South Africa has a rich heritage, from the indigenous fauna and flora to the languages spoken in the country as well as our culture and traditions. Many of the indigenous people of South Africa have traditions that are passed down orally from generation to generation. As an example, during special occasions, there will be a praise singer reciting a person’s history. What the praise singer recites is more than a person’s history. This historical work includes the origins of a person such as a specific clan name (different from one’s surname), and other clans they are related to. Some indigenous families have an animal that represents their clan name. A praise song also includes that specific animal that represents the clan.
Are the current intellectual property (IP) systems enough to protect our rich heritage which includes our oral history, traditional wear, artwork as well as other historical artifacts? In 2004, South Africa adopted the Indigenous Knowledge Systems Policy. The Policy was developed through an interdepartmental effort which aimed to provide guidance for the “recognition, understanding, integration and promotion of South Africa’s wealth of indigenous knowledge resources”1. A key focus area of the policy is the protection of indigenous knowledge and the holders of this knowledge against exploitation. This includes ensuring communities are adequately remunerated and given due recognition for use of their indigenous knowledge.
The Department of Trade and Industry developed a policy framework that looked at how traditional IP systems (patents, trade marks, geographical indications, copyright and designs) can be used to protect traditional knowledge systems. Many countries around the world are also considering the best ways to protect their traditional knowledge. Intergovernmental organisations such as United Nations Educational, Scientific and Cultural Organization (UNESCO), World Intellectual Property Organization (WIPO), World Trade Organization (WTO), United Nations Environmental Programme (UNEP), and United Nations Conference on Trade and Development (UNCTAD) have also been involved in talks regarding the best way for countries to protect traditional knowledge/indigenous knowledge.
Intergovernmental talks are still ongoing regarding how to protect IP and will continue for quite a while. The South African government, however, has already taken steps to protect traditional knowledge, genetic and biological resources. This was done through an interdepartmental approach wherein the DTI amended the Patents Act, 1978, and the Department of Environmental Affairs and Tourism (DEAT) amended the Biodiversity Act to protect genetic resources in one instance1. However, one cannot use these systems to protect folklore, traditional attire, artworks and other cultural artefacts. Further, IP systems alone are not enough to protect traditional knowledge and must be accompanied by other unique laws that will ensure adequate protection of this traditional knowledge.
Some of the biggest limitations of protecting traditional knowledge through IP systems include the fact that these systems mostly provide for an individual to protect their IP and not communities which may require to protect their IP collectively1. The other limitation is that most of the traditional IP systems have a limited period of protection. This is a great challenge since most traditional knowledge requires perpetual protection. Therefore it is necessary to have sui generis systems to protect traditional knowledge.
To this end, South Africa has passed the Protection, Promotion, Development and Management of Indigenous Knowledge Act, 2019. The aim of the Act is to “provide for the protection, promotion, development and management of indigenous knowledge… to provide for the management of rights of indigenous knowledge communities… to provide for access and conditions of access to knowledge of indigenous communities…”2. Further, the objects of the Act include prevention of the misuse and misappropriation of indigenous knowledge, equitable distribution of benefits and to provide for the registration, cataloguing, documentation and recording of indigenous knowledge.
This would of course, include protection of indigenous knowledge such as praise songs. To demonstrate this, the eligibility criteria for protection of indigenous knowledge include that it should have been passed down from generation to generation within an indigenous community; it was developed within an indigenous community; and is associated with the cultural and social identity of that indigenous community. The Act has made great strides in preventing misuse and misappropriation of indigenous knowledge and requires that “Any person who intends to use indigenous knowledge for commercial purposes must— (a) apply in the prescribed manner for a licence authorising the use of that indigenous knowledge; and (b) enter into a licence agreement with the trustee of the relevant indigenous community for the use of that indigenous knowledge…”2.
An interesting aspect of the Act is the period of applicability of the license agreement. If the subject of the agreement is functional in nature, then the licensee is obligated to pay royalties for 20 years after the date of the agreement. If the subject is an indigenous cultural expression, then the obligation to pay royalties expires 50 years after the date of the agreement. Subject matter that is functional in nature is indigenous knowledge that is scientific and/or technical in nature. Interestingly, this indigenous knowledge would be likely to be protected through patents and such protection also lasts for 20 years from date of application of the patent. This shows how there is harmony between some of the traditional IP systems and the sui generis Act.
The Act is very ambitious in its intentions to protect indigenous knowledge since it offers protection for indigenous knowledge originating from a foreign jurisdiction if the protection is reciprocated by said jurisdiction for indigenous knowledge originating from South Africa. Further, the Act makes provision for protection of indigenous knowledge in instances wherein the indigenous knowledge originates from a foreign jurisdiction as well as in South Africa. The indigenous community in South Africa will be assisted to make arrangements with the indigenous community in the foreign jurisdiction to ensure that both communities share the proceeds from commercialisation of the indigenous knowledge equitably.
It is encouraging to see our indigenous knowledge afforded such protection. For a country that celebrates its diversity and has such a rich heritage, it would have been tragic to miss the opportunity to optimally commercialise our indigenous knowledge and recognise as well as compensate the communities that own this knowledge.
Written by: Tumelo Mashabela, Managing Director and Registered Patent Attorney
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