The protection of indigenous knowledge through the intellectual property system
The Protection of Indigenous Knowledge through the Intellectual Property System
A Policy Framework Contents:
International practice in protecting IKS
National steps towards the protection of IKS
Problem statement: Use of intellectual property to protect indigenous knowledge
Objectives: What can be achieved with the Policy
Discussion: Various intellectual property tools in the protection of indigenous knowledge
Civil and Common Law Principles: Unfair Competition
1. INTRODUCTION Purpose of this document
The Indigenous Knowledge Systems (IKS) Policy, adopted in November 2004, was the
result of an interdepartmental effort to create a guide for the recognition, understanding,
integration and promotion of South Africa’s wealth of indigenous knowledge resources. One
of the areas of action identified by the policy is the protection of indigenous knowledge, and
the holders of such knowledge, against exploitation. This will also include ensuring that
communities receive fair and sustained recognition and, where appropriate, financial
remuneration for the use of this knowledge.
The purpose of this document is to present the findings and recommendations of the dti with
regards the use of intellectual property as a tool for protecting indigenous knowledge
systems. It is the framework for a proposed Protection of Indigenous Knowledge through
Intellectual Property Policy, hereinafter referred to as the IP Policy for ease of differentiation.
This framework will describe how the various forms of the South African intellectual property
system - trademarks, geographical indications, patents, designs and copyright - can be used
to protect traditional knowledge systems. It also makes a business and economic case as to
why there is a need to protect and commercialise issues pertaining to traditional knowledge
systems. Finally, it makes conclusions and recommendations on how best to implement this
protection, including the amendment of intellectual property legislation to bring it in line with
the objectives of the IKS Policy and the contents of this latest policy framework.
Background to the IKS Policy
In 1999 the then Department of Arts, Culture, Science and Technology approached
Cabinet to formulate a policy on indigenous knowledge systems. An interdepartmental
task team embarked on what turned out to be a complex process of consultation and
research which took a lot longer than anticipated. However, the result was a policy
which encompassed a wide scope of actions and recommendations pertaining to
indigenous knowledge systems, including, inter alia, integration of IK into the national
education, research and development systems, proposed administration of IK systems,
institutionalisation, funding and legislative imperatives.
The Indigenous Knowledge Systems Policy was adopted by Cabinet in November 2004.
Since then, various departments have been tasked with developing policies and
legislative amendments that will support the objectives of the IKS Policy.
International practice in protecting IKS
The use and exploitation of traditional knowledge by other nations has become a
topic of discussion at many international forums. Developed and developing counties
alike have engaged in debate and concluded agreements which include the
protection of indigenous knowledge. Intergovernmental organisations such as
UNESCO, WIPO, WTO, UNEP and UNCTAD have opened debates on the possible
protection of indigenous knowledge, referred to in the Policy as traditional knowledge
(TK), using intellectual property systems.
Led largely by debate from developing nations, UNESCO formulated the Convention on the
Protection of the Diversity of Cultural Contents and Artistic Expressions and this has been
Unfortunately, negotiations at the WTO around amendments to the Agreement on Trade
Related Aspects of Intellectual Property Rights (TRIPS) surrounding traditional knowledge
have collapsed. Article 27(3)(b) of TRIPS empowers member states to consider protection
of traditional knowledge using intellectual property systems. During discussions on the
review of the TRIPS Agreement at Doha, Qatar, developing countries proposed amendment
of article 27(3)(b) to cater for the protection of the use of traditional knowledge that leads to
an invention. Developed nations are opposed to this, leading to the collapse of negotiations.
WIPO has established an Intergovernmental Committee (IGC) to initiate discussion on the
protection of traditional knowledge, genetic and biological resources and folklore using
intellectual property systems. Although treaties that can protect these issues are under
discussion, many developed nations are opposed to formulation of such treaties and
negotiations are on the verge of collapse.
United Nations Environment Programme (UNEP), which is the custodian of the Convention
on Biological Biodiversity (CBD), has requested WIPO, WTO and FAO to consider protection
and benefiting of local communities that have contributed to an invention or intellectual
property development. WIPO convened the ICG mentioned above and UNCTAD has voiced
support, emphasising the economic value of traditional knowledge systems.
Regional organisations such as the Asia and Pacific and the African Union have
started to issue treaties and conventions regarding the regulation of traditional
knowledge. Member states of these regions are legislating accordingly.
The Protection of IKS locally
Against this international backdrop, and considering the systems and processes
available locally, the IKS Policy identified that there are various means of protecting
indigenous knowledge in the South African context. These would include the intellectual
property system, databases, sui generis laws (laws of a special kind) and registers.
However, these systems fall under different departments and care must be taken to
ensure that issues that are crosscutting in nature are dealt with in a cohesive manner.
For example, genetic issues should be protected in terms of both the patent system and
All participating departments agreed that each should initiate legislative amendments
based on the IKS Policy. For example, the dti initiated amendments to the Patents Act,
1978, now the Patents Amendment Act, 2005 and DEAT initiated amendments to the
Biodiversity legislation (Biodiversity Act, 2004).
the dti is proud of the fact that the Patents Amendment Act, 2005 is being used at
the WTO and to a certain extent at WIPO as model legislation in this regard.
Although patents have been considered and adapted to the IKS Policy, the dti must
now explore the appropriate use of remaining IP tools, namely trademarks, copyright,
designs and geographical indications to protect and commercialise traditional
This IP Policy framework therefore deals with the protection of traditional knowledge
using the orthodox intellectual property system. It must however be pointed out that
in many circumstances, the IP system is not the best vehicle for the protection of
traditional knowledge, particularly if not adapted or used in conjunction with other
Use of Intellectual property to protect indigenous knowledge Limitations of the IP system
There are essentially two main concerns with regard to the protection and commercialisation
of traditional knowledge in South Africa using the intellectual property system:
The current intellectual property system allows individuals to protect their inventions and
intellectual property rights, but does not allow communities to collectively protect their
In those areas where collective intellectual property registration is possible, communities are
As a result, in both South Africa and internationally, traditional knowledge is not
generally protected using the intellectual property system. However, the intellectual
property system has been protecting traditional knowledge using geographical
indications in the area of wines and spirits exceedingly well.
Misappropriation of indigenous knowledge using the IP system
Even though the intellectual property system is limited, in the absence of its
protection, other users are “poaching” or “misappropriating” indigenous or traditional
knowledge under the auspices of intellectual property. In other words, they are using
the IP system to register ownership of an idea without appreciating or benefiting the
holders of any pertinent traditional knowledge.
The traditional knowledge holders are disadvantaged economically and socially without
protection and the country is disadvantaged economically if no immediate protection is
afforded. The pharmaceutical and agricultural industries are major contributors to the
economy and if there is no protection of traditional knowledge, the locals and the country are
Whilst the largest threat in this regard is from foreign sources, unfortunately, “poaching” of
traditional knowledge also takes place at national level by local companies and research
Internationally, developing countries and least developed countries support the use
of intellectual property to protect traditional or indigenous knowledge. Developed
countries, however, are not in favour for this approach, possibly due to the fact that
multinational pharmaceutical companies from these countries are the greatest
“poachers” of traditional knowledge from their developing counterparts. As mentioned
above, many developed countries do not support treaties and debate which will lead
to the protection of traditional knowledge at international forums such as WTO and
WIPO. Some of them, including the United States are also not members of the
Convention on Biological Biodiversity (CBD), which encourages the protection of
traditional knowledge through the IP system.
Benefits of using IP to protect traditional knowledge
Various sectors would immediately benefit from the adoption of the IP Policy to protect
Laws of copyright, designs, trade mark and geographical indications may be used to protect
indigenous culture. Designs unique to South Africa, for example, could be protected using
the laws of design. There is a need for aggressive marketing of these products and there
Pharmaceutical and chemical sectors
These sectors work closely with genetic, chemical and biotechnological resources in
formulating inventions. Local communities are also involved and benefit-sharing
arrangements may be entered into in terms of the Patents Amendment Act, 2005.
The agricultural sector also hinges on biological diversity. If indigenous knowledge is used in
securing patents, protection and befitting of the local communities may take place under the
law of patents. Geographical indications may be used to protect and commercialised names
of both plats and animals that are peculiar to geographic areas, e.g. Nguni cattle.
Medical or health sector
Traditional medicines are being used as complementary medicines in the health sector.
Traditional healers may use the laws of trade secrets or patents to protect and
commercialise this traditional knowledge. Benefit-sharing agreements would assist in this
South Africa is rich in diversity and there is a need to update its laws, including the
intellectual property laws, in order to protect this diversity. The most important reasons why
TK should be protected at a commercial scale are to assimilate the TK holders into the
mainstream of the economy through providing a fair environment for all role players.
Special concern: Agricultural biodiversity is not catered for in the possible protection of traditional knowledge using the IP system. There is a need for the National Department of Agriculture to amend its legislation like the Plant Varieties Act to be in line with the CBD and Food and Agriculture Organisation (FAO) approaches. This means that TK associated with plant varieties should be protected using international treaties (e.g. UPOV). Equally, the Plant Varieties Act can be amended to complement both the Biodiversity Act and the Patents Amendment Act, 2005. This can be done without ratifying the ITPGR or UPOV 1991. 3. Objectives What can be achieved by the IP Policy
The purpose of the Protection of Indigenous Knowledge through Intellectual Property
Policy is to argue for the protection of traditional knowledge using the present system
of intellectual property. Thus far, the IP has not been used to protect traditional
knowledge but has in fact been used to usurp traditional knowledge, without any
While this policy demonstrates the possibilities of protecting traditional knowledge
using the IP system, it does acknowledge that there are other systems that protect
traditional knowledge very well, e.g. trade secret and sui generis laws that may be
The objectives of using the IP system to protect traditional knowledge would be:
To improve the livelihoods of traditional knowledge holders and communities
Indigenous peoples depend on traditional knowledge for their livelihoods and well-being and
so they can manage and exploit their local ecosystems. Local communities also depend on
traditional medicines for their primary health care. If traditional knowledge is protected and
commercialised, individuals, communities and national economies will benefit.
To benefit national economies
Traditional products such as handcrafts, medicine, agricultural products and non-wood forest
products (NWFP)1 are traded locally and internationally and provide substantial benefits for
the exporter country. Internationally, NWFP trade alone generates around US$11 billion per
Traditional knowledge is also used as an input into industries such as pharmaceutical,
botanical, cosmetics, agriculture and biological pesticides. The market value of plant-based
medicines is in the hundreds of billions (US$) per year. And the value added globally to rice
yields by use of land races is estimated at US$400 million per year. South Africa is rich in
similar trends and it is up to us to quantify benefits for the individual, communities and
national economy. For this reason alone, South Africa should proceed in protecting and
commercialising traditional knowledge using the IP system.
1 Examples of NWFP include products used as food and food additives (edible nuts, mushrooms, fruits, herbs, spices and condiments, aromatic plants, game), fibres (used in construction, furniture, clothing or utensils), resins, gums, and plant and animal products used for medicinal, cosmetic or cultural purposes. To conserve the environment
Traditional farming methods by nature ensure the protection of the environment upon which
they depend. Land races, rotation of crops and other methods not only protects the land,
To prevent bio-piracy
the unauthorised extraction of biological resources and/or associated traditional knowledge
the patenting, without compensation, of “inventions” based on such knowledge or resources.
The failure to recognise and compensate for intellectual property contributions, past and
present, of traditional communities is a form of intellectual property piracy.
To provide legal protection
In South Africa, as in other developing counties, there is no legal redress that addresses
either the protection or commercialisation of traditional knowledge and no legal instruments
that deal with collective ownership of traditional knowledge or benefiting traditional
knowledge holders. As a result, issues of economic, social and socio-economic de
Approval of this policy should result in a review of IP legislation. There is also a need for
the dti to play an advocacy role with a view to influencing other departments to effect
similar legislative reviews in their areas of authority.
4. DISCUSSION: Various intellectual property tools in the protection of indigenous knowledge
Each of the tools of intellectual property which may be used to protect traditional
knowledge has different benefits and shortcomings. It is not enough to say that the
IP system can protect traditional knowledge, rather each tool has been examined in
terms of this unique set of new circumstances. The following gives a brief overview
4.1 Patents Nature:
A patent is a set of exclusive rights granted by the government to a person(s), usually with
regard to an invention, for a fixed period of time. In South Africa, a patent’s lifespan may
If an invention took place because using knowledge of local peoples, then the following must
There must be a disclosure of the origin of indigenous genetic/biological resources;
There must be a disclosure of traditional knowledge;
There must be a prior informed consent of the indigenous peoples;
There must be benefit-sharing agreements; and
There must be co-ownership of the patents (where applicable).
Benefits / shortcomings
Patents are one of the best IP tools for protecting traditional knowledge as the scope
for ownership and commercial sharing is great. The only significant shortcoming is
the limited time frame, which does not allow for perpetual benefits to the knowledge
There is no need for legislative changes as Parliament has already passed the Patents
Amendment Act, 2005 in order to cater for the protection of traditional knowledge.
It is incumbent on South Africa to influence other developing countries to also legislate in this
regard. If China, the African and Asian regions legislate in this area, international forums
such as WIPO will be forced to formulate a treaty in this regard. These regions are the
richest in biodiversity and any dealing with them should be in their terms.
4.2 Trademarks Nature:
A trademark is a brand name, a slogan or a logo used to distinguish goods and services of
one trader from another. The lifespan of a trademark is ten years and can be renewed
Benefits / shortcomings Trademarks may well be used to protect culturally recognised names or symbols, since the
lifespan of cultural names or symbols is perpetual in nature and trademark law can
Certification marks (a form of trademark) can be used to certify that a product is made in a
manner which has certain characteristics which are as a result of the efforts of an indigenous
group, e.g. the process of growing and processing Rooibos tea.
Collective marks are owned through associations or authorities that are mostly semi-
government institutions and permission must be obtained to use such a mark. Collective
marks are used effectively in the wine and spirits industries of South Africa, Chile, Peru and
France. Other countries such as Greece and Bulgaria are using collective marks in other
Government should encourage the Rooibos industry to trade mark Rooibos tea and
market it accordingly. Rooibos tea brings a lot of revenue to small farmers via exports.
Geographical Indications (GIs) Nature:
A geographical indication is a sign used on goods that have a specific
geographical origin and process qualities or reputations that are due to their place
of origin. If a connection between the goods and a geographical area can be
established, a GI can be claimed to distinguish the goods and the protection will
be perpetual. A collective trade mark may sometimes qualify to be a GI.
The examples of Rooibos tea and wines given above are illustrative of products
which can be protected using geographical indications. Internationally, thee are
numerous examples of crafts and other traditional knowledge that has been
protected by GIs, including Talavera de Puebla (pottery hand-made in the town of
Puebla, Mexico), Jablonec Crystal Ware \Jablonec Jewellery (from the region of
Jablonec and Nison, Czech Republic) and Modranska Majolica (hand-painted
pottery made in the town of Modra, Slovakia).
Benefits / shortcomings:
Unauthorised parties may not use GIs if such use is likely to mislead the public or
consumers as to the true origin of the product. Local communities can ensure that their GIs
do not become generic by registering them and promoting their use in the public domain.
Again, Rooibos tea is a good example of a GI that is fast becoming generic due to a lack of
protection as a GI or a collective mark.
A country does not have to follow formalities in declaring certain names to be GIs. This can
be done unilaterally without consulting with trading partners. Many countries have compiled
registers of products that they deem to qualify as GIs and are commercially marketing them
successfully. In bilateral trade agreements, the countries request that these products should
be recognised as GIs. For example, South Africa was asked by France to renounce the use
of the name “champagne” with reference to sparkling wines, and by Peru not to allow the
use of the word “tequila” in liquor products. South Africa has already conceded to France’s
The salient point is that countries (or regional organisations) do not have to wait for an
international dispensation. At the WTO level, there is no agreement to have an international
register of GIs outside the realm of wines and spirits.
South Africa should not be afraid to have a legislation that protects GIs and should legislate
for the protection of GIs and appellation of origin. Collective and Certification marks under
the Trade Marks Act are just starting points. GIs legislation should apply in all areas of
products if they comply with the definition. Rooibos and honey bush tea are two excellent
In this regard, South Africa can draw from international instruments such as:
• The Paris Convention for the Protection of Industrial Property, 1883; • Madrid Agreement for the Repression of False and Deceptive Indications of Source
• Lisbon Agreement for the Protection of Appellations of Origin; and • Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS),
4.4 Industrial Designs Nature:
Design law protects registered designs, either aesthetic or functional, based on the shape,
form, appearance, pattern, ornamentation and configuration of a product or article.
Protection is afforded to aesthetic designs for a period of 15 years, and to functional designs
Indigenous designs could be protected using industrial design law. However, there are
certain factors that should be taken into account if this protection and commercialisation
has to take place in a fair manner, as outlined in recommendations below.
It is recommended that design legislation be adapted to protect TK, with the following in
• Traditional literary and artistic productions must be protected against unauthorised
reproduction, adaptation, distribution and performance, including insulting derogating
and/or culturally and spiritually offensive use.
• Handicrafts and other cultural goods should be protected using, for example, their
“style” (GI, certification and collective marks can also be used). The recent UNESCO
convention on the protection of cultural goods is illustrative of this point.
• Prevention of false and misleading claims as to the authenticity or originality and
failure to acknowledge source (unfair competition and GI).
• Defensive protection of traditional signs and symbols. A community’s secret or
sacred place may be protected defensively. The community may also register a
symbol or name as a trade mark or design so as to prevent use by third parties. This
• An Advisory Board or authority should be established to advise the Registrar
regarding traditional names or symbols in order to prevent unauthorised registration.
Traditional communities could seek representation in the Advisory Board, based on
4.5 Copyright Nature:
A copyright is an exclusive right given by law for a term of years to an author, designer, etc.
for his/her original work. The Copyright Act protects certain classes or categories of
original works, including literary, broadcast, artistic, musical etc. For a work to be eligible
for copyright, it must be written down, recorded or otherwise reduced to material form. The
lifespan of copyright depends on the type of work protected but is usually in the order of 50
Benefits / shortcomings:
Copyright protects only the expression of an idea. If a community collectively owns the
copyright, there is no limited lifespan of a “copyright owner”. Defensive protection, unfair
competition, and protection of confidential information may be used to protect copyright of
a local community. The holders would allow the right to make reproductions via licensing
and as such could obtain continuous payment of royalties. Communities could establish
collecting societies or trusts that would administer their collective rights and therefore
negotiate and receive royalties for sharing.
Licensing of traditional knowledge would be more favourable than the deed of sale that is
currently under the Copyright Act. Licensing would result in the continuous payment of
royalties as opposed to a once-off payment that would result from the sale of the
intellectual property. In this regard there is a need to amend the Copyright Act, 1978.
Lessons can be learned from New Zealand and Australia, which are both good examples
of countries whose courts use the common law to protect traditional knowledge.
4.6 Contractual Arrangements
Contractual agreements can also be used to protect the traditional knowledge of
indigenous peoples. Courts in South Africa, New Zealand and Australia have on a number
of occasions protected traditional knowledge through the interpretation of contracts.
Benefits / shortcomings:
Contractual agreements can be set up to allow for benefit sharing. In South Africa an
example of this is the agreement between the Khoi and San communities and the Council for
Scientific and Industrial Research (CSIR) concerning patents around the patents derived
from the hoodia plant using the traditional knowledge of the Khoi and Sans people.
Artists or owners of folklores may license their work to third parties for exploitation and
thereafter receive royalties on agreed terms. This is how the saga around the ownership of
the song Mbube (folklore of the Xhosa tribe) should have been resolved.
Developed countries are in favour of traditional knowledge protection through contractual
arrangements instead of legislating it through the IP system. However, developing
countries, where most of the unprotected traditional knowledge is vested, are of a different
view. In South Africa, contractual agreements should not be the primary tool for protecting
traditional knowledge and should be applied within the context of a protective IP legislation.
4.7 Trade Nature:
Trade secret has been used from time immemorial to protect traditional knowledge and is
in fact the traditional means of passing down secret knowledge. Trade secret is a practice
which is kept secure within a business or similar entity in order to give an advantage over
competition. The recipe for popular products such as Coca-Cola are protected using trade
Benefits / shortcomings:
The disadvantage for using trade secret as a method of protection is that if third parties
innocently (by chance) discover the knowledge and its use, the secrecy is no longer in force.
However if an internal or an associate person that have a duty to keep the information secret
but such a person reveals such confidential information, the trade secret is protected and the
Trade secret is perpetual if not discovered innocently by a third party and may thus be the
best method of protecting traditional knowledge under most circumstances. However,
traditional knowledge holders should be encouraged to use trade secret with caution.
Traditional healers use mainly trade secret to protect their methods. Health authorities that
wish to protect the IP of traditional healers should be careful not to demand disclosure of
secrets during clinical trials on traditional medicines.
Civil and Common Law Principles: Unfair Competition
The principle of unfair competition may be used to protect traditional knowledge. In this
regard, article 10 of the Paris Convention is applicable and provides that member states
ensure that there is an effective protection against unfair competition in their jurisdictions.
Any act of competition contrary to honest practices in commercial matters constitutes an
unfair competition. The following in particular are prohibited:
All acts aimed at creating confusion with the establishment, the goods, or the industrial or
commercial activities of the competitor.
False allegations in the course of trade aimed at discrediting the competitor.
In terms of traditional knowledge, examples of false and misleading claims would be selling
a souvenir item carrying a label falsely indicating that it is “authentic”,” indigenous made” or
Unfair competition law, trade practices and labelling laws could be helpful in protecting
traditional knowledge from exploitation in this way. Geographical indications, collective
marks and certification marks as discussed above may also be helpful. The Rooibos tea
example can easily be protected using these principles.
Defensive protection is a means of preventing third parties from gaining or
maintaining illegitimate intellectual property rights, but does not stop others from
actively using or exploiting traditional knowledge.
For example, Shona descendants may prevent the registration of the
Mapungubwe rhino and its derivatives as a trademark, but cannot prevent others
from using the symbols. The Registrar of trademarks may also protect indigenous
names by refusing registration of such indigenous names as trademarks, e.g.
“vuvuzela”, “mhalamhala”, “phalaphala”, and “phalafala.”
The main focus of defensive protection has been in the patent system where an application
is assessed against the so called “prior art”, which is the defined body of knowledge that is
considered relevant to the validity of a patent.
There will be both legal and practical considerations in protecting traditional knowledge by
Legally, steps must be taken to ensure that the criteria defining relevant prior art apply to
traditional knowledge. This would also mean ensuring that orally disclosed information is
taken into account since much traditional knowledge is transmitted orally.
Practically, it will be necessary to ensure that traditional knowledge is actually available and
accessible to search authorities and patent examiners, and will likely be found in a search for
The development implications of this issue are that, as the reach of intellectual property
extends to the indigenous and local communities, their traditional knowledge will constitute
an increasingly relevant body of prior art, the effective identification of which will be
increasingly important for the functioning of the IP system. Creation of databases and
registers of this knowledge may be helpful.
This will of course mean disclosure to the registers and possible failure to protect the
information contained in registers and databases is a cause for concern to owners of the
knowledge. The knowledge should not be in the “public domain” and any user should pay a
fee and the owners of the knowledge should benefit. Countries such as India and
Venezuela have created such registers and toolkits but unintended consequences have
resulted. The communities who were supposed to be benefiting are not benefiting at all.
4.10 Sui generis Protection Nature: Sui generis is Latin for "of its own kind," and is used to describe something that is unique or
different. What makes an IP system sui generis is the modification of some of its features
so as to properly accommodate the special characteristics of its subject matter (traditional
knowledge) and the specific policy needs which led to the establishment of a distinct
In an effort to extend protection to traditional knowledge, various countries have adapted
existing IP systems to the needs of traditional knowledge holders through sui generis
measures. These take different forms. For example the Chinese have a team of patent
examiners specialising in traditional Chinese medicine.
Several countries have adopted sui generis laws for traditional knowledge protection.
These include Peru, Costa Rica, Portugal and Thailand. When policy makers seek to
develop a sui generis system, the following key issues must be considered:
What is the policy objective of the protection?
What subject matter should be protected?
What criteria should the subject matter meet to be protected?
Who are the beneficiaries of the protection?
How are the rights administered and enforced?
How are the rights lost or how do they expire1
1 www.wipo.org , Intellectual Property and Traditional Knowledge, Book 2
5. RECOMMENDATIONS AND CONCLUSIONS
It is the strong recommendation of the dti’s task team that South Africa implement this
Protection of Indigenous Knowledge through Intellectual Property Policy and review relevant
legislation in order to protect its rich bio-diversity. If the proposed recommendations are
implemented, growth and development will be spurred on in numerous areas and sectors,
There is a need for South Africa to be guided by foreign, regional and international best
practices, but there is no need for us to wait for the evolution of these practices. The country
must implement this Policy to use intellectual property to protect indigenous knowledge,
including the review of relevant legislation without delay.
This IP Policy is not the same as the IKS Policy of 2004 but rather is will be important in
complementing the IKS Policy of 2004 and there should be a co-coordinated approach by all
government tiers its implementation is to be a success.
South Africa should also influence the regional and international regimes in this area. It is
not difficult to conclude that there are certain areas where the IP system can best protect
In view of the above the dti recommends that South Africa should:
Embark on a legislative review based on the IP Policy deliberations;
Have a co-coordinated (departmental) approach when legislating for the protection of
Influence member states of the regional trading blocks such as SACU, SADC and others in
legislating for the protection and commercialisation of traditional knowledge;
Adopt the IP Policy approach when it conducts trade negotiations and cultural relationship;
Not wait for international solutions in this regard;
Work closely with UNCTAD, relating to the Biotrade Initiative;
Adopt the CBD`s approach (see section 6.1), that biodiversity and genetic resources should
fall under the sovereignty of government;
Establish a dedicated team to handle crosscutting issues in this area (nationally, regionally
Approach the issue of traditional knowledge holistically and evenly, for example not
promoting genetic issues at the expense of cultural issues;
Build appropriate capacity for implementing the IP Policy and legislation, including
developing negotiation skills of communities, formation of development trusts, establishing
national authorities and collecting societies, etc; and
Do a benefit analysis of the traditional knowledge “industry”.
South Africa should adopt the approach of the Peru Project (see section 6.3) in conducting
intellectual property law reviews, negotiating trade agreements and conducting regional and
South Africa should accede to the ITPGRFA (see section 6.1) and related treaties. The Plant
Varieties Act and related legislation should be amended accordingly, towards which the dti
Awareness and advocacy programmes of the Policy must be put in place.
Costing of the policy and implementing legislation
No studies on benefits have as yet been conducted in South Africa, but UNCTAD studies
can be taken as conclusive in that there are quantifiable benefits associated with traditional
knowledge. The benefits to be derived from the implementation of the IP Policy and
supporting legislation should outweigh the costs related to the enforcement thereof.
The Policy will also necessitate review of legislation in, inter alia, IP, agriculture,
environment, health, water and forestry.
Costs benefit analysis of the TK-related industry should be conducted but this should not
delay the implementation of the Policy and allied legislation.
Capacity in relation to implementation of the Policy
Capacity can be built around the implementation of the IP Policy and supporting legislation.
As a start, cross-functional departmental teams should be formed to monitor and evaluate
the effectiveness of the implementation. Capacity-building should then be focused on the
Establishment of national authorities in relevant departments, e.g. well staffed IP Office,
National Biodiversity Office, development trust funds, community trust funds and collecting
Training of personnel in implementing agencies;
Training of communities to participate in decision-making regarding traditional knowledge;
Establishment of enforcement agents for the IP Policy and supporting legislation.
Regional formations at SACU/SADC/IBSA may enhance capacity on enforcement of the
Effective enforcement of TK policies and legislation will be evolutionary as countries are not
yet united on the recognition of traditional knowledge. Developing countries and least
developed countries should make an effort to succeed on enforcement of these policies and
legislation as commercialisation of traditional knowledge could be the backbone of their
Education and awareness among the public will also assist in effective implementation of the
traditional knowledge policies and legislation.
Implementation Strategy the dti will develop an implementation strategy for the IP Policy including, inter alia:
Employing effective communication, such as conducting seminars and workshops to various
stakeholders; publishing the Policy in the Government Gazette, Government and the dti
Employing advocacy of the Policy at national, regional and international levels; and
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