WORL INTELLECTUAL PROPERTY ORGANIZATION

ROUNDTABLE ON INTELLECTUAL PROPERTY
AND INDIGENOUS PEOPLES

Geneva, July 23 and 24, 1998

ONE FUNDAMENTAL THRESHOLD
(TEXT OF PAPER AS DELIVERED BY DR. SEROTE)

Document prepared by Dr. Mongane Wally Serote (M.P.), Chairman,
Parliamentary Committee on Arts, Culture, Languages, Science & Technology,
Cape Town, South Africa

GENEVA

Besides the fact that South Africa has emerged from three centuries and a half of Colonial domination, the issue which is confronting us presently is that the world is quickly shifting into the corrosion of the sovereign state, the creation of high industrialization, the collapsing of markets into monopolies and the shrinking of the world into a global village. In both instances, the key question which confronts a government of the people such as the present one in my country, South Africa, is: what is the role, the function, space and place of indigenous people if the stability of that country depends on whether the people feel and find themselves as stake holders in the changes taking place and the destiny of the country.

It is for both these reasons that one of the most important processes unfolding in my country is that of transforming the economy, culture, politics, knowledge, society, the country and the nation as a whole such that the diversity of people defines the South African nation. At present, South Africa is a Country of two nations in one - one black and one white, defined so economically, politically, culturally and in terms of knowledge within the white nation in dominating the past four years, which is nothing in terms of the legacy left by colonialism and apartheid is gradually reversing the state of affairs. Suffice here to say there is a lot which has happened through the Constitution, in law, infrastructure and changes in the vital national structures to confidently say that the process of transformation and eradicating colonialism and apartheid is now irreversible. The challenge then is how to shift the 25% of the nation from marginalization and disadvantage into participation in mainstream life of the nation.

It is against this background that the Portfolio Committee of Parliament, which I chair , had to consider how to locate Arts, Culture, Language, Science and Technology as a tool and instrument of change. In other words, how must we marry the two nations which is referred to above into equal partners? Besides the Constitution, the legal system, culture, knowledge, the economy which remain a theory if they are not implemented, how does the shift happen? There are important similarities among the Arts, Culture, Language, Science and Technology which show up the possibility to shift from theory to practice. All of these have the potential for creativity, raising consciousness, express action and utilize wealth as both knowledge and power. The Arts express the life experience of people; culture is the means to transform individuals into members of society, and language is both a carrier and an expression of culture, and also, science is an organized means to seek new knowledge, while technology is a means to use new knowledge to engage and utilize national wealth. Indigenous peoples are extremely active in all of these human endeavors, in fact, it is a legacy which they continuously churn out and set in motion for the benefit of the whole world. The issue here is that in their practice and in formulating theory which then becomes the legacy, the indigenous people have been motivated by kindness, at times by secrecy and sacredness, survival, engaging nature and the betterment of life. They engage these issues and processes for the sale of prolonging life, for resistance against oppression and exploitation.

A point to note is that all of this indigenous human activity resides in most times, in a culture of orallity in communal ownership, and at times to protect against abuse, through a process of dynasty, if not then secrecy and sacredness. If you then juxtapose these means and processes to the means and processes of monopoly, individualism, profit, private enterprise and industrialization, the indigenous intellectual and practice is open to exploitation.

Let us examine the institution of initiation among indigenous peoples. It is an institution meant to prepare both female and male youth for community service and life. It is an institution founded to empower the youth in culture, environment, tradition, customs, and is intended that poor groups are strengthened with knowledge and discipline to meet the challenges of life. As a means to encourage participation, all those who have passed through its threshold, are bestowed with community status, and to ensure that there is no abuse of power and knowledge of the institution. The institution is threaded in secrecy and sacredness. The youth who emerge from this institution emerge with knowledge to build the basic structure of society - the family, and roles of men and women are put in place, as also the roles of the girl and boy child are defined.

One of the key issues raised by this institution is the recognition of the vulnerability of the girl child in terms of sexuality and therefore the means for its protection. Here, the issue of child abuse and violence against women is addressed by instilling the fact that it is not manly to practice these, as also, it is a means to build the extended family. It is through this institution that artists, songs, traditional doctors, scientists, who seek new knowledge and technologists who seek to use this knowledge to utilize the wealth of extended families, the community and the society are produced. The dignity and identity of both the individual and the community is defined by this institution. It is this total human experience which the education system geared towards industrialization negates when indigenous peoples' social structure disintegrates, but it is also this human experience which indigenous people refer to when they claim a process to return to the source at the point of the liberation from oppression and exploitation. They seek who they are, what they are supposed to do in the world and their futures in this human experience at the point of their freedoms. Conventional civilization views their indigenous human experience as being riddled with ignorance, savagery, paganism, decease, and senselessness, but so too does indigenous civilization view conventional civilization, that it is riddled with ignorance, greed, avarice, inhumanity and prejudice.

The issue in my view is not to determine which is right and which is wrong, but to view this manifestation as a serious contradiction which needs that we understand its elements and seek its resolution. I see this forum organized by WIPO as an initial stage to create a platform to seek this resolution. On the one hand, this platform provides a space and place for indigenous peoples of the world to enter into a discourse - and a discourse is also a means for consciousness raising, but also, this platform is a space for indigenous peoples and so called modern peoples to enter into a discourse which provides for an extremely important means for a new consciousness of the global village. This forum raises the issues and reminds us as people, that knowledge is knowledge only if in the end it benefits the whole of humanity by improving the quality of life, by creating a better world environment, and by extending what knowledge we have acquired to new knowledge which can further open our eyes, ears, mind and being to the real reasons as to why, in the space of a life time, we are here on earth and what we are supposed to be doing here.

It is against this proposal that I then seek to understand Mr. Roy Taylor's ten points which he placed before us yesterday's as fundamental requirements for us to consider the protection of intellectual property rights of indigenous peoples. The issue of geography which I translate to mean land, the issue of collective ownership which raises issues of extended families, clans, communities and ownership, the issue of a historic approach to protection, beginning with a recognition that oral knowledge and culture which is also communal is also a means to make knowledge a property of humanity is as much as a book or a film or a song and that the issues of secrecy and sacredness must be translated for being a means at intellectual property protection, whether else created or not or secret or revealed and therefore retrospective valuing both as intellectual and material issues must be on the agenda of the law which is nothing else but a means of survival by and an experience of human beings in their interactions with nature.

Why is it not possible for the law to recognize communal and community ownership through the establishment of trusts which seek to improve quality of life and protect environment such that it is livable and contributes to the improvement of relations between human beings and nature? Why is communal creativity or innovation and the ownership of this expertise by many not a means for survival or human experience which can be protected and from which many can benefit both intellectually and materially? Why, if indigenous knowledge systems can let institutions emerge, create possibilities for diversity, increase possibilities for multilingualism and create conditions for multiculturism, can it not be bestowed with academic credit and become part of curriculum for tertiary institutions? Why can this not happen especially if indigenous knowledge systems have the potential to narrow the gulf between social and natural sciences because indigenous technology and indigenous knowledge raises both anthropological and sociological issues as they do issues of physics and chemistry? Is it not correct to propose that it is in this cross pollination and multidiscipline that there is a potential for new knowledge to emerge?

Mr. Chairman, ladies and gentlemen, the issues I raise here are issues which the process spearheaded by the Committee I chair is unfolding as we unearth indigenous technologies in the length and breadth of my country. As this process reveals food, medicinal, arts and culture, building and engineering technologies among rural communities which are extremely poor, but which over centuries and through generations molded unique technologies which now have the potential to let emerge enterprises and industries, it is my view that a simple major issue which then arises is, of what benefit are these technologies to the lives and being of these rural people? Do these technologies have the potential to shift these poor communities into position, such that they enter the 21st century and the global village as human beings with a contribution to make to humanity, and as equals of others and not as the poor, the marginalized an the disadvantaged? Of what significance is legal knowledge if it is unable to expand and embrace this experience of multitudes and this endeavor at survival if it can not then, specify this experience and survival as human, and generalize it in its newness, innovation, and potential for enterprise? The law's discussions must recognize that there is experience such as oppression, exploitation, marginalization and disadvantage, and that these phenomenas are a practice which result from development by the powerful against the multitude who are powerless, whose knowledge resides in culture, and language, is oral and communal. The law in its learnedness must come to terms with the fact that the destiny of progress remains the issue of whether as human beings occupying space in the 21st century we are able to restore the contradiction of the indigenous and so called conventional civilizations or not.

I try there, Mr. Chairman, to use our South African experience in indigenous technology audit to respond to some of the issues raised in yesterday's session. In my first paper which I submitted sometime back, I tried to sketch the background to the process of the audit and it's progress. Let me conclude by saying Mr. Chairman that I found this WIPO brainstorm Roundtable useful in its format and deliberations. I hope that it can be made an annual event for reasons which I have already stated. In as much as the minds and hands of the indigenous peoples shape the wealth of the world, let their voices be given space, time and sound to contribute to a century which threatens to change our lives fundamentally through science and technology.

Mr. Chairman, I suspect that the definition for indigenous knowledge has reared its head in my presentation. Not being a lawyer, but being aware that the law as I said, arises and is as a result of human experience and knowledge, and being at the verge of urging indigenous peoples to shed fears suspicion and mistrust and to seek knowledge and experience in the large pool of human experience so that we can talk of a world free of indigenous people as also a world free of anyone claiming to be more modern or civilized than anyone when the law of the so-called modern and conventional is human driven and humanity is free of greed, exploitation and oppression, I seek solace in the knowledge that there is both political and cultural will among the international communities, NGO's and within and among the indigenous people. This will, which has always, through revolution sparked qualitative change in history is also a subject of the coming millennium. It is in forums of the nature of the WIPO Roundtable, among NGO's and in indigenous collectives and among governments that the nature of the rupture of that qualitative change is decided. It is my hope that the issues which have been raised and will be raised and resolved by coming Roundtable's will be fundamental but human.

Chairman, ladies and gentlemen, many thanks for this opportunity to share with yuo, but also to learn from the congregation on countries of experience brought and represented by the individual and collective experience of those gathered here.

Thank you.