An Analysis of the Protection, Promotion, Development and Management of Indigenous Knowledge Bill [B6B-2016]

Introduction

The analysis of the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill has been prepared for the Sports, Recreation, Arts and Culture Portfolio Committee to form part of the engagements the Committee will have with the department regarding the implementation of the Bill and the impact thereof. The Bill was formally referred to the SRAC Portfolio Committee by the Speaker on the 16th March 2018.

The purpose of the Bill is to provide protection, promotion, development and management of indigenous knowledge systems in South Africa. Furthermore, the Bill seeks to provide for the establishment of National Indigenous Knowledge Systems Office and to provide for the management of the rights of indigenous knowledge holders. This Bill will apply to all persons in the Republic of South Africa (SA) including the state and it further applies to all indigenous knowledge registered under the Act. The aim of this analysis, therefore is to examine whether the Bill has any socio-economic implications to the people of Gauteng.

Background of Indigenous Knowledge Systems in South Africa

Indigenous Knowledge Systems (IKS) refers to the complex set of knowledge and technologies existing and developed around specific conditions of populations and communities indigenous to a geographic area. These populations retain some of, or their entire own social, economic, cultural and political institutions, but by the nature of the rapidly changing society around us, this inheritance is quickly disappearing and in danger of being lost forever[1]. The other definition of indigenous knowledge indicates that it is the knowledge that has been developed within an indigenous community and has been assimilated into the cultural make – up or essential character of that community. It includes knowledge of a scientific or technical nature, knowledge of natural resources and indigenous cultural expressions.

There is, therefore, a need to protect, promote, develop and manage indigenous knowledge systems because it has the potential to contribute to the economy of the country and can interface with other knowledge systems for innovation purposes. One of the reasons for protection is to prevent the indigenous knowledge from exploitation through appropriation for financial gains by third parties[2]. Indigenous traditional knowledge according to IFLANET (2004) is vulnerable because it is exploitable and has been exploited financially by global drug industries who derive prescription drugs from indigenous traditional knowledge plant species by appropriation.

In 2004, South Africa adopted an IKS policy as an enabling framework to stimulate and strengthen the contribution of indigenous knowledge to social and economic development in the country. The main drivers of the IKS policy in South Africa include:

  • The affirmation of African cultural values in the face of globalisation – a clear imperative given the need to promote a positive African identity;
  • Practical measures for the development of services provided by IK holders and practitioners, with a focus on traditional medicine but also including areas such as agriculture, indigenous languages and folklore;
  • Underpinning the contribution of indigenous knowledge to the economy – the role of indigenous knowledge in employment and wealth creation; and
  • Interfaces with other knowledge systems, for example indigenous knowledge is used together with modern biotechnology in the pharmaceutical and other sectors to increase the rate of innovation[3].

Clause by clause analysis of the Protection, Promotion, Development and Management of Indigenous Knowledge Bill [B6B-2016]

Applications of the Act

The Act applies to all persons in the Republic of SA including the state and furthermore it applies to all indigenous knowledge registered under this Act. Furthermore, the act will apply to Indigenous knowledge originating in a foreign jurisdiction provided that the laws of that foreign jurisdiction provide reciprocal protection to indigenous knowledge originating in the Republic. In instances where indigenous knowledge originates in one or more indigenous communities in foreign jurisdictions and in the Republic, NIKSO will assist the relevant foreign authorities and the indigenous community of the Republic to conclude an arrangement to share the ownership of that indigenous knowledge.

This indicates that public awareness about this Bill should go beyond what will be done for turning this Bill into an act, it should be continuous so that as many people as possible will get to hear about this. The Bill currently indicates that a total of 29 written submissions were received, and 13 meetings with the public were held in the nine provinces. This is not enough to reach wider communities that may be affected by the Bill. Language is an important factor as well, this should be translated in the main languages in the areas where public participation is going to take place. Public education before engaging with this Bill should also be conducted to ensure that the public understand the subject better to be able to make valuable inputs.

Objects of the Act

The Bill outlines several objectives that will assist in the protection, promotion, development and management of the IKS. The objective of providing registration, cataloguing, documentation and recording of indigenous knowledge held by indigenous communities is important because most of the indigenous knowledge is held by individuals who share it from generation to generation and due to technology and globalisation some of the knowledge may be lost. The hope is that even oral knowledge should be recorded and protected as well. The question is whether registration of IK will require a registration fee? If yes, the Bill will have financial implication as some of the indigenous knowledge holders might be coming from disadvantaged communities and might not afford a registration fee.

Establishment of NIKSO

Establishing an office to carry out the objectives of the Act is a good move although it has budget implications. The office should however be provided with adequate staff and resources to enable it to carry out its functions. It is also important for this office to work together with indigenous communities to avoid a top down approach. Understanding what the needs of indigenous communities are, their practices, governance systems and their perspective is imperative. It is also important to work with them other than for them as that may make the implementation of the act difficult.

The other objective of the Bill is to facilitate redress of indigenous communities. It is not clear in the Bill what is it that they will do and how they will facilitate the redress. The Bill further says in section 33 that indigenous knowledge holder wishing to register indigenous knowledge which existed prior to the commencement of this Act must register such indigenous knowledge in terms of this Act within 12 months from the date of commencement of this Act. This means a lot of work needs to be done to reach as many indigenous communities as possible with this information so that by the end of the 12-month period no one can say I did not know. The question is, does NIKSO have ample human resources to achieve this?

Eligibility Criteria for protection

Section 11 of the Bill indicates that protection of indigenous knowledge applies to indigenous knowledge passed on from generation to generation, has been developed within an indigenous community and is associated with the cultural make-up and social identity of that indigenous community. The first part seems to be moving on a premise that knowledge remains static and identifiable across generations. Knowledge is dynamic and changes the nature of IK due to the influence of the environment and societal norms. Future generations may make additions or changes to IK and these dynamics will need to be protected as well.

Vesting of rights in indigenous knowledge and Right Conferred

The Bill has set out broad set of protections for indigenous communities and this should be applauded. The indigenous communities have the right to restrain any unauthorised use of the knowledge, be acknowledged as the source of the knowledge and have a right to the benefits arising from the commercial use of the indigenous knowledge. Giving indigenous communities, these right goes a long way towards empowering and strengthening these communities.

Registration of indigenous knowledge

A registration office for indigenous knowledge will be established and a registrar will be appointed by the minister to run such an office. In addition, indigenous knowledge practitioners and agents will be registered and accredited.  This will have budget implications as establishing a registration office and employing staff needs to be budgeted for. Employing staff in the registration office however means creating jobs for the unemployed which is a good move. The question is will this office be accessible to people who would like to use its services.

When people require indigenous knowledge, they will do so through NIKSO by application. Access to information by people outside the indigenous community will have to pay a prescribed fee, this might have positive financial implications as it will boost the economy of the province. The concern however is that if information is required for research, library or archival purposes there should be no fee. There must be exceptions in such instances and these must be clearly articulated in the Bill.

Commercial utilisation of indigenous knowledge and enforcement of rights

The Bill indicates that NIKSO will support indigenous communities in terms of promoting partnerships for innovation and product development, coordinating funding, develop markets strategies and promote commercial use of products, services, processes and the use of technology. This will only happen if the indigenous knowledge is registered with NIKSO. The office should therefore ascertain that all communities are reached with information regarding this so that some communities and individuals are not left out of these benefits.

Regarding accessing information for commercial purposes there should be an informed consent and non-exclusive benefit sharing agreement should be entered with NIKSO. Only in instances where information is used for face-to-face teaching, reporting of news, judicial proceedings, and academic purposes is there no need for the informed consent. In such instances users of the indigenous knowledge must acknowledge the Indigenous knowledge holders by mentioning them or the geographical place from which the knowledge originated. This is commendable.

Conclusion

The purpose of the Bill is to provide protection, promotion, development and management of indigenous knowledge systems in South Africa. This applies to all persons in the Republic in relation to all matters pertaining to indigenous knowledge systems and to all indigenous knowledge resources which existed either before the commencement of this Act, are to be created on or after the commencement of this act. This Bill should be commendable and if implemented accordingly it will go a long way in the social and economic development in the country. There are no financial implications because NIKSO is already in existence and it is envisaged that it will continue to operate in its current budget.

[1] http://www.leshiba.co.za/wp-content/uploads/2013/04/IKS-Project.pdf

[2] Charles A. Masoga, Indigenous traditional knowledge protection: Prospects in South Africa’s intellectual property framework

[3] Republic of South Africa: Indigenous Knowledge Systems Policy