Protecting traditional knowledge - Does secrecy offer a solution?

L Tong

doi:10.4314/pelj.v13i4.65048

Abstract

The shortcomings of using the intellectual property system to safeguard the interests of traditional knowledge holders have received considerable attention. Laws that guard against the disclosure of secret traditional knowledge to non-community members may offer a low-cost and accessible way for traditional communities to prevent the misappropriation of their traditional knowledge. This paper reviews the concerns that may arise when holders of traditional knowledge attempt to rely on claiming unfair competition and contract laws to protect their traditional knowledge.

Highlights

The search for new information that will lead to advances in science and technology, combined with the economic imperative to acquire exclusive rights over commercially profitable knowledge has threatened the supply and conservation of natural resources, and impacted on the cultural lives of many traditional communities which hold valuable traditional knowledge.[1]
Patents have been based on the wound-healing powers of turmeric[3] and the appetite-suppressant properties of the Hoodia plant,[4] and sacred chants and traditional music have been used by western artists to create musical works for which they claim copyright[5] intellectual property rights over intellectual creations derived from traditional knowledge may be acquired legally, the failure to recognise the contributions of the traditional knowledge holders and to share the benefits the economic gains derived from intellectual property rights have made the relationship between traditional knowledge and the intellectual property system a strained one.[6]
One issue among the many debated in connection with the recognition and protection of traditional knowledge is whether or not it is possible for traditional knowledge holders to use the existing intellectual property system to their advantage.[7]

Summary

General

The search for new information that will lead to advances in science and technology, combined with the economic imperative to acquire exclusive rights over commercially profitable knowledge has threatened the supply and conservation of natural resources, and impacted on the cultural lives of many traditional communities which hold valuable traditional knowledge.[1]. There is little doubt that the use of secrecy to protect traditional knowledge is an attractive option.[10] Conceptually, secrecy provides a form of protection that may either already be part of an existing custom, for example where certain sacred rites or practices are known only to certain members of the community; or it may be an external protective mechanism in response to the threat of misappropriation by nonmembers In the latter case secrecy may be used to stop the unauthorised flow of information from the traditional knowledge holders to outsiders either because the traditional knowledge holders wish to retain a measure of control over the way in which the secret information is used or commercialised, perhaps in anticipation of being able to negotiate with third parties, or to prevent others accessing it. This article will consider only two forms of legal recourse to protect secret traditional knowledge, namely unlawful competition and contract

Preliminary issues

The protection of secret traditional knowledge in South Africa

The shortcomings of secrecy