In the intellectual property context, the term “traditional knowledge” (or as some intellectual property scholars call it, “indigenous knowledge”) encompasses traditional and tradition-based cultural expressions in the form of stories, music, dance, artworks, etc. Traditional knowledge also includes recurring expressions of traditional concepts[i] as well as knowledge about medical practices and the production of food products.[ii] Traditional knowledge is the information that people in a given community, based on experience and adaptation to a local culture and environment, have developed over time, and continue to develop.[iii] Traditional knowledge is “traditional” in the sense that it is typically passed down through specific cultural and traditional mechanisms, from generation to generation, in a manner that reflects the traditions of the community.[iv] Traditional knowledge rarely has an identifiable author, and because it is often not recorded, it exists only in the minds of the community.[v] As such, it is considered the collective property of the entire community, as opposed to belonging to a single individual or a group of individuals.[vi]
Many indigenous populations live on the fringes of society, in desolate areas that many westerners would consider completely uninhabitable. Since they are largely cut off from the rest of civilization, traditional knowledge plays a fundamental role in protecting the livelihood of many indigenous communities, protecting the community’s health, and maintaining the resources necessary for the continued survival of the community.[vii] Some prominent examples of traditional knowledge include the use of the plao-noi in Thailand for the treatment of ulcers, the use of turmeric in India for the healing of wounds, and as I will discuss in greater detail below, the use of the hoodia plant by the San peoples in Southern Africa to stave off hunger.[viii]
Over the past century, many large western corporations have “taken” indigenous knowledge from the source community, and have used it to generate significant profits, usually without providing any compensation whatsoever to the indigenous population.[ix] However, despite being cut off from society, indigenous populations have recently begun to learn about their intellectual property rights, and now demand to be recognized as the legitimate owners of their valuable cultural systems and indigenous knowledge.[x] According to Dr. Jane Anderson, an intellectual property law professor and scholar, “indigenous people argue that they have legitimate rights to control, access, and utilize in any way, including restricting others’ access to knowledge or information that derives from unique cultural histories, expressions, practices and contexts.”[xi] Accordingly, how to best protect the traditional knowledge of indigenous communities has become a global hot-button issue, and an international consensus has yet to be reached about how indigenous rights to the protection of their knowledge can be secured.[xii]
South Africa has a sizeable indigenous population, and following a high profile traditional knowledge-based controversy involving the indigenous San peoples and western corporations Phytopharm and Pfizer Inc, the South African government devised legislation to fix the problem before it could get any worse. After much deliberation the South African government decided against creating a stand-alone law to provide protection for indigenous peoples. Instead, the South African government drafted an ambitious proposal that would amend South Africa’s four existing intellectual property statues in order to incorporate protection for indigenous knowledge.[xiii] Despite an outpour of criticism from a wide variety of sources, the South African government recently elected to pass the Intellectual Property Laws Amendment Bill.[xiv] Unfortunately, it appears that the costs of implementing and enforcing the Intellectual Property Laws Amendment will highly outweigh the potential benefits of the legislation.
THE SAN PEOPLES, THE HOODIA PLANT, AND THE P57 PATENT
The San peoples, also known as “Bushmen” or Basawara, have been acknowledged as the “First Peoples” of Africa,[xv] having inhabited various hostile environments across Southern Africa for over 20,000 years. [xvi] Today, approximately 100,000 San continue to live in Southern Africa, spread out across the nations of South Africa, Angola, Botswana and Namibia.[xvii] For many years, the San peoples survived in Southern Africa primarily as hunters and gatherers, and over the course of the millennia, the San have amassed a large trove of traditional knowledge. One prominent example of this valuable indigenous knowledge is ancient San folklore describing how to use the Hoodia cactus to stave off hunger.[xviii]
Many hundreds of years ago (perhaps thousands of years ago), the San discovered that the Hoodia plant had appetite-suppressing qualities. The San considered this knowledge the collective property of the community, and are not opposed to sharing this information, as they have been known to freely provide this information to scientists and anthropologists in exchange for small gifts.[xix] Sometime in the 1930s, the San described the powerful effects of the Hoodia plant to a Dutch researcher, who would later publish it in a book.[xx] More than 50 years later, researchers for the South African Council for Scientific and Industrial Research (“CSIR”) discovered the Dutch anthropologists reference, and began the process of isolating the Hoodia’s hunger-supressing qualities.[xxi] Eventually, the CSIR was able to isolate the extract, and patented it under the name “P57”.[xxii] Since there was no law in place protecting indigenous knowledge in South Africa in 1995 when the CSIR patented P57, there was little the San could do to protect their knowledge of the powers of the Hoodia plant.[xxiii]
Then, in 2001, the CSIR secured a worldwide patent on P57, and soon licensed the multi-million dollar commercial rights to the intellectual property to Phytopharm, a UK based company who in turn licensed the rights to North American pharmaceutical giant Pfizer Inc.[xxiv] Following a campaign by the Working Group of Indigenous Minorities in South Africa (WIMSA) to help protect the San’s indigenous knowledge, and to compensate the San for the use of this information, a comprehensive benefit sharing agreement was reached in 2003.[xxv] The agreement, negotiated by the South African San Council on behalf of the San peoples of Southern Africa, called for the CSIR to pay the San 8 percent of all milestone payments received by them through the licensing of the P57 patent, and 6 percent of all future royalties.[xxvi] Many analysts felt that the San made a mistake by agreeing to accept such a small percentage of the potential anticipated income derived from the P57 patent, whereas other analysts felt that P57’s developers did not owe the San people any compensation, so the San should be satisfied with any amount of compensation.[xxvii] However, in July 2003, Pfizer withdrew from the project and discontinued clinical development of the project, thus rendering the issue of the San’s compensation moot.[xxviii]
SOUTH AFRICA’S INTELLECTUAL PROPERTY LAWS AMENDMENT BILL
Following the high profile Hoodia case, the South African government realized that the traditional knowledge intellectual property rights of indigenous peoples were not being effectively protected or enforced by their existing laws. The South African government had to determine to what extent the current intellectual property laws are suitable for the protection of traditional knowledge or whether a sui generis, or stand-alone, system would be better suited for ensuring the appropriate protection of traditional knowledge in South Africa.[xxix] The process has been at least four years in the making, as the Department of Trade and Industry first prepared a draft of the proposed legislation in 2007.[xxx] Then, following three years of introspective review, the Bill came before the Portfolio Committee, which decided to redraft the Bill to correct some critical errors.[xxxi] Ultimately, the South African government chose to forego a sui generis approach dedicated to the protection of indigenous knowledge as a separate and distinct species of intellectual property. Instead, the National Assembly drafted a proposal that would amend South Africa’s four existing intellectual property statutes to incorporate traditional intellectual knowledge as a form of intellectual property.[xxxii] The South African government held committee meetings to discuss the Intellectual Property Laws Amendment Bill, commissioned a Regulatory Impact Assessment and invited several organizations, including the World Intellectual Property Organization (WIPO), to comment on the proposed legislation.[xxxiii]
According to Dr. Rob Davies, the Minister of Trade and Industry, South Africa’s Intellectual Property Laws Amendment Bill was designed to provide protection for indigenous knowledge through the intellectual property law system.[xxxiv] “The main thrust of the Bill is that no registration of IP that is based on [indigenous knowledge] will be able to be effected without 1) mandatory disclosure of the [indigenous knowledge] element, 2) prior informed consent by [indigenous knowledge] owners, and 3) without a benefit sharing agreement entered into with the relevant [indigenous knowledge] owners.”[xxxv]
Under the Intellectual Property Laws Amendment Bill, the South African Copyright Act (1978), the Performers Protection Act (1967), the Trade Mark Act (1993), and the Design Act (1993) would be amended to include certain forms of traditional knowledge protection under the premises of the respective Acts.[xxxvi] Specifically, the four statutes would be amended as follows:
1. The Performers’ Protection Act would be amended to: (1) provide for the recognition and protection of traditional performances having an indigenous origin and a traditional character; (2) provide for the payment of royalties in respect of such performances; and (3) provide for recording traditional performances.[xxxvii]
2. The Copyright Act would be amended to: (1) provide for the recognition and protection of copyright works of a traditional character; (2) provide for the establishment of a National Council in respect of traditional intellectual property; (3) provide for a national database for recording traditional intellectual property; and (4) provide for the establishment of a national trust and a trust fund in respect of traditional intellectual property.[xxxviii]
3. The Trade Marks Act would be amended to: (1) provide for further protection of geographical indications; (2) to provide for the recognition of terms and expressions of indigenous origin and for the registration of such terms and expressions as trade marks; and (3) to provide for recording traditional terms and expressions.[xxxix]
4. The Designs Act would be amended to: (1) provide for the recognition and registration of traditional designs of indigenous origin; (2) create for this purpose a further part of the designs register; and (3) to provide for recording traditional designs.[xl]
Does the Intellectual Property Laws Amendment Bill effectively protect traditional knowledge?
Over the past several years, many intellectual property organizations, scholars and consultants provided the South African government with comments pertaining to the Intellectual Property Laws Amendment Bill. In 2009, WIPO suggested that instead of amending the four existing intellectual property statutes, the DTI should instead adopt a sui generis approach to protect indigenous knowledge.[xli] Also in 2009, South Africa’s President commissioned a Regulatory Impact Assessment (RIA) on the Intellectual Property Laws Amendment Bill. The RIA concluded that unless a sui generis approach was taken, the cost of the legislation would outweigh any possible benefits that might flow from the TK Bill.[xlii] However, instead of following the advice of WIPO and the RIA, both of which called for a sui generis approach, the DTI commissioned another RIA, which came to the opposite conclusion.[xliii]
On October 27, 2011, Dr. Davies delivered a speech before South Africa’s National Assembly on the Intellectual Property Laws Amendment Bill. Davies acknowledged that many stakeholders were in favor of the sui generis approach, but noted that the global debate on the issue was not nearing completion any time soon, and they could not afford to sit and wait for the global community to reach a consensus on the issue.[xliv] Accordingly, Dr. Davies encouraged the National Assembly to pass the Intellectual Property Laws Amendment Bill because failure to act would encourage further unabated exploitation of communities’ heritages by unscrupulous private interests.[xlv]
Dr. Davies then responded to concerns regarding how the Intellectual Property Laws Amendment Bill would be implemented. Dr. Davies explained to the National Assembly that the Department of Trade and Industry was already developing a comprehensive outreach strategy to take the Bill to the people in the most simple and accessible manner. Dr. Davies then assured the parliament members that field workers would be deployed throughout South Africa’s nine provinces to help implement the Bill, and that any action by the Department of Trade and Industry would be in cooperation with the sister departments of South Africa’s government. Notably, Dr. Davies concluded his speech to the National Assembly without commenting on the projected costs associated with his implementation plan, or addressing how the Intellectual Property Laws Amendment Bill would be enforced. Nevertheless, Dr. Davies’ speech was enough to convince South Africa’s National Assembly to pass the Intellectual Property Laws Amendment Bill in November 2011.
What are the likely costs and benefits of South africa’s Intellectual Property Laws Amendment Bill?
In Dr. Davies’ speech to the National Assembly, he listed four main benefits of using the existing legislative framework to cover indigenous knowledge, rather than creating a new law specifically to deal with traditional knowledge. First, if the Intellectual Property Laws Amendment Bill is successful, it will give power back to indigenous communities who are the rightful owners of indigenous knowledge.[xlvi] Another benefit of the Intellectual Property Laws Amendment Bill is that it establishes an Alternative Dispute Resolutions (ADR) system to deal with disputes.[xlvii] Thirdly, the Intellectual Property Laws Amendment Bill also provides for the establishment of appropriate structures to facilitate the implementation of the Bill when it comes into effect.[xlviii] Finally, the Intellectual Property Laws Amendment Bill is fully compatible with all international treaties to which South Africa is a party.[xlix]
Unfortunately, many of South Africa’s intellectual property attorneys consider the “benefits” described by Dr. Davies in his parliamentary address as entirely unenforceable wishful thinking. Owen Dean, the incumbent Anton Mostert Chair of Intellectual Property Law at Stellenbosch University and a practicing intellectual property attorney in South Africa since 1974, has been quite vocal in his belief that the Intellectual Property Laws Amendment Bill is fundamentally flawed. Professor Dean believes that the Bill will not accomplish its objective of enabling and promoting the commercial exploitation of traditional knowledge for the benefit of the indigenous communities from which it originated, that the Bill is an exercise in futility, and that the Bill will be nearly impossible to enforce.[l]
As Professor Dean points out, intellectual property ownership is based on the concept that the original creators of the works should be the owners of the intellectual property rights stemming from those works. However, the Intellectual Property Laws Amendment Bill appears to do just the opposite, by vesting ownership of intellectual property in traditional works within the State.[li] Dr. Davies considered the establishment of appropriate structures to facilitate the implementation of the Bill when it comes into effect to be a benefit. Among these “structures” Dr. Davies was referring is the National Trust Fund for Traditional Intellectual Property that was established by the Intellectual Property Laws Amendment Bill. Under the Act, royalties arising out of the commercial use and exploitation of indigenous knowledge are paid into the fund and held in trust for certain purposes.[lii] However, the Intellectual Property Laws Amendment Bill does not mention paying any royalties from the fund to indigenous communities.[liii] “The fund is effectively a slush fund to be utilized according to the pleasure of the registrar. Meanwhile, the communities are deprived of the ownership and benefit of the works in question.”[liv] This factor alone should have been sufficient for South Africa’s National Assembly to vote against the law, but as Professor Dean and his colleagues point out, there are other red flags as well.
In addition for calling for the creation of the National Trust Fund for Traditional Intellectual Property, Professor Dean suspects that the law will generate significant costs by creating an “enormous edifice of bureaucracy, councils, funds, trusts, databases and registration systems.”[lv] Considering that many IP attorneys feel that the system is not capable of being enforced, these additional government departments and programs represent an exercise in futility, and a waste of countless hours by the South African government.[lvi]
Ultimately, the biggest flaw of the Intellectual Property Laws Amendment Bill, according to Professor Dean, is that they Department of Trade and Industry attempted to work indigenous knowledge protections into the existing statutes, rather than creating a stand-alone traditional knowledge act.[lvii] “Unfortunately, this approach overlooks a fundamental and very basic principle of each of these acts, namely that they are based on the philosophy that new creative works can be protected for the benefit of their individual originators for a strictly limited period of time subject to the condition that, upon the expiry of the term of protection, they are surrendered to the public at large and become free for use by all” as part of the public domain.[lviii] “Traditional works on the other hand,” Professor Dean continues, “are already in the public domain and are now to be plucked from it and become the private property of traditional communities who will be entitled to remuneration for their use forever hereafter.”[lix] To illustrate just how big of a problem this represents, Professor Dean even goes as far as suggesting that most intellectual property lawyers will advise their clients to simply ignore the provisions of the Intellectual Property Laws Amendment Bill and carry on as before, because any purported traditional knowledge right which have been created will simply not be capable of being enforced.[lx]
CONCLUSION
Ideally, the benefits of South Africa’s Intellectual Property Laws Amendment Bill outweigh the costs of implementing the legislation. However, realistically, there are far too many obstacles preventing effective enforcement, thus, I agree with WIPO and with Professor Dean that costs of South Africa’s Intellectual Property Laws Amendment Bill likely far outweigh any potential benefits. WIPO is currently drafting a model law, which will ensure that indigenous knowledge is protected in a consistent manner internationally.[lxi] But since South Africa chose to pass the Intellectual Property Laws Amendment Bill before WIPO released it’s model law, only time will tell whether the recently passed amendments to the South African Copyright Act, the Performer’s Protection Act, the Trade Mark Act, and the Design Act are the proper vehicle for protecting traditional knowledge. However, on it’s face, the Intellectual Property Laws Amendment Bill will not provide indigenous communities such as the San with the intellectual property rights they desire, nor the compensation they deserve, and it is only a matter of time before the next corporation makes millions of dollars by misappropriating knowledge or biological material from indigenous communities.
WORD COUNT: 3048
[i] J. Michael Finger and Phillip Schuler, Poor People’s Knowledge: Helping Poor People to Earn from Their Knowledge at 25, World Bank and Oxford University Press (2003).
[ii] Dr. Rob Davies, How we’re trying to protect indigenous knowledge, Speech by Minister of the Department of Trade and Industry on Intellectual Property Laws Amendment Bill, October 27, 2011.
[iii] Stephen A. Hansen and Justin W. VanFleet, Traditional Knowledge and Intellectual Property: A Handbook on Issues and Options for Traditional Knowledge Holders in Protecting their Intellectual Property and Maintaining Biological Diversity, at 3 (July 2003).
[iv] Id.
[v] Tim Harris, South Africa: Intellectual Property Amendment Bill – Indigenous Knowledge Simply Won’t Be Protected By This Law, Democratic Alliance distributed by AllAfrica Global Media, October 28, 2011.
[vi] See Note 3, supra at 3.
[vii] Id.
[viii] Id.
[ix] Various Intellectual Property scholars have defined this practice as “bio-piracy”.
[x] Dr. Jane Anderson, indigenous traditional knowledge & intellectual property, Center for the Study of the Public Domain at 6 (2010).
[xi] Id. at 11.
[xii] See Note 2, supra.
[xiii] Natural Justice Blog, South African Parliamentary Committee Discusses Traditional Knowledge, available at http://natural-justice.blogspot.com/2010/09/south-african-parliamentary-committee.html (September 9, 2010)
[xiv] Owen Dean, The Mad Hatter in Wonderland: South Africa’s New TK Bill, Intellectual Property Watch, November 8, 2011.
[xv] Roger Chennells, Biodiversity and Perspectives of Traditional Knowledge in South Africa, WIPO SEMINAR ON INTELLECTUAL PROPERTY AND DEVELOPMENT at 1 (May 2, 2005).
[xvi] The Working Group of Indigenous Minorities in South Africa (WIMSA), Who are the San? available at http://www.wimsanet.org/about-the-san/who-are-the-san (accessed November 20, 2011).
[xvii] See Note 15, supra.
[xviii] Id. at 3.
[xix] Id.
[xx] Id.
[xxi] Id.
[xxii] Id.
[xxiii] Id.
[xxiv] Id. at 4.
[xxv] Id. at 5.
[xxvi] Id.
[xxvii] Id.
[xxviii] CITE
[xxix] See Note 13, supra.
[xxx] Owen Dean, South Africa: TK Legislation In The New Tradition, Intellectual Property Watch at 1, available at http://www.ip-watch.org/weblog/2011/10/06/south-africa-tk-legislation-in-the-new-tradition/ (October 6, 2011).
[xxxi] Id.
[xxxii] Linda Ensor, South Africa: Proposal to Protect Traditional Knowledge ‘Doomed’, Business Day distributed by AllAfrica Global Media, May 20, 2011.
[xxxiii] See Note 5, supra.
[xxxiv] See Note 2, supra.
[xxxv] Id.
[xxxvi] See Note 13, supra.
[xxxvii] The Republic of South Africa, INTELLECTUAL PROPERTY LAWS AMENDMENT BILL at 2 (March 29, 2010).
[xxxviii] Id.
[xxxix] Id.
[xl] Id.
[xli] See Note 5, supra.
[xlii] Id.
[xliii] Id.
[xliv] See Note 2, supra.
[xlv] Id.
[xlvi] Id.
[xlvii] Id.
[xlviii] Id.
[xlix] Id.
[l] Owen Dean, Folklore Funding Myth, Financial Mail (May 14, 2010)
[li] Id.
[lii] Id.
[liii] Id.
[liv] Id.
[lv] See Note 14, supra.
[lvi] Id.
[lvii] See Note 30, supra.
[lviii] Id.
[lix] Id.
[lx] See Note 14, supra.
[lxi] See Note 5, supra.
South Africa chose to pass the Intellectual Property Laws Amendment Bill before WIPO released it’s model law, only time will tell whether the recently passed amendments to the South African Copyright Act, the Performer’s Protection Act, the Trade Mark Act, and the Design Act are the proper vehicle for protecting traditional knowledge. However, on it’s face, the Intellectual Property Laws Amendment Bill will not provide indigenous communities such as the San with the intellectual property rights they desire, nor the compensation they deserve, and it is only a matter of time before the next corporation makes millions of dollars
Posted by: ugg boots for sale | 12/13/2011 at 02:57 AM
released it’s model law, only time will tell whether the recently passed amendments to the South African Copyright Act, the Performer’s Protection Act, the Trade Mark Act, and the Design Act are the proper vehicle for protecting traditional knowledge. However, on it’s face, the Intellectual Property Laws Amendment Bill will not provide indigenous communities such as the San with the intellectual property rights they desire, nor the compensation they deserve, and it is only a matter of time before the next corporation makes millions of dollars by misappropriating knowledge or biological material from indigenous communities.
Posted by: Retro Jordan | 12/13/2011 at 06:57 PM