Formalized granting of Intellectual Property (IP) rights to provide protection for innovative human endeavors started some 150 years ago. Only during recent decades did the issue of recognition of the rights of past and present generations of communities arise as part of the North versus South conflicts. The Convention on Biological Diversity (CBD) recognizes the need for conservation, sustainable use and equitable benefit sharing as corner stones.

The principle of recognizing the past and present contributions to biodiversity is not the conundrum. It should be supported, firstly, as a right arising from the Universal Declaration of Human Rights and, secondly, from the need to counter biopiracy. The real conundrum lies in overcoming the complex difficulties in granting such recognition and benefits.

This review will focus on traditional knowledge in the South African context which probably shares common ground with most other developing countries. The aim is not to offer solutions, but rather to identify some practical barriers in coming to grips with the CBD. Hopefully, this could stimulate discussion amongst scientists in the plant and seed industries.

The author acknowledges that members of the International Seed Federation (ISF) are debating to this issue, as does the World Intellectual Property Organization (WIPO). 

In 1999 the South African government started to develop draft documents on protection of traditional arts, designs, customs and knowledge, including knowledge about uses of plants. The country is recognized as the third richest centre of biodiversity in the world, having well over 20 000 indigenous plant species, apart from animal, marine and microbial diversity. Modern varieties bred internationally from some of these floral and shrub species have an annual commercial turnover of tens of billions of dollars.

The Department of Environment and Tourism commenced drafting a biodiversity Bill that went through multiple stages over 5 years until approved by Parliament in late 2004. More recently, the department of Trade and Industry developed a policy, adopted by Parliament, on a requirement to disclose any use of prior traditional knowledge when a party applies for IP protection. Each relevant department must now add a similar requirement to IP systems that they regulate. This will cover patents, designs, trade marks, plant breeders’ rights, copyright, etc.

Here, then, starts the battle of practicalities. Drafters of the Biodiversity Act seem to have ignored many of the inputs made by scientific stakeholders. The crucial chapter 6 (bioprospecting, access and benefit-sharing) and chapter 7 (permit systems) are largely unfinished. Serious work has not yet commenced on the regulations, without which the Act cannot enter into force.

Most of the enforcement and management of the Act will be delegated to the South African National Biodiversity Institute (SANBI), not to government, and there is no clarity where the funds, capacity and infrastructure for SANBI will come from.

Traditional harvesting of plant and animal biodiversity for medicinal and cultural uses, has become a $500 million annual industry involving an estimated 300 000 traditional healers, called sangomas or nyangas. Some 70 per cent of the population makes use of traditional medicine.

Yet, this industry will not be regulated under the Act. This may encourage some bioprospectors not to follow the route of prior informed consent, MTA contracts, disclosure, and permits, but to obtain biodiversity for sale on the sidewalk. 

The Act provides for a Biodiversity Trust Fund where all financial benefits will be deposited for redistribution to communities. It does not specifically cater for a national repository of information, knowledge and permits, similar to a clearing house mechanism.

These legalities aside, practical implementation will have to deal with various constraints, some of which are listed hereunder:

·       Present IP systems are based on industrial innovation, whereas traditional knowledge is non-novel, and ownership and innovative steps will be difficult to prove

·       The key terms “traditional” and “communities” are not defined in the Act.

·       Traditional knowledge is rarely documented as it has been verbally carried over through generations.

·       Can the requirement for disclosure of prior knowledge work if there is no legal system for protecting such knowledge? How does the bioprospector identify the authentic owner of this knowledge?

·       People, biodiversity and knowledge have moved across national and continental borders for thousands of years (the first recorded bioprospecting dates back to a Pharao, Queen Hatshepsut, who sent her army in 1482 B.C. to collect plants in East Africa). Who then are the owners of dispersed knowledge? The Hoodia appetite suppressor is a case in point where benefits had to be distributed to the San (Bushmen) tribe residing in South Africa, Namibia, Botswana, Zambia and Angola. South Africa has 11 official languages and even more ethnic entities. This makes ownership tricky.

·       How far back are we dating traditional knowledge? To Columbus? How long into the future will protection of knowledge last?

·       Innovation is hardly ever de novo, it builds upon prior knowledge and innovation. Owners of traditional knowledge do not necessarily accept that their knowledge will lead to further innovation by others.

·       Protection requires disclosure and that leads to information being in the public domain. My experience with traditional healers is that they are reluctant to disclose knowledge. How then can they enjoy commercial benefits? Will they divulge knowledge if the benefits will go to a national Trust Fund from where it will hopefully be disbursed back to them?

·       Considerable information about medicinal and cultural uses of plants, and their active chemical compounds, is already in the public domain through scientific papers and printed books; hence, these are not eligible for patenting, thereby reducing potential commercial benefits

·       There is too much emphasis on presumed mammoth material gains. Only some 0.001 per cent of potential medicinal compounds make it to the market. Failures will be difficult to explain to sources of information. How many investors will pay up-front money on risky outcomes?

In summary, implementing the ideals of the Convention on Biological Diversity must have a pragmatic approach or else scientists, investors and communities will shy away and sustainable use and benefit-sharing will remain a dream, while piracy will flourish. It is up to plant and seed scientists to engage with stakeholders and national governments to ensure a win-win situation for all.

Dr. van der Walt can be reached at wynandjvdw@telkomsa.net

Sponsored by Jondle & Associates P.C. - Specialists in Intellectual Property Law