Why Protect Traditional Knowledge?
African Technology Policy Studies Network
Biotechnology Trust Africa

SPECIAL PAPER SERIES | No. 44
Joseph M. WekundahWhy Protect Traditional Knowledge?

Joseph M. Wekundah

The African Technology Policy Studies Network (ATPS) is a multidisciplinary network of researchers, private sector actors andpolicy makers promoting the generation, dissemination, use andmastery of science, technology and innovation (ST&I) for African
development, environmental sustainability and global inclusion.
ATPS intends to achieve its mandate through research, capacity
building and training, science communication/dissemination andsensitization, participatory multi-stakeholder dialogue,knowledge brokerage, and policy advocacy.
Published by the African Technology Policy Studies Network
P O Box 10081, 00100 GPO Nairobi Kenya
2012

Published by the African Technology Policy Studies Network

ISBN: 978-9966-030-43-6

Table of Contents
Acknowledgement

4

List of Acronyms

5

Introduction

6

What are the Limitations of Current IP Regimes?

6

What Opportunities Exist through International Treaties,

7

Agreements, Conventions, etc. for Protection of TK?
What is Traditional Knowledge?

8

What is the Economic Value of TK?

10

Why Protect Traditional Knowledge?

11

How is Traditional Knowledge Protected?

13

What is the Way Forward for African Countries in the

14

Protection of TK?
References

16

Why Protect Traditional Knowledge? | 3

Acknowledgement
This paper was produced as part of the implementation of the ATPS phase VI
Strategic Plan, 2008-2012 funded by ATPS Donors including the Ministerie van
Buitenlandse Zaken (DGIS) the Netherlands, Rockefeller Foundation, OpenSociety Foundation, UNESCO, European Union, African Union, amongst others.
The authors hereby thank the ATPS for the financial and technical support during
the implementation of the Intellectual Property Program. The authors particularly
thank the Executive Director of the ATPS Prof. Kevin Urama for his visionary
leadership and all members of his team at the ATPS. We are also grateful to theProgramme Coordinators including Mr. Joseph Wekundah of the Biotechnology
Trust Africa, Dr. Maurice Bolo (ATPS), Dr. Nicholas Ozor (ATPS), Prof. Moni
Wekesa (Mount Kenya University) for their technical supports to the Programme.

4 | Why Protect Traditional Knowledge?

List of Acronyms
ARIPO
ATPS
BTA
CSIR
IK
ILO
IP
IPR
OAPI
TCE
TEK
TK
TRIPS
WHO
WIPO
WTO

African Regional Intellectual Property Organization
African Technology Policy Studies Network
Biotechnology Trust Africa
Council of Scientific and Industrial Research
Indigenous Knowledge
International Labour Organization
Intellectual Property
Intellectual Property Right
Organisation Africaine de la Propriété Intellectuelle
Traditional Cultural Expressions
Traditional Environment Knowledge
Traditional Knowledge
Trade-Related Aspects of Intellectual Property
World Health Organization
The World Intellectual Property Organization
World Trade Organization

Why Protect Traditional Knowledge? | 5

Introduction
During the desk study of the Intellectual Property (IP) Background/Environment
in target countries (Malawi, Mozambique, Swaziland, Lesotho, Tanzania,
Uganda, Ethiopia and Kenya) for the ATPS/BTA IP Programme, it was observedthat there were limited policy and legal frameworks for Traditional Knowledge(TK). Kenya is the only country that has a policy on Traditional Knowledge,
Genetic resources and Traditional Cultural Expressions but the policy is not yet
formalized; the other seven countries have none. It also has a draft policy on
Traditional Medicine and Medicinal Plants under the Ministry of Health. However,
it's only Tanzania that has a law on Traditional and alternative medicine under the
Ministry of Health. Malawi and Uganda have bills developed on Traditional
Medicine but not yet enacted. The others have no policies or legal frameworks
covering Traditional Knowledge.
The regional or international legal instruments are unlikely to address the needs
and aspirations of the individual states. The problem here is the understanding of
the economic and social values of Traditional Knowledge, in general, by theAfrican States.
This policy paper attempts to explain Traditional Knowledge, its economic andsocial values, the opportunities available to protect it, and the way forward forcountries which may wish to consider protecting Traditional Knowledge.

What are the Limitations ofCurrent IP Regimes?
The criteria set for inventions under the current Intellectual Property Rights makethem inadequate to protect Traditional Knowledge. IPRs are largely individual
rights and as such they recognize individual ownership based on time and labour
expended in coming up with the new invention, however, they do not recognize
TK. Conversely TK is owned largely by the Community and it is passed on fromgeneration to generation. In addition, TK is largely in public domain but limited tocertain families or communities, hence there is no one inventor.

6 | Why Protect Traditional Knowledge?

The main limitation of IPRs in the protection of TK is the requirement of novelty,
inventive step and commercial viability. TK does not pass the test for the threerequirements because the knowledge under TK is not new, has no inventive stepand the restriction of ownership within families or communities does not make TK
commercially viable. The families or communities in possession of specific TK
take pride in keeping it secret. Traditional Medicine men or women cannot use thecurrent IP to protect their knowledge.

What Opportunities Exist throughInternational Treaties, Agreements,
Conventions, etc. for Protection of
TK?
The Convention on Biological Diversity (CBD) was the first to develop measures
for the use and protection of Traditional Knowledge but related to theconservation and sustainable use of biodiversity. Article 8 (j) States “subject to its
national legislation, respect, preserve and maintain knowledge, innovations andpractices of indigenous and local communities embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity”.
The Agreement on Trade Related Intellectual Property Rights (TRIPS) inserted
Article 27.3 (b) which allows member states of the World Trade Organization(WTO) to use sui-generis system. This permits countries to come up withspecialized and appropriate forms of protection regimes, which can use local
legislation to protect TK.
The World Intellectual Property Organization (WIPO) is working withorganizations and indigenous and local communities in different nations toaddress the policy/legal issues on traditional knowledge protection through theIntergovernmental Committee on Intellectual Property, Genetic Resources,
Traditional Knowledge and Folklore. WIPO continues to work on this until anagreement in the text of an International legal instrument is found to protect TK
and Traditional Cultural expressions. This means WIPO recognizes the need toprotect TK.
Why Protect Traditional Knowledge? | 7

The African Model Law is mainly concerned with access to biological resources
and not with the establishment of a property rights system. It however provides afew pointers for the development of property rights over plant varieties andrecognizes the need to protect the rights of local communities over biologicalresources and their knowledge, innovations and practices.
The African Regional Intellectual Property Organization (ARIPO) and
Organisation Africaine de la Propriété Intellectuelle (OAPI) Traditional Knowledge
and Traditional Cultural Expressions (TCE) and Folklore instrument for protectionof TK, TCE and Folklore aims at providing a legal framework to protect them, and
it is formalized into a protocol (Swakopmund protocol) for protection of TK.
The collective human right of indigenous and local communities is increasingly
recognized by the International Labour Organization (ILO) (Convention 169 of
1989) and Declaration on the Rights of Indigenous people (2007). However, they
do not clearly state what can be done to address the concerns of the indigenous
people, on the protection of TK.
African states therefore have enough ground to come up with policies and legal
frameworks to protect their Traditional Knowledge.

What is traditional knowledge?
Traditional Knowledge is knowledge that is held by members of a distinct and or
sometimes acquired by means of inquiry peculiar to that culture and concerning
the culture itself or the local environment in which they exist.
TK is thus the totality of all knowledge and practices whether explicit or implicit
used in the management of socio-economic and ecological facets of life. Thisknowledge is established on past experience and observation. It is usually acollective property of a Society. Many members of the Society contribute to it overtime and it is modified and enlarged as it is used over time. It is transmitted fromgeneration to generation and it is generally an attribute of a particular group ofpeople who are intimately linked to a particular socio economic context, throughvarious economic, cultural, ritual and religious activities. TK is also dynamic innature and changes its character as the needs of the local people change.
Examples of TK include knowledge about the use of specific plants and/or parts
8 | Why Protect Traditional Knowledge?

thereof, identification of medicinal properties in plants and harvesting practices(Mbeva J., 2008).
Traditional Knowledge can be grouped into: Traditional Knowledge (TK);
Indigenous Knowledge (IK); Traditional Environment Knowledge (TEK) and local
knowledge and they all generally refer to the long standing traditions andpractices of certain indigenous or local communities.
TK is a cumulative body of knowledge, know-how practices and representations
maintained and developed by people with extended histories of interactions with
the natural environment. These sophisticated set of understandings,
interpretation and meanings are part and parcel of a cultural complex thatencompasses language, naming and classification systems, resource use
practices, customs, spirituality etc. TK emphasizes the accumulation andtransmission of knowledge through generations. Local knowledge is a broader
term that refers to the knowledge of any people who have lived in an area for along period of time.
IK is the information base for a society which facilitates communication anddecision making. IK systems are dynamic and are continually influenced byinternal creativity and experimentation as well as by contact with external
systems. IK and TK about people, plants, animals and the environment, containspiritual, cultural and social aspects. Knowledge systems are passed fromgeneration to generation and are at a risk of being eroded or lost as time passes
and society changes. In Africa, IK and TK are often passed through sharedpractice and story telling and the lack of a written record of these, puts it at risk ofextinction.
TEK refers to a particular form of place-based knowledge diversity andinteractions among plants and animal species, land forms, watercourses andother qualities of the biophysical environment in a given place. An example of asociety with a wealth of TEK is the South American Kayapo people who havedeveloped an extensive classification system of ecological zones of the
Amazonian Tropical Savannah to better manage their land. For somecommunities TK takes on a personal and spiritual meaning and it can also reflect
a community's interests. Some communities like the case of the Kayapo people
depend on TK for survival.
Why Protect Traditional Knowledge? | 9

What is the Economic Value of TK?
There is a significant value of Traditional Knowledge especially Traditional
Medicine and trade with Traditional Cultural Expressions.
In Kenya, there has been an increase in trade related to traditional culturalexpressions. Kenyans are deeply involved in their traditional arts and crafts which
are part of their daily lives. This includes tourism related activities such as
traditional songs and dance, cultural artifacts such as wood and soft stones,
carvings, traditional baskets e.g. kiondo. It also covers traditional medicines
which cover products such as those of the neem tree for treatment of various
diseases; prunus africana for treatment of prostate cancer, Artemisia fortreatment of malaria, etc. This has not been quantified into money value;
however, it runs into millions of Kenya shillings.
On the African front, South Africa gets R29 billion per year from trade in Traditional
Medicine (Monder, M. et al) the San tribe of South Africa sold the right ofownership of the Hoodia plant to a British Company for about US$ 20 million. The
devils claw plant in Namibia which is used as an analgesic and anti-inflammatory
drug earns Namibia US$ 2 million annually. Prunus Africana was imported from
Kenya, Ethiopia and Cameroon by Germany in 1994 and it was worth US$150.
Worldwide the products of prunus africana fetch US$ 220 million annually.
Trade in Biopiracy also illustrates the economic values of TK. Industrial enzymes
from microbes used for fading jeans, stolen from Kenya, are worth US$600
million per year. The enzymes were collected from Lake Bogoria in Kenya. The
diabetes drug processed by microbes (Actinoplanes Sp.) from Lake Ruiru is
worth Euro 278 million; it was collected from the Lake in Kenya. There are several
other cases within the target countries but they are yet to be studied e.g. Amarulain Swaziland.
On the global scene, Australia gets an estimated annual value of A$1000 million,
China gets US$ 2.3 billion, Japan US$ 1.5 million, Republic of Korea US$ 543.5
million, Malaysia M$ 2 billion annually, Philippines US$ 10 million and Singapore
S$ 13 million from Traditional Medicine alone (WHO 2001).

10 | Why Protect Traditional Knowledge?

All these countries have established herbal industries and or pharmaceuticalcompanies that handle traditional medicines and have plenty of herbal dealers,
drug stores for herbal medicine etc. (WHO 2001).

Why Protect Traditional Knowledge?
For indigenous people, the rationale for protecting traditional knowledge centres
on questions of fundamental justice and the ability to protect, preserve, andcontrol one's cultural heritage. There is also the concomitant right to receive a fairreturn on what these communities have developed. Many areas of Traditional
Knowledge have potentially lucrative applications as shown above.
Even non-indigenous people also have a strong incentive to ensure that fair use
of TK is ensured because it has much to offer the modern society. It is increasingly
being used to assist policy making in many areas: food and diversity; health,trade and economic development. On this basis there are five reasons why TKshould be protected; these are: Equity, Conservation of biodiversity, preservationof traditional practices, prevention of biopiracy, and importance of TK in
development.
EquityTK generates value that is currently inadequately recognized and compensated.
Traditional farmers, for example, have nurtured, conserved and used both plants
and animals. They have improved the value of plant genetic resources throughcontinuous selection of the best adapted varieties. Seed companies then collectthe varieties, process and produce for sale. They are even allowed to protect thevarieties through Plant Breeders Rights and can benefit from them while thefarmers are left out. Farmers and Scientists thus rely on the genetic diversity
present in crop plants that in hundreds of generations were accumulated,
observed, selected, multiplied, traded and kept variants. The whole irony is thatscientists can protect and benefit from their innovations whereas the traditional
farmers contributions are overlooked. Farmers did not charge for the samples
that the scientists and seed companies took, hence the inequality inherent in thecurrent system of intellectual property rights.

Why Protect Traditional Knowledge? | 11

Conservation of Biodiversity
Knowledge innovations and practices of indigenous peoples and local
communities are a show of their cultures. Protection of people's culture therefore
entails preserving the link between the people and natural features including
plants and animals. Protection of TK can therefore, help conserve theenvironment and promote sustainable agriculture and food security.
Preservation of Traditional Practices
Protection of TK can provide a framework for maintaining practices andknowledge embodying traditional lifestyles. Preservation of TK helps to preserve
the self identification of people and can ensure the continuous existence ofindigenous and traditional people. This role is certainly beyond the scope of IPRs
protection foreseen in TRIPS or any other multilateral instruments. The protectionof TK through appropriate form of IPRs can raise the profile of the knowledge andmake it more attractive and worthy of preservation.
Prevention of Biopiracy
A Large number of patents have been granted on genetic resources andknowledge obtained from Africa and other developing countries. An example isthe use of patent number 5, 401, 5041 granted for wound healing properties ofturmeric acid. The innovation had been used in India for centuries prior to theregistration of the patent by USA. The Council of Scientific and Industrial
Research (CSIR) from India successfully applied for its revocation. Kenya's
kiondo was patented in Japan but this has not been revoked, same has been withthe micro-organism for fading jeans, and the energy saving jiko just to mention a
few cases.
A major concern is on how to prevent misappropriation of TK. Three suggestions
have been advanced: documentation of TK with a view of establishing a TK digital
library. This will enable states to check the possible misuse; the requirement of
proof of origin for materials to be patented; and prior informed consent.
The use and Importance of TK in Development
There is need to protect TK against loss and misappropriation. Some form ofprotection may make local communities willing to part with their TK and genetic
resources. Thus if knowledge owners are compensated, they would be
motivated to provide easy access to their TK. Moreover, they may be encouraged
12 | Why Protect Traditional Knowledge?

to conserve it and ensure future use and access. Concerning Traditional
Medicine, if IPRs are used for protection, they may reduce access to products
and treatment which are essential for a community. Government may therefore
consider promoting the use of TK and also attempt to prevent misappropriation.

How is Traditional Knowledge
Protected?
There are two paradigms employed to protect traditional knowledge using
intellectual property tools. The first protection paradigm uses created traditional
knowledge databases to give evidence of their traditional knowledge as prior art
in order to prevent perceived abuses such as biopiracy. But TK databases may
pre-empt others from securing rights over traditional knowledge since they
disclose the TK to the public nevertheless it provides some protection. However,many communities would rather keep such TK within their communities. Many
communities have their own traditional or customary laws that regulate the use of
TK. It differs from their national systems which may want to develop databases ordocument the TK, as a means of protection.
The second protection paradigm is achieved by either using the existing laws orusing legislative means to enact sui-generis laws. Currently, only a few countries
offer explicit sui-generis protection for TK, these countries are Costa Rica, thePhilippines, Peru, Thailand, and Venezuela.
Other countries are using existing laws e.g. Environmental Management Acts andother related Acts that could be used to protect the TK of indigenous
communities. However, many countries are still undecided and have argued thatthe form of protection should refer to collective human rights to protect their
distinct identities; religious and cultural heritage. Others are waiting for theregional or international instruments to protect their TK. ARIPO and OAPI havecome up with the Swakopmund protocol on protection of TK and Expression of
Folklore and the instrument could be a template for member countries while
ARIPO and OAPI could also protect TK on behalf of the member countries. An
International Instrument is still under discussions in WIPO.

Why Protect Traditional Knowledge? | 13

What is the Way Forward for African
Countries in the Protection of TK?
Given the economic value of TK, especially for Traditional Medicine andTraditional cultural expressions in which Africa is rich in, policies and legal
frameworks should be developed to protect the TK available in Africa. This is
acceptable through TRIPS 27.3 (b). South Africa and countries in the Far East are
making a lot of money from Traditional Medicine. They even have companies andindustries for herbal medicine which play a key role in reducing the unemployment problem which most African countries are experiencing due to lackof industries. This should be taken up as a priority to reduce biopiracy which hascost Africa millions of US dollars.
The African States should bank on the regional instrument (through ARIPO) andlater on the International instrument (through WIPO) to protect TK. This meansthat the International negotiations should continue until a proper instrument forprotecting TK is in place at WIPO.
Apart from that, most African States are members of the International treaties,
conventions, and protocols for IPR. This means that they still have an obligation
to develop clear policies and legal frameworks for classic IPRs. Together with theprotection of TK, African countries can be able to develop economically. To
benefit from the IPRs, the African countries must develop capacities in terms ofhuman and physical infrastructure in Science and Technology.

Conclusions
The development of a sui-generis system could take the form of a single
comprehensive regime like the way Kenya is going; with a policy on TK, genetic
resources and Traditional Cultural Expressions. This form of legislation could
attract a lot of publicity and interest from the owners as well as the policy makers.
However, it needs to be interactive and participative by all the stakeholders.
The second form of protection through sui-generis could involve a set of specificregimes adapted to various forms of TK or could be done through incorporation
14 | Why Protect Traditional Knowledge?

to existing laws pertaining to the particular TK. This requires a lot of review of theexisting laws. Although it can be done without problems, the focus could be less.
The African states must take a clear policy on the protection of TK in addition to
the classic IPRs, given the economic value of TK. Already ARIPO/OAPI havecome up with the Swakopmund protocol on the protection of TK and Expressionof Folklore.

Why Protect Traditional Knowledge? | 15

References
ATPS (2006). Technopolicy Brief 13 - What is sui-generis system of intellectual
Property Protection? By Moni Wekesa.
Mbeva J. (2008). A paper presented to the media update meeting on disclosureof TK for economic development.
Monder, M., Ntuli L. Diedericks N, Mavundia, K. (2007). South Africa's Traditional
Medicine.
Tonina, Simeone (2004). Indigenous Traditional Knowledge and Intellectual
Property Rights.
WHO (2001). Regional committee of Western Pacific Region on Traditional
Medicine.
Wikipedia the free encyclopedia (2009). Traditional Knowledge.

16 | Why Protect Traditional Knowledge?

The African Technology Policy Studies Network (ATPS) is a multidisciplinary network of researchers, private sector actors andpolicy makers promoting the generation, dissemination, use andmastery of science, technology and innovation (ST&I) for African
development, environmental sustainability and global inclusion.
ATPS intends to achieve its mandate through research, capacity
building and training, science communication/dissemination andsensitization, participatory multi-stakeholder dialogue,knowledge brokerage, and policy advocacy.

African Technology
Policy Studies Network
Contact the Executive Director at
The Chancery, 3rd Floor, Valley Rd.
P O Box 10081, 00100-Nairobi, Kenya
Tel: (254 020) 2714092, 2714168,
2714498, 2723800
Fax: (254 020) 2714028
http://www.atpsnet.org

Science, Technology and Innovation
for African Development

ISBN: 978-9966-030-43-6