INTELLECTUAL PROPERTY AND BOPIRACY IN AFRICA:PART 1

This write up focusses on Biopiracy in Africa necessitated by the instruments which protect Intellectual Property Rightsat the detriment of traditional knowledge and cultural rights. Of significance is The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

The Agreement on Trade-Related Aspects of Intellectual Property Rights was adopted on the 15th of April 1994 as part of the Marrakesh Agreement of the World Trade Organisation (WTO). The agreement bound all members of the WTO. The TRIPS Agreement provides for, inter alia, relatively high minimum standards of protection of intellectual property rights, hence giving Members the prerogative to provide much stricter and far more extensive protection if they wish to. It allows them therefore to determine the measure of protection within their legal system.

The consequences of the TRIPS Agreement had a far more reaching effect than the existing conventions. According to Laurence Helfer, unlike the Paris Convention and Berne Convention, the TRIPS had teeth and failure to comply with its provisions could be challenged through the fierce WTO dispute settlement committee whose decision could culminate in trade sanctions. This was even more disadvantageous especially to African countries because the fact that they had to comply with these mandatory standards made them lose considerable autonomy and policy space for developing their own intellectual property systems.

Biopiracy in Africa finds its potency mostly in laws relating to Patents. It is interesting to note that Intellectual Property laws do not provide adequate protection to traditional knowledge and cultural practices. A Patent is defined as an exclusive right granted by the state in an invention entitling the inventor to exclude others from making or using the particular invention. It bases its foundation in the principle that the person who invents ought to be rewarded for such invention and sharing it with society. In so doing patent law intends to promote innovation by incentivising those who do and decide to share their invention. The TRIPS Agreement provides for what is deemed to be patentable stating that patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. A similar provision can also be found in the Harare Protocol which provides that inventions for which patents are granted by the Patents Office shall be new, involve an inventive step and be industrially applicable. From these two provisions, what becomes apparent is that for an innovation to qualify as patentable it ought to be new (novel), involve an inventive step (non-obviousness) and be industrially applicable (usefulness).

While these requirements are there to protect intellectual property in inventions, they cause conflict with cultural rights because they do not adequately protect traditional knowledge and cultural practices. For example, the requirement of novelty for patentability poses problems for Traditional knowledge because the cultural practices are shared by the community as public knowledge and are passed down from generation to generation. Consequently, the indigenous communities cannot protect Traditional Knowledge and Cultural practices through patents because they are not considered new. Many members of the tribe may be privy to a particular cultural method and because communal knowledge is excluded from patent law the Indigenous Peoples will not be able to meet this requirement. Without any protection, this makes it easy for western companies to expropriate the knowledge and cultural practices as they are deemed as unowned. This leaves room for biopiracy.

Biopiracy can be defined as the “illegal appropriation of life - micro-organisms, plants and animals – and traditional, cultural knowledge that accompanies it.” The uncompensated "harvesting" of biological resources from developing states can be seen as an insidious new form of colonialism, since multinational companies reap huge benefits while none of the profits flow back to the states providing the resources. The current legal framework of patent law seems to facilitate Biopiracy more than it protects indigenous communities against it. For example, in the United State of America’s Patent law, invention or the subject matter thereof is only considered to have existed in prior art and therefore not new if it has been “patented or described in a printed publication.” Most Traditional Knowledge is not published but exists as it is passed down orally from generation to generation. This means American companies can expropriate Traditional Knowledge from indigenous communities and actually obtain patents under U.S patent law, thus violating cultural rights. This clearly shows a conflict between the law protecting intellectual property and the protection of human rights in the form of cultural rights.

Cultural Rights are human rights which relate to culture and art and often guarantee individuals and communities access to cultural practice and the freedom to participate in the culture of their choice. The Universal Declaration of Human Rights provides in Article 27 for cultural rights, particularly the right to “enjoy the arts and to share in scientific advancement and its benefits.” It is precisely the right to share in scientific advancement and benefits which is violated by intellectual property laws in their failure to provide a criterion effective for the protection of the traditional knowledge, which knowledge forms an integral part of the culture of such indigenous communities. The protection of cultural rights is so important because they are indispensable for every person’s dignity and the free development of his personality. Nonetheless Biopiracy undermines this as is evidenced by a plethora of cases where multinational companies have appropriated cultural knowledge and patented it to benefit themselves without the consent of the communities.

There therefore is need to provide lasting solutions to these very real problems burdening our Continent. in the next part of this article i will suggest possible legal frameworks which can be set up and policy measures which can curb the devastating problems that are brought by Biodiversity in Africa.