From South Africa: Keeping Traditional Knowledge Traditional

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By Professor Owen Dean

Introduction

There has been a tidal wave of severe criticism of the South African Government?s proposed legislation to provide for protection for traditional knowledge in domestic South African law (see for example the articles posted on the (IPSTELL blog) indicated by the keywords ?traditional knowledge?. By means of the Intellectual Property Laws Amendment Bill, it is sought to introduce a special form of protection for so-called ?traditional knowledge? into each of the Trade Marks, Copyright, Designs and Performance Protection Acts (the Bill is commonly known as the ?Traditional Knowledge Bill?). There has been vociferous support for the viewpoint that, if some form of special protection for traditional knowledge is required, this should be provided in a sui generis statute which is customised to meet the requirements and characteristics of the subject matter sought to be protected and not by means of adulterating the existing intellectual property statutes.

The desired type of protection cannot be achieved by amending the aforementioned intellectual property statutes without doing serious damage to the basic tenets of such statutes. That is because specialised protection for traditional knowledge is not compatible with the fundamental principles of intellectual property law as embodied in these statutes and the desired objective is incapable of being achieved for this reason. A South African authority has gone as far as formulating a draft sui generis bill, which can be found by perusing the article posted on the IPSTELL blog entitled ?NEW Traditional Knowledge Bill ? Sui Generis Protection For TK.?

International Association for the Protection of Intellectual Property

One of the foremost non-governmental expert intellectual property institutions is The International Association for the Protection of Intellectual Property (AIPPI). It describes itself on its website as ?The world?s leading international organisation dedicated to the development and improvement of the regimes for the protection of intellectual property. It is a politically neutral, non-profit organisation, domiciled in Switzerland which currently has almost 9 000 members representing more than 100 countries. The objective of AIPPI is to improve and promote the protection of intellectual property on both an international and national basis. It pursues its objective by working for the development, expansion and improvement of international and regional treaties and agreements and also of national laws relating to intellectual property.?

The AIPPI dates from 1897 and its membership includes lawyers, patent attorneys, judges, scientists, engineers and academics. It is generally regarded as one of the most authoritative voices on matters pertaining to intellectual property and is held in high regard by the World Intellectual Property Organization (WIPO).

The AIPPI recently held its 43rd?World Intellectual Property Congress in Seoul, Republic of Korea, from 20 to 23 October 2012. One of the working sessions at the congress was devoted to the question of ?The relevance of traditional knowledge to intellectual property law?.

Gauging International Opinion

Against the South African background it is interesting to see what the international view on this general question is. The question arises whether the criticism of the Traditional Knowledge Bill is perhaps unfair and whether such criticism is in or out of harmony with the international thinking on the question of the relationship between intellectual property and special protection for traditional knowledge. The abovementioned working session provided an ideal opportunity to reasses the situation.

It transpired that many of the delegates participating in the TK discussions were familiar with the South African Traditional Knowledge Bill and had a very low estimation of it, even holding it out to ridicule! It was a source of some embarrassment to be seen to be representative of a country that had spawned what was perceived to be such poor legislation. The Traditional Knowledge Bill was held up as an example of how not to go about providing for specialised protection or traditional knowledge, and more particularly expressions of folk law which is, of course, what the Bill is really about. It transpired that mainstream South African views were not only shared by the meeting, but indeed in some instances even stronger criticism of the Bill was forthcoming.

Adoption of Resolution

The purpose of the working session was to prepare a resolution for adoption by the congress reflecting the view of the AIPPI as an organisation on the issue of traditional knowledge.

The workshop duly formulated and prepared a resolution which was adopted at a plenary session of the congress. The resolution thus reflects the official view of the organisation and the collective view of its 100 or so national groups. These national groups reflect a microcosm of the international community and they include many developing, and developed, countries which have a rich heritage of traditional knowledge. They range from South American to European and Asian countries. Countries, like South Africa, having a western culture as well as an indigenous culture (e.g., Canada, New Zealand, Peru, Australia, India and the like) formed an important component of the group.

The full text of the resolution as adopted is available from the AIPPI website [pdf]. The product of all the working committees on Q232, the summary reports, resolutions and group reports per nation are available from the listing of all AIPPI committees.

The main thrust of the resolution was to arrive at a harmonised definition of the term ?traditional knowledge? with a view to achieving a harmonised international approach to the protection of traditional knowledge.

As a precursor to the congress, the various national groups had been asked to express their views on the manner in which traditional knowledge should be protected. The majority of the groups considered that so-called ?defensive protection? of traditional knowledge is in principle desirable but there was no majority in favour of so-called ?positive protection?. The draft resolution was prepared taking these considerations into account.

Spectrum of Views

In general, views on the nature and extent of protection for traditional knowledge cover a wide spectrum. On the ?left wing? of the spectrum are those who take the view that existing intellectual property law gives adequate protection, to the degree warranted, to traditional knowledge and therefore that no special protection is required. Moving towards the centre, there are those who hold the view that the existing laws are adequate, but that provision should be made to ensure that where rights are claimed in property by a third party (for instance by registering a patent or design), the rights of traditional communities to continue using their TK undisturbed should be entrenched ? this is the so called ?defensive protection? of traditional knowledge. Moving away from the centre towards the ?right wing? of the spectrum, there are those who believe that some form of special protection for traditional knowledge ? so called ?positive protection? ? may be appropriate, but such protection should be granted in customised or sui generis legislation. Finally, on the far ?right wing? are those who favour amending existing intellectual property laws so as to grant special protection for traditional knowledge (the South African government is the only known proponent of this view).

It became abundantly clear from the discussions that by far the majority of the delegates were of a left wing persuasion favouring no special protection for traditional knowledge, save perhaps for protection of a defensive nature. There were few supporters of the right wing approach of adopting sui generis legislation, while noone subscribed to the far right wing position of amending existing IP legislation to cater specially for traditional knowledge. Needless to say, the writer did not offer any support for the far right wing view and inclined towards the majority view. WIPO is, of course, sponsoring the sui generis legislation approach and this factor was given due recognition by the meeting.

In addition to adopting a harmonised definition of traditional knowledge, the resolution provided that harmonised treatment of TK internationally is to be encouraged, that legal certainty is desirable, protection for TK should be aligned with the principles of existing IP systems, and that this may be achieved by way of sui generis treatment. Finally, the organisation resolved that defensive protection of TK is to be encouraged and that the specifics of this should be the subject of further study.

Conclusion

The message that came through loud and clear from the congress was that the mainstream of international opinion on the subject of traditional knowledge is that nothing more than defensive protection is required and that, if it is desired to go further than this, special protection should be provided for in sui generis legislation. In the final analysis, it became clear to the writer that the view that the South African critics have been propounding is in keeping with international thinking on the subject and, if anything, it inclines towards a somewhat right wing approach by international standards. Their viewpoint that the South African government?s approach to the protection of traditional knowledge is way out of line and is untenable is a generally prevailing one. The far right wing view is supported by noone and, on the contrary, is simply dismissed out of hand. The South African critics can therefore be content in the knowledge that their criticism and rejection of the Traditional Knowledge Bill is reasonable and is in harmony with the general informed international view. There is thus every justification for attempting to apply the brakes to the runaway train being driven by the Department of Trade and Industry.

Read more about this subject and other matters at: www.sun.ac.za/iplaw or blogs.sun.ac.za/ipstell.

Prof. Owen Dean was appointed as a Professor at the Law Faculty of Stellenbosch University as of 2011, where he is the incumbent of the Anton Mostert Chair of Intellectual Property Law.?

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