Wednesday, 22 December 2010


WIPO Magazine shines its light on Africa, but ...

The most recent issue of the WIPO Magazine (December 2010, here) carries two features of African interest.

The first is "A new dawn for custodians of TK in Africa" (here), which is summarised as follows:
"In early August, the African Regional Intellectual Property Organization (ARIPO) and its 17 member states took an historic step in adopting a legal framework, known as the “Swakopmund Protocol for the protection of traditional knowledge and expressions of culture” [on which see Afro IP here and here]. This landmark event – which took place at a Diplomatic Conference in the coastal town of Swakopmund, Namibia – was the result of 10 years of intensive consultations. ...Emmanuel Sackey, ARIPO’s Program Manager for the Protection of Genetic Resources, Traditional Knowledge and Expressions of Folklore, explains how this new legal framework came into being and what it means for custodians of traditional knowledge (TK) in Africa".
The second is "Morocco displays its cultural wealth" (here) and it features a review of "The depth, diversity and distinctiveness of the cultures of the Kingdom of Morocco":
"At the crossroads between sub-Saharan Africa, Europe and the Middle East, the Kingdom of Morocco is “a place where civilizations meet and cultures converge.” Its unique geographical location and historical heritage have influenced and shaped the country’s distinctive personality, enabling the development of an amazing wealth of art forms. These range from architecture, calligraphy and metalwork, to pottery, leather and woodwork, weaving and jewelry-making – each combining tradition with modernity. Crafts and products from ceramics to kaftans and saffron to tagines were on display".
This particular contributor to Afro-IP is hugely unimpressed by all of this.  Do the countries of Africa not see that, in humouring their requests for the protection of their genetic resources and traditional knowledge, and in exhibiting their past as though it was their IP future, the rest of the world is writing them off as sources of creativity and innovation, denying their relevance and their potential as creators of new intellectual properties?  Where will genetic resources be once the last laboratories have finished milking them and have moved on to newer biotechnologies?  Where will traditional knowledge be once a modest price has been paid for access to and use of it, and the world has moved on to newer, cheaper, purer and better targeted medicines and remedies?  Where will expressions of folklore be, other than as oddities and amusements for the cultural tourist?  It would be great if Africa, without forgetting its precious and varied past and its natural resources, looked forward into a future in which its interests lay in creating the sort of market conditions in which African innovators, entrepreneurs, writers and composers looked to IP as a means of expanding their countries' traditions rather than turning them into cultural fossils.

Comments, please!



Subscribe via email (you'll be added to our Google Group)


Write comments
Andre Myburgh
23 December 2010 at 08:17 delete

Although there is no doubt that the economic benefits of traditional knowledge protection are overrated by its proponents, the patenting of items of traditional knowledge leaves many with the same sense of injustice as the infringement of a valid patent.

In my view, these cases do not warrant turning the entire IP system on its head. On the contrary, the existing patent system allows such patents to be attacked. The real problem is quick and efficient access to justice and a champion for communities holding the traditional knowledge.

Proponents for traditional knowledge protection argue that the rights in that knowledge should be held by the State or a State agency. Is the prevention of unlawful appropriation of traditional knowledge then not a sound cause for State-sponsored activism? This is a far better cause than promoting legislation which may well not have real economic benefits for the practitioners of traditional knowledge and which will mess up the IP system in the process (as is happening in South Africa). An interesting model for State-sponsored activism is the Peruvian National Commission against Biopiracy ( - in Spanish).

My article in the September 2010 edition of Without Prejudice (South Africa) pointed out that, despite perceptions to the contrary, the community of Alice and their NGO backers DID NOT defeat the Schwabe pelargonium patent. The patent was revoked for lack of inventive step based on evidence of the state of the art presented by one of Schwabe's commercial competitors. South Africa needs to have a realistic appreciation of what is at stake and what the consequences will be before passing legislation like the IP Laws Amendment Bill, 2010.

10 January 2011 at 21:19 delete

Doing a patent search on 'Pelargonium' is a little depressing (endless 'a Pelargonium named xxx'). However DE202008002217 (U1), to Schwabe, and US2009035402 (A1) are interesting in the light of this controversy. If anybody wants to start a string of applications, I know of more efficient solvents than water/ethanol - and you do not need to use the roots of the plant anyway :)