Transcript RESEARCH PROTOCOLS, ETHICAL CONSIDERATIONS AND

INTELLECTUAL PROPERTY AND
INDIGENOUS KNOWLEDGE SYSTEMS:
INTERNATIONAL DEVELOPMENTS
AND IMPLICATIONS FOR SOUTHERN
AFRICA
MOGEGE MOSIMEGE
INDIGENOUS KNOWLEDGE SYSTEM UNIT
DEPARTMENT OF SCIENCE AND
TECHNOLOGY
PRETORIA, SOUTH AFRICA
[email protected]
Presentation made at the CODATA Workshop
on 05 September 2005
OVERVIEW OF PRESENTATION
IKS: Some Definitions
IKS in South Africa – Emphasis on IKS
Policy
Intellectual 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 India
International 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 locallevel 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 – 4
IKS and the National Systems of Education and
Innovation
Stakeholders and Role Players in IKS
Institutional Framework
IKS Funding and Principles
National and International Imperatives
Role 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 UNESCOMOST 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 DEVELOPMENT
Excerpts 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
(i)
(ii)
(iii)
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:
The current system seeks to privatise ownership and
is designed to be held by individuals or corporations,
whereas indigenous knowledge has collective
ownership
The protection is time-bound, whereas indigenous
knowledge is held in perpetuity
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 exploitation
The Patent system could be used for the protection of technical solutions
that are industrially applicable and universally novel and involve an
inventive step
New 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 1999
28 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
1.
2.
3.
4.
5.
IGC established by the WIPO General Assembly in
October 2000
IGC 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 2005
Some of the work of the IGC:
A study on the operational definitions relevant to TK
A review of existing national systems of IP for TK
An analysis of the elements for a possible sui generis
system for the protection of TK
The use of database to promote defensive protection
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 issue
The 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 centuries
Neem: 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 patent
Towards 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 appetitesuppressing elements
1997: CSIR licensed to Phytopharm, a UK biotech company
1998: Pharmaceutical Company Pfizer acquired the rights to develop
and market P57 as a potential slimming drug
March 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
complaints
Powdered dried leaves are also mixed with sheep fat to
produce an ointment that gives the skin a healthy sheen and
is antibiotic
Until 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 generation
In 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 1930s
Beyond 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 eczema
The 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 pain
Botswana, 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 Angola
At 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 Library
DST has embarked on a process of identifying all existing
databases so that it can verify what is available and what
needs to be done
DST 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 SAIKSDL
The 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 Legislation
In 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
arrangements
Example 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 purpose
In 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