Intellectual Property Rights for New Beneficiaries: Intellectual Property and Indigenous Technology
I have been asked to talk on the topic of intellectual property rights for new beneficiaries, intellectual property and indigenous technology.
The first question to ask is "who are these new beneficiaries?" In an opening address to a Roundtable on Intellectual Property and Indigenous Peoples, by Mr Roberto Castello, Deputy Director General of WIPO, in Geneva in July 1998, Mr Castello stated that WIPO has a new programme, which will be carried out primarily by the Global Intellectual Property Issues Division, which has as part of its duties the exploration and investigation of the needs and expectations of potential new beneficiaries of intellectual property, that is, groups which for a variety of reasons have not had full exposure or access to the intellectual property system. Indigenous peoples, local communities and holders of traditional knowledge have been identified by WIPO as the first group of potential new beneficiaries.
 Thus, we are looking at intellectual property rights for indigenous peoples or populations.
The second question to ask is what is meant by indigenous technology. At the same Roundtable on Intellectual Property and Indigenous Peoples, Professor Dr Erica-Irene Daes, the Chairperson – Rapporteur of the United Nations Working Group on Indigenous Populations, stated that the intellectual property of indigenous peoples may be usefully divided into three groups:
(i) Folklore and crafts;
(ii) biodiversity; and
(iii) indigenous knowledge.
In this talk I am concerned with the third of these, viz. indigenous knowledge.
Professor Dr Daes went on to state that indigenous knowledge refers to the knowledge held, evolved and passed on by indigenous peoples about their environment, plants and animals, and the interaction of the two. Many indigenous peoples have developed techniques and skills which allow them to survive and flourish in fragile ecosystems without causing depletion of resources or damage to the environment. The various forms of sustainable development practised by indigenous peoples in forests, mountains and valley areas, dry-lands, tundra and arctic regions, derive from a successful application of technology in agro-forestry, terracing, resource management, animal and livestock controls, fish harvesting and other areas. In particular, many indigenous peoples have a knowledge of plants suitable as medicines.
In the South African context, a pilot survey conducted by the CSIR, in conjunction with various South African universities, has identified the following indigenous technologies, or indigenous knowledge systems as they are referred to in South Africa: engineering (e.g. tools, buildings, transport); farming practices (e.g. intercropping, mulching); soil and water conservation (e.g. stone lines); wild food products (e.g. gathered fruits); fermentation techniques (e.g. brewing, food processing); storage (e.g. grain stores, local additives); medicinal products (e.g. plant or animal derivatives); energy (e.g. methods of cooking, heating); and musical instruments (e.g. drums, whistles).
Having defined new beneficiaries and indigenous technology, it is now necessary to consider how intellectual property rights can be afforded to these new beneficiaries for the indigenous technology.
An invention is deemed to be new if it does not form part of the state of the art. The state of the art comprises all matter, whether a product, a process, information about either or anything else which has been made available to the public in South Africa or elsewhere, by written or oral description, by use or in any other way.
By definition, indigenous technologies are those technologies which have been and are still being used by indigenous peoples. Thus, these indigenous technologies are available to the public, in the sense that they are being used. In addition, certain of these indigenous technologies will have been documented by scientific workers such as anthropologists.
The consequence of this is that the indigenous technologies per se cannot be regarded as being new and thus are not patentable.
A further fundamental principle of South African patent law and in fact of all patent laws, is that an invention must have an inventor, who is an identifiable human being. Ownership of the invention vests in the inventor, who may then transmit his rights to another person or legal entity. A patent is thus granted to a person or a legal entity, which must be clearly identified.
In the case of indigenous technologies, in many cases the originators or inventors thereof will be unknown and lost in the mists of time, and thus there will be no thread of ownership from the original inventors to present day individuals or legal entities. This again makes it impossible for indigenous technologies per se to be afforded patent protection.
The inevitable conclusion is that the present South African patent system, and the patent systems of most countries of the world, cannot accommodate patenting of indigenous technologies per se.
Where the South African patent system and other patent systems can assist, is in providing patent protection for developments of such indigenous technologies.
Consider the following scenario. A particular group of indigenous peoples, for example a clan, has over the centuries developed a method of fermenting grain using a particular yeast strain. This process of fermentation is, with the consent of the clan, disclosed to a brewing technologist who then, again with the consent of the clan, investigates the fermentation process and finds that by modifying the particular yeast strain, the fermentation can be speeded up by a significant factor.
This modified yeast strain is new, as is the process of using it in the fermentation of grain to produce an alcoholic product. These new inventions may be afforded patent protection by the patent law.
The problem here is that the inventive step has been taken by the brewing technologist, and thus it is the brewing technologist who is the inventor of the invention and, in the absence of any contractual obligation, the owner of the invention. In these circumstances, any agreement entered into between the brewing technologist and the clan, before the brewing technologist commences work on the fermentation process, must include a clause that part or complete ownership of any inventions resulting from the activities of the brewing technologist belong to the clan.
Thus, developments of indigenous technologies which result in new inventions can be protected by means of the patent system. However the problem of ensuring that the benefits of such patents revert back to the indigenous peoples from which the indigenous technology derived, still remains.
I believe that the present South African Patents Act, and in general the Patents Acts of most countries of the world, are not designed to protect indigenous technologies and cannot easily be amended to provide such protection. Attention must thus be directed at formulating suitable legislation specifically designed for the protection of folklore and crafts, biodiversity and indigenous knowledge.
Other Conventional Methods of Providing Protection and Compensation to Indigenous Peoples for the Exploitation of Indigenous Technologies
As I have indicated above, the current patent system simply does not provide for protection of indigenous technologies or for compensation of indigenous peoples who own such indigenous technologies when they are subsequently exploited.
Nevertheless, innovative solutions to this problem have been found in certain circumstances.
One method of solving the problem is to utilise the law of contract. For example, it is open to a group of indigenous people who are the possessors of a particular indigenous technology, to enter into a contract with a third party for the third party to exploit the indigenous technology in a wider context. The quid pro quo is obviously that the third party must pay back to the group of indigenous people a royalty or the like, based on the profits derived by the third party from such exploitation. Such a contract may be time limited, in the sense that royalties are only payable for a particular period of time, or be indefinite.
The contract may also include clauses permitting the third party not only to exploit the indigenous technology as such, but to develop the indigenous technology to improve on it. In this case, it is necessary that the contract include suitable clauses providing for the rights of the group of indigenous people should the relevant work lead to patentable inventions, as mentioned above.
An example of such a contractual arrangement which is in place is the contractual arrangement between INBio of Costa Rica and the company Merck & Co, where bioprospecting programmes and their benefits are shared between government and the private sector. Another way forward is not simply to contract between a group of indigenous peoples or a governing body and a third party, but to enter into collaborative arrangements with the end view to increase job creation and economic growth for the country or a region of the country as a whole. An example of this is the arrangement recently concluded between Daimler-Benz of Germany, Mercedes-Benz of South Africa, the South African Department of Agriculture, the Agricultural Research Council and the CSIR, to develop a comprehensive programme aimed at establishing a plant fibre composite component industry in South Africa, with a view to stimulating socio-economic growth in this country. A significant part of the project is to explore indigenous fibre plants in South Africa, investigate their properties and assess their commercial potential. It is believed that there is considerable scope to create employment for rural communities through the cultivation of these plants and converting them into textile articles on a small-scale cluster basis. For example, a market study recently carried out by Textek, a Division of the CSIR, showed that there is a great demand for textile souvenirs which have an ethnic national symbolism. Also the production of indigenous fibre-base non-woven products offers enormous potential for creating jobs because it requires a relatively simple technology that is widely accessible.
It is true that in these circumstances, the indigenous peoples which have traditionally harvested and used the plant fibres as part of their indigenous technologies are not directly compensated by way of royalties or other financial payments for the use of their indigenous technologies. However, economic benefits can flow indirectly to the indigenous peoples by way of increased job creation, increased government revenue and the like.
A further method of protecting indigenous technologies, in certain specialised circumstances, is to keep the technologies secret. For example, if a particular group of indigenous people has a "recipe" for a particular drink which may be nutritious or simply delicious, it may be preferable for the group to keep the recipe secret and to exploit the technology by scaled up production of the drink for sale outside of the group. As everyone here knows, this has proved very successful for Coca Cola.
Special Measures for the Protection of the Intellectual Property Rights of Indigenous Peoples
Although there may be ways of providing protection to indigenous technologies and thus providing financial benefits to the owners thereof, it is clear to me that there is only one way in which the problem can properly be solved, and that is to introduce legislation specifically designed to protect the intellectual property of indigenous peoples. I must at once say that my thinking in this regard is not novel or unique and that efforts are taking place around the world to achieve this end. I will refer to various of these efforts below.
Professor Dr Daes has elaborated a draft body of Principles and Guidelines that largely reflect the main suggestions of indigenous peoples themselves. The principal issues of her draft on Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples are:
Indigenous peoples should be recognised as the primary guardians and interpreters of their cultures, arts and sciences, whether created in the past, or developed by them in the future;
Indigenous peoples are recognised as collective legal owners of their knowledge, in perpetuity;
The right to learn and use indigenous knowledge can be acquired only in accordance with the laws or customary procedures of the indigenous peoples concerned, and with their free and informed consent;
The duty and responsibility of States, educational and scientific institutions and the United Nations system to help indigenous peoples themselves develop the technical capacity to document and, if they choose, develop and apply their own knowledge commercially.
This provides a framework from which suitable legislation can be drafted.
Turning to the African situation, the June 1998 Ministerial Meeting of the Organisation of African Unity approved model legislation on community rights and on access to biological resources, in connection with the Convention on Biological Diversity. Thus, Article 5 of the above-mentioned African Model Legislation recognises and protects the rights of local communities "to benefit collectively from their own knowledge, innovations and practices, and to continue to be in perpetuity the lawful and sole custodians of their knowledge". No knowledge may be sold or acquired without the prior informed consent and participation of the communities concerned, as well as full disclosure and approval by the appropriate State authorities, which must ensure that the communities concerned are paid a minimum percent of revenues.
In South Africa, as indicated above, initiatives in regard to the identification of and protection for indigenous knowledge systems have been taken by Dr Serote.
In 1995 Dr Serote introduced indigenous knowledge systems as a critical component in the restructuring and democratisation of the South African Science and Technology System.
The project began as a pilot project on indigenous technologies. In December 1996 and 1997, the CSIR requested various universities to initiate a pilot project on indigenous technologies. This project has unearthed a number of indigenous technologies, as listed above, the ownership of which rests with traditional communities or particular families or clans in such communities, associations or societies, or with individuals who have been specially taught or initiated to be its custodians.
As a further step, Dr Serote has drawn up a Private Members Bill, entitled "Protection and Promotion of South African Indigenous Knowledges" to provide for protection for such indigenous knowledge systems.
According to the preamble of the Bill, the purpose of the Bill is "To provide for the promotion and protection of indigenous knowledges, to introduce measures aimed against illicit use and exploitation of indigenous knowledges; to further provide for protection of owners of indigenous knowledges under the Intellectual Property Laws Act, 1997, against the release of goods of that nature … and for that purpose to establish an independent South African Indigenous Knowledges Regulatory Authority; to prohibit certain acts in relation to indigenous knowledges as well as the possession of indigenous knowledges in certain circumstances; ….".