Square pegs & round holes: WIPO in S Africa

SQUARE PEGS AND ROUND HOLES: INTELLECTUAL PROPERTY, TRADITIONAL KNOWLEDGE, AND WIPO?S FACT-FINDING MISSION IN SOUTH AFRICA

by Rachel Wynberg. Biowatch South Africa

October 1998

In September this year the World Intellectual Property Organisation (WIPO) visited South Africa as part of its global fact-finding mission to examine traditional knowledge and intellectual property. WIPO is a United Nations agency which aims to promote the use of intellectual property systems throughout the world. The mission to South Africa formed part of a larger programme within WIPO to investigate the needs of ?new beneficiaries? that have not had access to the intellectual property system, such as local communities and holders of traditional knowledge. The initiative has been received with a good deal of scepticism from NGOs, academics, communities, and others that have been grappling with traditional knowledge issues for many years. WIPO?s recent alignment with the all-powerful World Trade Organisation (WTO) has caused particular concern.

South African Policy Initiatives

How relevant is WIPO?s mission for South Africa and what can the country hope to glean from the initiative? South Africa has vast traditional knowledge of biological resources that has developed over millennia. Sadly, much of this knowledge has been fractured by South Africa?s colonial and apartheid past, and by increased urbanisation. Today, only pockets of traditional knowledge exist amongst indigenous communities such as the San, amongst older people in rural areas, and amongst traditional healers. As is the case in many other countries of the world, such knowledge does not receive legal protection and where knowledge has been commercialised, few benefits have returned to the original innovators.

At the national level, these concerns are being taken up in various ways.

*A White Paper on Biodiversity has been adopted by the South African Government, spelling out a policy and strategy to ensure the conservation and sustainable use of the country?s biodiversity. Included within the policy is a commitment to review and modify national policies and legislation to ensure they support the rights of holders of traditional knowledge. Additionally, recognition is given to the fact that conventional intellectual property right regimes do not correspond well to the innovations of traditional cultures.

*A major audit of indigenous technologies has been undertaken, under the auspices of the Department of Arts, Culture, Science and Technology.

*A Bill on Indigenous Knowledge has been recently drafted, but this has been criticised by many for its virtual neglect of biodiversity and community rights issues, and lack of consultation with holders of traditional knowledge. Although at an early stage of development, the Bill is poorly informed by international experiences and debates, and does not fully reflect South Africa?s obligations under Article 8j of the Convention on Biological Diversity. From a community rights perspective it is extremely limiting and takes no cognisance of the problems of using the existing intellectual property right system to protect traditional knowledge. Instead, it refers to existing intellectual property rights legislation as the means through which protection for traditional innovations / knowledge will be conferred.

*The Department of Health has launched a major initiative on traditional medicine.

*Several bioprospecting projects have been initiated, some of which intend to include traditional healers as beneficiaries. These and many other national initiatives are insufficiently integrated, and this has often resulted in a confusing and sometimes contradictory policy environment. Additionally, government officials are poorly informed about the problems and complexities of conferring intellectual property rights for traditional innovations, and the importance of drawing linkages between different sectors such as environment, science and technology, health and agriculture.

An especially difficult issue concerns the identification of holders of traditional knowledge. Some 200-300,000 traditional healers practice in South Africa, and are affiliated to 200-300 organisations which are often politically fraught and divided. Farmers holding knowledge about traditional varieties and breeds of crops and animals have yet to be identified and consulted. And even within indigenous communities such as the San, considerable conflict exists as to the geographical boundaries of the community.

WIPO and South Africa

Within this complex context, it is useful to reflect on South African experiences and perceptions of the WIPO visit. From the outset, WIPO stated that their mandate was to research and explore options for protecting traditional knowledge, and stressed that they did not have answers to the difficult questions that arose from their investigation. By mid 1999, they hope to have compiled all the views obtained from their various fact-finding missions. WIPO acknowledged that their visits were very short and that they could not pretend to be obtaining a complete picture. Rather, they were intending to get a ?landscape? of the main players involved in different regions - including government departments, NGOs, communities, and industry.

In South Africa, this involved three days of meetings in Pretoria and Cape Town with government officials and some researchers and NGOs, an afternoon visit to the ?San community? in the Northern Cape, and a day participating in a workshop on indigenous technology. In a country as vast and complex as South Africa, it is highly unlikely that this proved sufficient to provide even an overview of the situation. Indeed, from discussions held it appeared that WIPO?s understanding of the South African situation was extremely limited and ignorant of the quite unique circumstances which frame policy debates in the country.

On the part of the government, there was poor understanding as to the purpose of the WIPO visit, with some officials being suspicious about the possible appropriation of traditional knowledge by WIPO, and others concerned about WIPO?s superficial engagement with communities. Additional concerns were raised about the lack of clarity as to the mandate of WIPO. As an intergovernmental body, WIPO is accountable to member states, not to the ?new beneficiaries? which it hopes to serve. Yet many countries do not recognise traditional knowledge, or the rights of communities holding such knowledge.

How is this sensitive issue to be tackled by WIPO and what implications does it have for the effectiveness of new policies that may be introduced for holders of traditional knowledge? Impressions of those with whom WIPO met were clouded by perceptions that there was not full disclosure of information about the initiative, and about the findings of the mission. Granted, the South African visit did come at the end of the WIPO Africa mission, and WIPO officials were clearly tired of speaking to people and debating the issues.

Conclusion

If nothing else, the WIPO initiative has served to highlight the conflict between existing intellectual property right systems and traditional knowledge in South Africa. The initiative is also likely to catalyse stronger coordination between the disparate government initiatives underway which deal with biodiversity and traditional knowledge, and to facilitate broader input to the Bill on Indigenous Knowledge. However, the overall findings of the WIPO mission need to be viewed with caution, given the superficial way in which information has been obtained and the limited number of roleplayers visited. Most disturbing of all is the lip service that has been given to involving communities in the process. We are all too familiar with the complexity of the issues being researched. For an informed, equal and effective dialogue to take place a substantial process of building awareness and understanding among holders of traditional knowledge is absolutely fundamental.

For further information please contact:

Rachel Wynberg Biowatch South Africa PO Box 69, St James 7946 SOUTH AFRICA Tel: (27-21) 788 76 77 Fax: (27-21) 788 91 69 e-mail: rachel(at)iafrica.com