Protection of Traditional Knowledge in South Africa: Does the 'Commons' Provide a Solution?

Abstract

The Kruger to Canyons Biosphere Region in the Limpopo and Mpumalanga provinces in South Africa is part of UNESCO’s World Network of Biosphere Reserves. Bushbuckridge (or Bosbokrand), an area in this region, has many traditional healers that provide primary healthcare services for people in this region. Traditional knowledge about the different types of local medicinal plants and uses are developed by these healers, and many of these plants own their sustainable use and survival to the traditional healers. Access to these plants, however, became increasingly threatened by people outside the community (muti hunters and pharmaceutical companies) who over-harvested the plants, thereby threatening the continued existence of traditional healers and traditional knowledge. The government recently tabled The Intellectual Property Laws Amendment Bill [8 of 2010] in an effort to protect traditional knowledge through existing forms of intellectual property legislation such as trademarks, copyrights, geographical indications, designs and patents. The Bill was not passed due to heavy criticism from civil society, mainly centred on the fact that traditional intellectual property law is not the most suitable avenue for protecting traditional knowledge. Finding a solution to the protection of traditional knowledge in the traditional Intellectual Property framework seems unfavorable, since traditional intellectual property law does not pay adequate regard to the communities’ ability to regulate the use of traditional knowledge through customary law and practices. This paper suggests that the discourse of the commons might provide a solution for this problem. The preliminary hypothesis is that the commons can be employed as an institution where communities can freely manage access (also from outsiders) and use of the traditional knowledge without having to rely on a model of exclusion.