Friday 1 March 2013

Darren Olivier

Africa IP Forum 2013 - Reflections - Tracy Rengecas

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 23rd 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."

Darren Olivier

Darren Olivier

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