South Africa Hopes New Bill Brings Traditional Knowledge Protection

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.