Since yesteryear, if I had (or have) a flu or cold, my grandmother would boil leaves from a particular tree in a pot, chuck me under a blanket and have me inhale the vapor which, surprisingly is always (and still is) effective in healing me works. Such knowledge relating to medicinal, nutritional and other benefits of various plant species and traditional way of life is something most of us can relate to, brought on to us by our parents, grandparents and great-grandparents. However, is such knowledge protected from exploitation by foreign pharmaceutical companies under our national laws and if not, what can be done for it to better benefit the collective interests of the communities or families that are the bearers of such knowledge?Judge Maritz, when dealing with the issue of patents in the Gemfarm Invetsments v TransHex Group and Another case, perfectly stated that the statutory laws designed to record, preserve and protect those ideas, inventions and technologies are “marooned in outdated, vague and patently inadequate enactments passed by colonial authorities in this country a century ago.” These observations are particularly accurate when considering the fact that the authors of the Namibian constitution, in drafting article 16 which guarantees the right to property, did not have in mind the protection of traditional knowledge during that period. More so, traditional knowledge, as well as Intellectual Property Rights (IPR) regime, can be inferred upon interpretation of the article 16.
However, such interpretation of traditional knowledge is not sufficient to warrant protection, as it may be vague and misconstrued. Equally so, the IPR regime appears to be westernized as it too falls short of protecting traditional knowledge. The modern IPR regime does not recognize “community rights”, as traditional knowledge does not fit in the straightjacket of IPRs’ which is made up of patents, trademarks, copyrights ect. For example, when one wants to patent an invention, such invention usually fulfills all three tests namely that 1) the invention or technology should be new, 2) it should be an inventive step and 3) it should be commercially viable. When placed against this criteria, traditional knowledge does not pass the three tests because it is not new (usually passed down generations), has no inventive step and the restriction of ownership within families or certain communities does not make it commercially viable. Also, traditional knowledge is owned by the community and there is no “inventor”, meaning it is largely in the public domain.
The IPR regime has further shortcomings in protecting traditional knowledge, the most obvious being that the intellectual property rights were designed and developed for industrial inventions viewed as individualistic activities composed of separate identifiable components and ideas which can be owned, described, and thus patented. This means the financial and legal resources required to apply for, maintain and if necessary defend any patent are generally beyond the capacity and means of resource-poor local communities. Holders of traditional knowledge, being groups that are often identical and may live in transboundary areas, makes it difficult to be represented under a single title or preface, and consequently makes it difficult for these communities to handle sensitive commercial information in a confidential and transparent manner.
The above shortcomings have given commercial companies the power to patent products and/or processes derived from traditional knowledge by making small “improvements” (e.g. isolating an active component and patenting the extraction process) without any of the benefits accruing to the custodians of the traditional knowledge. This loophole was best utilized in the classic hoodia plant case. The hoodia plant grows in dry areas across Southern Africa, and has been used by the San Community as an appetite suppressant which was useful on long hunting journeys. The knowledge about the hoodia’s attributes has been passed on from generation to generation and as time evolved, has been developed according to the era in which the bearers of the knowledge exist.
In 1996, the active ingredient in the Hoodia plant, known as P57, was isolated by the Council for Scientific and Industrial Research in South Africa (CSIR). This active ingredient was licensed to Phytopharm (a UK firm) in 1997 in order to further developments of the active ingredient. Phytopharm in turn granted another company, Pfizer, the exclusive global license to commercialize the active ingredient for US$ 21 million.
In 2001, the South African San Council was established to represent the San Community and thus demanded a share of the benefits of commercializing the active ingredient in recognition of their traditional knowledge being used.
This prompted a contract being signed between the South African San Council and CSIR in which it was agreed that the San people would be regarded as the traditional knowledge bearers of the Hoodia plant and would thus be allocated a share of the net profit of commercializing the active ingredient. At first glance, this benefit sharing agreement appears to be a suitable solution. However in reality, the commercial companies hold the monopolistic rights conferred to them by the IPR regime. The benefit sharing is a mere confirmation of the traditional knowledge holder status, rather than a protective measure because the San are prohibited from using their knowledge of the hoodia in any other commercial applications.
A possible solution for protecting traditional knowledge would be through a Sui Generis Regime, with Sui Generis being a Latin term meaning “a special kind”. As the name implies, it is a regime especially tailored to meet a certain need, and would specifically identify each traditional knowledge case on its individual basis. The general elements in setting out such a regime include identifying what is the policy objective of the protection, what is subject matter, what criteria should the subject matter meet to be protected, who owns the rights and what are the rights. To the best of my knowledge, the only attempt made in realizing the birth of the Sui generis regime in Namibia was throug
h report titled “Namibia’s thematic report on benefit-sharing mechanisms for the use of biological resources” in 2001, which results are yet to be fully implemented.
When one considers the hoodia plant case, the attempt to use the benefit sharing scheme has achieved a degree of success in allowing traditional knowledge holders to receive a share of the commercialized active ingredient. However, no protection is offered to such holders as they will not be able to use the knowledge for industrial or commercial use due to the fact that westernized commercial companies have realized the power or advantage of the IPR regime, more so patents. From analysis, in Namibia, the only protection capable of offering protection is by virtue of article 27 (3) (b) of TRIPS agreement, which Namibia is a party too in terms of article 144 of the constitution. This agreement gives member states the discretion to implement a Sui Generis regime to protect plant varieties. Although it appears to only apply to plant species, it is nonetheless a step in the right direction as it offers a unique set up according to facts at hand which can be extended to protect Traditional Knowledge as a whole in Namibia.
In implementing the Sui Generis regime in Namibia, government and organization sponsored fieldwork by professionals should be done to determine the form and nature of traditional knowledge in Namibia. Communities whom are holders of knowledge related to the environment and its components should as well be identified, especially knowledge relating to plant varieties. These initiatives of implementing a Sui Generis regime should harbor around what rights are to be protected, who owns the rights, what policy objectives are available, and what is the subject matter to be protected. If we do not take these initiatives, the ghost of the hoodia case may haunt appear in a new guise if new medicinal attributes relating to plant varieties are discovered in Namibia. One needs to remember that the IPR regime is beneficial for the western world as the development existent in such countries can be manipulated in such a way that developing or most African countries are left behind. We need to create mechanisms to protect ourselves.