Despite government’s commitment to a policy of protecting all forms of traditional knowledge, the exploitation of resources continues to occur, with large multinationals making huge profits and not sharing the economic benefits with the communities that first discovered and used the knowledge.
The debate is hotting up with new South African cases of biopiracy and proposed changes to intellectual property law to protect traditional knowledge. As with most African countries, South Africa has a long list of rich traditional knowledge, such as remedies from the Khoisan people and the Scilla natalensis seeds used in traditional medicine.
There is general agreement that traditional knowledge requires some kind of protection, but the devil is in the detail. The South African intellectual property legal fraternity and their international counterparts are running into difficulties when attempting to determine the protection of intellectual property rights and the commercialisation of traditional knowledge under a single legal framework.
The issue of protection of traditional knowledge has recently been highlighted again in the case of an Eastern Cape community contesting a German homeopathic company, Schwabe Pharmaceuticals, which filed a European patent for a method for making traditional medicine.
The Alice community said the method for producing extracts from the roots of Pelargonium sidoides and Pelargonium reniforme to make cough and cold syrups had been used for generations by its people and Schwabe had no right to patent it. The European Patent Office revoked the Schwabe patent, although Schwabe has indicated it will appeal the ruling.
Thousands of patents on African plants or their extracts have been filed, including brazzein, a protein sweeter than cane sugar from a plant in Gabon; teff, a grain used in Ethiopian flat bread; Kunde Zulu cowpea; African soap berry; and genetic material from the West African cocoa plant.
Perhaps the best-known example is that of the Khoisan and hoodia, a succulent that staves off hunger and thirst during long hunting trips. The plant proved to be a diet-pill goldmine, not only because it alleviates hunger and thirst but also because it induces a state of alertness without the jittery feeling produced by Western diet pills, which are stacked with caffeine.
The Council for Scientific and Industrial Research (CSIR) found the active compound could curb appetite and sold the right to develop an anti-obesity preparation to the pharmaceutical industry, worth billions of dollars.
The World Intellectual Property Organisation is divided between developed and developing countries on whether intellectual property laws should be used to protect traditional knowledge, or whether specific legislation should be introduced instead.
South Africa seems set on the path of using intellectual property laws and has published draft legislation in the form of the Intellectual Property Laws Amendment Bill. This makes significant amendments to a number of intellectual property Acts and will allow communities to make a claim of ownership from which they or the state will benefit.
There is considerable speculation about the best method of protection. Many believe that traditional knowledge should not sit under the umbrella of intellectual property law and a large number of objections have been lodged with the department of trade and industry as a result.
Critics of the Intellectual Property Laws Amendment Bill argue that there are fundamental differences between the concept of intellectual property and the protection of traditional knowledge.
Intellectual property law protects the creative work of individuals or companies from being copied by others. The intellectual property is treated as a commodity owned by an individual or a company with a commercial goal.
Traditional knowledge, on the other hand, is regarded as a means of safeguarding and ensuring the continued existence of community knowledge and heritage that cannot be owned by one person and cannot be bought or sold. For example, under patent law an invention qualifies for patent protection only if it is new or involves an inventive step.
By contrast, traditional knowledge is often handed down over generations and would then not qualify for the same protection. Adding to the argument is the fact that traditional knowledge under the scope of intellectual property would see copyright protection granted only to works created within the past 50 years.
Most traditional works were created hundreds or even thousands of years ago and therefore would not be protected by copyright.
The intellectual property legal system cannot be hijacked to accommodate traditional knowledge. It not only has the potential to damage the well-respected South African intellectual property legal system, it will also fail indigenous communities in their need to safeguard their knowledge, ownership and access.
One thing appears certain: although there is some disagreement among South African attorneys about how to accommodate traditional knowledge protection under the Intellectual Property Law Amendments Bill, they are all in agreement that legislation is required — and it is required as soon as possible.
Andre van der Merwe is an attorney and director at intellectual property law firm DM Kisch