South Africa: Comments On The Protection, Promotion, Development, And Management Of Indigenous Knowledge Systems Bill, 2016

Last Updated: 5 April 2017
Article by Andre van der Merwe
Most Read Contributor in South Africa, November 2018

The protection and commercialization of Genetic Resources ("GR's"), Traditional/Indigenous Knowledge ("IK") and Traditional/Indigenous Cultural Expressions ("ICE's") have come to the fore internationally during the last 20 or so years. The realization, on the one hand, that GR's and IK can yield valuable drugs and treatment for the world's diseases and, on the other hand, the adoption of music or songs, for example, of indigenous communities without their consent or acknowledgement, has led to concerns in recent years that protection of some kind is required to prevent abuse.

South Africa has responded by publishing the above Bill ("the IKS Bill") under the direction of the DST for comment in 2015, and introducing it (in an amended form) in the National Assembly during April 2016 (with an explanatory summary being published in Government Gazette No 39910 of 8 April 2016). The IKS Bill seeks to introduce a sui generis approach to the legislative protection and commercialization of indigenous knowledge systems ("IKS"), and is to be welcomed as an appropriate means for this purpose. 

Background to the IKS Bill – the IPLA Act:

The IKS Bill follows the Intellectual Property Laws Amendment Act, 2013 ("the IPLA Act") that was signed into law in South Africa on 10 December 2013 (after a difficult and protracted journey through the National Assembly). That Act deals with the amendment and "grafting" of IK and ICE's on to four IP Acts (-see below) – using an IP-based approach to the protection of IKS. The IPLA Act will come into operation on a date to be determined by the President by proclamation in the Gazette (after regulations have been approved for these Acts).

The IPLA Act has amended 4 IP Acts namely the Performers' Protection Act, the Copyright Act, the Designs Act, and the Trade Marks Act. In so doing, it provides for recognition and protection for, and creates, new IP forms (-so-called "Indigenous/Traditional IP") from respectively indigenous performances, indigenous copyright works, indigenous designs, and indigenous trade marks. In addition, the IPLA Act creates new derivative IP forms in line with the above, which are IP forms adapted from the original indigenous forms. The IPLA Act defines an indigenous term or expression throughout the Act as including indigenous cultural expressions or knowledge (the author's emphasis). This inclusion of indigenous knowledge ("IK") with what in essence are indigenous cultural terms or expressions (ICE's) in Acts that do not in principle protect technology, is unfortunately mistaken and incorrect.

The IPLA Act provides that the Minister (of the DTI) will establish a National Council for Indigenous Knowledge inter alia to advise the Minister and the Registrars of Patents, Copyright etc on the above and other relevant matters.

Lastly the IPLA Act provides for the commercialization and licensing of IK and TCE's in an attempt to provide income to indigenous communities from the marketing of their IK and ICE's.

The important provisions of the IKS Bill:

The IKS Bill provides sui generis protection of IK, including the registration of IK, the establishment of the National Indigenous Knowledge Systems Office ("NIKSO"), and an Advisory Panel to advise NIKSO.

The following important definitions are provided in the Bill inter alia:

"Indigenous cultural expressions" means expressions having cultural content developed within indigenous communities and assimilated into their cultural make-up or essential character, including but not limited to-

  1. phonetic or verbal expressions;
  2. musical or sound expressions;
  3. expressions by action; and
  4. action tangible expressions;

"Indigenous knowledge" means knowledge which has been developed within an indigenous community and has been assimilated into the cultural make-up or essential character of that community, and includes -

  1. knowledge of a scientific or technical nature;
  2. knowledge of natural resources; and
  3. indigenous cultural expressions;

The IKS Bill provides for the Act to protect IK, whether it is functional or cultural, or both, including medical, agricultural or scientific practices, as long as it complies with the eligibility criteria set out below. Such IK is regarded as being property as defined in section 25 of the Constitution. 

The eligibility criteria for protection applies to IK which –

  1. has been passed on from generation to generation within an indigenous community;
  2. has been developed within an indigenous community; and
  3. is associated with the cultural make-up and social identity of that indigenous community.

The term of protection granted in respect of IK by this Act will last as long as the IK satisfies the above eligibility criteria for protection in terms of the new Act.

The exclusive rights conferred upon the holders of IK registrations are to-

  1. the benefits arising from its commercial use;
  2. be acknowledged as its source; and
  3. restrain any unauthorized use of the IK.

The functions and duties of NIKSO (which will be a non-juristic entity) include keeping a Register of IK, establishing a Registration Office, and the accreditation and certification of IK practitioners who may be recorded in the Register of Designations kept by NIKSO. NIKSO will also attend to registration of IK on behalf of an IK holder. A person seeking to obtain a copy of documents from the Register of IK must first enter into a non-disclosure agreement with NIKSO, as prescribed.

In performing its functions, NIKSO must develop and implement an effective regulatory framework for the protection, promotion, development, management and education in respect of IK systems. NIKSO may, at the request of an indigenous community, provide assistance or facilitate the commercialization and use of its IK.

If the holder of IK cannot be identified and designated, NIKSO must act as custodian of that IK.

A person wishing to acquire the right to use IK shall apply to NIKSO for a licence and shall enter into a benefit-sharing agreement with NIKSO.

Any person who uses IK without authorization, or otherwise contravenes certain important provisions of this Act, shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding three years or to a fine of R30 000, or both.

IK originating in a foreign jurisdiction must be given the same protection given to IK originating in the Republic: Provided that the laws of that foreign jurisdiction provide reciprocal protection to IK originating in the Republic. A sharing of ownership of IK is possible where IK originates in one or more foreign jurisdictions and in the Republic.  

An IK holder wishing to register IK which existed prior to the commencement of the new Act, must register such IK within 12 months from the date of commencement of this Act.

  1. The author's comments on the IKS Bill:
  1. A question raised by the IKS Bill overall is that it appears that there will be overlap and/or duplication of protection if a traditional/indigenous design, for example, is registered in terms of the IPLA Act and if that design is also registered in terms of the IKS Bill/Act in due course. This is not advisable for obvious reasons.
  1. The IKS Bill requires that for protection to apply in terms of this Act, all IK must be registered in terms of the provisions of this Act. Such a requirement is regretted because a non-registration system is clearly preferable to that of registration which is very costly both for the State to establish and operate a Registration Office and its systems, and for IK holders who will generally need to employ legal advisers to assist them with such registrations. A parallel for this argument is to be found in the Copyright Act where copyright protection comes into effect without any form of registration whatsoever.

In addition, and as a practical consideration, it is highly probable that Sangomas, and the like, will refuse to register their IK because this information is invariably held as closely guarded secrets in indigenous communities. Accordingly, they will refuse to disclose such secret information to an unknown official in Pretoria. In addition, interested parties can obtain copies of such documentation upon request and payment of a prescribed fee. It would be preferable if registration was removed as a requirement form the IKS Bill.

The IKS Bill also requires that all existing IK must be registered within 12 months from the date of commencement of this Act. This provision, and the reason for this, is not understood. It is also impractical and it imposes an enormous burden and time-pressure on indigenous communities to comply with this unreasonable and unnecessarily hasty provision. 

  1. The IKS Bill clearly protects IK whether it is functional or cultural in form, or both – and such protection can extend in perpetuity.
  1. NIKSO and its personnel will be required to have considerable skills in all kinds of marketing and negotiation activities, including promoting partnerships for innovation and product development, co-ordinate funding, develop marketing strategies, and promote commercial use of products, services, processes, and the use of technology. These are very special skills and highly-skilled officials will be required for this purpose.
  1. The penalties provided in the IKS Bill include imprisonment or a fine, or both. This is totally out of line with other Intellectual Property statutes in which the relief for infringement of rights or unauthorized use is an interdict, delivery up and damages (or in lieu thereof, a reasonable royalty). It is suggested that such civil remedies should also be introduced in the IKS Bill.   
  1. Lastly, it is noted that the parties consulted to date are merely other State Departments. However, no indigenous communities or their leaders have been consulted to date; and in addition no Regulatory Impact Assessment ("RIA") has been carried out to determine inter alia whether the benefits that this Act will offer the South African community will outweigh the costs of implementing this Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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