INTELLECTUAL PROPERTY AND INDIGENOUS KNOWLEDGE SYSTEMS: INTERNATIONAL DEVELOPMENTS AND IMPLICATIONS FOR SOUTHERN AFRICA

MOGEGE MOSIMEGEINDIGENOUS KNOWLEDGE SYSTEM UNIT

DEPARTMENT OF SCIENCE AND TECHNOLOGY

PRETORIA, SOUTH AFRICAmogege.mosimege@dst.gov.za

Presentation made at the CODATA Workshop on 05 September 2005

OVERVIEW OF PRESENTATION

IKS: Some DefinitionsIKS in South Africa – Emphasis on IKS PolicyIntellectual Property Rights and IKS World Intellectual Property Organization (WIPO) and the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)International Developments in IP and IKS: Examples from IndiaInternational Developments in IP and IKS: Examples from Southern Africa

INDIGENOUS KNOWLEDGE SYSTEMS: SOME DEFINITIONS

Indigenous knowledge is the local knowledge – knowledge that is unique to a given culture or society. IK contrasts with the international knowledge system generated by universities, research institutions and private firms. It is the basis for local-level decision making in agriculture, health care, food preparation, education, natural-resource management, and a host of other activities in rural communities. (Warren, 1991)Indigenous knowledge is used synonymously with ‘traditional’ and ‘local’ knowledge to differentiate the knowledge developed by a community from the international knowledge systems sometimes called ‘’Western’ system, generated through universities, government research centres and private industry. IK refers to the knowledge of indigenous peoples as well as any other defined community. (Warren, 1992)The unique, traditional, local knowledge existing within and developed around specific conditions of women and men indigenous to a particular geographic area. (Louise Grenier, Working with Indigenous Knowledge. A Guide for Researchers, International Development Research Centre, 1998)

IKS: SOME MORE DEFINITIONS

Indigenous knowledge is (…) the information base for a society, which facilitates communication and decision-making. Indigenous information systems are dynamic, and are continually influenced by internal creativity and experimentation as well as by contact with external system. (Flavier et al. 1995:479).Combination of knowledge systems encompassing technology, social, economic, and philosophical learning, or educational, legal and governance systems. It is knowledge relating to the technological, social, institutional, scientific and developmental, including those used in the liberation struggles. (Odora Hoppers and Makhale-Mahlangu, 1998)An all inclusive knowledge that covers technologies and practices that have been and are still used by indigenous and local people for existence, survival and adaptation in a variety of environments. Such knowledge is not static but evolves and changes as it develops, influences and is influenced by both internal and external circumstances and interaction with other knowledge systems. Such knowledge covers contents and contexts such as agriculture, architecture, engineering, mathematics, governance and other social systems and activities, medicinal and indigenous plant varieties, etc. (Onwu & Mosimege, Indigenous Knowledge Systems and Science and Technology Education: A Dialogue, African Journal of Research in Mathematics, Science and Technology Education, V 8, No. 1, 2004)

IKS POLICY

IKS Policy adopted by Cabinet in November 2004 and launched by DST in March 2005. Policy available at www.dst.gov.za. The Policy provides for the following: Key Policy Drivers – 4IKS and the National Systems of Education and InnovationStakeholders and Role Players in IKSInstitutional FrameworkIKS Funding and PrinciplesNational and International ImperativesRole of various Government Departments and the Intergovernmental Committee on IKS

BEST PRACTICES ON INDIGENOUS KNOWLEDGE

Centre for International Research and Advisory Networks (CIRAN) and the Management of Social Transformation Programme (MOST) of UNESCO have produced a publication and also constructed a Database on ‘Best Practices on Indigenous Knowledge’ to show how indigenous knowledge can be put to good use in development practice. Here ‘Best Practices’ refer to examples and cases that illustrate the use of IK in developing cost-effective and sustainable strategies for poverty alleviation and income generation.CIRAN selected 27 best practices in the field of indigenous knowledge for inclusion in the UNESCO-MOST Database.Developments in IKS in South Africa take into account developments in the SADC Region as well as the continent. In 2004 – 2005 financial year DST is funded a project that looks at ‘Best Practices in IKS within the SADC Region in the context of NEPAD’

ROLE OF INDIGENOUS KNOWLEDGE IN DEVELOPMENTExcerpts from Best Practices:

It is encouraging to observe that over the past ten years there has been a dramatic increase in interest in the role that indigenous knowledge can play in truly participatory approaches to sustainable development;It may not be accidental that the growing interest in the potential contribution of indigenous knowledge to development is becoming manifest at a time when current development models have proven not too successful;Today, hundreds of millions of marginalized people all over the world are still being excluded from the mainstream of development;New insights reveal that development interventions have failed to induce people to participate because of the absence of instruments and mechanisms that enable them to use their own knowledge.

INTELLECTUAL PROPERTY RIGHTS (IPRs)

Intellectual Property Rights (IPR) are the rights awarded by society to individuals or organizations principally over creative works: inventions, literary and artistic works, and symbols, names, images and designs used in commerce. They give the creator the right to prevent others from making unauthorised use of their property for a limited period. IP is generally divided into two main categories:

(i) The protection of Industrial Property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, geographical indications (indications of source or appellations of origin), and the repression of unfair competition.

(ii)Copyright includes literary and artistic works such as novels, poems and plays, films, musical works, drawings, paintings, photographs and sculptures, computer software, databases, and architectural designs.

IP AND IKS

The Pacific Island Forum Secretariat (and others involved in IKS) have argued that the current IPR system cannot protect indigenous knowledge (Pacific Island Forum Secretariat, 2002). Three reasons have been advanced:

(i) The current system seeks to privatise ownership and is designed to be held by individuals or corporations, whereas indigenous knowledge has collective ownership

(ii) The protection is time-bound, whereas indigenous knowledge is held in perpetuity

(iii) It adopts a restricted interpretation of invention, which should satisfy the criteria of novelty and be capable of industrial application, whereas indigenous knowledge innovation is incremental, informal, and occurs over time.

FURTHER ARGUMENTS AGAINST THE USE OF CURRENT IPRS IN IKS

Mashelkar (2002:190) argues that the existing IPR systems are oriented on the concept of private ownership and individual innovation. They are at odds with indigenous cultures, which emphasize collective creation and ownership of knowledge. There is a concern that IPR systems encourage the appropriation of indigenous knowledge for commercial use, without the fair sharing of benefits with the holders of this knowledge. As a result is has been recommended that a sui generis or alternative law, is necessary to protect indigenous knowledge. Mshana (2002:204) also says that the current IPR regimes cannot protect traditional and indigenous knowledge and there appears to be great hesitation in creating new systems (sui generis) for their protection. Mshana actually continues to argue that current IPR regimes and especially patents threaten to worsen the piracy of biological resources and traditional and indigenous knowledge associated with the resources. He says that biopiracy of indigenous knowledge is a double theft: it steals creativity and innovation, and patents on stolen knowledge rob owners of economic development

ARGUMENTS FOR USING OR ADAPTING CURRENT IPR REGIMES FOR PROTECTION OF IKS

Correa (2001:11) gives a number of examples in which traditional knowledge or parts thereof may be protected under existing modes of IPRs.

Copyrights can be used to protect the artistic manifestations of TK holders, especially artists who belong to indigenous and native communities against unauthorised reproduction and exploitationThe Patent system could be used for the protection of technical solutions that are industrially applicable and universally novel and involve an inventive stepNew plant products, cultivars and varieties of all species of plants may be protected under plant breeders rights (PBRs)The design and shape of utilitarian craft products such as furniture, receptacles, garments, and articles ceramics, leather, wood and other materials may qualify for protection as industrial designs

Correa also gives possible examples for trademarks, Trade Names, Geographical Indications and Appellations of Origin, and repression of Unfair Competition. It is clear that there conflicting views whether indigenous knowledge can be protected (adequately) by existing IP regimes. It is important that different countries continue to explore various possibilities of protecting indigenous knowledge, whether they find existing IPRs appropriate or whether they adapt the regimes, or even opt for sui generis legislation.

WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO) AND THE PROTECTION OF IKS

One of the specialized agencies of the United Nations, 181 member states.Responsible for administering 23 Treaties:- 16 Treaties on Industrial Property- 6 Treaties on Copyrights- Convention creating WIPO - Some examples of treaties: Paris Convention for the Protection of Industrial Property, Trademark Law Treaty; WIPO Copyright Treaty; Patent Law Treaty; Acknowledges difficulties related to debates on indigenous peoples, regards indigenous knowledge (IK) as part of traditional knowledge (TK).Intergovernmental Committee Meetings

WIPO: TRADITIONAL KNOWLEDGE

Tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.Tradition-based refers to knowledge systems, creations, innovations and cultural expressions which: have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; and, are constantly evolving in response to a changing environment.

WIPO FACT-FINDING MISSIONS

9 FFMs Between June 1998 and November 199928 countries in the following regions: South Pacific; Southern Africa; Eastern Africa; West Africa; South Asia; North America; Central America; South America; Arab Countries; the Caribbean FFMs designed to enable WIPO to identify, as far as possible, the IP needs and expectations of traditional knowledge holders

VIEWS EXPRESSED WITH RESPECT TO THE USE OF IP TO PROTECT TK

IP ineffective to protect TK

IP unsuitable as a means to protect TK

IP can be used to protect TK

INTERGOVERNMENTAL COMMITTEE (IGC) ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE

IGC established by the WIPO General Assembly in October 2000IGC has met on 8 occasions in Geneva, Switzerland: The 6th Session took place from 15 – 19 March 2004, and the 7th Session took place from 01 – 05 November 2004; the 8th Session and most recent took place from 06 – 10 June 2005Some of the work of the IGC:

1. A study on the operational definitions relevant to TK2. A review of existing national systems of IP for TK3. An analysis of the elements for a possible sui generis

system for the protection of TK4. The use of database to promote defensive protection5. The development of an IP management toolkit for the

documentation of TK

AGREEMENTS AND COMPROMISES AT THE 8TH IGC MEETING

The IGC agreed that there was broad support for the process and work being undertaken within the IGC on Traditional Cultural Expressions (TCE) and Traditional Knowledge (TK)The Committee discussed documents WIPO/GRTKF/IC/8/4 and WIPO/GRTKF/IC/8/5 (The Protection of Traditional Knowledge: Revised Objectives and Principles) and noted the diverse views expressed on this issueThe Committee noted broad support from the Committee participants on the future work of the Committee and agreed to recommend to the General Assembly that the mandate of the Committee be extended to the next budgetary biennium to continue its work on traditional knowledge, traditional cultural expressions and genetic resources

INTERNATIONAL DEVELOPMENTS IN IP AND IKS: EXAMPLES FROM INDIA

Turmeric: The CSIR (India) asked for a re-examination of the US Patent no. 5 401 504 which was granted for the wound healing properties of turmeric. In a landmark decision, the United States Patent and Trademark Office (USPTO) revoked this patent after ascertaining that there was no novelty, the innovation had been used in India for centuriesNeem: The European Patent Office (EPO) revoked this patent which had been granted to the W R Grace company and the US Department of Agriculture on the grounds that there was also no novelty after the challenge by the CSIR (India)Basmati Rice: India applied for a re-examination of the US Patent no 5 663 484 on the same grounds as that of Turmeric and Neem. As far as I know this patent has also been revoked.It is important to note that it is very costly to apply for the revocation of these patents. The legal costs incurred by the India Government in the case of turmeric were estimated at $10 000.

ELABORATION ON BASMATI RICE

In Texas, a company called RiceTec took out patents on Basmati Rice (which grows in the Indian and Pakistan regions) and have created a genetically modified Basmati rice, while selling it as normal Basmati.In June 2000, four of the patents were withdrawn when the Indian government formally challenged the patentTowards the middle of 2001, three patents were awarded to RiceTec – to variants of basmati called Texmati, Jasmati and Kasmati, all cross breeds of Basmati and Americal long grain rice.Rice is an important aspect of life in the Southeast and other parts of Asia. For centuries, it has been the cornerstone of their food and culture. During this period, farming communities throughout region developed, nurtured and conserved over a hundred thousand varieties of rice to suit different tastes and needs. It is for this reason why the patenting of Basmati Rice by RiceTec Inc. is perceived as not only intellectual property and cultural theft, but it also directly threatens farm communities in Southeast Asia.

INTERNATIONAL DEVELOPMENTS IN IP AND IKS: EXAMPLES FROM SOUTH AFRICA

The San community has traditionally eaten the Hoodia Cactus to stave off hunger and thirst on long hunting trips. Other uses of Hoodia are:- Hoodia sap can be used to treat eye infections- the brew of boiled Hoodia pieces can be used to treat severe stomach pain- Extracts from the Hoodia plant have shown in clinical trials on obese subjects to reduce caloric intake by 30% - 40%. Significant weight loss has resulted from such a drop in caloric intake.1995: CSIR (after many years of research and interaction with the San community in the Kalahari) patented the Hoodia’s appetite-suppressing elements1997: CSIR licensed to Phytopharm, a UK biotech company1998: Pharmaceutical Company Pfizer acquired the rights to develop and market P57 as a potential slimming drugMarch 2003: CSIR signed an agreement with the San Community about benefit sharing and royalties emanating from the patenting and licensing and royalties from the Hoodia.There has not been any transfer of payment of benefits to the San Community to date. A process of establishing a Trust is in its final stages.

HOODIA PLANT

ILLUSTRATION BASED ON THE BUCHU

For centuries the people of South Africa have eaten the leaves of Agathosma Betulina (known as buchu) to relieve stomach complaintsPowdered dried leaves are also mixed with sheep fat to produce an ointment that gives the skin a healthy sheen and is antibioticUntil 1995, the only source of buchu were wild plantations in the mountains of the Western Cape Province.However, due to unemployment, demand for buchu in other parts of the world especially Europe, harvesters were encouraged to collect more and more of it.Poor cutting procedures, overharvesting and harvesting at the wrong times of the year were preventing buchu plants from producing seeds for the next generationIn 1999 the Agricultural Research Council (ARC) initiated a project to protect the country’s indigenous genetic material, prevent buchu from becoming extinct, create jobs and serve the national economy.Many questions still need to be answered relating to buchu and its propagation in South Africa and its use and availability internationally.

BUCHU PLANT

ANOTHER EXAMPLE FROM SOUTH AFRICA: ROOIBOS TEA

South Africa is the only producer of rooibos tea in the world (however, these days it is called the lead producer). The plant, which the San community used to make tea, grows exclusively in the Cedarberg Mountain region and around Clanwilliam and Citrusdal in the Western Cape.Commonly used to make a caffeine free tea, it has been used for many years by indigenous people in South Africa.Cultivation for commercial use sales began in the 1930sBeyond tea, its purpose include natural hair dye, a meat tenderizer, a substitute in almost any recipe for the water or milk; it has also been used to treat allergies such as hay fever, asthma, and eczemaThe debate currently taking place over Rooibos is between the US Patent and Trademark Office and South Africa’s Department of Trade and Industry.Burke International, an American Company, claims it is the sole owner of the name Rooibos Tea in the US and that other companies are only allowed to sell products with that name through Burke. The Trademark not only covers tea, but also products with an extract of the tea.In February 2005, Rooibos Limited, the processor and marketer of rooibos tea worldwide has come a step closer to winning its trademark battle in the US after a court there ruled that rooibos was a generic term that was not entitled to any trademark.

ROOIBOS TEA PLANT

CEDARBERG MOUNTAIN RANGE

DEVIL’S CLAW: AN EXAMPLE FROM SOUTHERN AFRICA

Devil’s Claw (Botanical name: Harpagophytum procumbens) is an indigenous plant of Southern Africa, especially the Kalahari desert, Namibia and the island of Madagascar.The name Devil’s Claw is derived from the herb’s unusual fruits, which are covered with numerous small claw-like appendages. The Setswana name is Sengaparile.Devil’s claw has been used in connection with the following conditions: arthritis, indigestion, and back painBotswana, Namibia and South Africa are engaged in talks to protect the Devil’s claw plant from a German company, which wants to have patents rights over it.The government of Botswana recently suspended issuing of new research permits in National Parks and Game Reserves to enable it to monitor such researchers and derive appropriate benefits.

SENGAPARILE

IMPORTANCE OF REGIONAL AND CONTINENTAL COLLABORATION IN IKS ACTIVITIES

Most of the Hoodia debates and Agreements have focussed on the San Community in the Kalahari, South Africa. However, the San Communities are also found in Botswana, Namibia, and AngolaAt a workshop at the University of Botswana in November 2003 it was reported that an incorrect Hoodia plant had been harvested and sold to a US based company which discovered that it had obtained the incorrect Hoodia plant.In June 2004 it was reported in a Namibian Newspaper that Namibia has sent a request to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to have one of its natural flowers, the Carrion flower or the Hoodia, classified to allow it to be sold in controlled commercial trade.Based on the example of the Hoodia in the region, it is clear that without collaboration in IKS we are likely to lose greatly in terms of monetary benefits and intellectual property. We can only benefit if we stand together as the SADC region and the Continent.Collaboration at the IGC Meetings at WIPO has ensured that the Continent is able to withstand the pressure of the developed countries in the negotiations on Indigenous Knowledge. This collaboration needs to be initiated, encouraged, and promoted.

CHALLENGE OF DOCUMENTATION – SPECIAL EMPHASIS ON DATABASES

Most Institutions have a Database of some kind related to medicinal plants and traditional medicines: CSIR; NBI; MRC; ARC, Universities and Technikons (Universities of Technology). On many occasions these databases have no reference at all to each other. Other Institutions have other types of Databases. These databases can serve as a first step towards the creation of a South African Indigenous Knowledge Digital LibraryDST has embarked on a process of identifying all existing databases so that it can verify what is available and what needs to be doneDST has also just approved a Proposal by the CSIR to develop a Traditional Medicines Database for South Africa. This is just one of many such projects that will need to be undertaken as a build up towards the SAIKSDLThe IKS Policy provides for the creation of IK Databases which should be harmonised with other international systems so that cross-referencing is possible.

CHALLENGE OF BENEFIT SHARING MECHANISMS AND MODELS FOR SOUTHERN AFRICA

In fulfillment of their obligation in the CBD, countries have enacted or are drafting legislation to regulate access and benefit sharing arrangements in relation to biodiversity and knowledge of its use. In South Africa, DEAT has been involved in the drafting of the Biodiversity Bill. DST has been actively involved in inputs on specific Chapters dealing with access and benefit sharing in the Biodiversity LegislationIn addition to these activities, DST is leading discussion on benefit sharing models that need to be in place for the benefit of knowledge holders who are the most exploited in these arrangementsExample of the Hoodia Plant: A benefit sharing model agreed between the CSIR and the San Community in the Kalahari in March 2003. A Trust established for this purposeIn view of their dealing with Traditional Healers, both the CSIR and the MRC have entered into benefit sharing agreements with Traditional Healers in which specific Memorandum of Agreement have been signed. DST is investigating such Agreements to determine the extent to which they are fair