A Cautious Welcome For South Africa’s Traditional Knowledge Legislation

South Africa’s new indigenous knowledge systems legislation is being cautiously welcomed by commentators, expressing both hopes and concerns. And some are tying it to other intellectual property legislation in the country.

The legislation is known as the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2014. After the bill was published in the government gazette last month, a 60-day window opened to allow for public submissions about the bill.

Information on where to submit comments is explained in the bill, which is available here [pdf].

The Department of Science and Technology will publish the comments from submissions about the bill after the public submissions process closes on the 20 May 2015.

After the 60-day period, a group of both international and national experts will deliberate on the comments for integration/amendment/deletion from or into the bill. A final draft will be submitted to the Minister of Science and Technology for her consideration to initiate the parliamentary approval process.

The Department of Science and Technology (DST) authored and published the bill. According to Tom Suchanandan, the director of advocacy and policy development at the DST, the bill “speaks to chapter 4 of the [draft National IP Policy] and is complementary to the IP Amendment Act.”

“As you rightfully know, there are no international definitions or guidelines on indigenous knowledge [IK],” he said. “Consistent with the African position at the IGC the bill proposes a set of criteria for IK.”

The IGC is the World Intellectual Property Organization Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore, which has long been negotiating on these issues.

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Laura Foster, assistant professor of gender studies and affiliate faculty of Maurer School of Law at Indiana University-Bloomington and a visiting researcher at the University of Cape Town Intellectual Property Unit, said that the bill’s premise of protecting IK is laudable.

However, she said, “in terms of Section 11 [of the bill], the requirements for indigenous knowledge and expressions to be protected is too limited. It assumes that traditional knowledge and expressions are fixed forms that can be historically identified and linked to a particular community, rather than understanding how traditional knowledge can change overtime and take on many different, yet related expressions.”

Intellectual property and indigenous knowledge systems specialists with CS Consulting, Susanna Chung and Louis van Wyk said in a joint response: “Overall, we are of the view that the proposed DST Bill is a step forward in the right direction and in line with the South African/African/Developing countries position at the international fora in particular the World Intellectual Property Organisation and World Trade Organization.” Chung is a former South African government negotiator at WIPO.

“The DST Bill proposes a sui generis type legislation which has been the basis of developing countries’ position at the WIPO intergovernmental committee,” they told Intellectual Property Watch. “It also follows the WIPO text which is currently being negotiated at WIPO in respect of an international treaty…. The DST Bill is also based on the existing Indigenous Knowledge Systems (IKS) Policy and aims to work through the existing National IKS Office (NIKSO).

Among NIKSO’s functions is the National Recordal System, which documents and records IKS collected at the grassroots level.

“The main question,” said Chung and van Wyk, “will be how this Bill will affect that of the recent IP Amendment Act (IPAA) where there has been and is a lot of debate and concerns as to how the IPAA is to be implemented. The DST Bill and the IPAA are not in sync and the question of implementation is still there.”

“The IPAA creates new IP rights which still, despite being passed, creates a lot of concerns as to how the Act is to be enforced,” they said. “It is our view that the IPAA remains to be a huge challenge for South Africa and an obstacle to its existing IP laws. The DST Bill addresses the concerns of how best to protect TK (although there is still a need for consultations on the Bill) and our view is that the DST Bill should be taken forward further and the current IPAA be repealed.”

Member of Parliament for the Democratic Alliance, the opposition party, Geordin Hill-Lewis, who is the party’s Shadow Minister of Trade and Industry, was somewhat critical after reading the Bill.

“From what I have read, and the opinion of legal experts that I have spoken to, it would seem that these sections (11, 14 and 20 of the Bill) are overly limiting, and will hamper the efficacy of the Bill,” he said.

“Indeed, I recall from the Parliamentary process that the Bill was met with near universal condemnation, but was pressed ahead with anyway,” Hill-Lewis continued. “It would seem that what we are left with is a fundamentally flawed Act that will be difficult, near impossible to implement, and which will not achieve its stated objectives.”

Foster explained, in a written response to Intellectual Property Watch, some of her concerns with regards to sections 14 and 20 of the bill:

“Section 20: By requiring government enforcement of the protection of indigenous knowledge, Section 20 is well-meaning and gives force to the law. It is uncertain though how NIKSO will respond to this new role and whether they will be given the appropriate amount of staff and resources to enforce the protection of indigenous knowledge. If NIKSO is not given the appropriate resources, then it may create a bottleneck that fails to protect indigenous knowledge and/or hinders effective collaborations between indigenous peoples and those private entities that desire access to their indigenous knowledge. Placing enforcement in the hands of NIKSO might afford protection to certain indigenous groups, but it can also inadvertently reinforce the notion that indigenous peoples cannot develop their own mechanisms to protect their knowledge. As indigenous communities begin to develop their own sets of biocultural community protocols for the protection of their knowledge and resources, how might their forms of governance come into tension with NIKSO and the new law?”

“Section 14: Within Chapter Four, Section 14 designates who are considered beneficiaries under the law and thus entitled to certain exclusive rights and protections as set forth in Section 12. Section 14 is limited because it assumes that a community can identify those to whom the custody or protection of indigenous knowledge is entrusted. It also assumes that indigenous communities are homogeneous and distinct persons can be identified, rather than understanding how indigenous communities are heterogeneous and numerous individuals and families within may have competing, different, and related claims to indigenous knowledge. That being said, although identification of beneficiaries under Section 14 may be difficult, one must respect the sovereign right of indigenous peoples to designate as a community who they themselves consider to be entrusted with the custody or protection of their indigenous knowledge. Debates over the difficulty of identifying indigenous knowledge holders can inadvertently reinforce the notion that indigenous peoples are incapable of governing and determining these questions for themselves.”

Meanwhile, an informed observer of the WIPO IGC process explained to Intellectual Property Watch that South Africa’s IKS bill has to be viewed in the context of the more than a decade-long process of negotiations on indigenous knowledge, including unresolved sticking points such as determining who the custodians of indigenous knowledge are.

Against this backdrop, the DST IKS bill might be viewed as a measure of frustration at the drawn-out process at the IGC. The bill by and large mirrors what has been discussed at the IGC.

While the IPAA and the IKS bill have been drafted by two separate government departments and their differing ideologies on intellectual property have been pointed out in the past, Chung and van Wyk believe the two ultimately have the same objectives.

“The IPAA was adopted prematurely without sufficient time to consider the full impact of its existence,” Chung and van Wyk said. “The questions raised by the IPAA have been covered by the DST Bill in a more comprehensive manner. It would appear that repealing the IPAA and taking the process forward as government with the DST Bill would be a more sensible approach.”