Thursday 15 April 2021
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Protect it or lose it

Africa is recognized and accepted, as a continent rich in resources but the problem stated is that the use of these resources is not adequate. However, the discourse on the protection of these resources is also left in wanting.  The use of Intellectual Property (IP) by developed countries is understood in all its dynamics but less developed countries have often looked at the IP system and failed to internalize it for fear that it bears no reference to their budding economies.  We see this fear manifested in very outdated legal instruments or the complete lack of legislation for governing the protection of IP in most African countries.
The use of patents, which is reserved for inventions that satisfy the criteria of novelty, inventive step and industrial applicability is perceived as incompatible with most developing countries. This perception could be substantiated by the latest World Intellectual Property Organization (WIPO) report on Patents. WIPO reported the highest patent filing activity in the developed countries; more specifically African countries did not make it onto the first half of the list that reports on all member states of WIPO i.e. 188 members to date. A report like this is discouraging and further compounds the fear that the IP system is not compatible with Africa. This perception is largely propagated due to the apparent lack of innovation that is churned out commercially. However, the seemingly low patent activity should not be used to conclude that IP is not compatible with our continent, as other forms of IP exist that are befitting to our case.
The rising awareness of IP in the continent especially in terms of the increase in IP professionals has enabled the lobbying of the recognition of our traditional knowledge and expressions of folklore as eligible for protection, which will enable commercialization and therefore the experience of the capital gains thereof. The inclination towards a more natural and organic way of life brought to light the commercial use of Asian and Middle Eastern practices. The commercialization of their practices for instance ayuverdic practices has contributed significantly to catapulting some of their economies into developed status. These practices are protected not only by traditional knowledge but have empowered the holders of this knowledge to start businesses, which opens the door to trademarks and in some cases patents. Even if not for commercialization, the protection of their practices has been used defensively to preclude third party use without authorization.
This has been helpful in preventing IP poaching -the theft of traditional knowledge most often done by stronger economies. In cases where authorization to utilize the knowledge has been granted, it has ensured the equitable benefit sharing of any capital gains resulting from the use of the knowledge.
Similarly, Africa has a plethora of practices due to our traditional knowledge engrained in our culture that has the same potential to bring in considerable amount capital gains.
The most popular case of the use of traditional knowledge within the IP system is the commercialization of the Hoodia plant as an appetite suppressant and anti obesity drug. The San make use of the plant in periods of prolonged hunts for food. The Council for Scientific and Industrial Research (CSIR) in South Africa performed a series of experiments on the plant, which isolated an active compound responsible for suppressing appetite. After, the overall IP was ensured, in this case the traditional knowledge and patent protection for the active compound, through collaborated efforts with international pharmaceutical companies, Hoodia was commercialized. Although not free from complications both on the side of the CSIR and their international partners, the commercialization of Hoodia did see the San benefit with a few resources for their community development.
Another prime example that is not limited to a scientific application of traditional knowledge is the use of the Kenyan hand woven bag called Kiondo. The beautiful Kiondo are made with sisal and leather. These bags have been a common product of sale in the informal market. Their beauty became popular in an unfortunate way in that it was poached initially by Asia- machines were engineered to be able to redesign the patterns and mass-produce the Kiondo. Secondly, the runways of Europe took an interest in the Kiondo. This removed the uniqueness of the Kiondo from Kenya; it stripped them of the monopoly they had on something that was part of their culture. Thankfully, with the collective efforts of IP professionals, Kenya has managed to regain some control over Kiondos. IP not only has to do with the potential monetary benefit, but also equally important is the recognition of the originators of the product.
Kenya has received few royalties from the Kiondo but has regained the position as the original creators.  This has positive implications on their tourism industry with visits to the communities to seek the authorization that is necessary to utilize the bags.
Unfortunately, due to lack of knowledge, there is continuous theft of unprotected traditional knowledge that has immense benefit to Namibia and other African countries.  It is the hope that as we look at diversifying our economies, we will protect what we have and use it to our benefit, if not, we will stand to lose even more and continue to lag behind in the vibrant IP system and therefore leave a critical gap in the development of our economies.

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