Let’s us continue where we stopped in the previous article. As it was said in that article, this article will look at Part XII of the Industrial Property Act of Botswana. This part provides for the protection of traditional knowledge. The Act defines traditional knowledge as an idea, knowledge, practice, use or an invention, written or unwritten which, may be associated to biological diversity, is a cultural, traditional or spiritual belief or value of a group of people. This definition is not different from the definitions of traditional knowledge discussed in the previous article. It has a lot common elements with the other definitions. Examples of traditional knowledge in Botswana include traditional initiation schools which used to be a common practice amongst the tribes of Botswana to groom young men and women into responsible adults. This is traditional knowledge. Some communities in Botswana use mixtures of plants and herbs to produce colourants to decorate basket and bridles. For bridles they use mositsana to give processed leather brownish pigmentation. In Nhabe or Ngamiland basket weavers use plants in their locality to produce various colours for their baskets. Some use plants and tree roots for medicinal purposes like monepenepe. All this is traditional knowledge. The list of examples of traditional knowledge is almost endless.
Traditional knowledge is registered and protected with the Office of Registrar of Companies and Intellectual Property. The owner of traditional knowledge is entitled to disclose and register his knowledge or to keep it secret. To keep traditional knowledge secret the owner should disclose it on the need-to-basis, subject it to measures of keeping it secret such as disclosing it upon execution of confidentiality agreements binding recipients of the knowledge not to disclose it and to disclose it to others to use. It should be noted however, that secrecy applies where the information is not easy to develop independently and where it is very difficult to reverse engineer. Protection of traditional knowledge by keeping it secrete offers protection when the right holder of the knowledge can prove beyond reasonable doubt that the knowledge was obtained from him by unfair practices such as bribery, espionage or inducing those who the knowledge has been disclosed to, to disclose it for use by the inducing party or any other party. Consequently, it is prudent to protect traditional knowledge by registration where the knowledge can be easily developed or reverse engineered.
Any lawful owner of traditional knowledge can register it for protection. Traditional practitioners, local communities or any individual who owns traditional knowledge can apply for its registration. Unlike other intellectual property, traditional knowledge is often community owned. This is because it is knowledge that is developed by the community over time and passed from one generation to another. Where traditional knowledge is a property of the community a member of a community cannot apply for its registration claiming it to be his. Should this happen the community, can apply for invalidation of the registration of the traditional knowledge by the individual. Therefore, an individual can only apply for registration of tradition of traditional knowledge that is community owned when he has been authorized to do so by the community. Authorization is usually given in the form of a Power of Attorney or an Authorization of Agent letter duly signed by the authorizing party. An individual who registers traditional knowledge that he has not created or that does not belong to him can face criminal charges for causing the Registrar of Companies to record him as the owner of the traditional knowledge. Such a criminal can be fined a maximum of P10, 000.00 or imprisoned for a term not exceeding three years or both penalties can be applied simultaneously.
However, the registrar alone cannot enforce traditional knowledge owned by communities. Communities in Botswana should inform themselves and understand the importance of traditional knowledge they own, register it, and enforce their rights over it. The principle that it is the responsibility of the right owner to manage and enforce his rights also applies on traditional knowledge. Communities and individuals who own traditional knowledge should sue those who infringe upon their traditional knowledge rights and those who misappropriate it or register it as their own property. In a tswana traditional set up, the chief of the community may be appointed as the agent of the community for registration and enforcement of the community’s traditional knowledge. Alternatively, a trust can be set up to do the same on behalf the community and to ensure that proceeds from the commercial exploitation of the traditional knowledge benefit the whole community. As traditional knowledge is developed over time and passed from one generation to another, it is possible that different communities can own same or similar traditional knowledge. In that case the law allows communities to register themselves collectively or individually as owners of traditional knowledge and to exploit the traditional knowledge either collectively or individually depending on the arrangement the communities used to the traditional knowledge. Foreign communities too can register and protect their traditional knowledge in Botswana.
In order for traditional knowledge to be registered it should meet requirements as stated in the Act. It should be fully disclosed to the Registrar sufficiently and clearly to permit any third party to reproduce or utilize it to obtain similar or identical results. In other words the description of the traditional knowledge should be complete to enable other parties to exploit the traditional knowledge once it falls into the public domain or its protection ends. The traditional knowledge should have not been disclosed to the public through any means such as use, publication etc. If it had been disclosed, such disclosure should have not led to commercial or industrial exploitation of the traditional knowledge in Botswana. An example may be helpful for us to understand this better. In Botswana we have a traditional tea mosukujane. Communities where mosukujane grows know that it can be used as tea and this knowledge has been passing from generation to generation and it is still taking place. Mosukujane some years back was packaged and sold in large quantities in supermarkets and general dealers just like FIVE ROSES® and TANGADA® tea. This may be interpreted as commercialization prior to registration and as such no community may disclose and register mosukujane as its traditional knowledge. Mosukujane since it has been commercialized is now in the public domain. Any person who has the capacity can harvest, package and sell mosukujane to consumers.
No number of years is set in the Act for traditional knowledge protection to expire. It is different from other forms of intellectual property rights in this regard. For instance, patents expire after 20 years, copyright expires generally after 50 years from the year of death of the right holder. Traditional knowledge on the other hand expires when it has lost its value as an element of cultural identity, as a result of wilful or expressed abandonment by its owner or as a result of non-use or use in a distorted manner by third parties of which the owner is aware. This means that if protected, properly managed and effectively enforced traditional knowledge protection can be effective for many years for the benefit of many generations of any particular individual or community owning it.
Our traditional knowledge is equally important as the knowledge generated and commercialized by the developed world. As a country, communities and individuals owning traditional knowledge we should protect and commercialize it for our benefit and that of our generations to come.