Traditional Knowledge Protection for African Cultures
Nine of the seventeen nations that form the African Regional Intellectual Property Organization (ARIPO) signed a protocol on the protection of Traditional knowledge and folklore. The protocol is meant to protect creations derived from traditional knowledge of ARIPO member states. The protocol contains sections on assignments, licenses, and the recognition of knowledge holders. There are also provisions for compulsory licenses when there is a superceding state need. The World Intellectual Property Organization (WIPO) praised the protocol in an August 31 statement calling it “an historic step for ARIPO’s seventeen member states, and a milestone in the evolution of intellectual property.”
Despite the support of WIPO, the protocol raises important questions about the differences between this IP rights regime and the western regime. In January 2010, the United Nations released a report entitled “State of the World’s Indigenous Peoples” which acknowledged the under appreciation of indigenous customary laws in international property rights. The report further said that “[t]he intellectual property rights regime and the worldview it is based on a stand in stark contrast to indigenous worldviews, whereby knowledge is created and owned collectively, and the responsibility for the use and transfer of the knowledge is guided by traditional laws and customs.
The protocol is only one of a rising number of documents that provide sui generis protection to traditional knowledge (TK). The African Intellectual Property Organization (OAPI) adopted a similar protocol in 2007, and Panama passed legislation back in 2000 protecting its indigenous groups and their intellectual property. As the UN report seems to indicate, there is some reservation on behalf of the western IP rights scheme to allow such sui generis protection. The reason is that the western system of intellectual property puts so much emphasis on authorship. In indigenous cultures, knowledge – which can range from stories and dances to medical remedies and processes – is passed from generation to generation; a specific type of knowledge can be centuries old and the original author or authors may be unknown. The western systems of copyright and patents are not equipped to provide protection for this type of knowledge because a known author is required, and a collective society does not qualify as an author. Here in the old US of A Congress has provided some protection for Native American crafts by making it a federal crime to illegally reproduce Native American designs. Still, cultural knowledge has a long way to go before it is fully protected.