Balancing indigeneous community rights and intellectual property rights in the protection of genetic resources and associated traditional knowledge in South Africa

Abstract

The growing realisation of the importance of traditional knowledge in the commercial exploitation of genetic resources has fuelled intense debate over whether and how such traditional knowledge should be protected. This debate is also driven by the need to protect genetic resources and associated traditional knowledge from misappropriation and biopiracy, whilst also ensuring that biodiversity rich countries and their indigenous peoples receive a fair and equitable share of the benefits derived from their utilisation. This study examined the protection of genetic resources and traditional knowledge in South Africa and how it is balanced with the competing rights of holders and users of genetic resources and traditional knowledge. The study examined the current debates regarding the protectability of traditional knowledge within the IP system. It then looked at the theoretical and legal foundations from the South African Constitution and international law. Thereafter, the study provided an in-depth and critical comparative analysis of the measures taken in South Africa, Brazil, and India, to determine whether there are any lessons and opportunities for strengthening the policies and legislation to protect genetic resources and traditional knowledge in South Africa. The study found that, even though there is no single binding international instrument for the protection of genetic resources and associated traditional knowledge within the international IP regime, The Constitution of the Republic of South Africa, 1996 (the Constitution) and several international legal instruments provide some basis for their domestic protection. The study found similarities between the approaches taken by India and Brazil to the South African approach. Lastly, the study concluded that the protection of genetic resources and associated traditional knowledge should be implemented in such a way that it serves the various goals, which include the protection of the rights of IPLCs, and fair, equitable and sustainable socio-economic development, among others. Recommendations for further study and for policy development were also made.