A new dawn for custodians of TK in Africa
In early August, the African Regional Intellectual Property Organization (ARIPO) and its 17 member states1 took an historic step in adopting a legal framework, known as the “Swakopmund Protocol for the protection of traditional knowledge and expressions of culture”. This landmark event – which took place at a Diplomatic Conference in the coastal town of Swakopmund, Namibia – was the result of 10 years of intensive consultations. It was heralded by WIPO Director General Francis Gurry as “a significant milestone in the evolution of intellectual property.” In this article, Emmanuel Sackey, ARIPO’s Program Manager for the Protection of Genetic Resources, Traditional Knowledge and Expressions of Folklore, explains how this new legal framework came into being and what it means for custodians of traditional knowledge (TK) in Africa.
Growing interest in TK
In recent years, the biotechnology, pharmaceutical and health care industries have become increasingly interested in natural products as sources of new biochemical compounds for drug, chemical and agro-product development. This has fuelled a resurgence of interest in TK and its associated genetic resources (GRs) as means of advancing the frontiers of science and technology and of gaining useful insights into the functioning of ecological systems.
This knowledge has helped increase economic productivity and is making a significant contribution to industrial research and development (R&D) programs. Traditional knowledge is a factor in the commercialization of natural products, but custodians of this knowledge are often not widely recognized or rewarded for its use. Commercial interests generally use these resources free of charge, accessing them through databases, academic publications or field collections. Concerns over who owns this knowledge and who has the right to its use, as well as its growing economic significance, have generated a wide range of public policy debates including in relation to intellectual property (IP) protection.
Photo: iStockphoto/Jennifer Kahn
While the international community debates international standards for the protection of GRs, TK and traditional cultural expressions/expressions of folklore (TCEs), a number of parallel initiatives have been unfolding at regional and national levels. These efforts seek to identify approaches and best practices for tackling the many complex questions associated with mainstreaming these issues into conventional IP policies and systems.
The Swakopmund Protocol
The Swakopmund Protocol, adopted in August 2010, is underpinned by the principle that the knowledge, technologies, biological resources and cultural heritage of traditional and local communities are the result of tested practices of past generations. These resources are held in trust by today’s custodians for future generations.
The Swakopmund Protocol was signed by nine ARIPO member states, namely, Botswana, Ghana, Kenya, Lesotho, Liberia, Mozambique, Namibia, Zambia and Zimbabwe. It will enter into force once six member states have deposited instruments of ratification (for signatories) or accession (for non-signatories). Any state that is a member of the African Union or the United Nations Economic Commission for Africa may also sign up to the Protocol.
It affirms the principle that traditional or local communities are the custodians of their TK, its associated GRs and TCEs, and empowers them to exercise rights over their knowledge and resources.
“This historic development provides the necessary tools to prevent the ongoing misappropriation of traditional knowledge and traditional cultural expressions in Africa. The custodians of this knowledge are now empowered to exercise rights over it,” said ARIPO Director General Gift Sibanda. “By creating a framework for indigenous communities to get a return on the use of their knowledge, we have created opportunities for economic development and wealth creation,” he added.
The Protocol recognizes the need to respect, recognize and protect Africa’s abundant multi-ethnic character, as well as its rich cultural heritage and TK. It further articulates and amplifies the shared position of African countries relating to collective or community rights and the sharing of benefits accruing from the commercial exploitation of their biological resources, TK and TCEs.
This new regional legal framework is designed to accommodate the characteristically holistic world view of African TK holders, and to provide legal certainty in the exercise and management of their inalienable rights. As such, it empowers them to use their knowledge for sociocultural development. It also makes provision for the registration of multicultural and trans-boundary TK and TCEs to resolve uncertainties relating to ownership of this knowledge which may be held by more than one community within the same or neighboring countries.
A decade in the making
Africa is endowed with a wide and varied range of biological resources and a deep-rooted knowledge of their management and use. This not only reflects the cumulative body of knowledge and beliefs handed down through the generations but also the intimate relationship of local people to their environment. The huge inherent value of these resources has led African countries to explore mechanisms that would provide them with a basis for socioeconomic development.
ARIPO’s focus on the protection of indigenous knowledge began in earnest in August 2000 following a decision by the Organization’s Council of Ministers to develop a “coordinated strategy,” to “take initiatives on traditional knowledge” and to engage fully in WIPO’s activities in this field.
Two years later, at a meeting in Mangochi, Malawi, the ARIPO Council of Ministers agreed to add GRs and folklore to the Organization’s work on TK, in line with international discussions. The Council then commissioned a study on the feasibility of establishing, in cooperation with member states, an inventory or databases of TK, drawing lessons from countries that had already developed such tools. This paved the way for the development of a regional legal framework for the protection of TK and TCEs. In 2006, ARIPO’s Administrative Council, at a meeting in Maputo, Mozambique, adopted the final version of the legal text elaborated with WIPO’s assistance. This was endorsed by ARIPO’s Council of Ministers in Lesotho in 2007, which called on ARIPO to formulate it as a draft Protocol with implementing regulations.
An inclusive process
Extensive consultations with a wide range of stakeholders have been a hallmark of the development of the Swakopmund Protocol. Thanks to the inclusive nature of the process, ARIPO’s 17 member states have gained a solid understanding of the underlying cross-cutting issues.
A similar initiative, developed by ARIPO’s sister organization, the Organisation africaine de la propriété intellectuelle (OAPI), was adopted in 2007. Based in Yaoundé, Cameroon, OAPI has 16 member states2 and deals with IP matters in the mainly French-speaking countries of Central and West Africa.
The adoption of these two important initiatives reflects a commitment by the majority of sub-Saharan African countries to protect the rights of traditional and local communities in their knowledge, innovations and practices. Not only has it repositioned ARIPO and OAPI as leading forces in the development of IP in Africa, it has also enabled African countries to play a leading role in global norm-setting processes relating to the protection of TK and folklore.
Contributing to an international legal framework
The need to protect TK and TCEs has engaged the international community for some years. The international adoption of a mandatory sui generis system3 would appear to offer the most focused protection for TK. The Swakopmund Protocol is an important input into efforts to identify an effective international framework for the protection of TK and folklore. ARIPO and its member states are actively engaged in this process.
A special focus on genetic resources
The Swakopmund Protocol only covers TK and TCEs. It does not address IP issues arising in relation to access to and sustainable use of GRs. This issue goes beyond IP protection and requires a holistic approach that encompasses environmental concerns, as stipulated in the Convention on Biological Diversity (CBD).
ARIPO is developing a separate regional legal framework for the protection of GRs, which will address issues such as the relationship between the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), as it relates to patents, and the obligations of the CBD; the asymmetry between the benefits obtained by companies that exploit GRs and those received by traditional communities; as well as the sustainable use of these resources. Considerable discussions have taken place in different international fora (WIPO, CBD, FAO, WHO, UNCTAD, UNESCO and WTO, etc.4), and a number of international regulations and policies on the protection of GRs are under discussion.
Benefits of the Protocol
The entry into force of the Protocol will empower custodians and holders of TK and TCEs to use their knowledge for socioeconomic development and wealth creation. It also promises other benefits, including:
- helping to curb biopiracy;
- preventing illicit claims being made in patent applications relating to TK-based inventions;
- enabling the registration of regional TK and TCEs, i.e. those that are trans-boundary and multicultural in nature;
- providing a framework for national legislative developments on the protection of these resources.
ARIPO’s member states adopted a resolution at the Diplomatic Conference that reflects a commitment to developing national legislation and a concrete plan of action to ensure TK continues to serve the needs and aspirations of traditional and local communities.
This historic achievement will enable Africa as a whole to add value to the intellectual, cultural and artistic efforts that have their basis in local and traditional communities. Through their collective and concerted efforts and the adoption of the Protocol, ARIPO and its member states have clearly and unequivocally signaled that, together, they are committed to respecting, recognizing and using Africa’s intangible assets for the socioeconomic development of the continent.
Negotiations are currently underway in WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) towards the development of an international legal instrument for the effective protection of TK and TCEs, and to address the IP aspects of access to and benefit-sharing of GRs.
In May 2010, the IGC agreed on a new format - intersessional working groups (IWGs) - to support and facilitate the IGC's negotiations by providing legal and technical advice and analysis, including, where appropriate, various options and scenarios. At its first session in July 2010, the IWG focused on TCEs, considered the most mature of the three issues under discussion. The draft text agreed during this meeting will be discussed at the IGC’s meeting in December 2010.
1 Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Uganda, United Republic of Tanzania, Zambia, Zimbabawe.
2 Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte d’Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal, Togo
3 A legal instrument tailored or designed to address a specific IP issue
4 FAO - The Food and Agricultural Organization of the United Nations; WHO – the World Health Organization UNCTAD – The United Nations Conference on Trade and Development UNESCO – The United Nations Educational, Scientific and Cultural Organization
5 ARIPO acknowledges the significant contributions made by Mr. Wend Wendland, Director of WIPO’s Traditional Knowledge Division, Professor J.A. Ekpere, retired Executive Director of the African Union Science and Technology Research Commission, Mr. John Asein, Director, Nigerian Copyright Institute and Mr. Hassan Kaffa, a former senior official of the African Intellectual Property Organization (OAPI).