Khoi and San communities to benefit from rooibos products

Khoi and San communities to benefit from rooibos products

By Afro-Buff   Friday, November 29, 2019   No comments:

On the 1st of November 2019 and as reported by a broad spectrum of publications listed below, the Honeybush Rooibos and Honeybush Traditional Knowledge Benefit Sharing Agreement was signed. It accords Khoi and San communities with a one-year pilot providing them with a 1.5% benefit of the farm gate price from those who process Rooibos. This comes in the form of an annual levy. It is estimated that the levy will amass a total of approximately R12 million per annum. This will be paid into trust accounts. The agreement will facilitate the creation of jobs and will serve as a driving force for upliftment of small-scale farmers. The benefit agreement was signed after a period of 9 years of negotiation. Rooibos is a R300 million industry but has been monopolised by approximately 300 white farmers up until this point. Coloured farmers produce a mere 2% of the profits.

Rooibos is used in a host of fashions including as a toiletry and a herbal medicine but most commonly as a tea. It occurs in the Cape Floral Region- a place from which the Khoi and San communities originate. That the Khoi and San communities were the traditional knowledge holders for both Rooibos and Honeybush was determined by the Department of Environmental Affairs- research dating back to 2010- and the resultant agreement ensued allowing these groups to benefit from the proceeds of commercial use of the product.

At the launch of the agreement, Barbara Creecy- Minister of the Department of Environmental Affairs, Forestry and Fisheries- stated that:

“Such international recognition cannot exist without appreciating the contribution of indigenous knowledge to the use of rooibos and honeybush. That is why it is important that the parties to the Rooibos Traditional Knowledge Industry-Wide Benefit Sharing Agreement, salute the role of San and Khoi traditional knowledge, without which the variety of medicines and other products made from this plant by the rooibos industry would not have happened.”

Despite the undeniably positive step that has been taken, there are also questions about how positive change will pan out for the Khoi and San people. How profits will be distribute and how exactly they will trickle down to small-scale farmers has yet to be determined. It is also problematic that many of the people living in the communities to whom this agreement bears relevance are mixed race. Such people do not readily identify with being part of the Khoi or the San communities, which may affect how they benefit from the agreement. The question as to who bears responsibility for ensuring that people like those who are landless and otherwise disenfranchised will benefit is also at issue.

While the agreement will not wholly provide restitution to the Khoi and San people who have been prevented from benefitting from the industry since its inception, and while this hardly makes up for the historically atrocious treatment meted out to these individuals over the centuries, it is undeniably a start. The advent of democracy has purported to build a nation where there are opportunities for all and while government hasn’t always gotten it right, one cannot deny that considerable strides have been made. This is one of those strides.

This story was also published in:

·         Mail and Guardian

·         News24

·         BBC News

·         Times Live

Brought to you by Afro-Buff

Image credit: Joanna Kosinska

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Looming Traditional Knowledge Bill

Looming Traditional Knowledge Bill

By Afro Leo   Tuesday, December 13, 2016   No comments:

The bones have been thrown for the estimated 25 000 traditional healers in South Africa and the impending regulations could have significant implications for ancient cultural practices, as well as the healers themselves, who may be in the dark regarding the expectations on them.

The Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill was brought before parliament in April 2016. The proposed regulations for traditional healing practitioners in South Africa is not without a number of contentious issues, including to what extent traditional medicine practitioners should be regulated and precisely what “indigenous knowledge” entails.

Luyanda Frans, parliamentary liaison officer, said the bill was currently being processed by the National assembly and is likely to be finalized in March next year.



Andre Van der Merwe

Andre van der Merwe, of Kisch IP law firm, writing for www.golegal.co.za, questions the consultation process undertaken.

“The parties consulted to date are merely other State departments. No indigenous communities or their leaders have been consulted to date and in addition no regulatory impact assessment has been carried out to determine whether the benefits of the act will outweigh the costs of implementing it.”

Frans said the government was conducting public hearings but couldn’t confirm whether they had consulted with the various traditional healer organisations.

Conrad Tsiane, a traditional healer and chairman of the interim board working with the National assembly, said the local healers would be consulted and invited to participate. He said road shows in all the provinces, in conjunction with the department of health, would take place once a registrar had been appointed.

The World Health Organisation (WHO) estimates that around 80% of the population in Africa makes use of traditional medicine.

Van Der Merwe says generally, TK can be divided into three broad classes, namely: indigenous scientific or technical knowledge, works of an indigenous-cultural nature and miscellaneous works or know-how that are difficult to classify.

The defensive protection sought through the act is essentially to ensure that third parties do not gain illegitimate or unfounded IP rights as a result of TK.

Traditional (or indigenous) knowledge encompasses know-how resulting from a traditional context, including practices, skills and innovations, according to the World Intellectual Property Organisation (WIPO). It can also cover traditional cultural expressions, such as signs and symbols.

The WHO centre for Health development says African traditional medicine “is the sum total of all knowledge and practices, whether explicable or not, used in diagnosis, prevention and elimination of physical, mental or societal imbalance, and relying exclusively on practical experience and observation handed down from generation to generation, whether verbally or in writing.”

Dr Tsiane

A major bug-bear seems to be the definition of the forms of TK and how any act can successfully create protection for the various forms. But more pressing for Traditional medicine practitioners is the registration of knowledge. The transitional arrangements in the bill call for the recording of any TK knowledge that exists prior to the enactment to be registered within 12 months.

Van der Merwe says this is likely to place a huge burden on the indigenous communities to register TK within the time frame- the very communities the bill purports to “protect”.

Tsiane said it was very difficult to register TK and the idea was not to collect recipes of indigenous knowledge passed down over the years. But he admits it’s going to be tough getting all the practitioners to conform to the new regulations.

The proposed bill also provides for the establishment of a National Indigenous Knowledge Systems Office (NIKSO) and an advisory panel to support the office. Their function will include developing an effective regulatory framework and act as custodian for TK that cannot be specifically designated. 

Currently, TK is managed by the National Recordal System which currently endorses a closed access policy for TK and that which is not in the public domain requires authorized access. Patrick Gillfillan of UCT has also highlighted a concern that innovators could get around formal protections by adapting the knowledge.

Traditional practitioners are also obliged to register with NIKSO. Tsiane said the registration of traditional healers and their specific purview was a key outcome.

“The local healers organisations haven’t been regulated to date and the Act will help people to know who X and Y are in the context of the law. We must have rules, ethics and a code of conduct in the scope of our practice.”

He said the act talks about four categories of traditional practitioners and this would help align the industry.

According to Tsiane, the department of Health was legally obliged to be involved in the process. He said on December 13, 2016, the panel would select a registrar to oversee the forthcoming meetings. Afro Leo report

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Busy time for Africa at WIPO - Part I

Busy time for Africa at WIPO - Part I

By IPcommentator   Monday, April 06, 2015   No comments:

An ardent and long-standing reader has sent Afro-IP this piece which somewhat chimes with Caroline's post on South Africa's long-awaited Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill (2014). Here is what our friend says:

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There has been a lot of Africa-focused activity at WIPO this month; and with the Committee on Development and Intellectual Property (CDIP) meeting coming up in a few weeks, that activity isn't going to slow down any time soon.

Over the past few weeks, WIPO jointly hosted two separate programs on Africa and IP. Program no.1, involving the Japan Patent Office, ARIPO and the Government of Uganda, was titled “Strategic Use of the Intellectual Property (IP) System for Economic, Cultural, Social and Technological Development”.  The program, which was held in Kampala, featured speakers from all of the host organizations as well as experts from Kenya.  The topics covered the following:  Creative Industries for Economic Growth and Development (copyright); Use of Technical and Scientific Information for Technology Capacity Building (one of many focused on patents); and Significance of Trademarks, Industrial Designs, Utility Models and Geographical Indications for Commerce and Development (everything else).  Full agenda is available here. 

Program no.2 - which was held in Geneva, thanks to the generosity of Australian Aid - was titled “Seminar on Intellectual Property and Genetic Resources, Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs): Regional, National and Local Experiences”. The program featured speakers from Peru, Jamaica, Romania, Finland, India and Kenya sharing their experiences with protecting TK and TCEs.  Session topics also covered IP and development, the interplay of TK and TCEs with the concept of the public domain, and experiences on introducing IP legislation.  Full agenda is available here (link no longer available). 

It makes sense to see Australia in program no.2 since its Aboriginal culture laws (also here + New Zealand) are often held up as examples in the fields of TK and TCEs. Special mention goes to an IP expert in great demand Ms. Marisela Ouma (Kenya Copyright Board), who was a presenter at both of these programs.

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If you were able to attend either of these programs and would like to report on them in more depth, please do let us know or post your comments below. Thanks.

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The Gambia ratifies ARIPO's Swakopmund Protocol

The Gambia ratifies ARIPO's Swakopmund Protocol

By IPcommentator   Monday, September 08, 2014   No comments:

It kind of feels really nice like donkey’s years since this Leo wrote a blog post! There’s no better way to get back into the groove than with some good news from the smallest mainland country in Africa. 

Following on from Darren’s post, which informed us that The Gambia is keen on protecting traditional knowledge and folklore ('TK') for the benefit of its valuable tourism industry, this Leo understands that The Gambia has put its money where its mouth is by ratifying the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (ARIPO). Read all about it, as reported by The Standard, here. 

Readers may also wish to take note of what the Attorney General and Minister of Justice of the Republic of The Gambia said at the inaugural event of ARIPO’s IP roadshow seminar held in Banjul, The Gambia, last August. According to ARIPO’s press release: 

“…Hon. Justice Mama Fatima Singhateh highlighted the most significant achievements of the IP Office in the country namely the clearance of a backlog, [This is brilliant news! See Afro-IP’s post in 2012 which told us that they were working on it] the inclusion of IP in the National Science and Technology Policy and the drafting of the IP Policy and Strategy. [On which see Caroline’s report on IP policy in The Gambia here] Hon. Singhateh also indicated that the Government took the conscious decision of joining the Madrid System on Marks and is following up on latest developments on the Banjul Protocol reforms and the text of the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore in order to consider accession.”[Talk about persuasion and conversion! Well done, ARIPO]

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Further reading
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A primer on ARIPO’s TK protection regime is here

Afro-IP summarises the TK discussions at the 2013 Africa IP Forum here

India and WIPO partner to protect TK here

A report published by the UN on indigenous peoples is here (for IP rights & TK, see pp. 64 – 77)

The British Monarchy’s commercial value is protected under various laws, and in the world of advertising (As Darren mentioned in his post referenced above)

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Bayede! a brand of the Zulu Nation

Bayede! a brand of the Zulu Nation

By Afro Leo   Tuesday, July 01, 2014   3 comments:

The Zulu community is mooted as Africa's most powerful traditional nation. Although largely based in South Africa's province of Kwazulu-Natal which is home to the royal household, the nation is said to have over 30 million followers that spread throughout most of sub-Saharan Africa. The community has been ruled by many famous kings including Dingaan, Shaka and Cetshwayo who represented a nation as fearless as they were powerful. 

For the last 42 years, the nation has been represented by King Goodwill Zwelithini whose reign has experienced much of the vast change in South Africa during this time, and who has successfully lead his nation throughout. His role is very much that of a modern monarch, combining deep traditions, customs and the essence of being a Zulu with changing contemporary society. One of the nation's recent initiatives has been to partner with another icon of South Africa, their wines. The result has been very successful.

The initiative lead by Antoinette Vermooten's team at Bayede has lead to the creation of a brand around the distinctly Zulu greeting "Hail the King" and a Royal certification. The initiative also includes the novel concept of selling wines with Zulu beadwork adorning the neck label of the bottles, thus creating demand for local leaders. The model has been so successful that it has been taught at local business university Gibbs and the wines are sold in distribution networks that include Walmart.

What makes this so relevant to this blog is that it is an example of the fusion of modern intellectual property systems with traditional imagery and expression of an African nation. The brand is Bayede! is protected by a trade mark and certification marks, the Zulu crest, symbolism and emblems are state emblems that are protected by heraldic laws, Article 6ter of the Paris Convention and by local laws of passing off and statute. Afro-IP supports this initiative.

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Uganda’s New Industrial Property Act, Almost

Uganda’s New Industrial Property Act, Almost

By Afro Ng'ombe   Friday, September 27, 2013   No comments:

Having been out hunting for awhile – and let me tell you, it’s not easy for a vegetarian lion; soy okapi is just not readily available everywhere – this Little Leo is catching up on news that she missed and missed sharing with you.

Last month, Uganda’s Parliament passed an updated version of the Industrial Property Bill (2009). [Full text pdf of 2009 version.]  The Bill was originally presented in 2009 but was lost in the shuffle of elections and rotating parliamentarians.  The Bill will become law when (is this an “if”? Afro Leo wonders) the President signs it.

The Industrial Property Bill is important for several reasons.  Uganda currently does not have a law relating to industrial property; this will be the first and should repeal the existing Patent and Design Acts, one of which is left over from colonial days.  ah, 1937, such a good year, or so my grandpa has said.  Henry Zakumumpa does a great job of explaining, in layman’s terms, why this Act is so important for the health of Uganda’s people, here.  Additionally, before being passed by Parliament, the original bill was modified to incorporate future potential TRIPs extensions. 

The full text of the passed Bill is not yet available.  However, there is a Report from the Sectoral Committee on Legal and Parliamentary Affairs, which worked on edits to the Bill.  Based on that, some interesting expected features of the Bill include a provision that allows for the protection of local herbs and medicines despite not protecting pharmaceuticals.  Pharmaceuticals are exempt from protection until at least 2016, but local herbs and medicines can be protected under Traditional Knowledge.  Another is the removal of a provision criminalizing patent infringement.  The full, revised bill will be very interesting to peruse.

Huge hat tip to Primah Kwagala for helping Afro-Leo understand the history of the Bill and it’s path.

Photo: almost-complete building in Entebbe, taken by Afro-Leo

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Uganda’s Hip-Hop President wraps up rights in the Rap!

Uganda’s Hip-Hop President wraps up rights in the Rap!

By Darren Olivier   Thursday, June 13, 2013   No comments:

Another very interesting and thought provoking post from Tony Kakooza (Sipi Law) in Uganda who has now joined Afro-IPs blogging team:

Deriving Copyright from Folklore: Uganda’s Hip-Hop President and the battle for cultural ownership.

The Office of the Registrar of Copyrights in Uganda has been handling a rather interesting case involving the President of Uganda in what can be seen as a battle over ownership of culture. The history of this dispute goes back to the Presidential campaigns in 2010:

In October 2010, the President employed the music production prowess of Kampala music artist Richard Kawesa to record a rap song within State House that was titled: Do you want another Rap? This was an innovative technique to especially capture the hearts of the young voters before the looming elections the following year. The rap song achieved its purpose, with President Museveni taking more than two-thirds of the electoral vote (approx. 68%) in February 2011.

Conversant of his Intellectual Property rights and the huge success that would follow the song (See YouTube video here), the President decided to register his copyright much to the chagrin of the Ankole community of which he is a part of. Two senior members of the Ankole Community, Mr. Mwambusya Ndebesa and Dr. Katono Nzarwa Deo filed an objection to the registration of copyright in the Registrar’s Office at the Uganda Registration and Services Bureau. The basis of their objection, briefly, was that the rap song is not original, having been derived from Ankole folklore which is in the public domain and constituting public property. The argument was that the poems from which the song derives, had been recited in the Ankole community for hundreds of years and thus the President had no right to grab ownership of the poems through his rap song.

This matter is highly intriguing for a number of reasons: The Uganda Copyright and Neighbouring Rights Act of 2006 has a flimsy provision for Traditional Cultural Expressions/Folklore. Section 5 simply lists Traditional Folklore as part of the works eligible for Copyright protection without any appreciation as to the underlying differences between Folklore and works of copyright. Secondly, as this matter raised alarming bells over the appropriation of culture, again we find ourselves asking – who owns culture and who controls the means of production of culture such as through Cultural expressions? There have been on-going debates on related questions globally for over twenty years and WIPO is still tussling over the matter through the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore(IGC Committee) with little progress to date.

It is noteworthy that the very person appropriating cultural expressions in this matter was the President of Uganda, but would it have made any difference if it had been someone outside of the Ankole community? Eventually, in her ruling on the objection to Copyright registration (delivered February 14, 2013), the Assistant Registrar of Copyright, Ms. Mercy K. Kainobwisho granted the President’s registration of copyright as a derivative work.


Comment:
Afro Leo wonders how the two draft pieces of TK legislation competing for Zuma's pen in RSA would handle this situation? Would the community (assuming it could be identified) be able to enforce their rights (assuming they could be identified) under each piece of legislation and how would it work? And could it be recorded? It is interesting that President Museveni opted to have the work registered in his own name.
If you are viewing this on the blog (and not via email) you can listen to the Rap (presumably under licence or an infringement exception!) below:

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Trading in trade secrets and the art of knowledge share

Trading in trade secrets and the art of knowledge share

By Darren Olivier   Saturday, April 06, 2013   3 comments:

I am not sure if many readers know of the IP Finance weblog but it has some fantastic stuff on all things to do with IP and money. Neil Wilkof's posts, in particular, are a treat and this one caught my eye this week - Protecting Trade Secrets - How Many Shades Of Gray Do You Need to Count?

Apart from the nebulous nature of the treatment of trade secrets highlighted by Neil in the context of a Russian-Chinese arms deal, his post coincides with an invitation by Prof Alberts to me recently, to talk on the subject at his annual IP Seminar hosted by the University of Johannesburg (see blog post here). 

This is not a subject I deal with often and very few companies that I have come across treat trade secrets management with anything more than disdain. Yet there is undoubtedly significant value to this unregistered form of IP (in my view it is a form of unregistered IP in South Africa) that deserves more attention. So, speaking on the subject was both challenging and welcome.

Under South African law protection for trade secrets lies in both contract and delict. The delictual action has its roots in the Lex Aquilia which I mention, not because it sounds grand, but because my research caused me to uncover a spat between an academic named Schiller and others over the origin of trade secret law. Schiller had postulated, controversially, that trade secret law arose out the actio servi corrupti which literally means "an action for corrupting a slave". This amused me for two reasons. 

Firstly, it sounded like the employer was at fault for corrupting his employee with information which is bizarre. However, if you think about it, the sentiment may well contain some element of truth. In much the same way that you can only blame yourself if you leave your cell phone on the dashboard and it gets stolen at a traffic light in downtown Johannesburg, the employer may only have himself to blame if trade secrets are not properly managed, and then taken. Secondly, the concept of the employee as a slave is probably further from the truth than it has ever been. Slavery of course is wrong but today the employee is frighteningly emancipated through a combination of the rights, technology and information sharing cultures that prevail. The management of trade secrets is therefore infinitely more difficult and, at the same time, probably more important than it has ever been. 

Business has become an art of knowing what to collaborate on or share, how to do it, who to partner with and how best to share the spoils. It's all about knowledge share, whether that knowledge be protected directly or indirectly by trade secrets, patents, copyrights, trade marks or any other similar type IP right.  And Africa is fertile ground for knowledge share because of the huge technological and educational divide between large parts of it and the developed world which means that there is significant potential for any business (local business too) that becomes proficient in that art and, at the same time, risk if they are not. Hence the focus locally on traditional knowledge protection.

Back to the topic of trade secrets, the conclusion reached by Neil is that: 

"[There is a] need for management education to develop better tools to teach students how to weigh the trade off between revenues and other benefits and the loss of control of one's trade secret assets."

Built into his conclusion is an acceptance that in some, perhaps most cases, there is an inevitable loss of trade secrets when doing business.

The discussions that arose out of the recent Africa IP Forum were abundant in their disparate views on knowledge share. Some felt very strongly that Africans where being exploited and IP is facilitating the exploitation whilst others don't blame IP, they just think it needs to made bespoke to our environment. The now hackneyed topic of  traditional knowledge legislation in South Africa was never far from discussion and is, in my view, little more than a legal mechanism for protecting the trade secrets of a community. If one considers TK like that, if you believe that there is significant value in TK and if you agree with Neil's conclusion, then there is an obvious need for funds and a focus on management education of communities on how to develop tools to become proficient in the art of knowledge share. My observation though based on the IP due diligence exercises that I complete in my day-to-day work, is that all businesses could benefit from such a course. 

If you are interested in my slides which were compiled with the trusty help of the Katherine Harding and Susan Olivier at Adams & Adams, they will be located here (as soon as I can get Slideshare to co-operate -   proof too that sharing ain't always so easy).

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Africa IP Forum 2013 - Reflections - Tracy Rengecas

Africa IP Forum 2013 - Reflections - Tracy Rengecas

By Darren Olivier   Friday, March 01, 2013   No comments:

Tracy Rengecas continues Afro-IP's coverage (previous posts click here and here) of the inaugural Africa-IP Forum arranged by South Africa's Department of Trade and Industry with the support of WIPO. Tracy is an expert IP  Practitioner and academic with a particular interest in traditional knowledge. She is currently enrolled full time doctoral programme at the Law Faculty of the University of Pretoria. The subject of her thesis is the protection of traditional cultural expressions through intellectual property. Here goes:    

"The last plenary session of the IP Forum dealt with the challenges and issues in protecting traditional knowledge, genetic resources and traditional cultural expressions in Africa.  The panellists gave excellent presentations. Having been asked to provide a summary I would like to highlight some of the comments made by two of the panellists, Mr Wend Wendland (WIPO Head: Traditional Knowledge) and Mr MacDonald Netshitenzhe (DTI).

As you all know the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is working on legal texts to protect genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs).  Mr Wendland advised that the IGC has just concluded its 23^rd session. Due to the nature of the negotiations (they are member and not secretariat driven), he could not give a prognosis of the outcome but he mentioned that there has been a lot of development over the last three years and that the IGC sessions are positive and constructive and the texts more focused and streamlined. He pointed out that the texts are significant because they are the result of “the first developing country led normative process in IP”, and indicated that the Africa group has been instrumental in the development of the texts with South Africa playing an active and intellectually leading role within this group.  

Mr Wendland, clear and concise as ever, emphasised once again the importance of understanding exactly what “protection” of traditional knowledge means. It could mean safeguarding or preservation of culture (currently regulated by UNESCO).  Some indigenous peoples interpret it to mean the granting of an absolute right over traditional knowledge with no limitations or exceptions. However, the “protection” discussed in the IGC sessions and outlined in the texts, is of a legal and intellectual property nature. This approach he said has two implications, firstly that TK and TCEs are recognised as intellectual property i.e. creations of the mind and secondly that it will be protected by way of intellectual property like measures, with the balances and exceptions that exist in such a system.  The texts are available on the WIPO website.

Mr Netshitenzhe focused on the challenges of protecting TK in Africa. Some of the challenges are:

·         the “cross cutting nature” of traditional knowledge makes it difficult to protect through a single system and that the problems with substantive issues that are expressed by stakeholders are merely delaying tactics which allows the “plundering” to continue;

·         regional stakeholders and African governments do not have a common policy on the nature of protection; 

·          stakeholders taking part in international negotiations have different agendas (developed countries do not wish to extend protection to traditional knowledge while developing countries do);

·         Similar issues occur on a national level.   Referring to the dual nature of South Africa’s economy, he is of the opinion that stakeholders in the “second economy” have the political will to protect traditional knowledge but that stakeholders in the “first economy” are happy with the status quo and are undermining the process of protecting traditional knowledge in South Africa.

As mentioned by AfroLeo the overriding emotion of the sessions was one of frustration at the lack of progress and this session was certainly no different. The IGC have been grappling with this issue now for 13 years and have still not finalised an international instrument. Here in South Africa, we have been discussing the IP Amendment Bill since 2008. Therefore, I can certainly understand and share Mr Netshitenzhe’s frustration.   However, I cannot agree with his generalisation that all stakeholders within the “first economy” (which I assume includes IP practitioners) are happy with the status quo.  Yes, we have been vocal in our objection to the Bill but that does not mean we support bio piracy or the misappropriation of traditional knowledge.    Until we find a solution and we must, I have to agree with the opinion expressed by American writer Jennie Woltz when commenting on that country’s legislative attempt to protect Native American Arts and Crafts, that “perhaps no law at all is better than a bad one”.  As South Africans we should be working together to find the best and most suitable means of protecting our indigenous and traditional knowledge, irrespective of whether we are part of the so-called first or second economy."

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European Union serious on biopiracy in developing countries?

European Union serious on biopiracy in developing countries?

By IPcommentator   Friday, February 08, 2013   1 comment:

The protection of genetic resources (GR), traditional knowledge (TK) and expressions of folklore (especially in developing countries with rich biodiversity and traditional cultural assets) under the intellectual property system has been the subject of immense international policy discourse for many years (see some of Afro-IP posts on this here, here, here and here).  

Last year this blog hosted a piece informing us, with caution, about the cooperation between the European Commission and ARIPO to promote the protection of geographical indications (GIs) for food and agricultural products. Today, this Leo learns from an excellent summary by the International Centre for Trade and Sustainable Development (ICTSD) that the European Parliament (legislative arm of the EU) has made its intentions clear, through a resolution (texts A7-0423/2012), for the EU to tackle biopiracy  in developing countries.

The resolution is premised on the recognition of various international legal instruments concerning intellectual property, human rights and development. Below are the sections of the resolution and this Leo has extracted paragraphs which he finds interesting:

I. Genetic diversity and the MDGs

"3.  Underlines the fact that, although there is no generally acceptable definition of the term ‘biopiracy’, it may refer to misappropriating and/or illicitly benefiting commercially from the use of traditional knowledge and genetic resources and stresses that further work must be carried out in order to clarify and consolidate the legal terminology, in particular with a view to a definition of the term ‘biopiracy’ based on authoritative figures;" (Do you fancy section 3 of the Theft Act 1968 in England and Wales? asks Afro Leo)

"13.  Calls on the EU to refrain from pushing developing countries, especially LDCs, through bilateral agreements to accept far-reaching IP standards regarding e.g. seeds and medicines, in line with the EU's Policy Coherence for Development (PCD);" (Also see paragraph 15)

II.  Rights of indigenous and local communities over traditional knowledge

"17.  Points out that three quarters of the world's population depends on natural traditional medicine from plants; believes accordingly that biopiracy means there is a strong case for protecting traditional knowledge, particularly when it is associated with genetic resources of economic value to industry;" (All six paragraphs are worth reading)

III.  Addressing biopiracy – the way forward

"22.  Points out that biopiracy can be attributed to the lack of national regulations and enforcement mechanisms in developing countries and the lack of a compliance mechanism in developed countries, ensuring that GRs have been acquired in accordance with PIC and MAT in compliance with provider countries' national ABS legislation; welcomes, in this context, the draft regulation submitted by the Commission whose objective is to implement the Nagoya Protocol on Access to Genetic Resources and Benefit-Sharing; insists equally upon the importance to provide effective recourse mechanisms in case of disputes and access to justice;" (Also see paragraph 24)

Improving database and disclosure requirements related to genetic resources and traditional knowledge

"26.  Draws attention to the proposal made by developing countries for a binding regulation requiring patent applicants to (a) disclose the source and origin of genetic resources and associated traditional knowledge (ATK) used in inventions, (b) provide evidence of prior informed consent (PIC) from competent authorities in the provider country and (c) provide evidence of fair end equitable benefit sharing, to be certified in an international certificate of origin;"

"28.  Believes that a binding instrument is the surest way to see biodiversity-related measures in the IPR system implemented by user countries; urges that steps be taken to make the granting of patents dependent on compliance with a mandatory requirement to disclose the origin of any GR/TK in patent applications; stresses that such disclosure should include proof that the GR/TK in question has been acquired in accordance with applicable rules (i.e. prior informed consent and mutually agreed terms);" (Again, all six under this subheading are a must-read)

Working towards a coherent global governance system

"32.  Insists that WTO-TRIPS should be compatible with the CBD-Nagoya Protocol, and therefore considers it crucial to establish mandatory requirements on disclosing the origin of genetic resources during patent proceedings, and thus to make it possible to check whether they were acquired legally in accordance with PIC and MAT;"(All five paragraphs a must-read)

Conclusion

This remarkable achievement furthers and strengthens the pro-development discourse in IP. Without mentioning any names, this Leo knows that some NGOs, entities, individuals, developing and least-developing countries (you name it) have put in a lot of work lobbying at domestic and international stage on this matter. This is some good news for them - at least the EU is paying attention. However, (considering supranational politics, bureaucracy etc) he is also aware that this is a mere statement of intent by the European Parliament: it could be taken seriously and forward by the European Council and European Commission or left to accumulate dust. Hopefully, the former happens.

What do you think?

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