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Transcript of Indigenous Knowledge & the South African National Innovation System Second International Workshop of...
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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”
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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”
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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
2nd BRICS WorkshopRio de Janeiro, Brazil25-27 April 2007 © CSIR 2006 www.csir.co.za
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