RIGHTS: South Africa Challenges World Rules on Intellectual Property

By Mercedes Sayagues Reprint | | Print |

Mercedes Sayagues

PRETORIA, South Africa, Sep 30 2002 (IPS) - What does an anti-pimple cream have to do with the African Renaissance? How can a yellow fruit relished by elephants challenge world rules on intellectual property?

In South Africa, traditional healers treat acne with a wood-based cream. Jumbos get tipsy on wild marula, key ingredient of a popular sweet liqueur and a cure for colds and dysentery.

Both cream and fruit — a cosmetic technology and a natural resource — are part of South Africa’s traditional knowledge.

“This is an unexploited, undeveloped, and misunderstood wealth that we need to tap into,” says Noma Xabiso, chief executive of the African Renaissance South African chapter.

A key tenet of the Renaissance vision, popularised by South Africa’s president Thabo Mbeki, is to develop Africa’s own resources such as biodiversity and traditional knowledge.

South Africa, however, is not doing enough to promote and protect indigenous knowledge, say activists.

“At the level of rhetoric, there is recognition of its value. At the level of action, little is happening,” says Rachel Wynberg, a South African researcher on biodiversity now with the University of Strathclyde in Britain.

Government’s policies on biodiversity and traditional knowledge are good. Turning them into practice through laws and monitoring mechanisms remains slow.

A Bill to protect indigenous knowledge, to be tabled in parliament before December, has been postponed to 2003, says Mogege Mosimege, director for indigenous knowledge systems at the Department of Arts, Culture, Science and Technology.

An earlier version was returned to drafters by Parliament two years ago for lack of clear regulatory mechanisms.

‘”We follow a path of caution,” says Gwen Mahlangu, chair of the Parliamentary Portfolio Committee for Environmental Affairs and Tourism.

This is uncharted territory. Only recently has the concept of traditional knowledge acquired legitimacy.

Indigenous people have few legal ways of asserting ownership of knowledge – from local foods, seeds, herbal medicines and cosmetics to pottery, beading and folk tales.

Increasingly, seed, agrochemical and pharmaceutical companies claim and receive intellectual property rights over genetic resources and related knowledge without consent from or compensation to the people who have used these — whether a cream or a fruit — for centuries.

Now developing countries are fighting this theft of knowledge, or biopiracy, in an improbable arena — the world system of intellectual property rights (IPR).

The IPR system is rooted in European industrial and scientific tradition. It sees knowledge as a commodity owned by an individual or company and grants patents for trade and profit.

In contrast, traditional knowledge is developed, handed down and owned by communities. Its cultural and collective nature is hard to grasp by IPR.

“The present system serves the interests of industrialised countries by excluding the richest assets of developing countries — biodiversity and indigenous knowledge,” says Tom Suchanandan, of South Africa’s Human Sciences Research Council.

“National legislation must remove the unfair commercial advantages that western intellectual property rights hold over indigenous knowledge,” he adds.

The quandary for South Africa and developing countries is that patent laws mandated by the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organisation (WTO) do not accommodate traditional knowledge. (Under pressure from developing countries, the WTO meeting in Doha last November agreed to review the patent system.)

“Does the Bill grapple with the schizophrenic dilemma between our strong patent legislation and the protection of indigenous knowledge?” asks Wynberg. “Is TRIPS delaying the Bill?”

Nolwazi Gcaba, a South African patent and copyright attorney, says the Bill is urgently needed ‘’to defend the rights and property of indigenous communities, to avoid their exploitation.”

Bioprospecting of plants used by traditional healers goes on in South Africa, legally and illegally.

“Researchers from all over the world seek the plants we use but give us nothing,” says T.J. Matiba, a traditional healer, founder and president of South Africa’s Council of Traditional Healers since 1985.

Benefit sharing is an especially thorny issue because of South Africa’s history.

The apartheid regime forced blacks off their land and marked vast areas for nature conservation with no benefit for locals. It banned traditional healing and branded indigenous knowledge as backward. Apartheid ideology systematically eroded and devalued the rich and diverse knowledge systems of Africans.

Today, holders of traditional knowledge like T.J. Matiba are recognised, albeit, in Mosimege’s words, they are “still cast in the background”.

Mosimege notes their minimal representation in workshops and an untenable relationship with researchers that “seems to be perpetuating ills of the past à without proper benefit-sharing.”

Apartheid-era research and conservation institutions neglected social problems. This history underpins the need to develop a code of ethics for today’s research.

“A code to prevent the unlawful extraction of cultural knowledge will impact on research policies that inadvertently encourage exploitation,” says Suchanandan. “Benefit-sharing is not charity but a responsibility for researchers.”

Unwitting accomplices, some South African academics take foreign colleagues around the country collecting plants and videotaping healers.

“There’s naivete among some academics, delighted to work with foreign partners after years of apartheid isolation,” says Dr. Martinus Horak, manager of the bioprospecting programme at the Council for Scientific and Industrial Research. “Others are funded by foreign corporations.”

This explains how rare local desert plants turn up in laboratories at American universities, says Horak.

He lobbies for legislation ‘to control, not prevent, access to our rich biodiversity and indigenous knowledge. We’ve lost so much, we can’t lose more.”

At a workshop on biopiracy held during the Earth Summit in Johannesburg in September, Horak pleaded Malhangu to speed legislation in Parliament.

The issues are tricky: how to reward knowledge and apportion ownership; how to patent biological and cultural resources, sometimes across borders; how to disburse royalties equitably.

Competencies are unclear between the Ministry of Environmental Affairs (for biodiversity), the DACST (for indigenous knowledge) and Trade and Industry for TRIPS.

AIDS, crime, poverty and unemployment relegate this issue to the backburner.

“Our government is more focused on trade regimes and attracting foreign investment than strengthening our indigenous resources,” says Haydee Swanby, of the Cape Town-based Biowatch, a non-governmental organisation (NGO).