Traditional Knowledge and Benefit Sharing After the Nagoya Protocol: Three Cases from South Africa

Abstract

The Nagoya Protocol of the Convention on Biological Diversity (CBD) has finally produced a negotiated framework intended to significantly advance the achievement of its core objectives, chief amongst them benefit sharing with indigenous and local communities who are holders of traditional knowledge related to genetic resources. The interpretation, in particular of central concepts contained in the Protocol, namely traditional knowledge (TK), community, and ownership of TK, and the practical application thereof by governments, are key to the success of the emerging access and benefit sharing regime. This article examines the manner in which the South African Biodiversity Act deals with these concepts. Three recent case studies are described, namely the Hoodia, Sceletium and Pelargonium cases, in which a range of issues relating to holders of TK were resolved, including the question of who the indigenous knowledge holders are. Moreover the debate on the question as to whether the intellectual property rights of TK holders are property rights as such, leads to the author’s suggestion that TK rights are a sui generis form of property rights, and that the legal principles contained in the law of equity provide useful and accessible guidance towards resolution of potentially competing claims of TK rights by indigenous peoples.

Keywords

• Benefit sharing
• biodiversity
• biopiracy
• indigenous communities
• intellectual property rights
• traditional knowledge