African Traditional Knowledge And Folklore Given IP Protection Despite Warning Of TK Commodification

Some African nations signed a protocol on the protection of traditional knowledge and folklore at the beginning of August gaining the praise of the World Intellectual Property Organization. However, a United Nations report launched in January warned against the application of western legal and economic principles to collectively owned knowledge in traditional communities.

At the African Regional Intellectual Property Organization (ARIPO) diplomatic conference on 9-10 August in Swakopmund, Namibia, the protocol on the Protection of Traditional Knowledge and Expressions of Folklore was signed by nine states.

ARIPO currently has 17 member states. Nine states signed the protocol and “the remaining eight states, including Somalia, will have to accede to the protocol,” Emmanuel Sackey, head of Search and Examination at ARIPO told Intellectual Property Watch. Sackey, who coordinates ARIPO’s activities on the protection of TK, genetic resources and expressions of folklore, said the nine states “will be required to deposit instruments of ratification.” Some states “have initiated the process for the ratification and accession,” he added.

The protocol will enter into force after six contracting states have ratified or acceded to it, Sackey said.

According to ARIPO, this follows a resolution made by the seventh session of the ARIPO Council of Ministers, in 2000. “The organisation should take initiatives on traditional knowledge and link its initiatives with those undertaken by the World Intellectual Property Organization (WIPO) through its active involvement in the WIPO activities in this field,” the website says.

The protocol is meant to “protect creations derived from the exploitation of traditional knowledge in ARIPO member states against misappropriation and illicit use through bio-piracy,” according to ARIPO. The protocol should also prevent the “grant of patents in respect of inventions based on pirated traditional knowledge (…) and to promote wider commercial use and recognition of that knowledge by the holders, while ensuring that collective custodianship and ownership are not undermined by the introduction of new regimes of private intellectual property rights.”

On 31 August, WIPO issued a statement praising the protocol, with WIPO Director General Francis Gurry describing the protocol as “an historic step for ARIPO’s seventeen member states, and a significant milestone in the evolution of intellectual property.” Gurry also underlined “WIPO’s readiness to respond to requests from ARIPO and the African Intellectual Property Organization (OAPI) member states for support in the development of national laws for the protection of traditional knowledge and traditional cultural expressions.”

OAPI has a similar instrument, which was adopted in July 2007, the statement said.

“Stark Contrast to Indigenous Worldviews”

In January, a UN report entitled, “State of the World’s Indigenous Peoples” [pdf] said that the international property rights regime often fails to recognise indigenous customary law. The IP rights regime used in western countries is emphasising exclusivity and private ownership, “reducing knowledge and cultural expressions to commodities.”

“This form of ownership is protected by states and promoted by the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO),” it said.

“The intellectual property rights regime and the worldview it is based on stand in stark contrast to indigenous worldviews, whereby knowledge is created and owned collectively, and the responsibility for the use and transfer of the knowledge is guided by traditional laws and customs,” the report said.

Indigenous traditional knowledge is also “usually held by the owners and their descendents in perpetuity, rather than for a limited period,” it said (IPW, Traditional and Indigenous Knowledge, 14 January 2010).

The draft protocol contains, among others, sections on assignment and licensing, equitable benefit-sharing, and the recognition of knowledge holders. It specifies that, “any person using traditional knowledge beyond its traditional context shall acknowledge its holders, indicate its source and, where possible, its origin, and use such knowledge in a manner that respects the cultural values of its holders.”

Another paragraph describes the application of exceptions and limitations to the protection of traditional knowledge, and one section on compulsory licences explains that, “Where protected traditional knowledge is not being sufficiently exploited by the rights holder, or where the holder of rights in traditional knowledge refuses to grant licences subject to reasonable commercial terms and conditions, a Contracting State may, in the interests of public security or public health, grant a compulsory licence in order to fulfil national needs. In the absence of an agreement between the parties, an appropriate amount of compensation for the compulsory licence shall be fixed by a court of competent jurisdiction.” This follows international rules on IP rights and trade.

A clause of note in the draft protocol states: “Where traditional knowledge belongs exclusively to an individual, protection shall last for 25 years following the exploitation of knowledge beyond its traditional context by the individual.”

The protocol has been formatted by AROPI for submission to the member states and is now available here [pdf].