By Michael Biko Butera*

Introduction

Traditional Knowledge (TK) is any knowledge originating from a local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, where the knowledge is embodied in the traditional lifestyle of a community and is passed on from one generation to another.[1] TK often forms part of a community’s cultural and spiritual identity, technical, ecological and medical knowledge as well as biodiversity-related knowledge.[2] Folklore expressions (Folklore) on the other hand, are any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested.[3]

Despite clear definitions, there has been a drumming debate whether TK and Folklore should be protected. If not, why? and if yes, how? Would it be through the intellectual property (IP) regime or any other mechanisms? The prevailing and ongoing argument is captured in part two.

The author posits that there is already a starting point to finding a way to protect TK and Folklore given their special nature. This is by rethinking the Swakopmund Protocol as a model law and a sui generis system for African countries to come up with corresponding national laws. Sui generis basically means that of its own kind or class; peculiar.[4]

The current Intellectual Property Laws are either insufficient or ad hoc protection to African TK: A prevailing debate

African communities and other afro-centric scholars view TK as having communal value, as being collectively owned, and as a public domain resource that is not necessarily a profit bearing commodity.[5] They argue that protecting TK and Folklore under IP regime would undermine its collective custodianship and ownership by the indigenous people.[6] Furthermore, TK and Folklore is built on experimental knowledge, it is oral and goes beyond the inexplicable aspects such as a spiritual and ritualistic world, unlike IP system that is scientific.[7] Thus, the application of western legal and economic principles that emphasizes exclusivity and private ownership while commodifying knowledge in form of IP law is insufficient and ad hoc in protecting TK.

While the above argument is well-founded, one may pose the question: what do we do with TK and Folklore then? One thing for sure is that TK and Folklore cannot be left unprotected because, unfortunately, corporations including research institutions, biotechnology companies, and pharmaceutical companies have and may continue to exploit TK without sharing the benefits to the ‘original holders’.

There are reported cases of traditional knowledge misappropriation and illicit use for example, through bio-piracy. Case in point is that of katempfe and serendipity berries, which have long been used by African peoples for their sweetening properties until the University of California and Lucky Biotech, a Japanese corporation, were granted a patent[8] of the sweetening proteins naturally derived from these African plants. This patent is extensive and covers any transgenic plant containing the derived sweetening proteins; unfortunately, there are no attempts made to share benefits with local communities.[9]

More to this in the case is Eli Lilly, a major pharmaceutical firm, which was permitted to market vincristine and vinblastine in the United States. These patented drugs are used to treat childhood leukemia and Hodgkin’s disease.[10] Given the drugs medical importance, Eli Lilly made millions of dollars from drugs derived from the Rosy Periwinkle alkaloids.[11] The source for this powerful and profitable treatment was the rosy periwinkle, a flower growing wild in Madagascar. Traditional healers there used it to treat diabetes. In the 1950s, they shared their knowledge with ethnobotanists who fed the discovery into Lilly’s massive research laboratories. But none of the profits has been shared with the healers or their community.[12]

Again, Bayer, a German pharmaceutical company, is alleged to have manufactured the diabetes drug Glucobay (acarbose) using bacteria called Actinoplanes SE 50, acquired from Lake Ruiru in Central Kenya. To date, no benefits have accrued to Kenya for this discovery. There is no evidence of benefit sharing or compensation of the local communities or Kenya itself.[13]

Swakopmund Protocol as Model Law for African States and National Sui Generis System

In early August 2010, the African Regional Intellectual Property Organization (ARIPO) at a Diplomatic Conference in the coastal town of Swakopmund, Namibia, took a historic step in adopting a legal framework, known as the ‘Swakopmund Protocol for the Protection of

Traditional Knowledge and Expressions of Folklore’.[14] This was the result of ten years of intensive consultations. Consequently, the Protocol entered into force on May 11, 2015.[15] For its promising contribution, Francis Gurry, the Director-General WIPO went far as to refer to it as “a historic step for ARIPO and a significant milestone in the evolution of IP”.[16] Despite this recognition though, the protocol has low attendance, only nine States out of nineteen ARIPO member States have signed it.[17]

This protocol came into being as a response to the bio-piracy and other forms of TK misappropriation in Africa. It is the author’s view that this Protocol is crucial for recognition and protection of TK in Africa, more so if it is used as a model law for the African States to come up with their own national laws, sui generis[18] or otherwise,that will accommodate the special characteristics and nature of TK and Folklore. Normally, sui generis laws are made and implemented at the national level and are not governed by the World Intellectual Property Organisation (WIPO)[19]. This means that even non-member States can walk the privileged path of understanding the Protocol as a model law to structure the sui-generis system nationally. These sui generis laws would be modifications of some of the features of the Protocol aligning it to specific circumstances of each country. This is necessary as TK and Folklore are not homogeneous even within the African context. Further, sui generis law maybe a combination of IP law, customary law, and equitable benefit sharing provisions.[20]

A model law is a text for States to incorporate into national law. It is inherently flexible because the text can be modified to suit the enacting States, unlike a Protocol which contains obligations that cannot be altered.[21] Adopting the Protocol as a model law by the African States would provide certain protection because it is sui generis in its scope. For example, the Protocol throughout its sections, emphasizes on collective ownership and elimination of formalities in the protection of TK. It provides for a TK and Folklore protection criterion where the TK and Folklore are to be distinctively associated and integral to the cultural identity of a local or traditional community that is recognized as holding the knowledge through a form of custodianship, guardianship or collective and cultural ownership or responsibility.[22]

Conclusion

TK does not fit within the formal IP regime mainly because the latter is either insufficient, ad-hoc, or uncertain. TK calls for a separate system that it can shelter in. This cannot be addressed without understanding the nature of TK in Africa. As a result, the author is convinced that there is no ‘one size fits all’ solution for protecting TK. This presents an urgent need for African States to initiate and/or expand their research in understanding their TK and its nature. Such steps should include creating databases for TK as has been the case in Kenya[23] and initiate legislations for TK[24]. States should also strive to involve indigenous communities to fashion home-grown legal frameworks (sui generis law/system) to recognize and protect TK and Folklore.

A foundation for African States to come up with national laws is already established under the Swakopmund Protocol as a model law. As observed, the Protocol addresses the cited problem of individuality and exclusiveness of IP regime by recognising the very essence of TK i.e. communal ownership, non-monetary value orientation and allowing for elimination of formalities often associated with the IP regime.

---

[1] Article 2(1), Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore Within the Framework of the African Regional Intellectual Property Organization (ARIPO), 9 August 2010.

[2] ‘Traditional Knowledge’ African Regional Intellectual Property, -<https://www.aripo.org/ip-services/traditional-knowledge/>- On 3 July 2019.

[3] Article 2(1), Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore Within the Framework of the African Regional Intellectual Property Organization (ARIPO.

[4] Black’s Law Dictionary, 3rd ed.

[5] Loretta F, ‘Protecting Traditional Knowledge in Africa: Considering African approaches’, 4 African Human Rights Law journal, 2004, 243.

[6] Saez C, ‘Traditional Knowledge, Folklore: How To Protect Them From Misappropriation- This week at WIPO’, Intellectual Property Watch, 10 December 2018 -<https://www.ip-watch.org/2018/12/10/traditional-knowledge-folklore-protect-misappropriation-week-wipo/>- on 5 July 2019.

[7] African Regional Intellectual Property Organisation, ‘Traditional Knowledge’, -<https://www.aripo.org/ip-services/traditional-knowledge/>- on 5 July 2019.

[8]  University of California and Lucky Biotech (2001), Pantent No. Patent number 5,478,923 ‘Class of low-calorie protein sweeteners’ Retrieved from http://chem.berkeley.edu/faculty/kim/index.html

[9] Roht-Arriaza N ‘Of seeds and shamans: The appropriation of the scientific and technical knowledge of indigenous and local communities’, 17 (4) Michigan Journal of International Law, 1996, 919.

[10] Pearce, Homer L. (Indianapolis, IN) Assignee: Eli Lilly and Company (Indianapolis, IN), (1981), 4303584,Nu-desmethylvinblastine>-.

[11] Case Western Reserve University, ‘Case Study: Rosy Periwinkle (Madagascar)’, Accessed on 25 August 2019 -< https://case.edu/affil/sce/authorship-spring2004/rosy.html>- , 2018.

[12] Michael F, ‘Who owns Native Culture’, Harvard University Press, Boston, 2003, 135- 138.

[13] Kimani D, ‘Bio-pirates: Bayer earns $379m from diabetes drug,’ East African, 13 February 2006-

–http://www.cbgnetwork.org/1357.html– on 21 August 2019.

[14] Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore Within the Framework of the African Regional Intellectual Property Organization (ARIPO), 9 August 2010.

[15] African Regional Intellectual Property Organisation, ‘Entry into force of the ARIPO Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore’ 11 May 2015 https://www.aripo.org/entry-into-force-of-the-aripo-swakopmund-protocol-on-the-protection-of-traditional-knowledge-and-expressions-of-folklore/>- on 22 July 2019.

[16] World Intellectual Property Organisation, ‘A new dawn for custodians of TK in Africa’, Accessed on 25 August 2019, -< https://www.wipo.int/wipo_magazine/en/2010/06/article_0008.html>- , 2010.

[17] World Intellectual Property Organisation, ‘A new dawn for custodians of TK in Africa’, Accessed on 25 August 2019, -< https://www.wipo.int/wipo_magazine/en/2010/06/article_0008.html>- , 2010.

[18] Balavanth K, ‘Traditional Knowledge and sui generis law’, 3(7) International Journal of Science and engineering, 2017, 2.

[19] Balavanth K, ‘Traditional Knowledge and sui generis law’, 3(7) Interational Journal of Science and engineering, 2017, 2.

[20] Balavanth K, ‘Traditional Knowledge and sui generis law’, 3(7) International Journal of Science and engineering, 2017, 5.

[21] Sabine S, ‘Sui Generis Laws for the Protection of Indigenous Expressions of Culture and Traditional Knowledge’, 22(2) University of Queensland Law Journal 2003, 191.

[22] Section 4 (i) and (ii), Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore Within the Framework of the African Regional Intellectual Property Organization (ARIPO), 9 August 2010.

[23] Kenya Industrial Property Institute, ‘Traditional Knowledge’, -<https://www.kipi.go.ke/index.php/traditional-knowledge>- On 5 July 2019.

[24] The Protection of traditional Knowledge and Cultural Expressions Act (Act No 33 of 2016).

*Michael is an intern researcher at CIPIT.