Indigenous Knowledge & the South African National Innovation System Second International Workshop of the BRICS Project Rio de Janeiro, Brazil 25-27 April

Indigenous Knowledge & the South African National Innovation System

Second International Workshop of the BRICS Project

Rio de Janeiro, Brazil

25-27 April 2007

Rosemary Wolson

Intellectual Property Manager: R&D Outcomes

Ph: +27-12-841-4301

Cell: +27-83-784-3648

E-mail: [email protected]

2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za

Outline

• Terminology• The Hoodia story• Some historical background• Indigenous Knowledge Systems Policy• Biodiversity Act

• Draft Regulations on Bioprospecting, Access & Benefit-Sharing

• Intellectual property considerations• Concluding points


The Hoodia story• Succulent plant found in the Kalahari Desert (spanning the borders of SA, Botswana, Namibia) used by the San indigenous

people to stave off hunger and thirst

• Part of a CSIR research programme from the 1960’s on edible wild plants, selected on the basis of its indigenous uses by

the San being documented in colonial era writings

• Research stopped & resumed over the years…

• Patent application filed in 1995 claiming use of the active compounds causing the appetite-suppressing effect

• License granted to Phytopharm (British co developing plant-based medicines) in 1998 – P57

• Further development, sub-licensing (Pfizer, then Unilever), positive clinical trials

• Observer article (2001)

• Negotiations

• Memorandum of Understanding (2002) (trust, identification of beneficiaries, protection & promotion of San culture and

knowledge)

• Benefit-sharing agreement (2003) – one of the earliest such examples

• Product development continues – most likely as food supplement

• CSIR & San have received payments

• Proliferation of Hoodia-based products marketed by others

• Free-riding on the publicity


Points to note• BSA both lauded as groundbreaking and criticised as flawed, failing to

optimise benefits to San• In reality, a compromise between parties sharing certain common purposes, but

approaching from differing cultural perspectives & value systems

• CSIR bioprospecting policy in place• Intention to share• Didn’t know with whom to negotiate• Lack of experience/precedent with this type of situation

• Use by San in SA, Botswana & Namibia• Use by other indigenous peoples?• Role of NGOs (local & international)• Foreign newspaper article as catalyst

• Reported previously in SA, but not generated much response

• Patenting of the natural compound• Examine the extent to which subsequent policy developments have

addressed these issues


Historical background

• Under apartheid, IK marginalised• Still an important influence on belief systems & practices• Opportunities for development, innovation, integration restricted

• Early priority for post-’94 government• Driven by Chair of parliamentary Portfolio Committee on Arts, Culture,

Science & Technology• Inventory of IK• Draft legislation (1997 & 2000) – over-enthusiastic• Public hearings• Drafting of policy

• Designated a DST responsibility after former Dept of Arts, Culture, Science & Technology split

• IKS Policy eventually adopted by Cabinet in 2004• Implementation under way


Concerns raised at 2000 public hearings

• Urgent need for legal status for IK• Unauthorised use of secret and sacred material• Use of IK without benefit-sharing or recognition of holders• Patenting of compounds derived from IK• Retention of art & implements by universities & museums in

absent of prior informed consent• Misinformation & misrepresentation by researchers using IK• Failure to involve indigenous communities in decision-making

regarding use & dissemination of IK• Exclusion of IKS from curricula, lack of awareness

programmes• Indigenous communities often not “formally organised”


IKS Policy• Affirmation, recognition, promotion, development & protection of IK – contribute to

econ & social development• Underpinned by 4 key drivers

• Affirmation of African cultural values in the face of globalisation• Development of services of traditional healers• Contributing to economic development• Interfacing with other knowledge systems

• Proposed interventions • Dedicated national IKS office• Ministerial advisory committee• R&D programmes• IKS fund• IK recordal system• Promotion of networking between practitioners• IP protection

• Cross-cutting• Under co-ordination of DST• Other departmental responsibilities defined


Affirmation of African cultural values

• Creeping cultural homogeneity as a consequence of globalisation

• Question of redress in SA context to compensate for past inequities and exclusions

• Recognition & respect – DACST• Public awareness

• Directed training, research & education programmes


Development of services of traditional healers

• Traditional medicine used extensively – affordable, accessible, culturally acceptable• 70% of South Africans consult over 200,000 healers

• Traditional Health Practitioners Act (2004) (Dept of Health)• Framework to ensure efficacious, safe, high quality treatment• Traditional Health Practitioners Council• Regulation of registration, training & conduct of practitioners &

students


Contribution of IKS to the economy

• 3 elements identified• Need for incentives to promote continuous innovation of IKs• Capitalise on processes rooted in IKS, especially health &

agriculture, to contribute to sustainable development• IK holders frequently poor, in rural areas – how to utilise IKS in

poverty elimination & to create jobs

• DTI as primary implementing agency


Interfacing with other knowledge systems

• Education• Integration of IK and its associated values into school curriculum• National Qualifications Framework – accreditation of IK holders?

• National Innovation System• Holistic integration of IK into NIS, rather than development as parallel

system• Research funding

• Focus area (now discontinued)

• Research Chairs

• IK Centres

• Private sector linkages• Establishment of small businesses based on IK services in indigenous communities

• Development of products based on IK

• Integrated human resource development• Co-operation


Protection of IK

• Need for legal benefit-sharing framework• Formal recordal system of IK to be introduced• Material transfer and information transfer agreements

required to regulate the transfer of IK and materials associated with IK• Subject to minimum standards

• Targeted funding instruments to link IK with science base• Patent law amendments to require disclosure of origin of

genetic resources or IK


Governance & structures

• Civil society engagement in policy development• Role of traditional leaders & women singled out

• Involvement of several government departments• Interdepartmental Committee• Co-ordinated by DST

• National IKS Office• Operationalisation of Policy; liaison; funding; information

dissemination; dispute resolution

• Advisory Committee on IKS• IKS Fund• Research institutions, libraries, museums• Information & research infrastructure


Biodiversity Act• National Environmental Management: Biodiversity Act (2004) (Dept of

Environmental Affairs & Tourism)• Chapter on Bioprospecting, Access & Benefit-Sharing• Promulgated, but implementing Regulations not yet finalised• Prior informed consent• Material transfer agreements & benefit-sharing agreements• Bioprospecting Trust Fund (for payments due under BSAs)

• Draft Regulations released March 2007• Consultation workshops• Comments due in 4 May 2007• Objectives:

• Permitting system for research, bioprospecting & export of indigenous biological resources

• Contents of MTAs & BSAs

• Ministerial authority• Extent of delegation• Extent of oversight• Capacity


Permits

• Research• Pre-commercial, no clear commercialisation plans• Using traditional knowledge

• Bioprospecting• Ready to begin commercialisation• Includes filing of patent applications, clinical trials

• Export• Of indigenous biological resources for research

• Only SA citizens/permanent residents/organisations may apply• May do so jointly with foreign individual or organisation• Questions about liability


Agreements

• MTAs• Required where anyone has given access to the applicant to the

indigenous biological resources concerned• May be a community, individual, the Minister, government agency

• BSAs• Required where anyone has given access to the applicant to the

indigenous biological resources concerned• Also where research is based on traditional uses of the indigenous

biological resources by an indigenous community, or where knowledge or discoveries of an indigenous community relating to the indigenous biological resources concerned will be used in the research

• Monetary, non-monetary, “in kind”


Intellectual property considerations

• Conventional IP system• Where appropriate, make use of trade marks, collective marks &

certification, geographic indications, copyright• Patents – no inherent limitation on patenting of “life forms” in SA

• Disclosure of origin requirement in patent applications• Declaration required for all complete patent applications at the SA patent

office, irrespective of technical field• “Information relating to any role played by an indigenous biological

resource, a genetic resource or traditional knowledge or use in an invention.”

• Proof – bioprospecting permit?• False statement grounds for revocation of patent rights

• Sui generis rights• DTI tasked with formulating• Developments in WIPO


Concluding points• All of these initiatives are at an early stage• Building trust between stakeholders• Responsive government

• Broad consultation• Compromises

• Is there adequate alignment between govt departments?• Eg Compatibility of IP Framework with Bioprospecting Reg’s

• Capacity• Broad support for initiatives, much goodwill• Careful balance to be struck between ensuring protection & fair

treatment on the one hand, and facilitating R&D, especially collaborative (international) R&D on the other, to avoid discouraging and disincentivising the development of the products, processes and services which can contribute to growth and poverty eradication

Documents

Indigenous Knowledge & the South African National Innovation System Second International Workshop of the BRICS Project Rio de Janeiro, Brazil 25-27 April