TOWARDS A VIABLE FRAMEWORK FOR INDIGENOUS KNOWLEDGE PROTECTION IN SOUTH AFRICA: RESOLVING THE CONFLICT BETWEEN THE INTELLECTUAL PROPERTY LAWS AMENDMENT ACT 2013 AND THE PROTECTION PROMOTION AND DEVELOPMENT OF INDIGENOUS KNOWLEDGE ACT 2019

 TOWARDS A VIABLE FRAMEWORK FOR INDIGENOUS KNOWLEDGE PROTECTION IN SOUTH AFRICA: RESOLVING THE CONFLICT BETWEEN THE INTELLECTUAL PROPERTY LAWS AMENDMENT ACT 2013 AND THE PROTECTION PROMOTION AND DEVELOPMENT OF INDIGENOUS KNOWLEDGE ACT 2019

 

ES Nwauche (Prof)

The recent Call for Comments (CFC) by South Africa’s Department of Science and Innovation (DSI) to the general public to submit written or representations in respect of Regulations Relating to the Protection Promotion Development and Management of Indigenous Knowledge (The Regulations) made pursuant to section 31(1) of the Protection Promotion Development and Management of Indigenous Knowledge Act. 2019 ( PPDMIK Act) ended on 14 January 2023, three months. Even though the DSI is to be commended for The Regulations as a step towards the commencement of the PDMIK Act and its application, it is even more critical that the South African parliament address the conflict between the PPDMIK Act and the Intellectual Property Laws Amendment Act 2013 (IPLAA) managed by the Department of Trade and Industry (DTI). IPLAA is substantively different from the PPDMIK Act because it amends existing intellectual property legislation such as the Copyright Act, the Trademarks Act, and the Design Act by recognising a number of related traditional intellectual property rights. On the other hand, the PPDMIK Act does not create new rights but warehouses the rights of indigenous communities in the National Indigenous Knowledge Systems Office (NIKSO). The focus of The Regulations is another example of the profound difference between the PPDMIK and IPLAA.

The Regulations address the institutional structures to manage the objectives of the PPDMIK Act, which is to provide a framework for indigenous knowledge in South Africa. The four objectives-protection promotion development and management- of indigenous knowledge encompass a broad framework spectrum of interest to South African indigenous communities that the PPDMIK rightfully recognises as the owners of indigenous knowledge. Since the State is envisaged as a steward of the ownership rights of indigenous communities, a number of institutions are established by the PPDMIK to manage the State’s stewardship position. The principal institution is the National Indigenous Knowledge Systems Office (NIKSO) charged with attaining the four objectives of the PPDMIK Act. The focus of The Regulations are some other institutions, such as the Curator of Indigenous Knowledge, an Advisory Panel, Indigenous Knowledge Practitioners, and a Dispute Resolution Committee that are established by the PPDMIK Act. On the other hand, IPLAA has a different institutional structure, including the National Council for Indigenous Knowledge, National Trust and Fund for Indigenous Knowledge and National Databases for Recording Indigenous Knowledge.

If the CFC is evidence that the DSI intends to move forward with the application of the PPDMIK Act, it requires the South African Parliament and the South African government to urgently address these two legislations that approach the protection of indigenous knowledge from different perspectives.   The assurances that were given by the South African Parliament that the two Acts do not significantly conflict is not entirely correct. They do, and failing to harmonise these two legislations suggests neither will be effective. An indigenous knowledge landscape managed by two different South African departments around two legislations with different objectives will be chaotic, to say the least.   

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