Let me put our indigenous knowledge protection efforts into context. Government established the Technology Innovation Agency, the National Intellectual Property Management Office, and a number of new centres of competence. The agency, the office, and the centres are intended to support the identification and protection of South African originated intellectual property, and to establish crucial partnerships that will increase opportunities to commercialise local R&D. Moreover, the R&D Tax Incentive scheme has been streamlined. This has enabled many more technology start ups to access early-stage research funding.
Technology commercialisation is not a simple matter. To make the best of our resources it’s important that we foster strong and sustainable partnerships between government, universities and industry.
The Indigenous Knowledge Bill responds to this need for partnerships.
It addresses a major gap in intellectual property law.
It grants a right to communities to prevent others from taking and using elements of their knowledge for industrial and commercial use without acknowledgement and without providing fair and equitable benefits in return.
Existing legislation does not give a right to communities to grant or deny access to their knowledge.
The focus on the primary custodians of the knowledge as the gatekeepers of their rights is a step change in the protection of indigenous knowledge.
Indigenous knowledge generates value that, due to the system of appropriation and reward currently in place, is not adequately recognised and compensated. The protection of indigenous knowledge helps meet society’s broader objectives for the conservation of the environment, sustainable agriculture and food security. The protection of indigenous knowledge provides a framework to encourage the maintenance of practices and knowledge embodying traditional life styles. In this sense, the notion of “protection” is quite different from the notion applied under traditional intellectual property law. The Bill protects indigenous knowledge against “bio-piracy” and mandates benefit sharing – as provided for under articles 8 (j), 15, 16 and 19 of the Convention on Biodiversity (CBD) - rather than the establishment of a system of positive appropriation.
Moreover, this Bill will provide certainty to researchers in regard to the scope of incentives and benefits of investing in indigenous-knowledge research and development.
The Bill takes into account the key legal provisions of the Convention on Biological Diversity (CBD) and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation, ratified by South Africa in November 1995 and February 2013, respectively. It also takes into consideration the guiding principles and substantive provisions for the protection of traditional cultural expressions and traditional knowledge agreed to by the World Intellectual Property Organisation (WIPO).
An important objective of these international instruments is to recognise that indigenous knowledge, and related innovations and practices, are the collective heritage of indigenous communities, and that the use of indigenous knowledge is subject to their prior, informed consent. These instruments also acknowledge that indigenous knowledge, which is readily available to third parties or the public, is not adequately protected in the current intellectual property system.
The Bill provides that benefits of protection should accrue to indigenous communities rather than individuals, because it recognises that individual rights of innovators or creators of original works will be recognised through other systems. The Bill values indigenous knowledge on its own terms and sees it as source of innovation, belonging to communities who are resource rich but economically poor.
In regard to the duration of protection, the Bill provides for indigenous knowledge rights to continue as long as the subject matter for protection exists. The Bill also regulates how rights will be managed, and it provides for an identifiable point for prospective users and providers of indigenous knowledge to engage with in order to promote legal certainty.
The Bill also establishes the National Indigenous Knowledge Systems Office (NIKSO) and clearly sets out the areas of work, for which NIKSO, under the DST, is responsible.
During the World Summit on Sustainable Development in 2002 and 2012, respectively, UN member states affirmed their commitment to lift the world’s two billion poor people, the majority of whom are Africans, out of poverty, and to restore our degraded environment. Indeed indigenous knowledge offers a unique opportunity to balance consumption and production, and therefore ensure the sustainability of our resources and environment. To achieve this vision the documentation and recording of indigenous knowledge in the registers envisaged in chapter 5 in the Bill now becomes absolutely crucial.
In addition, the Indigenous Knowledge Bill ensures that indigenous knowledge practitioner’s skills, experiences, learning and practices are legally recognised. Over the past 4-5 years, the Department worked with Indigenous Knowledge stakeholders in facilitating the development of a Regulatory Framework recognising prior learning of Indigenous Knowledge holders and practitioners. The framework establishes competence-based designations with a focus on the recognition of indigenous knowledge disciplines of practice through experience, and provides for a competence-based accreditation and certification system within the National Qualification Framework prescripts giving recognition to prior learning.
Finally, the Bill will protect our indigenous knowledge and cultural heritage. It will be relevant to South Africa’s unique level of economic development and consistent with our implementation capacity and expertise. It will afford South Africa the opportunity to take advantage of whatever benefits are associated with the global system of protection. And it will provide a basis for regional cooperation and integration among like-minded states in the search for a more just and equitable system of protection.