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    South Africa Hopes New Bill Brings Traditional Knowledge Protection

    Published on 17 May 2012 @ 3:06 pm

    By for Intellectual Property Watch

    The Intellectual Property Laws Amendment Bill currently in the in-tray of South African President Jacob Zuma and awaiting a signature, holds the hope that it will finally pave the way for the protection of the country’s most famous red tea, Rooibos, as well as other local staples.

    The bill passed by Parliament needs to be signed by Zuma in order for it become the law. It is an ambitious piece of legislation that aims to provide protective mechanisms for indigenous knowledge in South Africa. The bill is far-reaching and aims to: improve the livelihoods of indigenous knowledge holders and communities, benefit the national economy, prevent bio-piracy, provide a legal framework for protection and empower local communities and prevent exploitation of indigenous knowledge.

    Indigenous peoples in South Africa and the rest of the world have put forward the argument that knowledge of the use of certain plants, for example, has been developed over several generations, and ask why only the present generation should benefit. They also question why some governments or corporates are reaping the rewards of indigenous knowledge through patented products when the knowledge was born from the communities of indigenous peoples.

    The difficulty in answering these questions, according to law experts, is that indigenous knowledge systems do not have a clearly devised timeline to the origin or source of the knowledge.

    It still proves very difficult for proponents of indigenous intellectual property to trump corporates wanting to capitalise on indigenous knowledge systems, more especially within a western legal framework.

    Meanwhile, the main critique of South Africa’s new Intellectual Property Laws Amendment Bill is that it incorporates traditional knowledge into existing law, rather than being governed by its own separate act, which was the main objection raised during public hearings on the bill.

    Critics of the bill agree that while the idea behind the legislation is laudable, the imprecise nature of certain provisions such as the concept of “indigenous community” and how and by whom that community is determined, is problematic because it creates uncertainty.

    The Act also creates retrospective subsistence of copyright, up to 50 years before the Act came into operation.

    The South African trustee of the Indigenous Peoples of Africa Co-ordinating Committee (IPACC) and the national Khoi San Council, Cecil le Fleur, said that while Khoi and San peoples would like to see the recognition afforded them with regards to their knowledge systems, he underscores the point that those knowledge systems, such as the broad use of indigenous herbs and plants, is for everyone.

    “I don’t think we must have the attitude of owning the plant,” le Fleur said. “It is to at least give recognition to people who used the plant for centuries. If they [corporates] make a lot of money from that plant and don’t plough back into first nation communities, then that is not fair. In a globalised world, no-one can claim ownership of a plant nor land.”

    Gino Cocchiaro is a lawyer with Natural Justice, a non-profit organisation whose work is defined as the conservation and sustainable use of biodiversity through the self-determination of indigenous peoples and local communities. He said that the argument for intellectual property rights being attached to indigenous peoples’ knowledge systems is not straightforward.

    “With commonly held knowledge there may be difficulty in seeing through a successful patent claim. How do you protect knowledge?”

    But there is another view on the issue of indigenous intellectual property rights which states that the issue will always remain on the margins, given the dominant system of knowledge production which in the main takes place in universities.

    Historian Shamil Jeppe said: “Maybe it [indigenous knowledge systems] is impossible to recover under capitalism. It will always be a minority add-on.”

    Jeppe asked: “When does something become indigenous? 50 years ago? 300 years ago? There’s nothing original that didn’t come from a seed elsewhere.”

    The prevailing view is that given the history of persecution of indigenous peoples under colonialism, the fight to include their voices in the protection of indigenous knowledge systems is important and necessary to inform the way forward.

    Linda Daniels may be reached at info@ip-watch.ch.

     

    Comments

    1. This week in review … IP Watch article discusses South Africa’s TK Bill « Traditional Knowledge Bulletin says:

      [...] South Africa Hopes New Bill Brings Traditional Knowledge Protection IP Watch, 17 May 2012 [...]

    2. Colin says:

      This is one big step backwards.While it seems to protect the interests of indigenous peoples it effectively destroys their culture by commodifying it and reducing it to units of value in a global market. Who actually owns black tea? England, because an English merchant-privateer stole plants from China and grew it in India? India? China?

    3. Matt Adams says:

      Negotiators from India, Columbia, Peru and New Zealand will shortly meet in Bali to talk about traditional knowledge http://www.patentbuff.com/2012/06/another-look-at-traditional-knowledge.html

    4. matt says:

      I am working on an article at the moment and cannot seem to find any updates on this amendment. I would appreciate any links or updates anyone might have. Thanks


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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