Conventional intellectual property laws claim to confer rights only on knowledge that is individually authored, reduced to material form and 'original'. The antithesis of that modern knowledge paradigm is traditional knowledge which is by its nature traditional, communal and frequently oral. Some developing countries have adopted sui generis legislation that attempts to craft a regime appropriate for traditional knowledge. But if appropriation is carried out mostly by corporations head-quartered in developed countries, and appropriated knowledge is exploited in developed countries through the mechanisms of conventional intellectual property the sui generis legislation in the country of origin won't work. This is exactly what seems to be going on.
Developing nations including South Africa have advocated strongly for recognition of sui generis traditional knowledge rights in the global trade system through the World Trade Organisation (WTO) and World Intellectual Property Organisation. Developed country trade reps put the kibosh on this idea during the Doha round.
Those same representatives insist on unendingly increasing intellectual property maximisation.
Response?
Hack the system. Use the conventional intellectual property system to award rights to traditional knowledge.
That seems to be the reasoning of the Department of Trade and Industry, which is the government department responsible for intellectual property in South Africa is considering amendments to South Africa's intellectual property law, to protect traditional knowledge.
The draft legislation will amend South African copyright, performer's protection, and design statutes. It will not however change patent legislation, which was amended in 2005, to require patent applicant's to enter benefit sharing agreements with traditional knowledge communities on whose knowledge their inventions are based.
The Bill intends to give control over copyright works, designs, names and logos which are currently technically in the public domain to the indigenous communities which have created and preserved them. In other words the policy impetus is defensive, to prevent appropriation, but the policy means is use of conventional intellectual property instruments which rely on broad prohibition of use.
Will it work?
Can the industrial revolution design of conventional copyright vest rights in a group?
Should it work? Are the philosophical assumptions of Western and indigenous knowledge incommensurable?
Is this just one more gratitutious bestowal albeit ostensibly to those who have historically been denied benefits?
Will indigenous communities receive any benefits?
How will it reduce the public domain?