1 February 2010Jurisdiction reportsAndré van der Merwe

Traditional knowledge protection in South Africa

Accordingly, the Department of Trade and Industry (DTI) published the IP Laws Amendment Bill, 2007, which has provoked considerable comment from the IP legal community in South Africa.

Most jurists appear to support the principle that traditional knowledge needs to be properly protected. However, the devil is in the detail.

The protection of folklore has been the subject of extensive discussions within the WIPO and its committees. The WIPO had established the Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The objectives of this committee cover biopiracy, the appropriation of traditional knowledge by third parties, and the protection of such resources, traditional knowledge and folklore.

Fundamentally, it should be remembered that traditional knowledge has been, or is, created for cultural and community reasons, and not for commercial reasons. In most cases, traditional knowledge has been in existence for hundreds, or even thousands, of years. It has generally been created by indigenous people to exist in perpetuity, or at least for a long period, as part of the culture and heritage of the people. This can be strongly contrasted with the limited term of IP rights and the generally private ownership of IP rights.

In discussions before the IGC, the concept of ‘protection’ has caused considerable confusion. While IP rights regard protection as preventing others from copying protected IP, in the traditional knowledge context, this means safeguarding the continued existence and development of traditional knowledge as part of a culture and heritage.

More particularly, the IP rights systems protects ‘property’, while traditional knowledge is considered to be part of a community’s culture and heritage—it cannot be owned by individuals and certainly cannot be bought or sold.

These views have been articulated by indigenous groups and developing countries concerning their traditional knowledge and its protection, against a background of customary law and principles.

A large number of legal/technical objections to the Traditional Knowledge Bill have been lodged by South African IP attorneys, the South African Institute of Intellectual Property Law and the Law Society of South Africa.

“Most jurists appear to support the principle that traditional knowledge needs to be properly protected."

For readers unfamiliar with the bill, it attempts to graft certain forms of traditional knowledge onto, or incorporate these into, four IP statutes: the Performers’ Protection Act, the Copyright Act, the Designs Act and the Trade Marks Act. Such objections show clearly that serious harm will be done to such laws in terms of the Traditional Knowledge Bill.

Quite independently and unexpectedly, Mr Justice Louis Harms, the Deputy Chief Justice of the Supreme Court of Appeal, South Africa’s leading IP jurist and an internationally recognised IP jurist, has also expressed critical views on the bill.

During 2009, the government arranged for, and received, an independent Regulatory Impact Assessment (RIA) to determine the impact that the Traditional Knowledge Bill would have, if enacted. So, a new bill may possibly emerge from the DTI shortly—though the IP basis may remain.

It appears that traditional knowledge cannot effectively be covered by a single system, more particularly if it is intended for commercial exploitation.

In the author’s view, the following two-part solution could provide a realistic and workable (dual) framework:

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