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Traditional & indigenous knowledge

 

 

The South African parliament has approved legislation called the "Intellectual Property Amendment Bill, 2008". The purpose of this bill is to protect traditional knowledge by amending various pieces of legislation including the Copyrights, Trademarks and Design Acts. However even though the bill has passed by the South African Parliament, it is worth noting that the President has not yet signed it into law.

In summary the Bill provides amongst others:

  • that the law of trademarks/geographical indications may be able to provide protection of certain names/features associated with traditional knowledge e.g. Rooibos and Honey bush tea;
  • that a National Council consisting of experts on traditional knowledge must advise the Minister and the Registrar of intellectual property on traditional intellectual property (TIP) rights;
  • that communities may form business enterprises such as collecting societies in order to administer their traditional intellectual property, as well as commercializing such TIP;
  • that communities may form business enterprises such as collecting societies in order to administer their traditional intellectual property, as well as commercializing such TIP;
  • that other rights in the copyright regime should preferably also be subjected to "collective management of copyright regime".

The Policy uses the words "traditional knowledge" and "indigenous knowledge" interchangeably, but the two expressions have different meanings nationally and internationally.

This piece of legislation has received a lot of opposition from various sectors of the country's economy. The primary issue is the fact that South African IP Laws are in line with those of other countries and that there could be problems if our laws offer protection for things that are not protectable elsewhere in the world. One of the academics who has been very vocal in opposing the Traditional Knowledge Bill, Professor Owen Dean has drafted an alternative bill which seeks to keep Traditional Knowledge outside the country's Intellectual Property statutes. This alternative bill was formally presented to parliament by the Shadow Minister of Trade and Industry, Dr Wilmont James from the official opposition as a private members bill. Rachel Sikwane, a Senior Associate from Edward Nathan Sonnenbergs wrote a very informative article on this second bill, which highlights some of the main concerns that have been presented by various stakeholders. The article is available here.

The second bill, having been made publicly available for comments, presents a unique opportunity to actually compare both bills for relevance and applicability to the South African intellectual property landscape. With the DST considering a possibility of a sui generis system, which was presented to parliament in July 2012, there is a possibility that the country might find itself with three pieces of legislation that seek to address the protection of indigenous and traditional knowledge.

A number of challenges concerning protecting indigenous and traditional knowledge through IP laws were also highlighted by Dr Charles Masango, a Research Development Coordinator in the Research Office at the University of Cape Town, in a paper entitled "Indigenous traditional knowledge protection: prospects in South Africa's intellectual property framework?" The article is available here.