Draft legislation to protect traditional knowledge proposed

South Africa
    The South African Department of Trade and Industry has published a draft amendment to the IP legislation which aims to incorporate traditional knowledge protection.
    The need to provide protection for the indigenous knowledge of communities, and the difficulty of finding an appropriate mechanism for providing such protection, have been intensely debated in recent years. One problem is that there is no generally accepted definition of 'indigenous knowledge' or 'traditional knowledge', nor clarity on the difference between these two concepts. Another problem is that there is no consensus on the manner in which indigenous knowledge and traditional knowledge are to be protected.
    The World Intellectual Property Organization (WIPO) itself has grappled with the problem and has made a significant shift in its approach. In the WIPO Model Provisions on the protection of traditional knowledge (1985), no definition for 'traditional knowledge' was put forward, but folklore seemed to be regarded as the essence of traditional knowledge. In a subsequent WIPO discussion document (2002), an encompassing and more specific definition of 'traditional knowledge' was proposed, namely:
    “'traditional knowledge' is knowledge encompassing traditional and tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other traditional and tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
    The significance of this shift in approach is that traditional knowledge is now acknowledged as including all recognized types of intellectual property, including inventions and trademarks. The South African government thus published a policy document reflecting a novel approach on the manner in which protection could be provided. It proposed that traditional knowledge be treated as intellectual property and protected by introducing appropriate provisions into existing IP legislation. The policy thus envisaged integrating the different manifestations of traditional knowledge into existing IP laws by introducing appropriate provisions to protect expressions of traditional knowledge within the conceptual framework of each statute.
    As a consequence, the Intellectual Property Amendment Bill 2007 will introduce amendments to four IP statutes, namely:
    In addition, the bill establishes: 
    • a national framework to administer the protection system, including a National Council for Traditional Intellectual Property with appropriate responsibilities, duties and functions;
    • a National Database for Traditional Intellectual Property, incorporating separate sections for the different types of traditional knowledge ; and
    • a National Trust Fund for Traditional Intellectual Property to administer income derived from the exploitation of traditional knowledge. 
    The National Council will consist of 12 members appointed by the minister of trade and industry after consultation with other ministers, local government, the Association of Traditional Healers and other relevant bodies. The council will be broadly representative of the different cultures of South Africa. Members will have knowledge and patronage of traditional cultures and values of indigenous communities and of traditional performing arts, as well as knowledge and expertise in IP law. The council must advise the minister and the registrars of intellectual property on all matters concerning traditional knowledge.
    The National Trust Fund will be administered by the registrars, who shall be responsible for the promotion and preservation of traditional intellectual property, including the commercialization and exploitation thereof. Income derived from such use, including all royalties payable, shall be paid into the fund to be applied to the benefit of indigenous communities. Any indigenous community may also establish a legal entity or other enterprise to promote or exploit traditional intellectual property.   
    The bill will also amend the Trademarks Act to provide for the registration of a traditional term or expression as a trademark. A 'traditional term or expression' will be defined to mean a term or expression having an indigenous origin and a traditional character and which is used to designate, describe or refer to goods or services. It will be registrable as a trademark if it is capable of distinguishing the goods or services of an indigenous community from the goods or services of another community or person. The registration must be in the name of the indigenous community, or a person or body authorized to act on its behalf. A traditional term or expression will also be capable of constituting a certification mark, a collective mark or a geographical indication.
    An 'indigenous community' is defined as any community of people currently living within the borders of South Africa, or which historically lived in the geographic area currently within the borders of South Africa. Once a traditional term or expression is accepted by the registrar for registration as a trademark, the National Council must be notified. The council may also be called upon for advice if a mark which forms the subject of a trademark application appears to contain a traditional term or expression.
    Following registration, the indigenous community which owns the registration will not be entitled to:
    • restrain a person from continuing to use the mark if such use started prior to the commencement of the Amendment Act; or
    • restrain a member of the indigenous community from using the mark, provided that licence fees are paid. 
    The amount of the licence fee will be determined by:
    • agreement between the user and the Trust Fund;
    • the collecting societies representing the parties; or
    • the courts (in the absence of agreement).
    Chris Job and Esmé du Plessis, Adams & Adams, Pretoria

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