The Role of Traditional Leadership and Customary Law under Sui Generis Systems of Intellectual Property Rights in Traditional Knowledge

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The papers contained herein are the final papers from the 2017 National Symposium on the  Promise of the Declaration of Rights under the Constitution of Zimbabwe, held at Cresta Lodge,  Harare, Zimbabwe, on 8 and 9 November 2017, under the Zimbabwe Human Rights Capacity  Development Programme  (hereinafter ‘Zimbabwe Programme’). As to their substantive content,  they analyse and expand upon the following topics: inclusive education and the rights of persons  with disabilities; corporal punishment; litigating elections petitions; intellectual property rights and traditional knowledge; and foreign investment and the constitutional protection of property rights. 

The overall objective of the Zimbabwe Programme is: to contribute to enhanced enjoyment of constitutional rights in Zimbabwe, through legislation, policies, practices and decision-making being increasingly informed by international human rights standards and principles. Its main implementing partners at the time of writing  are: Raoul Wallenberg Institute of Human Rights and Humanitarian Law (hereinafter ‘RWI’) at  Lund University, Sweden; Centre for Applied Legal Research (hereinafter ‘CALR’) in Harare,  Zimbabwe; College of Business, Peace, Leadership and Governance at Africa University in Mutare,  Zimbabwe; Faculty of Law at Midlands State University in Gweru, Zimbabwe; Herbert Chitepo  School of Law at Great Zimbabwe University in Masvingo, Zimbabwe; Faculty of Law at  University of Zimbabwe in Harare, Zimbabwe; Faculty of Law at Ezekiel Guti University in  Bindura, Zimbabwe; and Zimbabwe Human Rights Commission. The Zimbabwe Programme is  supported by Swedish development cooperation. 

The national symposium is an annual event under the Zimbabwe Programme. It is co-organised  by RWI together with the academic partner institutions and CALR, and is a forum where research  funded and conducted during the year is packaged and presented before an audience representing  diverse sectors of Zimbabwean society, thereby allowing the presenters and participants to in  plenary engage in vibrant discussions around the topics at hand and together deliberate on the way  forward with regard to critical human rights reform issues. The feedback and experiences shared during the national symposium also aid and feed into the preparation of final papers for publication  and dissemination. In addition to the just said, the papers contained herein have undergone a peer  review process with the reviewer’s feedback taken into account so as to improve their overall  quality. 

With that said, RWI would like to conclude by thanking the researchers for their hard work and determination, which resulted in these final papers that make up this collection. RWI would also  like to thank Swedish development cooperation for supporting the research and thereby ensuring it saw the light of day. Finally, it is RWI’s sincere wish that you, the reader, find these papers thought-provoking and informative as well as an eventual source of inspiration and guidance in your own potential efforts towards furthering the provisions contained in the 2013 Constitution of  Zimbabwe and its comprehensive Declaration of Rights. 

About the Raoul Wallenberg Institute: 

The Raoul Wallenberg Institute, based in Lund, Sweden, is a research and academic institution with offices, programmes and convening power covering 40 countries. RWI  combines evidence-based human rights research with direct engagement in close collaboration with its partners to bring about human rights change for all. The Institute is  named after Raoul Wallenberg, the Swedish diplomat who saved tens of thousands of Jews and other people at risk in Hungary at the end of World War II.   

For more information on RWI, please visit: www.rwi.lu.se 

The Role of Traditional Leadership and Customary Law under Sui Generis Systems of Intellectual Property Rights in Traditional  Knowledge 

 

Gabriel Muzah* 

 

1 Introduction 

The global economy is transforming into a knowledge based economy where knowledge  becomes valuable when recognised and transferable within intellectual property rights  frameworks. Economic globalisation has brought close attention to different kinds of knowledge  in various parts of the world resulting in the establishment in 2000 of the World Intellectual  Property Organisation (WIPO) Intergovernmental Committee on Intellectual Property and  Genetic Resources, Traditional Knowledge and Folklore (IGC) where member states discuss the  intellectual property issues that arise in the context of access to genetic resources and benefit- sharing as well as the protection of traditional knowledge and traditional cultural expressions.1   Existing intellectual property rights frameworks have been proposed as possible alternative  means that could be utilised for the protection of traditional knowledge,2 but indigenous  communities have demanded an instrument that recognises its holistic nature and the role that  traditional leadership and customary laws protection systems play in the protection and  preservation of their knowledge.3 This approach entails that measures for the protection of  traditional knowledge are mutually supportive with other international systems and processes  discussed in the Convention on Biological Diversity (CBD) and the Food and Agricultural  Organization of the United Nations (FAO), the International Labour Organisation (ILO)  Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (ILO  Convention 169 or Convention) and the United Nations Declaration on the Rights of Indigenous  peoples (UNDRIP or Declaration). As part of this international dialogue, many members of the  IGC – including Brazil, Colombia, Egypt, Ethiopia, Indonesia, Iran, Morocco, the African  Group, the Andean Community, the Asian Group, the Russian Federation and Venezuela – have  called for the establishment of sui generis systems to complement or supplement the intellectual  property rights system.4 These systems are premised on traditional leadership and customs of  indigenous communities making customary law a vital area of inquiry as it has attained  importance for the definition of national, regional and international regulations on traditional  knowledge and genetic resources which is perceptible from an analysis of national constitutions. 

However, despite the recognition of traditional knowledge within intellectual property rights  frameworks, a gap in literature exists with regard to the effectiveness of customary law as a  protective system. To remedy the gap, this paper aims at analysing the role of customary law  under sui generis systems of intellectual property rights in traditional knowledge. The paper is  based on a desk top analysis where the following research questions will be probed:                                            

 What is the role played by customary law under the sui generis systems of intellectual property rights in traditional knowledge? 

 

 To what extent is the mutual supportiveness of this system with human rights?  

2 Relevance of the Study 

Reference to the Zimbabwean Constitution provides a platform for highlighting the importance  of customary law in defining regulations on traditional knowledge and genetic resources.  Guidance in interpreting and applying the Zimbabwean Constitution is given explicitly to the  courts, tribunal, forum or body in regard to the rights contained in Chapter 4, i.e. the Declaration  of Rights. In Section 46(1)(a) the courts are enjoined when interpreting the Declaration to “give  full effect to the rights and freedoms enshrined in this chapter”. The word “full” entails that no  margin of appreciation of international law is to be permitted under Zimbabwean law. In  applying the Declaration of Rights, the courts must also adhere to “the values and principles that  underlie a democratic society based on openness, justice, human dignity, equality and freedom”,  and, in particular, the principles and values set out in section 3 (part of Chapter 1) which sets out  “founding values and principles” which include the supremacy of the Constitution, the rule of  law, good governance and recognition of the equality and inherent dignity and worth of all  human beings. Furthermore, the courts in applying and interpreting the Declaration of Rights  must take  into account international law and all treaties and conventions to which Zimbabwe is a  party (section 46(c)), may consider relevant foreign law (section 46(e)) and must pay due regard to  all the provisions of the Constitution, in particular the national objectives (section 46(d)). So, for  example, in the case of misappropriation of traditional knowledge belonging to an indigenous  community of Zimbabwe, in interpreting the Declaration of Rights, the courts must take into  account the right to preservation of traditional knowledge which forms part of the national  objectives in Chapter 2 and international laws and treaties which likewise secure these rights.  Accordingly, the jurisprudence of international human rights law applying these instruments must  be taken into account by the proposed Constitutional Court when interpreting and applying the  Declaration of Rights. 

3 Agreements and Fora on Human Rights, Indigenous Peoples and Traditional  Knowledge 

The integrity of traditional knowledge systems is maintained through the recognition of its  holistic nature. It is linked to biodiversity, landscapes, cultural and spiritual values and customary  laws.  It can be best illustrated by the intrinsic relationship a Zimbabwean traditional community  has with the Marula tree which forms an important part of their diet, tradition and culture to an  extent of referring to it as the “tree of life” due to its ability to provide food and medicine which  are fundamental human needs.5 The ripe fruits are eaten raw, the kernels are eaten either raw or  roasted and fruit juice is fermented to produce children’s beverage or traditional beer, making  jam, oil processing and added to sorghum or millet porridge. The wood is used for making light  weight utensils which include drums, mortars, traditional wooden bowls and decorative curios  which are used during cultural events such as marriages and other traditional ceremonies. The  bark, leaves and roots are used for medicinal purposes to treat diarrhoea, sore eyes, toothaches,  colds and flu.6 These therapeutic claims are supported by literature with the bark and leaf extracts  having anti-diarrhoeal, anti-diabetic, anti-inflammatory, anti-septic, anti-microbial, anti-plasmodial, anti-hypertensive, anti-convulsant and anti-oxidant properties.7 This intergenerational  knowledge was developed through interaction with the environment, and such intellectual  creations are inseparably embedded. The biodiversity and landscape associated knowledge with  regards to the marula tree cannot be separated from cultural and spiritual values which are also  regulated by customary laws. According to Bash, for a variety of conceptual, historical and  political reasons, contemporary international law distinguishes between “natural” land forms,  cultural monuments, movable cultural property, the performing arts and scientific knowledge.  Indigenous peoples do not make these distinctions.8 

This holistic understanding of traditional knowledge dates back to the Mataatua Declaration on  Cultural and Intellectual Property Rights of Indigenous Peoples (1993)9 which was the first  international conference on the cultural and intellectual property rights of indigenous peoples  attended by over 150 delegates from 14 countries including indigenous representatives from Ainu  (Japan), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, USA and  Aotearoa. It underlines that indigenous flora and fauna is inextricably bound to the territories of  indigenous communities, and that land and natural resource claims must be settled in order to  promote traditional production systems. It further notes that existing protection mechanisms are  insufficient for the protection of indigenous peoples’ cultural and intellectual property rights. 

During the same year, 1993, the Convention on Biological Diversity entered into force. It has  three main objectives: “the conservation of biological diversity, the sustainable use of the  components of biological diversity and the fair and equitable sharing of the benefits arising out of  the utilization of genetic resources”. Article 8(j) requires parties to:  

respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities  embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and  promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and  encourage the equitable sharing of benefits arising from the utilisation of such knowledge, innovations and practices.10  

Article 10(c) requires countries to “protect and encourage the customary use of biological  resources in accordance with traditional cultural practices”. This set the tone of the recognition  of rights to land and traditional territories, natural resources and self-determination, as vital for  the survival of indigenous peoples and cultures. The NGO resolution on farmers’ rights at the  UN Food and Agriculture Organisation Conference in Leipzig in 1996 further emphasised the  importance of recognising that collective knowledge is intimately linked to cultural diversity, land  and biodiversity and cannot be dissociated from either of these three aspects. It became the  precursor to the recognition of farmers’ rights, for the first time, in a binding international  instrument. The International Treaty on Plant Genetic Resources for Food and Agriculture  (ITPGRFA) was approved by FAO in November 2001 and entered into force on 29 June 2004.  Its objectives are the conservation and sustainable use of plant genetic resources for food and  agriculture (i.e. agricultural biodiversity) and the fair and equitable sharing of benefits derived  from their use. Zimbabwe is a contracting party and ratified the convention in 2005. Article 9 sets  out the following measures that government should take to protect and promote farmers’ rights:  

(a) protection of traditional knowledge relevant to plant genetic resources for food and agriculture;  

(b) the right to equitably participate in sharing benefits arising from the utilisation of plant genetic resources for  food and agriculture; 

(c) the right to participate in making decisions, at the national level, on matters related to the conservation and  sustainable use of plant genetic resources for food and agriculture. 

Headquartered in Geneva, Switzerland, the International Labour Organisation was the first UN  body that specifically dealt with indigenous matters. Work started in 1926 with the development  of standards for the protection of indigenous workers. ILO first focused more on the integration  of indigenous workers into mainstream society than on dealing with and securing customary  indigenous rights. This approach changed when Convention No. 169 concerning Indigenous and  Tribal Peoples in Independent Countries was adopted in 1989. This treaty entered into force in  1991. Convention 169 focuses on land rights, labour, social security and education. While Article  15(1) provides for a rights-based approach to natural resources and thus complements the 1992  Rio documents, the issues of traditional knowledge and intellectual property rights are beyond the  scope of Convention 169:11  “The rights of the peoples concerned to the natural resources  pertaining to their lands shall be specifically safeguarded. These rights include the right of these  peoples to participate in the use, management and conservation of these resources.” The  Convention does not define who the indigenous and tribal peoples are but provides criteria for  describing the peoples it aims to protect. Article 1(2) states: “Self-identification as indigenous or  tribal shall be regarded as a fundamental criterion for determining the groups to which the  provisions of this Convention apply.” Article 1(1) describes the difference between tribal and  indigenous peoples which is also of relevance for the interpretation of the CBD. These treaties  speak of “indigenous and local communities” without giving any indications who might be the  actual members of these groups. According to Convention 169, the following distinction is made:  1) tribal peoples: their social, cultural and economic conditions distinguish them from other  sections of the national community. Their status is regulated wholly or partially by their own  customs or traditions or by special laws or regulations, and 2) indigenous peoples: are regarded as  indigenous on account of their descent from the populations which inhabited the country, or a  geographical region to which the country belongs, at the time of conquest or colonisation or the  establishment of present state boundaries. Do, irrespective of their legal status, retain some or all  of their own social, economic, cultural and political institutions. The main drawback of  Convention 169 is the very limited membership of currently 22 states, of which Zimbabwe is yet  to be part. Although it is legally binding for its members, it does not include an enforcement and  compliance mechanism. The specific importance of this Convention for indigenous peoples  living in its member states specifically in the context of traditional knowledge and intellectual  property rights was recently underlined by a judgement of the Supreme Court of Costa Rica.  While supporting the future patentability of inventions “essentially derived from the knowledge  associated with traditional biological practices or cultural practices in the public domain” in Costa  Rica, the Supreme Court also stated that such an amendment “is a change that directly affects the  interests of indigenous communities, and, as a result, in conformity with the 169 Convention this  amendment must be consulted …”. This judgement supports the call by indigenous peoples’  organisations to be formally included in the development of national intellectual property  regulations that would cover their genetic resources and traditional knowledge. 

The most comprehensive expression of indigenous peoples is found in the 2007 United Nations  Declaration on the Rights of Indigenous Peoples. The UN General Assembly, in adopting the  Declaration on 17 September 2007, referred to it as a “major step forward towards the  promotion and protection of human rights and fundamental freedoms for all”. It stresses the  right to, inter alia:

• Self-determination, representation and full participation;  

• Special measures to control, develop and protect sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of flora and fauna and oral traditions;  

• Control access and assert ownership over plants and animals vital to indigenous cultures; and to own, develop, control and use the lands and territories, including flora and fauna and other resources which they have traditionally owned or otherwise occupied or used;  

• Free, prior and informed consent (FPIC); 

• Just and fair compensation for any such activities that have adverse environmental, economic, social, cultural or spiritual impact; and  

• Collective as well as individual human rights. 

Although the UNDRIP is not legally binding and consequently does not provide for compliance  and enforcement mechanisms, its provisions add to the existing body of customary international  law, and is a valuable reference point when articulating the rights of indigenous peoples.  

Relevant member states of the African Regional Intellectual Property Organization (ARIPO)  adopted the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions  of Folklore on 9 August 2010 at Swakopmund in the Republic of Namibia. This was in  accordance with the objectives of ARIPO generally and in particular Article III(c), which  provides for the establishment of such common services or organs as may be necessary or  desirable for the coordination, harmonisation and development of the intellectual property  activities affecting its member states. The Protocol recognises the intrinsic value of traditional  knowledge, traditional cultures and folklore, including their social, cultural, spiritual, economic,  intellectual, scientific, ecological, agricultural, medical, technological, commercial and educational  value and further emphasises that legal protection must be tailored to the specific characteristics  of traditional knowledge and expressions of folklore, including their collective or community  context, the intergenerational nature of their development, preservation and transmission, their  link to a community’s cultural and social identity, integrity, beliefs, spirituality and values, and  their constantly evolving character within the community concerned. The purpose of this  Protocol is: “(a) to protect traditional knowledge holders against any infringement of their rights  as recognized by the Protocol; and (b) to protect expressions of folklore against  misappropriation, misuse and unlawful exploitation beyond their traditional context”. The  Protocol came into force on 11 May 2015, three months after the government of the Republic of  Zimbabwe deposited the sixth instrument of ratification,12  and became the latest sui generis system  of intellectual property rights in traditional knowledge. 

4 The Relevance of Traditional Leadership and Customary Law as the Primary  Regulatory Mechanism over Uses of Traditional Knowledge 

The relevance of traditional leadership and customary law as the primary regulatory mechanism  over uses of traditional knowledge is deep rooted in the recognition of the holistic nature of  traditional knowledge and its expression through substantive legal principles. Chapter 15 of the  Zimbabwe Constitution recognises the institution, status and role of traditional leaders under  customary law. It further provides that a traditional leader is responsible for performing cultural,  customary and traditional functions of a chief, head person or village head for his or her  community. The functions of these leaders include, among others: the promotion and upholding  of cultural values of their communities and, in particular, to promote sound family values; taking measures to preserve the culture, traditions, history and heritage of their communities, including  sacred shrines; facilitating development; in accordance with an Act of Parliament, to administer  communal land and to protect the environment and to resolve disputes amongst people in their  communities in accordance with customary law. This implies that traditional leaders have the  capacity to regulate the use of traditional knowledge using customary laws as a mechanism. The  Zimbabwean High Court confirms customary law as a primary regulatory mechanism as decided  in Munodawafa v. Masvingo District Administrator & Others13  where the plaintiff brought an action  for an order declaring that the customary laws of succession were not observed nor given due  consideration in the appointment of the fifth defendant as chief, directing the responsible  minister to recommend to the president that the fifth defendant should be removed from the  chieftainship, and requiring that a meeting of the elders of the clan be convened to elect the most  suitable candidate. The fifth defendant argued that the Court no longer had jurisdiction in such  matters in view of the wording of section 283 of the 2013 Constitution. This provides that an Act  of Parliament must provide for, inter alia, the appointment, suspension, succession and removal  of traditional leaders, in accordance with the prevailing culture, customs, traditions and practices  of the communities concerned. However, the appointment, removal and suspension of chiefs  must be done by the president on the recommendation of the provincial assembly of chiefs  through the National Council of Chiefs and the minister responsible for traditional leaders and in  accordance with the traditional practices and traditions of the communities concerned. Disputes  concerning the appointment, suspension and removal of traditional leaders must be resolved by  the president on the recommendation of the provincial assembly of chiefs through the minister  responsible for traditional leaders. The plaintiff argued that, as the summons had been issued  before the 2013 Constitution came into effect, the matter fell to be dealt with in terms of the  procedure previously applicable. It was held that constitutionally, as provided for by section 171,  the High Court has inherent jurisdiction to hear all civil and criminal matters throughout  Zimbabwe. The High Court is therefore always a forum of jurisdiction that can be selected by the  parties, and the Court will exercise its jurisdiction where it is clear that it should do so. Critically,  however, where domestic remedies for resolving the issue are provided, as here, the Court will  want to know why it should exercise its inherent jurisdiction if such remedies have not been  exhausted. There was no reason why the remedies provided in section 283 of the Constitution  should not be exhausted first.14    

Defining traditional knowledge also provides guidance on the relevance of customary law. The  Swakopmund Protocol defines traditional knowledge as any knowledge originating from a local  or traditional community that is the result of intellectual activity and insight in a traditional  context, including know-how, skills, innovations, practices and learning, where the knowledge is  embodied in the traditional lifestyle of a community, or contained in the codified knowledge  systems passed on from one generation to another. The term shall not be limited to a specific  technical field, and may include agricultural, environmental or medical knowledge, and knowledge  associated with genetic resources. This knowledge can only be effectively protected in accordance  with laws, norms and practices of these local or traditional communities. These laws, norms and  practices are defined as customary law by the said Protocol. Riley notes that:  

[t]ribal law is drawn from a tribe’s traditional customary law, tribal belief systems, and other contemporary forms of tribal governance, including ordinances and tribal constitutions. It therefore reflects not only substantive legal 
principles, but also the cultural context from which they evolved. Through tribal law, indigenous governance of cultural property and traditional knowledge will correlate specifically to the works tribes seek to protect, allow 
for forms of punishment consistent with the community's values, and properly incentivize behavior that is good for the community at large.15  

Traditional knowledge can also be defined in relation to how it is developed, responds and adapts  to environmental, social, cultural and economic pressures and demands. A WIPO report notes:  “What makes knowledge ‘traditional’ is not its antiquity: much traditional knowledge is not  ancient or inert, but is a vital, dynamic part of the contemporary lives of many communities  today. It is a form of knowledge which has a traditional link with a certain community:”16 This  dynamism also subsists in customary law as noted by one judicial decision: “[O]ne of the most  striking features of native custom is its flexibility; it appears to have been always subject to  motives of expediency, and it shows unquestionable adaptability to altered circumstances without  entirely losing its character.”17 The link between traditional knowledge and customary law  suggests that solutions to traditional knowledge issues drawn from customary law can succeed.  Customary law arguments have been used to support claims to intellectual property rights in  traditional knowledge. An example is an Australian case involving aspects of copyright law,  Yumbulul v. Reserve Bank of Australia, where the plaintiff asserted claims against the Federal  Reserve Bank of Australia and the agency that represented the plaintiff in connection with a  license agreement to reproduce on a commemorative ten dollar note an indigenous design that he  made. The court found that the plaintiff inherited from his mother, a member of the Galpu clan,  the right to make the traditional design that was the subject matter of the law suit. Unchallenged  evidence was presented to the court that the “attainment of the right to make such a [design] is a  matter of great honour, and accordingly abuses of rights in relation to the careful protection of  images on such poles is a subject of great sensitivity”.18 This then becomes evident that the role  of customary law under the Swakopmund Protocol is to act as the primary regulatory mechanism  as it is within the scope of recognising the holistic nature of traditional knowledge. 

5 Mutual Supportiveness of the Swakopmund Protocol with Human Rights  

The preamble of the Swakopmund Protocol acknowledges the value of traditional knowledge  systems and their contribution to local and traditional communities as well as “all humanity”. It  further expresses the need: to recognise and reward the contributions made by such communities  to the conservation of the environment, to food security and sustainable agriculture, to the  improvement in the health of the populations, to the progress of science and technology, to the  safeguarding of cultural heritage, to the development of artistic skills, and to enhancing a diversity  of cultural contents and artistic expressions. The preamble also underscores the need to respect  the continuing customary use, development, exchange and transmission of traditional knowledge  and expressions of folklore by traditional and local communities, as well as the customary  custodianship of traditional knowledge and expressions of folklore. Meeting the needs of the  holders and custodians of traditional knowledge and expressions of folklore is an important aim  of the Protocol. Contained in this aim is the empowerment of the holders of traditional  knowledge and expressions of folklore, in order for them to exercise “due control over their  knowledge and expressions”. The preamble emphasises that the protection of traditional  knowledge and expressions of folklore must be “tailored” to the specific characteristics of such  knowledge and expression.  

This is in support with the provisions the International Covenant on Economic, Social and  Cultural Rights 1966 (ICESCR, entered into force in 1976) which establishes the right to self- determination, including the right to dispose of natural resources, implying also the right to protect these resources including intellectual property. The Protocol also makes available the  protection of intellectual property to traditional communities as it conceptualises the sui generis  protection of traditional knowledge in line with Zimbabwe’s constitutional provisions, which  states that all are equal before the law and are entitled without any discrimination to equal  protection of the law. Prior to this sui generis system of intellectual property rights in traditional  knowledge positive protection through existing mechanisms tended to discriminate traditional or  local communities as they did not recognise the holistic and collective nature of these rights. This  is evident in the Australian case of Bulun Bulun v. R & T Textiles Party Ltd. 19 The suit was based in  part on a claim of equitable ownership of the design by one of the plaintiffs, an artist, on behalf  of his indigenous group. The plaintiffs contended that under indigenous customary law the  indigenous people were the traditional owners both of the body of ritual knowledge from which  the painting was derived and of the subject matter of the painting. While acknowledging the  possible application of indigenous intellectual property law from 1788 (when Australia was first  occupied by the Europeans) to 1912 (when the Copyright Act was passed), the court held that  the notion of “communal title” advocated by the plaintiffs could no longer be supported under  Australia’s legal system where copyright matters were now governed entirely by statute. The court  decision is supported by the language in section 8 of the current Copyright Act that “copyright  does not subsist otherwise than by virtue of this Act”. The Court observed that under the  Copyright Act, copyright is owned by the “author of a work”, a concept held to exclude any  notion of group ownership in a work unless it is a “work of joint authorship” within the meaning  of the Act.20  

The Protocol extends protection to traditional knowledge that is: (i) generated, preserved and  transmitted in a traditional and intergenerational context; (ii) distinctively associated with a local  or traditional community; and (iii) integral to the cultural identity of a local or traditional  community that is recognised as holding the knowledge through a form of custodianship,  guardianship or collective and cultural ownership or responsibility. Such a relationship may be  established formally or informally by customary practices, laws or protocols.  It further prescribes  the beneficiaries of protection as the owners of the rights shall be the holders of traditional  knowledge, namely the local and traditional communities, and recognised individuals within such  communities, who create, preserve and transmit knowledge in a traditional and intergenerational  context in accordance with the provisions of section 4. This can be interpreted as providing the  right for collective property and protection against being deprived of that property. This is  mutually supportive of the Declaration of Rights as set out in Chapter 4 of the Constitution of  Zimbabwe which provides for the right to own property alone as well as in association with  others. It also provides for the right freely to participate in the cultural life of the community, to  enjoy the arts and to share in scientific advancement and its benefits. This provision implies the  protection of rights over advancements and innovations based on traditional knowledge.   

While not legally binding, UNDRIP affirms a positive right of indigenous people to maintain,  control, protect and develop their cultural heritage, traditional knowledge and traditional cultural  expressions, as well as the manifestations of their sciences, technologies and cultures, including  human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora,  oral traditions, literatures, designs, sports and traditional games and visual and performing arts.  These set of rights are potentially covered by section 9 of the Swakopmund Protocol which  follows the established trend to link the use of traditional knowledge to the two principles that  became prominent in the Convention of Biological Diversity: the principle of prior informed  consent and the principle of sharing benefits. Section 9 provides that the protection to be  extended to traditional knowledge holders shall include the fair and equitable sharing of benefits arising from the commercial or industrial use of their knowledge, to be determined by mutual  agreement between the parties. The national competent authority shall, in the absence of such  mutual agreement, mediate between the concerned parties with a view to arriving at an agreement  on the fair and equitable sharing of benefits. The right to equitable remuneration might extend to  non-monetary benefits, such as contributions to community development, depending on the  material needs and cultural preferences expressed by the traditional or local communities  themselves.  

6 Conclusion 

The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of  Folklore within the framework of the African Regional Intellectual Property Organization has  made traditional knowledge become valuable as it recognises and makes it transferable through  intellectual property rights frameworks. The understanding of its holistic nature affirms the  effectiveness of traditional leadership and customary law as the primary regulatory mechanism in  this framework which is mutually supportive of the Declaration of Rights as provided in Chapter  4 of the Zimbabwean Constitution which also recognises the institution, status and role of  traditional leaders under customary law. However, it should be noted that whilst Zimbabwe has  deposited an instrument of ratification to this Protocol, it is yet to enact a statute to that effect.  The Constitution provides in section 327(2) that an international treaty which has been  concluded or executed by the president or under the president’s authority (a) does not bind  Zimbabwe until it has been approved by Parliament; and (b) does not form part of the law of  Zimbabwe unless it has been incorporated into the law through an Act of Parliament. 

 

References

 

* Lecturer, College of Business, Peace, Leadership and Governance, Africa University. 

1 See <http://www.wipo.int/tk/en/igc/>. 

2 WIPO GRTKF/IC/6/14, para. 76, statement by the delegation of the United States. 

3 WIPO GRTKF/IC/6/14, para. 228 and WIPO/GRTKF/IC/7/15/Prov. 2, para. 139, statements by the  representative of Kaska Dena Council. 

4 See WIPO, Traditional Cultural Expressions/Expressions of Folklore 

Legal and Policy Options, para. 108, n. 42, WIPO Doc. WIPO/GRTKF/IC/6/3 (2003), available at: 

<www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_6/wipo_grtkf_ic_6_3.doc>. 

                                                           

5 R. A. Street and G Prinsloo, ‘Commercially Important Medicinal Plants of South Africa: A Review’, Journal of 

Chemistry (2013). 

6 A. Maroyi, ‘Local Knowledge and Use of Marula [Sclerocarya birrea (A. Rich) Hochst.] in South Central Zimbabwe’, 

12:3 Indian Journal of Traditional Knowledge (2013) p. 398, at p. 403. 

7 J. A. Ojewole et al., ‘Sclerocarya birrea (A. Rich) Hochst [Marula] (Anarcardiaeae): A Review of Its Phytochemistry, 

Pharmacology and Toxicology and Its Ethnomedicinal Uses’, 24:5 Phytoteraphy Research (2010) p. 633, at p. 639. 

8 R. Barsh Barsh, ‘How Do You Patent a Landscape? The Perils of Dichotomizing Cultural and Intellectual  Property’, 8:1 International Journal of Cultural Property (1999) p. 14–47.  

9 See the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (1993), available  at: <http://www.ngaaho.maori.nz/cms/resources/mataatua.pdf>. 

10 Emphasis added. 

11 Text available at: <http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169>. 

12 See more at: <http://www.aripo.org/news-events-publications/news/item/54-entry-into-fo...

folklore#sthash.l7yyd46Y.dpuf> 

13 (HC 8352/11) [2015] ZWHHC 571 (23 June 2015). 

14 See <https://www.zimlii.org/zw/judgment/harare-high-court/2015/571/>. 

15 A. Riley, ‘“Straight Stealing”: Towards an Indigenous System of Cultural Property 63   

Protection’, 80 Washington Law Review (2005) p. 69, at p. 90.  

16 WIPO, ‘Intellectual Property and Traditional Knowledge 6’, available at: 

<http://www.wipo.org/freepublications/en/tk/920/wipo_pub_920.pdf>. 

17 Lewis v. Bankole, [1908] 1 N.L.R. 81, 100-01 (Nig.). 

18 Yumbulul v. Reserve Bank of Australia, at 123.  

19 Bulun Bulun v. R & T Textiles Party Ltd. (1998), 41 I.P.R. 513, 525 (Austl.). 

20 Ibid., at 525