Wednesday, June 5, 2013

Traditional knowledge - the proverbial square peg

South Africa is wrestling with the issue of how to protect traditional knowledge. Do you tweak traditional intellectual property rights to accommodate traditional knowledge? Or do you create a whole new sui generis (independent) regime?

The Waitangi Tribunal

In New Zealand we have been looking at this issue for years. We have the Waitangi Tribunal, set up to make recommendations on claims brought by Maori relating to actions or omissions of the Crown that breach promises made in the Treaty of Waitangi.

Last year we saw a decision issue on the 262nd claim brought before the Waitangi Tribunal. The genesis of WAI 262 is concern at the ease with which native flora and fauna can be lost to overseas interests. This claim puts under the spotlight the Maori rights of tino rangatiratanga (authority) and kaitiakitanga (guardianship) over indigenous flora and fauna. The report is unique in that it looks to build a partnership between Māori and the Crown beyond the grievance process. The report looks to establish a culture in New Zealand where both cultures are promoted, rather than one being promoted above the other.

The report acknowledges that current intellectual property laws and policies in New Zealand were not designed to deal with indigenous relationships with flora and fauna. Furthermore, current laws and policies allow third parties to use traditional knowledge without acknowledgement and consent. Furthermore, the report states that Maori tribes do not have ownership rights in “taonga species” or in traditional knowledge relating to those species.

It makes some recommendations to the Government as follows:

  • establish a Maori advisory committee to advise the Commissioner of Patents about whether inventions are derived from Maori traditional knowledge or use taonga species;
  • establish a register of traditional knowledge;
  • introduce a legal requirement for patent applicants to disclose the source and the country of origin of any genetic or biological material contributing to the invention; and
  • grant the commissioner the power to refuse patents that unduly interfere with the relationships between kaitiaki (guardian) and taonga.

Tweaking the existing regime

It has been almost two years since the Waitangi Tribunal released the WAI 262 report. Law makers have done nothing to implement its recommendations. The decision took almost 20 years to issue from the date the claim was first lodged. So maybe we have a while to wait before we see a substantive review of our intellectual property regime.

Progress on protection of traditional knowledge is further ahead in South Africa. The South African Parliament is considering a proposed Intellectual Property Laws Amendment Bill (the Traditional Knowledge Bill).

The Traditional Knowledge Bill has some 'issues', which is a polite way of putting it. One commentator describes the Bill as potentially damaging and that it appears to be proceeding:
... in spite of an independent report (the RIA Report), commissioned by the Department of Trade and Industry (DTI) in 2009, which seriously questioned both the need for the bill and the route taken to address the issue...
The TK Bill seeks to recognise and protect traditional knowledge within the existing forms of intellectual property, such as copyright and patents, but most expert opinion, including that of the World Intellectual Property Organisation (WIPO), is that, if traditional knowledge requires protection, it should be in the form of a new type of legal instrument rather than being subjected to IP.
In its diplomatic criticism of the TK Bill, the WIPO Secretariat describes the government’s approach as “novel and unusual”, which is a polite way of saying that it is unworkable.

An independent approach

What has recently emerged is an alternative South African bill called the Protection of Traditional Knowledge Bill.

IP law firm Spoor & Fisher published a summary of the new Bill on their website. The article states that:
[t]he new Bill, unlike the old Bill, proposes a sui generis approach to the protection of traditional knowledge.  In short, this means that traditional knowledge will be dealt with as a new category of intellectual property rather than fitting it into the already existing categories of intellectual property. This approach has generally been regarded internationally, including by the World Intellectual Property Organisation, as the proper approach for the protection of traditional knowledge.
The protection proposed to be offered by the new Bill can be divided into 3 categories, namely
  • Traditional Work, akin to copyright;
  • Traditional Designs, akin to Designs; and
  • Traditional Marks; akin to Trade Marks.

The noticeable exception is traditional knowledge relating to an invention, but this is due to the Patents Amendment Act, 2007 which established rules for dealing with inventions based on or derived from traditional knowledge.

Further steps

The new Bill has been published for consultation. The submission deadline has passed. It will be interesting to gauge the reaction from submitters. I suspect there will be general support for the approach but a lot of comment about the detail.

Does South Africa square peg traditional knowledge into an existing intellectual property rights framework? Or is a whole new regime needed?

New Zealanders will be watching with interest.

Photo courtesy of author Yoel Ben-Avraham under Creative Commons licence.


  1. Hello PatentBuff,

    Please note that the TK & TCEs Draft Bill you are referring to is actually the Kenyan one and not the South African one.

    1. Thanks @IPKenya. I've fixed the link so that I'm now referring to the South African Bill rather than the Kenyan one. Great spotting!


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