Exploitation of traditional knowledge

SHARE   |   Sunday, 20 July 2014   |   By Oabona Monnakgotla

Traditional knowledge has been incorporated in the Industrial Property Act of Botswana (hereinafter referred to as the Act), and the introduction in the Act places a burden on us to try and build understanding on indigenous knowledge and how the Act could be interpreted in the context and practices surrounding indigenous knowledge. Our earlier article(s) tried to define indigenous knowledge based on the many definitions that have been coined and this article discusses indigenous knowledge in the context of the Industrial Property Act of Botswana.   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 cultural, traditional or spiritual belief or value of a group of people. The Act has attempted to cover as wide and broad areas of indigenous knowledge ranging from ideas to inventions. The definition in the Act further acknowledges that IK may not be written may be cultural, traditional or spiritual.

As discussed in previous articles, owners of traditional knowledge are entitled to register all of, keep secret some of or the whole of it.  Registration of traditional knowledge constitutes disclosure of the knowledge to the public. In return owners get legal protection until the traditional knowledge loses its value as an element of cultural identification, either as a result of wilful and expressed abandonment, non-use or use in a distorted manner by third parties which the right holder is aware of. This is to say; traditional knowledge protection does not have a set specific number of years after which it expires. It can expire within a very short time or after a very long time depending on how an owner protects, manages and enforce her/his rights over it.  A community that registers, uses its traditional knowledge and stop third parties from distorting it can have its traditional knowledge protected for quite many years. 

Exclusive rights to traditional knowledge belong to the owner(s) of the traditional knowledge. Where it is collectively owned, the rights are exercised and enjoyed collectively in accordance with cultural practices.  Communities which have registered individually for similar or identical elements of traditional knowledge have the option to exercise and enjoy their rights over the traditional knowledge individually. This should not be construed to mean that different communities can easily register similar or identical traditional knowledge. Like other intellectual property rights, ownership of traditional knowledge can be invalidated by the High Court after hearing interested parties. Invalidation is possible where the registered traditional knowledge was not created by the person who initially applied for registration. A community or person should therefore apply for registration of traditional knowledge he created.   Not one created by others. It is a criminal offence to register any intellectual property that belongs other people.

Traditional knowledge rights are exclusive. Other persons are not allowed to commercially exploit them unless they have been authorized by the right holder. They vary depending on the subject matter of protection.  For a product, the traditional knowledge right holder has the right to prevent others from making, using, stocking, offering for sale, selling, commercializing, importing or exporting the product. Where the subject matter of protection is a domesticated or cultivated plant or any micro-organism, the traditional knowledge right holder has the right to prevent third parties from reproducing, multiplying or preparing for reproduction through an offer for sale, sale, importing, exporting or any form of commercialization.  Specific traditional knowledge rights are also provided for designs of objects of functional or aesthetic nature, names, symbols and emblems or any distinctive signs of a religious, cultural or economic nature.

Normally intellectual property rights are commercialized by licensing or assignment (sale) where the owner of the rights does not have capacity to commercial exploit his rights. The rights of local communities over registered traditional knowledge cannot be assigned (sold), ceded or transferred in any manner. The intention of the Act is to make traditional knowledge a property of local communities so that they can derive maximum benefit for as long as the traditional knowledge rights have not expired.  Local communities can issue licenses to third parties to commercialize their traditional knowledge subject to set conditions by the Act. The licensed third parties, must pay at the discretion of the community, lump sum or royalty fee or allow participation of the community in the benefits directly or indirectly derived from exploitation of the traditional knowledge.  The licensed party or licensee to use the traditional knowledge may give members of the community educational grants, medical assistance or any other benefits that the community considers suitable.  The exploitation does not in any way distort the traditional knowledge.  The license agreement must be recorded with the Office of Registrar of Companies and Intellectual Property and it expires upon distortion of the licensed traditional knowledge.

The Act also allows exploitation of traditional knowledge by others on the grounds of public interest.  After hearing the community that owns traditional knowledge, the Minister may authorize the scientific, commercial or industrial exploitation of the traditional knowledge on the following conditions; the exploitation does not distort or offend the cultural identity of the local community, the local community is granted an equitable share of any benefit derived from such scientific, commercial or industrial exploitation. Lastly, the authorization granted by the Minister should be limited by scope and duration, and shall expire when it can no longer be justified on the basis of public interest.

In conclusion, as Batswana we need to understand everything about protection of traditional knowledge, identify our traditional knowledge that still qualifies for protection, protect it by registration and commercialize it for the benefit of our local communities. As a nation and in our pursuit to contribute towards knowledge generation we still remain with the responsibility of protecting the same knowledge and not disclose it with caution. Knowledge is a resource that when shared responsibly results with some economic gain for both the knowledge giver and the receiver.    Communities as custodians of indigenous knowledge should join hands with the Government in sensitising and educating its members on the importance of traditional knowledge protection. Communities also should set up relevant structures to protect, manage and enforce community rights over registered traditional knowledge. The San of South Africa have set the pace. They have agreed with Council for Scientific and Industrial Research (CSIR) to get 6% of all royalty payments CSIR will get from Phytopharm, a United Kingdom Company that has obtained a patent license from CSIR to further research on hoodia and commercially exploit resultant products.  How hoodia works is traditional knowledge owned by the San, CSIR used this knowledge to research on Hoodia and patented the research output that it later on licensed to Phytopharm to use to manufacture appetite suppressants and obesity treatments.  This scenario demonstrates that traditional knowledge is important and it contributes to scientific research for the betterment of mankind.