The phrase "traditional knowledge" often elicits eye rolling from IP lawyers. For practitioners who deal daily with defined terms and contractual rights and responsibilities, traditional knowledge raises fears of a concept that deals with something far less quantifiable. Debates about how it should be safeguarded pit commercial lawyers against campaigners who many practitioners accuse of having little understanding about how IP laws work and who want to muddy the legal waters by introducing stand-alone, sui generis systems of protection.

There is a temptation for development specialists and advocates for the rights of indigenous communities to simplify the arguments relating to the protection of traditional knowledge as a way of persuading non-specialist politicians and the general public of the merits of their case. As a result, legislation is often presented as an essential way of preventing rapacious big pharma and greedy multinational companies from making a quick buck by exploiting medicinal remedies, folklore and arts and crafts developed by local people over hundreds of years. That infuriates many corporate representatives who argue that the process of developing drugs and building up brands is, in reality, far more complex. It is almost inevitable that the result is misunderstanding and mistrust between the two sides.

But IP lawyers should perhaps be less fearful of legislation designed to protect traditional knowledge. In jurisdictions where few protect their own intellectual property, efforts to prevent the misappropriation of indigenous genetic resources and to protect traditional designs and culture can help to raise awareness of IP and its value to the economy – and that can benefit all intellectual property owners.

Although laws relating to traditional knowledge are more often associated with protecting genetic resources and preventing so-called bio-piracy, an increasing number of governments are considering, or have already implemented, measures to uphold the integrity of cultural traditions – ranging from artefacts, textile designs and symbols, to music and dance. These potentially affect trade mark owners and the creative industries.

In New Zealand, for example, the 2002 Trade Marks Act established a Maori Trade Marks Advisory Committee, whose job it is to advise the Commissioner of Trade Marks whether the proposed use or registration of a trade mark that appears to be based on a Maori sign, including text and imagery, is, or is likely to be, offensive to Maori.

Africa plays catch-up

So far, countries in Asia and Latin America have been at the forefront of efforts to put traditional knowledge on the international IP agenda. At the 2005 WTO meeting in Hong Kong, for example, it was negotiators from India, with strong support from Brazil, who eventually persuaded WTO members to agree to "intensify" discussions over the relationship between the TRIPs Agreement and the Convention on Biological Diversity, which calls on signatories to require patent applicants to disclose the source and origin of genetic material, obtain prior consent for using it and share any benefits with local communities. India has also launched a database of traditional knowledge that the project directors say will protect ancient learning from being exploited by people and companies for profit.

But now it appears that African countries are becoming increasingly aware of the way in which they can use IP laws both to prevent the misappropriation of traditional knowledge and to boost their own economies.

In July last year, a group of more than 50 developing countries from Asia and Africa made a declaration in Bandung, Indonesia on the need to protect traditional cultural expression, traditional knowledge and genetic resources. The meeting of the Asia and African Forum was attended by representatives from more than 15 African countries including Nigeria, Ethiopia, Kenya, Namibia, Zambia and Mali, as well as representatives of the African Union and the African Regional Intellectual Property Organization.

Some of the countries involved have been putting their pledges into practice. Over the past three years, for example, Ethiopia has been busy securing trade mark registrations for the names of three of its high-quality coffees in more than 30 countries and securing licensing deals with some of the world's biggest retailers and coffee shop chains. The aim of the project is to change Ethiopia's negotiating terms in the international coffee markets by turning what was previously primarily regarded as a commodity item into a value-added brand name product.

Elsewhere on the continent, South Africa is considering a legislative solution to its traditional knowledge issues. It has already passed the Patents Amendment Act 2005 to help safeguard certain genetic resources, and officials have now turned their attention to protecting products such as locally grown tea and art forms such as songs and dance. In a policy framework document published by the Depart for Trade and Industry entitled The Protection of Indigenous Knowledge through the Intellectual Property System, which along with a draft bill (see box) is now open for public consultation, the government outlines ways in which farmers, manufacturers and the creative industries should make better use of existing laws, as well as proposing a series of legislative amendments.

South African Rooibos tea

Source: the World Bank

In the area of trade marks and geographical indications (GIs), for example, officials say that the government should encourage the Rooibos industry to trade mark Rooibos tea and market it accordingly. It also urges local communities to ensure that their GIs do not become generic by registering them and promoting their use in public. "Again, Rooibos tea is a good example of a GI that is fast becoming generic due to a lack of protection as a GI or a collective mark," says the policy framework document.

The policy framework document, and the accompanying draft bill, also recommends a range of changes to the 1993 Trade Marks Act to give GIs additional protection, to recognize indigenous terms and expressions and to provide for their registration as trade marks. It would also set up a national database for the recordal of traditional intellectual property. "If people want to make use of any of the traditional knowledge in it then they will probably have to pay a royalty," says Megan Reimers of Spoor & Fisher in Pretoria.

The draft legislation also aims to amend the 1993 Designs Act to enable traditional designs of indigenous origin to be recognized and registered – a move that would also require a new section in the designs register, as well as proposing extensive changes to South Africa's copyright rules. In particular, the bill aims to amend the 1967 Performers' Protection Act to provide more protection for traditional performances and establish a royalty payment regime for such performances. It would also revise the Copyright Act to provide better protection to "works of a traditional character".

The bill is likely to be revised once the public consultation process ends in the first half of this year and could then go before parliament.

Many of the changes proposed in the draft legislation reflect wider political concerns in South Africa, where politicians are attempting to right years of exploitation of large sections of the population. But developments in South Africa are likely to be watched closely by other governments on the continent.

Observers say South Africa tends to lead these kinds of developments in Africa, so where it goes, other countries, particularly in the south of Africa, may follow.

Many developing countries in Africa, like elsewhere, present practical problems for multinational trade mark owners. They often find their trade mark registries to be slow and inefficient and many of their officials inexperienced. Practitioners report that up-to-date laws, often drafted with the guidance of international bodies such as WIPO, often lack the necessary regulations that would enable them to be implemented effectively, leading to confusion for both IP applicants and for the people in charge of administering rights on the ground. Many argue that developing countries should focus first on getting the IP basics right before signing up to international treaties that they cannot properly adhere to, or introducing new laws in the area of GIs, traditional knowledge and bio-prospecting before they ensure the smooth running of their IP offices.

But this new emphasis in Africa on the pro-development aspects of intellectual property could be good news for multinational companies. As countries such as Korea and China are demonstrating, having more domestic intellectual property to protect can improve the IP regime for everyone.