The Protection of Traditional Knowledge: challenges and possibilities arising from the protection of biodiversity in South Africa

Indigenous communities are richly endowed with some unique knowledge. This knowledge was for much of history held only by these indigenous communities, and was unwritten because it is transmitted orally from one generation to the next, forming part of their ancestral heritage. This knowledge may be in the field of medicine, agriculture, music, dance, folklore, poetry, ecology, biodiversity, artistic, spiritual, and cultural expressions. This is what is referred to as Traditional Knowledge (TK). TK relating to biological resources today is greatly threatened as it is exploited and registered without the knowledge of their holders for Intellectual Property (IP) protection by researchers from developed countries through bio-piracy.(1) Even though the World Trade Organisation (WTO) Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement) requires individual member states to choose whether to protect their plant varieties through sui generis laws or through IP laws, developing countries in general, and South Africa in particular face, several challenges in seeking to protect their TK. TK has been defined as; 'tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and, all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields'.(2)