The most convenient way to protect traditional knowledge is to fit it into an existing intellectual property system. According to Hoffman intellectual property can be thought of as the use or value of an idea, such as inventions, designs, literary and artistic works and symbols, names and performances5. Most forms of intellectual property protection, such as copyright trademark and patent law grant exclusive property rights to authors and artists in their creations. In the classic scheme of intellectual property, the granting of private rights provides incentives for creation and invention and thus promotes knowledge and culture. Hoffman further acknowledges the limits to the rights with respect to the idea, namely that these rights are invariably focused on the physical manifestation of the idea. There is in exclusive right to the mere abstract idea. Indigenous people worldwide have the added difficulty in asserting property claims because national legislation and the courts do not recognize collective rights in cultural property. The traditional systems of intellectual property protection do not suit protection of traditional knowledge, since these are individualistic systems whereas traditional knowledge is held by communities. In addition, there is a further complication where different indigenous communities in a country, or even in different countries, have the same or similar traditional knowledge. Furthermore, the protection provided by traditional systems of intellectual property protection has a limited time-frame, whereas traditional knowledge is held in perpetuity.

On the other hand the WTO has limited influence on the protection of indigenous knowledge. It can only enforce compliance with the threat of trade sanctions. In the case of protecting indigenous knowledge, most treaties are non binding. Every clause that deals with benefit sharing is contested and refused. The ILO convention No. 169 which says a lot about legal standards for indigenous rights fail to protect the intellectual property rights of indigenous people. Whereas the UN Declaration on the rights of intellectual property recognises the rights, it will be a non-binding document which cannot be legally enforced. In the International Undertaking on Plant Genetic Resources (IUPGR), developed nations have successfully blocked an international recognition on Farmers Rights for the last 12 years. They also contest any notion of paying for the use of traditional germ plasm in a benefit sharing arrangement. The CBD which has attempted to push through interests of Indigenous Communities has been thwarted by the American refusal to rectify it and accept its conditions. In the CBD, the most contentious and so far unaccepted Article is Article 16 which deals with transferring technology as part of the deal to use the indigenous knowledge and biodiversity of local communities in different countries.

Finally, in terms of patent protection, there is a restricted interpretation of what is patentable, namely that the invention is required to be novel, inventive and have industrial applicability. Traditional knowledge is something that develops incrementally over time, is informal and is common knowledge to the community. Nevertheless, Australia, Canada, New Zealand and Portugal have used their existing intellectual property systems to protect traditional knowledge.

Potential Sui generis protection models6

In an effort to extend protection to traditional knowledge, various countries have adopted existing IP systems to the needs of traditional knowledge holders through sui generis measures. These take different forms, for example, the Chinese have a team of patent examiners specializing in traditional Chinese medicine. South African is seeking to join several countries like Peru, Costa Rica, Portugal and Thailand in adopting sui generis laws. The approaches available in the literature can be broadly divided into Defensive and Positive groupings. While positive protection would refer to the acquisition by the TK holder of an IPR to such as a patent, defensive protection refers to provisions adopted in the law or by a regulatory authority to prevent IPR claims to knowledge, a cultural expression or a product being granted to unauthorized persons or organisations. The distinction between the two is not always clear in the sense that positive mechanisms might actually give rise to defensive effects.

Sui generis forms of protection have also been used in Tunisia, Panama, Philippines, and Pacific regional systems. The USA has adopted special intellectual property regimes to protect the collective rights of indigenous communities. The USA has enacted the Arts and Crafts Act of 1990 that protects the arts and crafts of Native Americans. The decision as to which form of protection to take is not an easy one to make. WIPO has been grappling with this decision for some time. WIPO’s Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional knowledge and Folk Law has been working since 2001 to find a suitable system to protect the traditional knowledge of indigenous people. It is currently considering the protection of traditional knowledge through two complementary processes. Firstly, the consideration of an agreed list of issues concerning the protection of traditional knowledge, and secondly consideration of a draft set of revised objectives and principles for the protection of traditional knowledge are as follows’

• Definition of traditional knowledge that should be protected

• Who should benefit from any such protection; who holds the rights to protect traditional knowledge?
• What objective is sought to be achieved through according intellectual protection to such knowledge (economic, social, moral rights)?
• What forms of behavior in relation to the protectable traditional knowledge should be considered unacceptable/illegal?
• Should there be any exceptions or limitations to rights attaching to protectable traditional knowledge; for how long should protection be accorded?
• To what extent do existing intellectual property rights already afford protection;
• What gaps need to be filled?
• What sanctions or penalties should apply to dealings considered being unacceptable or illegal?
• Which issues should be dealt with internationally and which nationally, or what divisions should be made between intellectual regulation and national regulation?
• How should foreign rights holders or beneficiaries be treated?

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.

In 2004, the Cabinet approved the indigenous knowledge systems policy. A number of different government departments were stakeholders in the development of this policy. These included the Department of Arts and Culture (DESAC), the Department of Trade and Industry (Dti) Department of Health (DOH) and the Department of Science and Technology (DST). The policy identified four main indigenous knowledge system policy drivers:

• The affirmation of African culture values in the face of globalization- a clear imperative given the need to promote a positive African identity.

• Practical measures for the development of services provided by traditional knowledge holders and practitioners, with a particular focus on traditional medicine, but also including areas such as agriculture, indigenous languages and folk lore.
• Underpinning the contribution of indigenous knowledge to the economy- the role of indigenous knowledge in employment and wealth creation.
• Interfaces with other knowledge systems, for example when indigenous knowledge is used together with modern bio-technology in pharmaceutical and other sectors to increase the rate of innovation.

This policy provided a broad basis for recognition, understanding, integration and promotion of indigenous knowledge resources within South Africa.

The dti has approached cabinet and the Portfolio Committee for trade and industry for approval and initial briefing on the policy and the Bill were published on the 5th of May 2008 in the Government Gazette no. 31026 for public consultation. The closing date for comments was 15 June 20087. The public consultations took the form of bringing together students, academic, traditional leaders, and indigenous communities. One discussion on the deliberation at this consultation session is captured in this paper.

Domains of Intellectual Property, extending protection to traditional knowledge

The following discussion focuses on the extent the Bill has managed to use the Intellectual property system in its current form with minimum changes made.

Trade Marks

The Bill invites communities that own the original traditional knowledge trademarks to license such a trademark. They need to comply with all licensing requirements for example prior informed consent. The communities must negotiate for a royalty fee and must preferably form an organisation to manage these types of traditional knowledge-trademarks. From a business perspective, trademarks may be used in all sectors. International markets for local products will be sought and protection in those jurisdictions can be obtained. Small businesses can prepare themselves for export markets by securing protection of trademarks/geographical indications, e.g. “Rooibos/honeybush tea” that has both a reputable domestic and international market. Traditional knowledge holders in the area of Trade Marks/geographical indications can also use cultural names or signs. These names may be registered under legislation protecting intellectual property type issues. Rooibos tea is a good example of a geographical indicator since it can only be grown in South Africa, Western Cape in the Cederberg Mountains. The registration of rooibos tea as a trademark in the USA resulted in the blockage of exports of rooibos tea from South Africa into the USA. The Dti is currently helping with the deregistration of this trademark. The government should move fast and declare rooibos tea a geographical indicator (GI). Trading partners should be approached to recognize the new GI.

Patents

Traditional communities have a lot to offer in this area. There are patents that are associated with cultural paintings of clay utensils and artistic works in skins, clothing and other textile material. In the agricultural sector, traditional communities also contribute in supplying their knowledge for inventions and traditional farming methods. Traditional communities have also given valuable contributions to the pharmaceutical sector. Two well known examples where traditional knowledge has been developed commercially are as follows; a number of South African communities have been using the Buchu plant to relieve stomach pains. The Khoi and San people have been using the Hoodia plants for suppressing thirst and hunger. The community worked with the CSIR and their knowledge led to an invention (P57) of the slim pill. Recently the European Patent Office (EPO) granted a patent based on this traditional knowledge. The CSIR and the Khoi/San have a benefit sharing agreement. The Patents Amendment Act of 2005 now regulates this regime. The Dti has identified the pharmaceutical industry as needing nourishment. By regulation of the use of the traditional knowledge systems these communities should benefit from the provisions of their knowledge to commercialisation partners.

Copyright

The Bill is seeking to strengthen copyright laws relating to folklore music. The folkloric music has to be owned by the community or the government for anonymous folklore. This will be realized by a drive to research and compile databases of folklore. The community and government can negotiate benefit-sharing agreement flowing from the use of this folklore.

Designs, Geographic indications and traditional knowledge

Similar approaches as indicated in the discussions on trademarks, patents and copyright will be adopted. Communities have to agree on how to manage paintings, designs and related artifacts.

To date certain legislative amendments have been enacted that will give effect to Article 27 (3) (b) of TRIPS. Protection of traditional knowledge holders from exploitation by commercial players can be achieved by ensuring that their traditional knowledge rights are protected and that agreements are entered into by themselves and the commercial partner that provide for equitable benefit sharing. One mechanism for regulation of benefits sharing is provided in the Department of Environmental Affairs and Tourism (DEAT) that initiated Environmental Management: Biodiversity Act 10 of 2004 and its regulations, which are still in draft form.

General shortcomings of the Bill

During the public hearings at the North West University8, the following issues were raised by Academics, traditional leaders, indigenous community representatives and students.

• The Bill was considered too bulky, covering too many areas of intellectual property. Other proposed separate bills for each and every of the following, patents, trademarks, copyright, designs, geographic indications and traditional knowledge.

• The role of the individual in the consultation process is not defined. The impact of individual suggestions towards the Bill could easily be ignored.
• The traditional communities did not understand the role of databases and ownership of such mechanisms.
• The registration processes still follows the first come first serve approach. This can be abused by those with resources and have access to the registration office.
• The position of community representatives is not clearly defined in the Act. Some prefer the use of traditional leadership but others have reservations. This has resulted because of the corrupt nature of some of these traditional leaders who may pursue selfish interest.
• Some Academics preferred a Bill that is more African oriented, with less of Western style of intellectual property type of protection.
• The Chiefs are concerned by the fast deteriorating and dissolving nature of the traditional community owing to the effects of urbanisation and migration.
• Some communities exist across two or more jurisdictions rendering the need to provide benefits under a South African initiative complex.
• Some traditional knowledge does not belong to a single community. Who is entitled to the benefits for such exploitation?
• Some stakeholder felt left out of the drafting of the Bill with the Chiefs feeling they are being marginalised.
• Some communities feel that they need and should be afforded other methods of protection other than the Bill.
• They prefer other forms of testing besides Western laboratory tests for traditional medicines.
• Traditional communities feel IKS protection is perpetual; there is no need to follow a renewal process that is cumbersome.
• The essence of geographical indication can be questioned in an environment that share common names and cultures.
• The Bill is silent on protection of traditional healing methods that are associated with taboos. They resist the influence of Western technology.
• Research on traditional foods is lacking in the Bill.
• The Bill is silent on resolution of disputes. It is highly likely that dispute will rise when communities and individuals fight for benefits. Provision of conciliation and arbitration according to the Arbitration Act of 1956 could help the advisory purpose of the council.
• The Bill must then thus indicate and state the terms of reference of the Council with regard to alternative dispute resolution.
• Mechanisms of dispute resolutions must accommodate both indigenous and Western conflict resolution mechanisms.
• Council membership has to be based on expertise. They should be chosen from Communities who possess traditional knowledge.

The Malawian Experience

The scope of protection of traditional knowledge in Malawi is still in its infancy. For the purpose of a comparative experience, the Malawian experience will not be discussed at the same level with the South African forms of protection. However it is important to mention that their attempt at protection points to the positive nature of developments in a country that is considered very poor. The constitution of Malawi9 gives rights that have a direct bearing on protection of traditional knowledge. The constitution recognizes the cultural and language rights10 Section 26 provides that;

“Every person shall have the right to use the language and to participate in the cultural life of his or her choice”11

Further, Section 28 provides that every person shall have the right to acquire property and in this context property includes both tangible and intangible assets. Subsection 2 to this section further provides that no person shall be arbitrarily deprived of property.

The copyright Act of Malawi12 makes no provision for the protection of folklore. This Act delineates the subject matter of copyright as copyright in the expressions of folklore that vests in perpetuity in the government on behalf and for the benefit of the people of Malawi13. Authorization of the use any use of expressions of folklore maybe either general or special and can be granted upon written application to the minister. The Malawian experience shows the extent of how current and existing legislation can be given an interpretation that favors the protection of traditional knowledge, but most importantly how crucial it is to keep the door open for future avenues of rights protection.

Perspectives from Asia

The countries of the Asia-Pacific region have a rich cultural heritage, including literature, arts and crafts, music, visual arts, ceremonies, architecture associated with particular sites, as well as forms of traditional knowledge related to forestry, medicines and medical practices, agriculture and conservation and sustainable use of biological diversity. There is concern at the widespread unfair exploitation of the cultural heritage of these nations for commercial and business interests. Important elements of traditional knowledge, art forms and folklore are being lost rapidly in the absence of a proper legal protection mechanism at national and international levels. The extent of the absence of protection at international level has already been discussed above.

Tribal people are being increasingly displaced by industry and development projects. Adivasi homelands have now become included in national parks and sanctuaries, resulting in the displacement of the people who lived there for hundreds of years14. Ethnic strife in many regions of Asia has threatened indigenous and tribal communities, destroying their habitat which is an essential element of the exercise, current and future existence of their traditional knowledge.

Earlier tribal areas were used in the name of development without their consent, for building dams, roads, canals, mining and hydro-electric projects. Increased awareness among the Adivasis who now demand their rights, together with sustained work by civil society, has improved the situation so that it is now mandatory to conduct a public hearing to hear the views of the people before a project can start, both in tribal and non tribal areas15.

The pharmaceutical industry in the Asia-Pacific region has not been spared. The Kava (Piper methysticum) a plant endemic to the region has been traditionally used to alleviate stress and anxiety. It has two known medicinal uses. These are asthma and tuberculosis. The recent commercialization of Kava highlights many of the potential benefits and risks involved in the marketing of species new to international consumers16. The entry of kava into western markets has led to an explosion in demand for the products made from it. This has placed unsustainable pressure on supply sources that previously only suffice the local use. Although local farmers are benefiting from price increases, the types of commercial relationships they arrange with international buyers might not be to their long-term advantage. The unregulated access to kava is resulting in the collection of immature kava, thus jeopardizing the quality of the medicinal product and depleting the resource base. Over exploitation retards the value of traditional medicines and knowledge that goes with it.

The scope of Traditional Knowledge protecting in India

The protection of traditional knowledge in India is a priority in both public and private sectors as shown by the summarized scope bellow;

• Protection by the Constitution of India

• Integration of the indigenous knowledge system in the mainstream health care
• Documentation of indigenous knowledge
• Sharing benefits for using IK
• National Legislation protecting IK
• Sui generis models for protecting IK

In India, the testing of traditional medicines has not been subjected to the Western methods. The Shastric (ancient Indian) system of testing and validation is different from the empirical, western method of validation of western science but is at least, if not more scientifically valid. The nuances of the preparation of herbal drugs are complex and the method of treatment is individually calibrated. The indigenous system of medicines in countries like India, China and others in Asia, is far more sophisticated than most cases of allopathic treatments.

Conclusion

Any efforts directed at protection of traditional knowledge will have to be mindful of the manifestations of intellectual property at national jurisdictions, regional (e.g. SADC, SACU and AU) as well as the international positions (e.g. WIPO, TRIPS and WTO).With proper domestic and international protection mechanisms traditional knowledge can become a niche and source of revenue for the least developed and developing countries.

References

1. Dutfield and Posey (1996): Beyond Intellectual Property, International Development Research Centre Ottawa

2. Graham Dutfield (1999): Protecting and Revitalizing Traditional Ecological Knowledge; Intellectual Property rights and community Knowledge Database in India. Perspectives on Intellectual Property. London: Sweet and Maxwell.
3. Graham Dutfield (2000): Intellectual Property Rights, Trade and Biodiversity; Seeds and Plant varieties. London .Earth scan Publication Ltd
4. Hoffman B.T. (2006): Art and Culture Heritage, law, policy and practice: Cambridge University Press
5. Mugabe John: Intellectual Property Protection and Traditional Knowledge: An Exploration in International Policy Discourse, available at the African Centre for Technological studies. Nairobi.Kenya
6. The Protection of Indigenous Traditional Knowledge through the Intellectual Property System and Intellectual Property Law Amendment Bill (2008) Available at www.thedti.gov.za

Footnotes

1. Hereinafter called WIPO

2. Hereinafter United Nations Educational Scientific Cultural Organization, World Intellectual Property Organisation, World Trade Organisation, United Nations Environment Programme and United Nations Conference on Trade and Development.
3. Hereinafter called TRIPs Agreement
4. Suman Sahai: Intellectual and cultural property rights of indigenous people in Asia: An outline
5. B.T. Hoffman: Art and Culture Heritage, law, policy and practice: Cambridge University Press:2006
6. The Policy and the Bill can be accessed on www.thedti.gov.za
7. This public consultation was held on the 5th of June at the North West University (Mafikeng Campus).
8. Republic of Malawi Constitution Act No. 20 of 1994.
9. S. 26 of the constitution.
10. The right to culture is protected by a number of international instruments, for example Article 17 (2) of the African Charter.
11. Act of 1902
12. Section 24
13. This is an experience that can be shared by traditional communities of regions bordering South Africa, Mozambique and Zimbabwe forming the transnational park. Similar experiences can be drawn from East Africa where the Masai and Mara communities who have been absorbed into the famous Serengeti and Ngorongoro national parks.
14. In South Africa discontent with developments like these have resulted in communities strongly opposing their government and traditional leadership for allowing the commissioning of the projects. A community in Bizana, in the Eastern Cape brutally killed their own traditional Chief for supporting an Australian mining company that was about to start a mining project on disputed tribal land.
15. Parallels can be drawn from the San communities of South Africa’s use of the Hudia plant as discussed earlier in this paper.