Protecting Traditional Knowledge as Intellectual Property

It was recently reported by News24 that the Ministry of Higher Education, Science and Technology has indicated, somewhat in passing, that it will be reassigning funds toward researching the possible efficacy of traditional medicines against Covid-19.

Traditional medicines form part of that body of information which is commonly referenced in the intellectual property community as “traditional knowledge”.

The announcement was made against the background of a suggestion by the president of Madagascar, that a local Madagascan herb, artemisia, has allegedly been found to be useful in fighting Covid-19 in that country.  The President, in fact, heralded this herb as a possible cure for the disease.

The efficacy of traditional medicines and arguments and evidence for and against their use do not fall within the scope of this article. What must be appreciated is that in South Africa and many other countries there are rich bodies of traditional knowledge, which include but are not limited to traditional medicines.

These should, in at least some respects, be seen to contribute to the diversity of culture and, in some respects, technology in each country, susceptible to further research and deeper understanding, rather than to be dismissed out of hand.

The move by the Ministry can therefore, it is believed, be viewed with encouragement since, while widely recognised and researched, it may bring sudden focus and the potential for global relevance to traditional knowledge-based research in South Africa, within the context created by the pandemic that we are faced with.

The move also revives the discussion around the globally recognised need for the protection of traditional knowledge as intellectual property of the holders thereof.

Currently, there is no form of registered intellectual property protection that provides, outright, for the protection of traditional knowledge as a form of intellectual property.  This is a global challenge that many, including the World Intellectual Property Organisation, have grappled with for years.

Locally, the Government in 2004 adopted a comprehensive policy in relation to recognition and protection of traditional knowledge, in the Indigenous Knowledge Systems (or “IKS”) Policy.

From a statutory perspective, in South Africa the rights of holders of traditional knowledge are recognised in the Biodiversity Act 10 of 2004, inasmuch as the relevant traditional knowledge relates to indigenous biological or genetic resources.

The Patents Act 57 of 1978 (as amended) mirrors this recognition, in respect of inventions that are based on or derived from such traditional knowledge and for which patent protection is sought.

More specifically, the Biodiversity Act provides that a person seeking to engage in bioprospecting or subsequent commercialisation of an indigenous biological or genetic resource, must obtain a permit to do so.  “Bioprospecting” has a broad definition that includes research on and development or application of indigenous biological resources for commercial or industrial exploitation.

One of the requirements for such a permit to be issued is that, if the end to which the proposed bioprospecting would be conducted, or the motivation for which it would be conducted, is based on or derived from traditional knowledge, a benefit-sharing agreement must have been concluded with the holders of the relevant traditional knowledge.

In the case of patent protection, an applicant for a patent is required to make a declaration as to whether or not the relevant invention is based on or derived from traditional knowledge or use and, separately, also whether the relevant invention is based on or derived from an indigenous biological or genetic resource.  Making a false declaration is a ground for patent revocation.

The registrar of patents must, in reaction to a positive declaration, call for proof of the applicant’s right to make use of the traditional knowledge, in the absence of which the relevant patent application may not proceed to grant.

Proof that must be provided by the applicant includes the benefit-sharing agreement that is required in terms of the Biodiversity Act.  It is also important to note that, where an indigenous biological or genetic resource is concerned, proof that would be required would also include a copy of a bioprospecting permit.

Thus, although in somewhat of a roundabout way, statutory provision is made for benefits, that may accrue from inventions based on or derived from traditional knowledge, to be shared with the holders of the traditional knowledge.  This is both in a patenting and in a non-patenting context.

While the provisions discussed above recognise the rights of holders of relevant traditional knowledge and give them an opportunity to share in benefits that may accrue from commercialisation thereof, they do not go as far as providing them with registered intellectual property protection.

Regrettably, obtaining valid patent protection for any form of traditional knowledge or use, as such, may be difficult, if at all possible.  This is in light of the requirement that a patentable invention must be new, in the sense that it must not yet have been disclosed to the public.  In most cases, it is unlikely that traditional knowledge or use would comply with this requirement.  This does of course not extend to novel and inventive applications of traditional knowledge, which may indeed be patentable and serve as sources of benefit for the holders of such traditional knowledge.

The extent to which patent laws can be amended to provide for the protection of traditional knowledge as such is limited, in some cases with reference to international treaty requirements relating to patentability.  It is therefore unlikely that the current Patents Act can go further than it currently does, in recognising the rights of holders of traditional knowledge.

Beyond patent protection, there are of course other forms of registered intellectual property protection that may be relevant to traditional knowledge.  These include trade marks and registered designs.  Another form of intellectual property protection is copyright protection, which is a statutory non-registered form of intellectual property protection.  None of these forms of protection currently recognises creations of traditional knowledge as a special category of intellectual creation, although they do by implication extend to such creations inasmuch as they comply with the current requirements for protection.  As in the case of the Patents Act, however, the extent to which traditional knowledge creations may currently be susceptible to such other forms of protection may also be limited in light of the current requirements for protection.

The Intellectual Property Laws Amendment Act 28 of 2013 however provides for significant changes to the acts providing for trade mark, registered design and copyright protection, and also to the Performers’ Protection Act of 1967.

Through these changes, traditional knowledge and the creations thereof would become expressly recognised and therefore more directly protectable more often, by the instruments provided for in the above acts.

Regrettably, there is as yet no firm indication of when the IP Laws Amendment Act will become effective, since regulations are currently still in the process of being developed.

Until then, the options available to holders of traditional knowledge to protect their intellectual property through statutory instruments remain limited, and the relevant communities or individuals would in some cases need to be alert and take early steps to ensure that their rights are properly protected, whether contractually or by currently available statutory instruments, when traditional knowledge is made available for to commercial interests.  Where statutory instruments have potential relevance, early action is essential in light of the current requirements for protection to be afforded.  Generally, in the case of statutory instruments of intellectual property protection, confidentiality should be maintained until steps have been taken to commence pursuit of such protection.

Pieter Visagie
Partner | Patent Attorney