Ms Shakalela's presentationKU

THE CONTEMPORARY LEGAL ISSUE (S)
BETWEEN INTELLECTUAL PROPERTY AND
GENETIC RESOURCES ASSOCIATED WITH
TRADITIONAL KNOWLEDGE IN THE NAMIBIAN
LEGAL SYSTEM
Ms. Elize Shakalela
Environmental Legal Officer Biodiversity Management & Climate Change GIZ-Project
Ministry of Environment & Tourism
Email:elize.shakalela@giz.de ©

INTRODUCTION
 THIS PRESENTATION SHOWS A STRONG ADVOCACY FOR THE
NEED TO PROTECT TRADITIONAL KNOWLEDGE PARTICULARLY
THOSE ASSOCIATED WITH GENETIC RESOURCES IN THE NAMIBIAN
LEGAL SYSTEM.
 MANY YEARS AGO, OUR ANCESTORS DID NOT GO TO SCHOOL,
NOR DID THEY VISIT PROFESSIONAL MEDICAL DOCTORS WHEN
THEY FELT ILL; INSTEAD, THEY EDUCATED AND TREATED
THEMSELVES. THEY THEREFORE, APPLIED THEIR TRADITIONAL
KNOWLEDGE, HANDED DOWN THROUGH GENERATIONS WITHIN A
SPECIFIC GROUP. NO SPECIFIC PERSON CAN THEREFORE, CLAIM
OWNERSHIP OF THIS KNOWLEDGE. THE OWNERSHIP IS
THEREFORE, VESTED IN THE COMMUNITY THAT CAN TRACE THE
EXISTENCE OF SUCH KNOWLEDGE.
Ms. Elize Shakalela

PROBLEM STATEMENT
 THE CURRENT INTERNATIONAL SYSTEM FOR PROTECTING
CREATIONS AND INNOVATIONS OF THE MIND WAS FASHIONED
DURING THE AGE OF INDUSTRIALIZATION IN THE WESTERN AND
DEVELOPED COUNTRIES SUBSEQUENTLY IN LINE WITH THE
PERCEIVED NEEDS OF SOCIETIES.
 RECOVER THE COSTS FOR DEVELOPING THE INNOVATION
 ENCOURAGING FURTHER RESEARCH
 THE NEED TO PROTECT TK IS AN ISSUE THAT HAS CAUGHT THE
ATTENTION OF INDIGENOUS COMMUNITIES, LOCAL COMMUNITIES
AND GOVERNMENTS MAINLY IN MANY DEVELOPING COUNTRIES,
NAMIBIA INCLUDED. IN NAMIBIA, TRADITIONAL KNOWLEDGE HAS NOT
BEEN AFFORDED THE PROTECTION OF THE LAW, IT DESERVES
Ms. Elize Shakalela

EXHIBIT 1.
JOHN WHO OWNS A PRIVATE LABORATORY IN WINDHOEK VISITS A
SMALL VILLAGE IN OHANGWENA WITH HIS LITTLE SISTER SUZY. HIS
LITTLE SISTER EXPERIENCES A STOMACH ACHE, JOHN'S COUSIN TELLS
HIM NOT TO TAKE LITTLE SUZY TO THE HOSPITAL BECAUSE THERE ARE
LEAVES FROM A CERTAIN PLANT THAT SHE CAN CHEW IN ORDER TO GET
BETTER. JOHN REALISED THAT THE SISTER’S STOMACH ACHE WAS
ACTUALLY MUCH BETTER AFTER CHEWING THE SO CALLED LEAVES.
JOHN TOOK FEW LEAVES WITH HIM, DID SOME TESTS ON THEM AND
CONFIRMED THE ACTIVE INGREDIENT OF STOMACH HEALING IN THE
LEAVES. JOHN THEN APPLIED FOR PATENT PROTECTION FROM THE
MISME&T. PATENT PROTECTION GRANTED.
Ms. Elize Shakalela

EXHIBIT 2.
ROOIBOS ROBBERY CASE (SA)
Ms. Elize Shakalela

EXHIBIT 3.
TUMERIC CASE (INDIAN)
Ms. Elize Shakalela

THE ABOVE ILLUSTRATIONS CLEARLY SHOW
SOCIAL INJUSTICE WITH REGARDS TO
TRADITIONAL KNOWLEDGE WHICH IS SEEN
AS KNOWLEDGE IN THE PUBLIC DOMAIN BY
INTELLECTUAL PROPERTY LAW.
Ms. Elize Shakalela

DEFINITIONS:
• THE NAMIBIA’S ACCESS TO TRADITIONAL KNOWLEDGE
AND ASSOCIATED TRADITIONAL KNOWLEDGE (ABS) BILL
DEFINES TRADITIONAL KNOWLEDGE (TK) AS A
KNOWLEDGE, PRACTICES, INNOVATIONS OR
TECHNOLOGIES CREATED OR DEVELOPED OVER
GENERATIONS BY LOCAL COMMUNITIES ON THE
CONSERVATION AND UTILIZATION OF GENETIC
RESOURCES;
• THERE IS NO BLUE PRINT DEFINITION OF TRADITIONAL
KNOWLEDGE
• TK DEFINITION IS CRITICIZED
Ms. Elize Shakalela

DEFINITIONS
 INTELLECTUAL PROPERTY IS COMMONLY KNOWN
AS ANY PRODUCT OF THE HUMAN INTELLECT
WHICH THE LAW PROTECTS FROM THE
UNAUTHORISED USE BY OTHERS AND THAT
OWNERSHIP OF INTELLECTUAL PROPERTY
INHERENTLY CREATES A LIMITED MONOPOLY IN
THE PROTECTED PROPERTY . INTELLECTUAL
PROPERTY IS DIVIDED IN TO TWO:
 INDUSTRIAL PROPERTY RIGHTS WHICH INCLUDE;
PATENTS FOR INNOVATIONS, TRADEMARKS,
INDUSTRIAL DESIGNS AND GEOGRAPHICAL
INDICATIONS.
Ms. Elize Shakalela

 COPY RIGHTS WHICH COVER LITERARY WORKS
SUCH AS NOVELS, POEMS AND PLAYS), FILMS,
MUSIC, ARTISTIC WORKS (E.G., DRAWINGS,
PAINTINGS, PHOTOGRAPHS AND SCULPTURES)
AND ARCHITECTURAL DESIGN. RIGHTS RELATED
TO COPYRIGHT INCLUDE THOSE OF PERFORMING
ARTISTS IN THEIR PERFORMANCES, PRODUCERS
OF PHONOGRAMS IN THEIR RECORDINGS, AND
BROADCASTERS IN THEIR RADIO AND TELEVISION
PROGRAMS. (AVAILABLE AT
HTTP://WWW.WIPO.INT/PORTAL/EN/INDEX.HTML
Ms. Elize Shakalela

DEFINITIONS
Genetic Resources (GR) defined by
Namibia’s Access to Genetic Resources and
Associated Traditional Knowledge Bill as any
material of plant, animal, microbial or other
origin containing or derived from functional
units of heredity and which has actual or
potential value within or outside Namibia; all
biological resources are genetic resources
Ms. Elize Shakalela

• OLD
• NOT REGARDED AS CREATION OF A
HUMAN MIND AS IT IS CONSIDERED
TO BE IN PUBLIC DOMAIN
• REMAINS EASILY AVAILABLE BY
ANYONE
• DIFFICULTY IN IDENTIFYING THE
OWNER AS MOST OF IT IS OWNED
COMMUNALLY
• DIFFUCULTY IN THE DEFINITION OF
TK
• DISADVANTAGE PEOPLE WHO LIVE
IN SMALL SOCIETIES
• NOVELTY
• CREATION OF HUMAN MIND
• MONOPOLY RIGHTS OF MANY
YEARS
• OWNER EASILY IDENTIFIABLE
• ADVANTAGE PEOPLE IN BIG
CITIES
• EUROPEAN ORIGIN-PRODUCT
OF INDUSTRIAL REVOLUTION
THE CONTEMPORARY LEGAL ISSUE BETWEEN INTELLECTUAL
PROPERTY (IP) & GENETIC RESOURCES ASSOCIATED WITH
TRADITIONAL KNOWLEDGE (GRaTK) IS VERY CONTROVERSIAL
INTELLECTUAL PROPERTY
TRADITIONAL KNOWLEDGE ASSOCIATED
WITH GENETIC RESOURCES
Ms. Elize Shakalela

IS GENETIC RESOURCES ASSOCIATED WITH
TRADIONAL KNOWLEDGE PROTECTABLE BY
INTELLECTUAL PROPERTY SYSTEMS? INDUSTRIAL
PROPERTY
(1) PATENTS:
NEW
NON OBVIOUS
INDUSTRIAL APPLICATION
DOES TKAGR MEET THIS REQUIREMENTS?
NO?
Ms. Elize Shakalela

(2) TRADE MARKS
 NAMIBIAN INDUSTRIAL PROPERTY ACT S132
RECOGNITION OF COLLECTIVE OWNERSHIP
IT MUST BE DISTINGUISHABLE
IT MUST BE DIFFERENT FROM OTHER
PRODUCTS TO AVOID CONFUSION
DOES TKAGR MEET THIS?
YES & NO?
Ms. Elize Shakalela

(3) TRADE SECRETS
ARTICLE 39.2 TRIPS STATES “NATURAL AND LEGAL
PERSONS SHALL HAVE THE POSSIBILITY OF PREVENTING
INFORMATION LAWFULLY WITHIN THEIR CONTROL FROM
BEING DISCLOSED TO, ACQUIRED BY, OR USED BY
OTHERS WITHOUT THEIR CONSENT IN A MANNER
CONTRARY TO HONEST COMMERCIAL PRACTICES IF SUCH
INFORMATION:
 IT MUST BE A SECRET
 HAS COMMERCIAL VALUE
 MUST HAVE BEEN KEPT AS A SECRET
 CAN IT AFFORD PROTECTION TO TKAGR?
Ms. Elize Shakalela

(4) GEOGRAPHICAL INDICATION
• This are signs used on goods that have a
special geographical origin, these products
normally have special qualities and reputation
that is identifiable based on the place of origin.
Common goods from a certain place of origin
carry that name.
• Can it afford protection GRaTK?
Ms. Elize Shakalela

WHY PROTECT GENETIC RESOURCES
ASSOCIATED TRADITIONAL KNOWLEDGE
(GRaTK)
 LOCAL COMMUNITIES DEPEND ON THEIR ENVIRONMENT
FOR SURVIVAL
 THE INCREASED VALUE OF GRATK
 NATIONAL LEVEL:
 IP IS A HUMAN RIGHT UNDER THE NAMIBIAN
CONSTITUTION SEE: 3 OBLIGATIONS TO THE STATE
 ARTICLE 16 (1)- RIGHT TO PROPERTY
 ARTICLE 10 (2) -EQUALITY BEFORE THE LAW
 ARTICLE 19 -RIGHT TO CULTURE
 ARTICLE 95 (L)-OBLIGATION TO MAINTAIN THE
ECOSYSTEMS
Ms. Elize Shakalela

INTERNATIONAL LEVEL
 UNITED NATIONS DECLARATION ON HUMAN RIGHTS ARTICLE 27
EVERYONE HAS THE RIGHT TO PROTECTION OF MORAL AND
MATERIAL INTERESTS RESULTING FROM SCIENTIFIC, LITERARY OR
ARTISTIC PRODUCTION OF WHICH HE IS THE AUTHOR.
CONVENTION ON BIOLOGICAL DIVERSITY:
 ARTICLE 8(J)- THE PROTECTION OF TRADITIONAL KNOWLEDGE
 ARTICLE 10 (C)-
 NAGOYA PROTOCOL ON THE FAIR AND EQUITABLE SHARING OF
BENEFITS TO THEIR UTILIZATION OF GENETIC RESOURCES AND
ASSOCIATED TK :
• MUTUALY AGREED TERMS
• PRIOR INFORMED CONSENT
• AGAINST BIOPIRACY
Ms. Elize Shakalela

WHY PROTECT GENETIC RESOURCES ASSOCIATED
TRADITIONAL KNOWLEDGE IN NAMIBIA?
All human rights confers 3 obligations to states:
 The Obligation to promote
 The Obligation to protect
 The Obligation to fulfil
Ms. Elize Shakalela

WHY PROTECT GENETIC RESOURCES
ASSOCIATED TRADITIONAL KNOWLEDGE?
 GREED HAS BECOME AN INSIGNIA OF THE TWENTY-FIRST
CENTURY, PEOPLE ARE BLUNTLY STEALING TK OF THE LOCAL
COMMUNITIES AND RESULTING FROM THIS IS THE
UNAVAILABILITY OF COMMUNITIES MEMBERS TO REAP ANY
BENEFITS FROM THEIR TK. TODAY, GLOBALIZING OF IPR
REGIME IS AT ITS HEIGHT, SITUATIONS OF BIO-PIRACY ARE
BECOMING MORE EVIDENT.
 BIOPIRACY TAKES 2 FORMS:
(1) GRANTING OF WRONG PATENTS: NOT NEW ; INVENTING GIVING
REGARD TO TRADITIONAL KNOWLEDGE (TUMERIC CASE)
(2) GRANTING OF RIGHT PATENTS: WITHOUT PRIOR INFORMED
CONSENT & MUTUALY AGREED TERMS
Ms. Elize Shakalela

HOW CAN WE ENSURE PROTECTION OF
GENETIC RESOURCES ASSOCIATED
TRADIITIONAL KNOWLEDGE IN NAMIBIA?
Ms. Elize Shakalela

WHAT OPTIONS CAN NAMIBIA USE TO PROTECT
GENETIC RESOURCES ASSOCIATED TRADITIONAL
KWOLEDGE?
MINIMISE THE NUMBER OF PATENT YEARS?
Ms. Elize Shakalela

TRADITIONAL KWOLEDGE?
TRADITIONAL KNOWLEDGE DIGITAL
LIBRARY
Ms. Elize Shakalela

PROOF OF ORIGINAL MATERIALS
Ms. Elize Shakalela

SUI GENERIS SYSTEMS ON EXISTING
LAWS
Ms. Elize Shakalela

THE WAY FORWARD
ACCESS TO GENETIC RESOURCES
AND ASSOCIATED TRADITIONAL
KNOWLEDGE (ABS) BILL
Ms. Elize Shakalela

THE END
THANK YOU FOR PAYING ATTENTION

Ms. Elize Shakalela

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