Die beoogde sui generis-beskerming van inheemse kennisbates in die suidafrikaanse intellektuele goederereg

Author Andries Raath and Pieter Brits

ISSN: 1996-2193
Affiliations: BJuris LLB MA DPhil, Afgetrede Senior Professor en Navorsingsgenoot, Departemente Publiekreg en Geskiedenis, Universiteit van die Vrystaat; BCom BCom (Hons) LLB LLM, Senior Dosent, Handelsreg, Universiteit van die Vrystaat
Source: Stellenbosch Law Review, Volume 31 Issue 1, 2020, p. 110 – 137


The indigenous knowledge movement argues in favour of the recognition of the plurality of knowledge manifested in indigenous communities. However, this assumption presupposes a universal indigenous knowledge which asserts a manifestation of indigenous knowledge in counterpoint to that of “the West” as if all expressions of traditional knowledge form part of a single system of anti-European knowledge resources. The arguments in favour of the sui generis protection of indigenous knowledge base their demands on the assumption that ethnic group entities have lasting and comprehensive rights on cultural products and ideas, that the relationship of such group entities to their cultural assets are describable as forms of ownership to cultural identity, and that indigenous knowledge gathered by missionaries, anthropologists and film makers prior to the promulgation of laws protecting indigenous knowledge does not meet the required standards of informed consent. In this article, the authors argue that these assumptions undergirding the proposed South African legislation on the protection of indigenous knowledge are flawed. The authors voice their concerns about the continued expansion of intellectual property rights and the progressive invasion of knowledge in the public domain. In addition, the absence of an internationally acceptable definition of the indigenous entities qualifying for sui generis protection, harbours the potential of abuse by majority cultures appropriating the rights of indigenous minorities to their economic advantage. In the proposed South African legislative project such appropriation causes further marginalisation of the true indigenous peoples of the region. Regarding the envisaged protection of cultural expressions of indigenous peoples, the authors advocate the treatment of such expressions as part of the public domain, so that anyone may have access to them and contribute to their development and evolvement. The authors support the adoption of an approach that will help to protect the public domain without contributing to the progressive expansion of the scope of intellectual property rights on the one hand and provide indigenous people with the opportunity to reap economic benefit from their traditional cultural products on the other.