A Bill aimed at protecting indigenous knowledge appears to be more intent on gaining full control over the information garnered, writes Rachel Wynberg
Legislation aimed at protecting and promoting South African indigenous knowledge has developed within the context of Deputy President Thabo Mbeki’s “African renaissance”.
The intended outcome is to transform indigenous knowledge and technologies into small, medium and micro- enterprises that will be of direct economic benefit to the practitioners and owners of such knowledge.
South Africa has rich and varied traditional knowledge, the third highest biodiversity in the world, a bastion of human rights lawyers and considerable scientific and technical capacity.
These qualities place the country at the forefront of finding innovative solutions to the commercialisation of indigenous knowledge.
Comments are being compiled on a recently drafted Bill to this end, and public hearings are due to be held early next year. The proposed Bill forms part of a larger initiative on indigenous knowledge systems that is being driven by the portfolio committee on arts, culture, science and technology.
While the objectives of the Bill are laudable, it is difficult to see how they have been reflected in what is presently a confused, contradictory and complex piece of legalese.
Rather than seizing the opportunity to develop a creative approach to a challenging situation, the draft Bill merely adopts existing intellectual property legislation as the means through which protection for traditional knowledge and innovations is conferred.
Commenting on the Bill, Brazilian lawyer Grace Noguiera remarked that “far from recognising indigenous community rights, the state seems to be eager to get full control over their knowledge, information and natural resources”.
Noguiera, who has worked for many years with indigenous communities in the Amazon region, suggests that the Bill gives little consideration to the debates and contradictions that have arisen out of two international agreements.
The South African government is a party to both agreements: the World Trade Organisation’s 1994 Agreement on Trade Related Intellectual Property Rights, and the 1992 United Nations Convention on Biological Diversity.
The 1992 convention has been described as the “grand bargain” which has entitled the countries of the north to gain access to the genetic resources and traditional knowledge of the south. Developing countries, on the other hand, have gained access to technologies to use their biological resources, and to benefits derived from the commercialisation of such resources.
In many respects, this convention is a triumph for developing countries, opening up opportunities for benefits to be derived from their natural resources and providing a supportive legal framework for protecting community’s rights.
However, poorer countries fear such provisions will be over-ridden by the World Trade Organisation’s 1994 agreement. This created a global regime for the intellectual property protection of biological diversity.
Driven by the multi-billion dollar biotechnology industry, it has raised profound questions about the ethics of commercialising life, and about the intellectual rights of holders of traditional knowledge.
A major controversy has developed about whether this Western system of private ownership and monopolistic control is appropriate to protect traditional knowledge. Existing intellectual property systems reward new improvements rather than existing knowledge, which is considered to fall in the public domain.
Mechanisms such as patents and copyrights are conferred on individuals or legal entities, and generally on a temporary basis. In contrast, many local knowledge systems are of a collective nature, depending on a continuous and often informal exchange of knowledge and resources according to traditional beliefs and practices.
Such systems generally perceive biodiversity as a collective heritage rather than a private good. Privatising these delicate knowledge systems runs the grave risk of undermining and destroying traditional cultures, lifestyles and innovations, rather than protecting or promoting them.
Not only are these contradictions ignored in the Bill, but it fails to include within its ambit traditional knowledge about biodiversity and the distinctive issues raised by conferring intellectual property on such knowledge.
The involvement of local communities and holders of traditional knowledge in implementation of the proposed new law is also given scant attention.
A fundamental requirement of the 1992 biological diversity convention is that prior informed consent from communities needs to be obtained before granting access to their knowledge, information and natural resources.
The convention also requires that a system be developed to ensure the equitable distribution of benefits arising from the use of such resources. Mechanisms to deal with these thorny issues are glaringly absent in the Bill.
Granted, the Bill is still in its early stages and has not yet been subject to public debate. Vigorous debate is undoubtedly necessary, not only among civil society and holders of traditional knowledge, but also between the different departments and ministries responsible for its content.
The Department of Environmental Affairs and Tourism, for example, is responsible for implementing the biodiversity convention and is developing a national strategy to protect traditional knowledge. It is also planning to develop legislation to regulate access to genetic resources.
The Department of Health has launched a major initiative on traditional medicine, with substantial implications for the intellectual property of traditional healers.
The Department of Agriculture and Land Affairs convenes a committee to look at access to and benefit-sharing of genetic resources, and the rights of farmers. These and other initiatives are insufficiently integrated, resulting in a confusing policy environment.
A major constraint is the lack of awareness among government officials about the problems and complexities of conferring intellectual property rights for traditional innovations, and the importance of drawing links between seemingly disparate sectors.
An especially difficult task is to identify holders of traditional knowledge.
Some 200 000 to 300 000 traditional healers practice in South Africa, affiliated to nearly 300 organisations which are often politically fraught and divided.
Farmers holding knowledge about traditional varieties and breeds of crops and animals have yet to be consulted and identified. And even within indigenous communities such as the San, considerable conflict exists about the geographical boundaries of the community.
Can South Africa overcome these difficulties through the development of practical and viable mechanisms?
Can it ensure indigenous technologies and knowledge are protected in a way that benefits the holders of such knowledge, and expressly those who have historically been marginalised?
Certainly opportunities exist, but their successful development will depend on the creative relationship that can be nurtured between the opposite and sometimes conflicting poles of intellectual property rights and the collective rights of communities.
Rachel Wynberg is Western Cape co- ordinator of Biowatch South Africa, a national NGO investigating the commercialisation of biodiversity