Wednesday, 25 March 2015

South Africa: Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2014

The Minister of Science and Technology has published the long-awaited Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, 2014 for public comment.  The bill covers quite a lot of ground and just a snippet of its coverage is given here.

Protection of the knowledge of indigenous communities from illicit use and misappropriation.
The bill [clause 10] provides protection to
(a) Indigenous knowledge;
(b) Indigenous cultural expressions; and
(c) Indigenous knowledge associated with natural resources.

Clause 11 of the bill set outs out the eligibility criteria for protection. To acquire protection, the indigenous knowledge or expressions must be:
(a) passed on from generation to generation and between generations in indigenous
communities;
(b) the result of the creative intellectual activity of indigenous communities;
(c) associated with the cultural and social identity of indigenous communities; and
(d) maintained, used or developed as part of the cultural or social identity of indigenous
communities.

Clause 12 of the bill grants holders of protected knowledge  and expressions exclusive rights to-
(a) enjoy, control, utilise, maintain, develop, preserve and protect their indigenous
knowledge, indigenous cultural expressions and indigenous knowledge associated
with natural resources;
(b) authorise or deny access to and use of their indigenous knowledge, indigenous
cultural expressions and indigenous knowledge associated with natural resources;
(c) receive a fair and equitable share of benefits arising from the commercial use of
indigenous knowledge, indigenous cultural expressions and indigenous knowledge
associated with natural resources based on mutually agreed upon terms;
(d) prevent misappropriation and misuse, including any acquisition, appropriation,
utilisation or practice of their indigenous knowledge, indigenous cultural expressions
and indigenous knowledge associated with natural resources without their prior
informed consent and the establishment of mutually agreed tenns;
(e) prevent the use of indigenous knowledge, indigenous cultural expressions and
indigenous knowledge associated with natural resources without acknowledgement
and attribution of the source and origin of the knowledge and its holders where
known; and
(f) ensure that the use of indigenous knowledge, indigenous cultural expressions and
indigenous knowledge associated with natural resources respects the cultural norms
and practices of the holders.

Clause 13 provides that the knowledge or protection is afforded this protection for as long as it meets the eligibility criteria.

The following remedies are provided for by clause 25:
(2) Indigenous communities possessing collective knowledge may bring infringement actions
against any persons who violate their rights as contemplated in subsection (1.
(3) An infringement action can also be instituted by indigenous communities possessing
knowledge where there is an imminent danger of the violation of their rights.
(4) An indigenous or local community may file a complaint with the Court to revoke a
registration over intellectual property right on indigenous resources that had been registered
unfairly or contrary to the provisions of this Act.
Further, it will be an offence to infringe indigenous' communities' rights [clause 25(1)] for which clause 26 prescribes the following penalties:
(a) Written warning by NIKSO as advised by the mediation committee.
(b) A fine as determined by a court.
(c) Seizure of all products and suspension of the sale derived from the indigenous
resource as determined by a court.
(d) Embargo of the activity as determined by a court.
(e) Loss or reduction of funding incentives and benefits granted by the government.
(f) Loss or suspension of the right to receive financing from an official funding
institution.
(g) Prohibition from entering into contracts with the government departments up to five
years.

Many Afro-IP readers will have views on these and other provisions of the Bill. Please use the comment box to share these and send in any formal comments to the DST. 
----------------
SA's National Recordal System explained
National Indigenous Knowledge Management System (NIKMAS) website 

3 comments:

Anonymous said...

Is this monopoly right owned by a 'community'? Is there a term on the exclusive right?

Caroline Ncube said...

yes the right is intended to be owned by an indigenous community which is defined as 'any recognisable community of people originated in or
historically settled in a geographic area or areas located within the borders of the Republic, as such borders existed at the date of commencement of the Intellectual Property Laws Amendment Act, 2013, characterised by social, cultural and economic conditions which distinguish them from other sections of the national community, and who identify themselves and are recognised by other groups as a distinct collective'.
The right is intended to be of unlimited duration provided that the protected knowledge continues to meet the eligibility criteria set out in clause 11.

Anonymous said...

How does this bill relate to the Dept of Environmental Affairs Biodiversity act of 2004? If already compliant with that one, will it automatically comply with this new proposed bill?