South Africa: Protecting our vital traditions

Indigenous knowledge is broadly defined as knowledge which has developed within an indigenous community and which has over time become part of the make-up of that particular culture. South Africa has a deep wealth of traditional knowledge kept alive by the traditions of its peoples. This traditional knowledge finds expression in various forms – in medicines, treatments, knowledge of natural resources, and know-how. Similar and related to this concept is that of indigenous cultural expression – this broadly means cultural content also developed over time within a community and includes expressions in music, language and art.

The various forms of indigenous knowledge and expression can be the subjects of intellectual property rights. For example, a new formulation for a drug or medicine formulated from naturally occurring resources can qualify for patent protection; baskets or objects woven in a new and original way can qualify for protection as designs or under copyright; pieces of music, art or literary works can qualify for copyright protection; and in certain instances, words with an indigenous origin which are used to market products can in certain instances qualify for protection as trade marks.

Intellectual property rights are an asset and create an avenue for the owner to exploit their property in the same way a home owner could exploit her property right by renting it out to others. In South Africa, there is very little education provided to small business owners, traditional communities, or individual creators on how to exploit their creativity or traditional expression.

Over the years, many forms of indigenous knowledge and expression have been used by third parties with no or little compensation offered to the indigenous communities who created those forms of expressions or knowledge. In response, many countries across the world have moved towards offering protection to traditional communities so that they can benefit from their traditional knowledge.

In South Africa, the Intellectual Property Law Amendment Act No. 28 of 2013 has been passed in order to provide for the recognition and protection of certain traditional and indigenous forms of expression. The provisions of this Act define concepts such as “indigenous cultural expressions or knowledge”, “geographical indication”, and “indigenous community”. In a nutshell, this Act aims to protect forms of indigenous expression and ensure that communities are consulted and/or compensated when such expressions are used by third parties. Various collecting bodies and agencies are established via this Act to facilitate this compensation and management. As the regulations relating to this Act have not yet been passed into law, it remains to be seen whether this Act will assist creators.

There is no doubt that forms of cultural and indigenous expression and knowledge should be protected for the benefit of shareholders. At the moment though, it is important for people to understand that there are ways to protect cultural expression through the available intellectual property law and regimes.

Even though many of the definitions of various intellectual property rights disallow forms of cultural expression from protection, there is room for flexibility. For example, to qualify for protection as a patent, an invention must be completely new, all over the world. As an indigenous medicine may have been around for centuries and is known to many people, this disqualifies it from protection as a patent. However, if the formulation is manufactured, bottled and branded by a community, there is room for that brand and packaging to be protected via copyright and trade marks. That product and/or the associated intellectual property can be sold or licensed by the community for the benefit of its members.

This article was first published in the Business Day.

Date published: 15 October 2019
Author: Spoor & Fisher

Tags: intellectual property knowledge cultural expression south africa