Intellectual property rights and the protection of traditional knowledge in Western Cape agriculture

[摘要] ENGLISH ABSTRACT:This study analyses the extent to which the current intellectual property system issuited to the protection of traditional knowledge in the Western Cape. Employing amultidisciplinary approach that incorporates economic and legal theory as well aslegal philosophy, this study argues that although advances in the fields ofbiotechnology has brought with it the need for greater intellectual property rightsprotection, the protection of traditional knowledge has largely been ignored.Traditional ethnobotanical knowledge holds immense economic value for bothcommercial entities seeking to develop products based on traditional knowledge aswell as for the communities that possess such knowledge. Protecting traditionalknowledge is necessary to ensure that the communities contributing their knowledgeare recognized and compensated for such contributions. In order for a system toprovide adequate protection for traditional knowledge it has to be consistent with andsuited to the needs of traditional knowledge holders. This study therefore evaluatesthe prevailing system of knowledge protection as embodied in the intellectualproperty rights regime as a means of protecting traditional knowledge. The analysisreveals that the dominant justification for the existence ofIPRs is based on utilitarianconsiderations that promote IPRs as a necessary incentive encouraging innovativeactivity. This utilitarian justification also provides the basis for an economicjustification for the existence of IPRs that suggests that the conferring of exclusiverights (in the form of IPRs) to innovators ensure that such innovators are able torecover their research costs and realize profits from their inventions. The IPR systemas it exists is underpinned by these considerations and embedded in principles ofindividualism and private property. The WTO reinforces and promotes this approachto intellectual property in the TRIPs agreement by recognizing intellectual property asa 'trade related' issue. The inclusion of IPRs as a 'trade related' issue in themultilateral framework of the WTO reflects the interests of multinational corporationsand developed nations who rely extensively on these mechanisms to maintain theirpower and wealth in an increasingly knowledge driven global economy. Theexclusion of traditional knowledge within the TRIPs, coupled with the desire toextend patents to cover life forms is also indicative of this bias inherent in the system.South African intellectual property legislation is then applied to the traditionalknowledge of an indigenous medicinal plant to test whether IPRs are able to provide adequate protection to traditional knowledge. In this regard it is found that patentprotection, which could potentially provide the greatest form of protection fortraditional knowledge is. not suited to the needs of traditional knowledge holders.Problems of identifying owners, determining inventors and novelty, time limitedrights and costs all limits the potential of patents as a tool for protecting traditionalknowledge. Similar constraints limit the potential of other categories of IPRs toprovide protection for traditional knowledge. However, it was found that IPRs doprovide a certain measure of defensive protection. The study therefore concludes thatthe IPR system as it exists, both in the international trade environment as well as atthe national level, fails to adequately address the threat of appropriation and theconcerns of traditional knowledge holders. Amending the IPR system and/ordeveloping sui generis systems of protection are therefore necessary to ensure that theknowledge of communities are protected and such communities are able to benefitfrom the exploitation oftheir knowledge and resources.

[发布机构] Stellenbosch University