At the ninth session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at WIPO in Geneva, the South African Minister for Science and Technology, Mosibudi Mangena, presented a working document on an Indigenous Knowledge Systems Policy for South Africa.

The indigenous people of South Africa maintain extensive knowledge systems covering a wide range of fields, including cultural and religious practices, agricultural practices and health interventions. In response to international recognition of these bodies of knowledge in recent years, the South African government has put together a policy for indigenous knowledge (IK) systems in South Africa.

Four main IK system policy drivers have been identified:

• the affirmation of African cultural values;
• practical means for the development of services by traditional healers;
• the contribution of indigenous knowledge to the economy; and
• the interaction between indigenous knowledge systems and other knowledge systems to increase the rate of innovation.

Affirmation of African cultural values

There are two aspects to this driver, the first being redress and the second being globalization. In terms of redress, South Africa seeks to give expression to core constitutional principles and democratic values by creatively advancing the course of development of indigenous knowledge systems within the context of equality, the advancement of human rights and freedoms, and the furtherance of social justice, non-racialism and non-sexism.

With respect to globalizzation, the impact of globalization on each state affects decisions regarding the state's autonomy and policy-making capacity. This can also be beneficial, in that there recently has been an upsurge in the international recognition of the importance of indigenous knowledge systems. An example is the Convention on Biodiversity. It is globally recognized that there is a need to promote self-determination by indigenous knowledge holders and that they should be recognized as the owners of their cultural and intellectual property. This was set out in the Mataatua Declaration as early as 1993.

South Africa will seek to promote international indigenous knowledge collaborations by sharing best practices and by committing to common objectives with international partners who have similar interests.

Development of services by traditional healers

Traditional medicine has been recognized by the World Health Organization in its Traditional Medicine Strategy as a rapidly growing health system with economic importance. Up to 80% of the population in South Africa turn to traditional medicine for health intervention. In many cases traditional medicine is the most affordable and accessible option.

It is therefore essential that South Africa implements a national policy and regulatory framework for traditional medicine systems to ensure their safety, efficacy and quality. This policy and regulatory framework should also promote access to traditional medicine, research and development and the training of traditional health practitioners. With this aim, the Traditional Health Practitioners Act has been promulgated and the associated regulatory body, known as the Health Practitioners Council, has been established.

Contribution of IK to the economy

In the lower income sectors of agriculture and traditional medicine, innovators tend to be indifferent to sharing knowledge, due to the absence of either incentives or protection mechanisms. By creating economic incentives, the IK held by these innovators may be made available for development and commercialization. It is proposed that three main factors should be considered in order to engage the economic potential of IK systems:

• the creation of incentive mechanisms encouraging innovation;
• the promotion of sustainable development with respect to IK systems; and
• the promotion of IK systems as a mechanism for generating employment.

IK and other knowledge systems

There is large scope for interfacing IK systems with other knowledge systems. Drugs based on traditional medicines generate sales amounting to billions of US dollars each year. Achieving a success in clinical trials is challenging and according to the working document it has been estimated that bio-prospectors can increase the success ratio from one in 10,000 samples to just one in two by consulting indigenous people. Furthermore, indigenous knowledge can result in a 400% increase in the efficiency of screening plants for medicinal properties. It is important that the contribution of the indigenous knowledge holders be recognized and rewarded.

A well-known example where South African IK has been developed commercially is the use of the Buchu plant by a number of South African communities to relieve stomach complaints. Thanks to the regulation of the use of IK systems these communities should benefit from the provision of their knowledge to commercialization partners.

Unfortunately, the traditional systems of IP protection are not well suited to the protection of indigenous knowledge since these are individualistic systems, whereas indigenous knowledge is held by communities. There is a further complication when different indigenous communities in a country, or even in different countries, have the same or similar indigenous knowledge. Furthermore, the traditional systems of IP protection have a limited time-frame, whereas indigenous knowledge is held in perpetuity. 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. Indigenous knowledge is something which develops incrementally over time, is informal and is common knowledge to the community.

It has therefore been suggested that the TRIPs framework that proposes geographical indications, community-based rights and sui generis forms of protection should be followed to complement the existing systems of IP protection.

Related to protection of the intellectual property of indigenous knowledge holders is the need to document their knowledge. This is important, not just to benefit potential users of the knowledge, but also to prevent indigenous knowledge that is already in the public domain from being patented as new. National registries of indigenous knowledge would fulfil both needs.

Further, it is important to protect indigenous knowledge holders from exploitation by commercial players by ensuring that their indigenous knowledge rights are protected. Any agreements entered into by themselves and their commercial partner should provide for equitable benefit-sharing and material transfer agreements. One mechanism for the regulation of benefit-sharing is the newly promulgated South African Environmental Management: Biodiversity Act and its Regulations.

In addition, the South African Patents Act has been amended to link it to the Biodiversity Act. Every applicant who lodges an application for a patent accompanied by a complete specification must now state whether or not the claimed invention is:

• based on or derived from an indigenous biological resource or an indigenous genetic resource; or
• based on or derived from an indigenous biological resource or an indigenous genetic resource and also based on or derived from traditional knowledge or use; and
• if the invention is based on or derived from traditional knowledge or use, whether it is co-owned by the owners of the traditional knowledge or use.

In addition, new legislation will soon be enacted to bolster the protection of IP rights of communities so that they share in the benefits of the commercialization of products of their indigenous knowledge. This will take the form of the Protection and Commercialization of Indigenous Knowledge Systems Bill and proposed amendments to existing IP legislation including: the Patents Act; the Copyright Act; the Trade Marks Act; the Designs Act; and the Performers' Protection Act that will all be central in preventing biopiracy. This occurs when foreign parties exploit knowledge emanating from indigenous communities within a country, such as in the Rooibos tea case where a foreign multinational attempted to trade mark traditional South African Rooibos tea.

The policy also outlines additional mechanisms for the development of indigenous knowledge systems and facilitation of innovation.

The policy outlined provides a comprehensive framework for the protection of indigenous knowledge systems in South Africa. South Africa is also in a unique position to influence the different aspects of the policy in terms of its constitutional framework of democracy, equality, human dignity and freedom. This places South Africa at the forefront of the global initiative to develop and protect indigenous knowledge systems.

Joanne van Harmelen

Spoor & Fisher Jersey
Africa House, Castle Street
St Helier, Jersey JE4 9TW
Channel Islands
Tel: +44 1534 838000
Fax: +44 1534 838001
info@spoor.co.uk  
www.spoor.com