Abstract
This chapter outlines the basics of the intellectual property rights system before proceeding to describe its challenges and advantages for the San. The theft of music, folklore, traditional art and innovations shows that the current system is inadequate to secure the full protection of indigenous rights. Yet there is room in that system for flexible, local initiatives driven by indigenous peoples to remedy the situation.
One example is the ‘research and media contract’ drafted by a San NGO and now used widely, which requires prospective researchers not only to provide full details of the applicant and of the nature, content and purpose of the research, but also to negotiate terms with an appointed San leader. This chapter shows that there are practical methods for regaining control over traditional knowledge and heritage, but indigenous peoples need to be proactive in asserting their own rights and using existing laws and tools.
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1 They include the International Covenant on Economic, Social and Cultural Rights (UN Economic and Social Council), 1966; the Convention for the Safeguarding of the Intangible Cultural Heritage (UN Educational, Scientific and Cultural Organization – UNESCO) 2003; and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (UNESCO), 2005.
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2 Trademarks that might deceive the public as to the nature, quality or other characteristics of the goods or their geographic origin do not, in the interests of the public, qualify for registration.
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3 1993 was the International Year of the World's Indigenous People. The International Decade of the World's Indigenous People commenced in 1995. In 2004 the UN declared a second such decade, as the duties of the Working Group on Indigenous Populations of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (mainly the negotiation of an international convention on the rights of indigenous peoples) were not yet complete.
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4 ‘Biopiracy’ normally refers to the unauthorized extraction of biological resources and/or associated traditional knowledge from developing countries, or to the patenting of spurious ‘inventions’ based on such knowledge or resources, without compensation.
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5 Often such patents make no reference to the relevant traditional knowledge (e.g. the Hoodia patent) or merely mention it in a cursory manner as if it is of little importance (e.g. the turmeric patent).
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6 The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore held its 11th session in July 2007. This committee engages with representatives of indigenous peoples and makes recommendations to the WIPO General Assembly on its findings (www.wipo.int/tk/en/igc).
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8 ‘Indigenous knowledge’ is understood in at least two ways: first as ‘the traditional knowledge of indigenous peoples’ and second as knowledge that is itself ‘indigenous’ (WIPO 2001).
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9 Mabo and Others v Queensland (1992) 175 CLR 1.
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10 Mathambo Ngakaeaja, a delegate from the Working Group of Indigenous Minorities in Southern Africa (WIMSA), stated that ‘the San have been treated as objects of research, and more often were not even involved in the research agenda’. He went on to make it clear that the San would in future manage and participate in any research on their people (Khoisan Identities and Cultural Heritage Conference, 12–16 July 1997, University of the Western Cape). Ngakaeaja, Mathambo et al. (1998) A San position: Research, the San and San organisations. In A. Bank (Ed.) Proceedings of the Khoisan Identities and Cultural Heritage Conference. Cape Town: University of the Western Cape, Institute for Historical Research.
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11 Foster v Mountford (1976) 29 FLR 233.
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12 A San representative organization described comprehensively in Chapter 9.
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13 WIMSA annual reports from 2000 to 2004 report on the IPR training provided to leaders around the media and research contract.
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14 Identity withheld by agreement with research subject.
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15 Produced by MELT records (www.melt.co.za), search for Sanscapes.
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16 In the 1980s, ‘model provisions’ for the protection of folklore ‘against illicit exploitation’ were adopted under the auspices of WIPO and UNESCO.
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17 www.kuru.co.bw/dancefestival.htm.
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18 Bulun Bulun and Milpurrurru v R and T Textiles Pty Ltd, Queensland Law Reports 1998, cited in WIPO (2001).
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19 The South African San Institute was requested by the !Xun and Khwe communities to revive the art and craft ventures, under the name //Naoa Djao (KFO 2006).
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20 Negotiations on the Hoodia patent began in June 2001, and the final agreement was signed in March 2003. The National Environmental Management: Biodiversity Act was only promulgated in 2004.
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I eat the Xhoba and then I no longer feel hungry or thirsty. I eat it when I am feeling weak and then I feel strong and virile. I eat it when I have a bad stomach and then I feel better. (Piet Rooi, Andriesvale, South Africa, January 2003)
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Chennells, R. (2009). Putting Intellectual Property Rights into Practice: Experiences from the San. In: Wynberg, R., Schroeder, D., Chennells, R. (eds) Indigenous Peoples, Consent and Benefit Sharing. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-3123-5_11
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