In an era where a traditional recipe can be a global food brand and a medicinal plant can form the basis of a billion-rand pharmaceutical, the line between communal heritage and private property has never been more contentious. This raises an important point: are the current intellectual property (IP) systems enough to protect our rich heritage?
For centuries, the rich tapestry of South Africa’s Indigenous Knowledge (IK), from the healing properties of the Umckaloabo (South African geranium) plant to the intricate patterns of Ndebele beadwork, has been exploited, patented, and commercialised without the consent or benefit of its rightful custodians. 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 IK and the holders of this knowledge against exploitation. This includes ensuring communities are adequately remunerated and given due recognition for use of their IK.
IP systems alone are not enough to protect IK, and must be accompanied by other unique laws that will ensure adequate protection of this traditional knowledge. To this end, South Africa enacted the Protection, Promotion, Development and Management of Indigenous Knowledge Act 6 of 2019 (IK Act). This legislation has the monumental task of repositioning IK from the realm of the public domain, into a protected, ownable, and commercially viable form of intellectual property.
The IK Act is built on a dual foundation: safeguarding against misappropriation and enabling equitable development. The IK Act establishes IK as a legally recognised form of IP. It creates a National Indigenous Knowledge System and a National Database for the recording and registration of IK.2 This is crucial, as it moves IK from oral tradition to a formal, admissible record, helping to prevent its wrongful patenting by third parties.
At the heart of the IK Act is the principle that no one may use IK for commercial or industrial purposes without the prior informed consent of the relevant indigenous community. Furthermore, any benefits arising from such use, be they financial or otherwise, must be shared fairly and equitably with the community through a negotiated agreement. This directly addresses the historical wrongs of biopiracy. The IK Act seeks to actively promote IK systems, encouraging its integration into education, innovation, and industry, thereby ensuring it is not merely preserved as a relic but thrives as a living, evolving resource.
The IK Act does not operate in a vacuum; it intersects and, at times, challenges conventional IP regimes.
- Copyright: A traditional song or story, previously vulnerable to unattributed use, can now be protected. The IK Act ensures the community is recognised as the perpetual owner of the copyright, preventing individual expropriation.
- Patents: If a company seeks to patent a drug based on a traditional healer’s knowledge, the IK Database can be used to prove the knowledge is not novel, thus blocking the patent. If a patent is legitimately filed with community consent, the IK Act mandates benefit-sharing.
- Trade marks: The IK Act prevents the registration of trade marks that derogate from, exploit, or are contrary to the norms of an indigenous community, stopping the misuse of culturally significant symbols and names.
In essence, the IK Act creates a sui generis system that runs parallel to mainstream IP law, plugging the gaps where traditional IP, designed for individual, corporate, and time-limited ownership, fails to protect perpetual, communal knowledge.
For a country that celebrates its diversity and has such a rich heritage, it is encouraging to see our indigenous knowledge afforded such protection. While the path to its full and effective implementation is fraught with complexity, the IK Act provides a powerful tool to transform the narrative. It seeks to ensure that the communities who have nurtured and developed this knowledge for generations are no longer passive subjects of exploitation but are active, empowered agents in the commercialisation of their own intellectual heritage.
Author: Tumelo Mashabela | Managing Director and Registered Patent Attorney
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