The public domain and the legal protection of Indigenous Knowledge Systems

Abstract

IKS stakeholders often debate the divide between indigenous and other knowledge systems. IP rightsholders seek advice on how they can strengthen and secure their proprietary rights or broaden the public domain, while other interest groups such as indigenous peoples and local communities want to know how the public domain can be enclosed. One reason for this divide seems to be that the IP regime operates in a sphere where the public domain is demarcated by individual rights, as opposed to the indigenous knowledge systems regime where the public domain is demarcated by social embeddedness and connected to the land on which indigenous peoples and local communities live. This problem manifested itself over centuries of colonialism and technological development worldwide, but also because indigenous worldviews do not share the pre-appropriation narrative of the public domain than technological advanced societies. Within the context of this narrative the research question was posed, namely "what are the appropriate legal instruments for protecting Indigenous Knowledge Systems without compromising the public domain?" To answer this question, the public domain was analysed from three perspectives, namely international law instruments, human rights and IP rights. It was found that none of these perspectives lead to a narrow interpretation of the public domain – in fact, they all aim to broaden the public domain. These early findings on the public domain assisted to apply the fundamentals of the public domain to international law instruments and their application to IKS. In this regard it has been shown that the existing international law instruments, as well as the natural evolvement of these instruments over time, adequately provides for the protection and commercial exploitation of IKS worldwide. There is a proviso, though: IKS need to be viewed through the WIPO lens, which provides for the distinct delineation of categories of IKS, namely traditional knowledge, traditional cultural expressions and genetic resources. For example, the Bern Convention is founded on the three principles of droits des auteurs, droit moral, and domaine public. The boundaries of the public domain within the context of IKS can be reconciled with all three of these principles, and national legislators merely need to apply these principles to national legislation. With these insights gained on international law instruments, a few countries were analysed to ascertain how they address their local challenges pertaining to IKS. The countries that were analysed all aimed to appreciate international law instruments to which they are signatories, while they develop country specific IKS-related jurisprudence, although it cannot be said to be the same in each country. None of the findings pertaining to these countries could provide convincing arguments as to why a sui generis system for IKS can work. The research then moved to a legal analysis of South African legislation in relation to IKS. It has been shown that in general, South African legislation on IP is well aligned with international law instruments. These findings assisted with the research question at hand and was instrumental with coming to the early conclusion that IKS neatly fits into South Africa's current IP regimes and their associated public domains. Throughout the thesis, the rights and obligations of IKS rightsholders were demarcated since no right is absolute, as has been shown when the South African Constitution was discussed. In this regard, the droit moral of individuals from indigenous peoples and local communities, as well as the indigenous peoples and local communities, are to be respected. This approach led to more practical measures to ensure that matters such as prior informed consent, secrecy and sacredness, equity and access to TK, TCE and GR and benefit sharing were all understood within the boundaries of the public domain.