A Better Second Attempt – Protection of Indigenous Knowledge

Posted on Apr 8, 2015

A Better Second Attempt – Protection of Indigenous Knowledge

On 20 March 2015 the Department of Science and Technology published the first draft of the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2014 (the “IKS Bill) and called for comments.

The Chair of IP Law has responded to this call and delivered extensive representations on the IKS Bill authored by two of its members, Prof Karjiker and Dr Kleyn.

The full text of Prof Sadulla Karjiker’s comments is available herePDF_Icon

The full text of Dr Madelein Kleyn’s comments is available herePDF_Icon

Below follows an overview of the IKS Bill in its current form.

Following the Intellectual Property Laws Amendment Act, 2013 (the “IPLA Act”), the IKS Bill is the second attempt to introduce legislation seeking to introduce protection for indigenous (or traditional) knowledge. However, the IKS Bill differs fundamentally from the approach taken in the IPLA Act.

The IKS Bill seeks to provide special (sui generis) protection for indigenous knowledge, rather than seeking to provide for such protection in terms of the existing types of intellectual property law by Procrustean means, as is sought to be done by the IPLA Act. While the IKS Bill is by no means without its problems, it proceeds from the correct starting point, namely, that nature of indigenous knowledge is fundamentally different to that protected by current intellectual property law. The reason we consider it appropriate to protect intellectual property, such as copyright and patents, is that it incentivises individuals and firms to create the kinds of products protected by such rights, and thereby society benefits. Without such protection much of such creativity may not take place. A very important aspect of such protection is that it is for a limited period; after the period of protection such works are available for use by any person. In other words, such works are said to form part of the public domain after an initial period of protection. Thus, the purpose of intellectual property law, generally, and rather paradoxically, is to increase the size of the public domain.

In contrast, the motivation for seeking the protection of indigenous knowledge is entirely different. Such protection does not, and cannot, serve as an incentive for the creation of such knowledge because, by their very nature, the types of work (or knowledge) which are sought to be protected already exist. From a social perspective, it is important to note that, not only does the subject matter sought to be protected already exist, at present it is in the public domain, as is available for anyone to use (on the assumption, of course, that such works are not protected by existing intellectual property laws). What the protection of indigenous knowledge seeks to achieve is the perceived immoral, or unethical, misappropriation of such information. This perception necessarily involves a value judgement, which invariably involves political considerations. However, what is not open to questioning is that by protecting such subject matter is that it seeks to impose a permanent cost will be imposed on society as it will reduce the size of the public domain.

It is because of this potential cost on society that every effort must be made to clearly define what will be protected as indigenous knowledge, so as to ensure that we do not permanently exclude subject matter which should ideally be available to all. We should also seek to avoid such legislation being applicable to works or knowledge produced in the future, and to works which are currently protected by intellectual property law. It should be expressly recognised that the protection for indigenous knowledge sought to be introduced is an exceptional dispensation: protection of indigenous knowledge is considered necessary because of a perception that certain types existing knowledge or expression are deserving of special protection. In other words, there should be no good reason for the need to protect future indigenous works, that is, indigenous works which do not currently exist. Future creative endeavours should solely be protected by existing intellectual property law, if they satisfy the requirements for such protection. The only types of works or knowledge that should be protectable under legislation for the protection of indigenous knowledge, if any, are those which currently exist, and which are not currently protected by intellectual property law.

What should be happening simultaneously with the enactment of the TKS Bill is that a concerted effort should be made to educate all South Africans, through a public education initiative, about the existing types of intellectual property. It is only by embracing intellectual property protection – rather than by seeking to continuously provide for “special cases,” as is being sought to be done with indigenous knowledge – that we will spur on the required intellectual activity that is an integral part of the economic growth which we should all be seeking to encourage.

In any event, the IKS Bill needs much refinement for it to achieve its objective, which is understandable. South Africa is one of the few countries which has sought to enact legislation concerning indigenous knowledge in the absence of an international consensus on the topic. The lack of international consensus is in no small part due to the difficulty in defining what should be protectable as indigenous knowledge. Therefore, we would be best served to proceed with caution and properly consider every aspect of the proposed legislation. It will almost certainly be the case that our legislation will be closely scrutinised by the international community. We can either take this opportunity to showcase our capabilities, or embarrass ourselves by passing legislation which is ill-considered, and would do more harm to the idea of protecting indigenous knowledge. If what we produce is well-considered and can stand up to scrutiny, it may become the standard for protecting indigenous knowledge. The reason why it is important that an international consensus should emerge is that national legislation can only seek to protect indigenous knowledge within the particular territory. For example, in our case, if legislation protecting indigenous knowledge is introduced, it would mean that persons in South African would be prevented from freely using indigenous works, but persons elsewhere may do so. By introducing such legislation in the absence of an international consensus, we would only have succeeded in imposing restrictions on person in South Africa, and which will discourage the use of such works. For example, there is already a concern among publishers about producing works concerning South African folklore, which may be considered to be indigenous knowledge. If there are not sufficient exemptions, this may lead to an unfortunate decline in such material in educational material due to the costs which would now have to be incurred in gaining the necessary permissions for the inclusion of such material. It may thus be the case that in the future foreigners have more access to, and knowledge, about our folklore than our children, as they are not affected by any legislation which we seek to introduce, in absence of international consensus.

If the IKS Bill is to be effective in protecting indigenous knowledge, let alone becoming the standard for such protection, it still needs considerable work. Apart from the aforementioned principles, there are still a number of technical problems which should be addressed through a more rigorous drafting process. For example, the IKS Bill should provide for a clear registration system for the protection of indigenous knowledge, and definitive criteria for eligible subject matter. There also needs to be clarity about ownership, and how competing claims are to be resolved. Given the fact that some claims for indigenous knowledge may be said to originate decades or centuries ago, a well-defined dispute resolution system has to be provided for, which should allow for periods of opposition before any rights are granted. As the protection of indigenous knowledge imposes a cost on society, great care should be taken to ensure that such costs are minimised by there being sufficient exceptions for so-called fair dealing, such as research or education.

Having said all the above, it is worth repeating that the fact that the IKS Bill seeks to provide special protection for indigenous knowledge, rather than trying to view it as a kind of existing intellectual property, makes it infinitely more appropriate, and commendable, than the Intellectual Property Laws Amendment Act, 2013 (the “IPLA Act”).

Sadulla Karjiker