Wednesday, 12 June 2013
Explained: South Africa's National Recordal System for Indigenous Knowledge
Last month, fellow blogger, Caroline Ncube, brought us the news that South Africa has launched a National Recordal System (NRS) for indigenous knowledge (IK). In her piece, Caroline raised some questions in search of thoughts or responses from readers on this development. Thankfully, a friend and ardent reader of Afro-IP, Tom Suchanandan (who is also perfectly placed to respond) has come to the rescue with comprehensive answers to Caroline's questions. Tom writes accordingly:
1. Will the NRS be used by the Companies and Intellectual Property Commission to verify or confirm disclosures made under s30(3A) of the Patents Act?
The NRS has been designed as an [potential] interdepartmental instrument that will facilitate research and development, prior art for intellectual property administration, and management and examination of bioprospecting information on genetic resources associated with indigenous knowledge and communities. The NRS provides for indigenous knowledge that are associated with biological resources and the documented data is linked to a person, a community, a geographical area, biological resources. The latter is supported by multi-media which is also geocoded to a specific area.
In terms of the Companies and Intellectual Property Commission (CIPC) under the Department of Trade and Industry, CIPC can utilise the NRS for prior art searches as part of its a search and examination service, making the NRS critical element in preventing the granting of patents in error and also biopiracy. In doing so, the NRS adheres to a strict set of rules in terms of granting access to the system. Firstly, all information that is documented on the NRS, must be accompanied by a prior informed consent agreements, information transfer agreements, and a Memorandum of Agreement that is signed between each community participating in the project and the Documentation Centre which facilitates the recording of IK with the communities.
The NRS [can] also serve as an indigenous knowledge hub for a number of government departments including the Departments of Environmental Affairs, Trade and Industry, Health, Agriculture, Forestry and Fisheries, and Rural Development and Land Reform. For the Department of Environmental Affairs, it will create legal certainty because the NRS will provide a legal benefit-sharing framework, ensure that minimum standards in Information and Material Transfer Agreements in respect of IK research are available, and assist in the identification and location of knowledge holders in the bioprospecting permits granting process. The legal framework provided by the NRS makes it a suitable repository for the information they have been collecting.
2. How , if at all, does the NRS fit into the IP protection of TK scheme provided for in the IP Laws Amendment Bill No.8 of 2010? In particular how will it interface with the proposed National Database of IP protected TK?
The National Recordal System has been developed in phases with the first phase focusing on African Traditional Medicine (ATM) and Indigenous Foods (IF) for implementation because these two domains are most at risk in terms of Intellectual Property exploitation and bio-piracy. Mitigating this risk required careful design of the system, particularly in terms of security and the management of the data. Care was taken to design the National IKS Management System (NIKMAS) such that it will support, on a national scale, the recordal, management and protection of Indigenous Knowledge with potential benefits, especially in the absence of relevant legislation (i.e. Sui Generis on IKS). The importance of securing confidential and secret information against unauthorised exploitation was also a major design consideration.
In doing the latter, the IP Laws Amendment Bill No 8 of 2010, are but one of the legislations that was considered in designing the system. Because of the holistic nature of IK, the NRS acknowledges the limitation s of Intellectual Property regimes, and considers the current copyrights, trademarks, buiodiversity and related legislation. The NRS therefore complement the Bill. For instance, the Bill focuses on IK that resides in the public domain whereas the NRS focuses on unrecorded or uncaptured IK, i.e. IK not in the public domain. The NRS has been designed to incorporate –and or link to similar databases in order to optimise its use and functionality. NIKMAS which is the ICT backbone of the NRS will therefore provide a single access point to IK captured at distributed points and will contain links to other resources and databases containing relevant IK information managed in various institutions or government departments.
3. Will the NRS be shared with foreign patent offices to prevent misappropriation of South Africa's TK? India's Traditional Knowledge Digital Library (TKDL), upon which the NRS appears to be loosely modelled, is shared with the EPO. This has reportedly resulted in the rejection of some patent applications (per WIPO Magazine ).
Yes, the NRS has been designed to give access to International Patent Offices to conduct searches on IK that has been documented in the system in order to prevent misappropriation of South Africa’s IK. This is based on the requirements for allowing patent offices to search the NIKMAS, and developed specifications of patent offices to search the NIKMAS. For searches and examinations, approved scientists, researchers and Intellectual Property Offices are allowed limited authenticated access to confidential IK information as determined by adherence to the legal framework requirements.
4. Will the NRS be accessible to the public?
Yes, the NRS will be accessible to the public. There are 3 levels of access:
(a) Open access: Community promotional information as well as recorded knowledge that is already in the public domain.
(b) Restricted access: Authorised access to limited detail on recorded IK that is classified as confidential.
(c) Confidential access: Authorised access to full detail on a specific IK entry.
The NRS initiative IP objective is to prevent placing undisclosed IK into the public domain. The levels of access is therefore determined by a strict set of rules for example:
(i) . A member of the public can gain open access to information that is in the public domain for the purposes of education, tourism or awareness. Open and confidential information is preserved, but is made available to holders of indigenous knowledge and communities who will always have unlimited access to their own knowledge.
(ii) . For searches and examinations, approved scientists, researchers and Intellectual Property Offices are allowed limited authenticated access to confidential IK information as determined by adherence to the legal framework requirements.
(iii) . For development purposes, authenticated and approved scientists and researchers are given full confidential access to a single IK story on condition that all relevant legal agreements are signed, including a benefit sharing agreement.
Afro-IP is extremely grateful to Tom for taking his time to enlighten us all. This is sort of reader participation Afro Leo loves to witness. With the recent spike in activity on this weblog, one wonders where the next reader response to pressing and topical matters raised on Afro-IP would come from. We shall see.