1. Indigenous Knowledge & the South African National Innovation System Second International Workshop of the BRICS Project Rio de Janeiro, Brazil 25-27 April 2007 Rosemary Wolson Intellectual Property Manager: R&D Outcomes Ph: +27-12-841-4301 Cell: +27-83-784-3648 E-mail: rwolson@csir.co.za

2. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Outline Terminology The Hoodia story Some historical background Indigenous Knowledge Systems Policy Biodiversity Act Draft Regulations on Bioprospecting, Access & Benefit-Sharing Intellectual property considerations Concluding points

3. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za The Hoodia story Succulent plant found in the Kalahari Desert (spanning the borders of SA, Botswana, Namibia) used by the San indigenous people to stave off hunger and thirst Part of a CSIR research programme from the 1960’s on edible wild plants, selected on the basis of its indigenous uses by the San being documented in colonial era writings Research stopped & resumed over the years… Patent application filed in 1995 claiming use of the active compounds causing the appetite- suppressing effect License granted to Phytopharm (British co developing plant-based medicines) in 1998 – P57 Further development, sub-licensing (Pfizer, then Unilever), positive clinical trials Observer article (2001) Negotiations Memorandum of Understanding (2002) (trust, identification of beneficiaries, protection & promotion of San culture and knowledge) Benefit-sharing agreement (2003) – one of the earliest such examples Product development continues – most likely as food supplement CSIR & San have received payments Proliferation of Hoodia-based products marketed by others Free-riding on the publicity

4. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Points to note BSA both lauded as groundbreaking and criticised as flawed, failing to optimise benefits to San In reality, a compromise between parties sharing certain common purposes, but approaching from differing cultural perspectives & value systems CSIR bioprospecting policy in place Intention to share Didn’t know with whom to negotiate Lack of experience/precedent with this type of situation Use by San in SA, Botswana & Namibia Use by other indigenous peoples? Role of NGOs (local & international) Foreign newspaper article as catalyst Reported previously in SA, but not generated much response Patenting of the natural compound Examine the extent to which subsequent policy developments have addressed these issues

5. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Historical background Under apartheid, IK marginalised Still an important influence on belief systems & practices Opportunities for development, innovation, integration restricted Early priority for post-’94 government Driven by Chair of parliamentary Portfolio Committee on Arts, Culture, Science & Technology Inventory of IK Draft legislation (1997 & 2000) – over-enthusiastic Public hearings Drafting of policy Designated a DST responsibility after former Dept of Arts, Culture, Science & Technology split IKS Policy eventually adopted by Cabinet in 2004 Implementation under way

6. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Concerns raised at 2000 public hearings Urgent need for legal status for IK Unauthorised use of secret and sacred material Use of IK without benefit-sharing or recognition of holders Patenting of compounds derived from IK Retention of art & implements by universities & museums in absent of prior informed consent Misinformation & misrepresentation by researchers using IK Failure to involve indigenous communities in decision- making regarding use & dissemination of IK Exclusion of IKS from curricula, lack of awareness programmes Indigenous communities often not “formally organised”

7. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za IKS Policy Affirmation, recognition, promotion, development & protection of IK – contribute to econ & social development Underpinned by 4 key drivers Affirmation of African cultural values in the face of globalisation Development of services of traditional healers Contributing to economic development Interfacing with other knowledge systems Proposed interventions Dedicated national IKS office Ministerial advisory committee R&D programmes IKS fund IK recordal system Promotion of networking between practitioners IP protection Cross-cutting Under co-ordination of DST Other departmental responsibilities defined

8. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Affirmation of African cultural values Creeping cultural homogeneity as a consequence of globalisation Question of redress in SA context to compensate for past inequities and exclusions Recognition & respect – DACST Public awareness Directed training, research & education programmes

9. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Development of services of traditional healers Traditional medicine used extensively – affordable, accessible, culturally acceptable 70% of South Africans consult over 200,000 healers Traditional Health Practitioners Act (2004) (Dept of Health) Framework to ensure efficacious, safe, high quality treatment Traditional Health Practitioners Council Regulation of registration, training & conduct of practitioners & students

10. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Contribution of IKS to the economy 3 elements identified Need for incentives to promote continuous innovation of IKs Capitalise on processes rooted in IKS, especially health & agriculture, to contribute to sustainable development IK holders frequently poor, in rural areas – how to utilise IKS in poverty elimination & to create jobs DTI as primary implementing agency

11. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Interfacing with other knowledge systems Education Integration of IK and its associated values into school curriculum National Qualifications Framework – accreditation of IK holders? National Innovation System Holistic integration of IK into NIS, rather than development as parallel system Research funding Focus area (now discontinued) Research Chairs IK Centres Private sector linkages Establishment of small businesses based on IK services in indigenous communities Development of products based on IK Integrated human resource development Co-operation

12. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Protection of IK Need for legal benefit-sharing framework Formal recordal system of IK to be introduced Material transfer and information transfer agreements required to regulate the transfer of IK and materials associated with IK Subject to minimum standards Targeted funding instruments to link IK with science base Patent law amendments to require disclosure of origin of genetic resources or IK

13. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Governance & structures Civil society engagement in policy development Role of traditional leaders & women singled out Involvement of several government departments Interdepartmental Committee Co-ordinated by DST National IKS Office Operationalisation of Policy; liaison; funding; information dissemination; dispute resolution Advisory Committee on IKS IKS Fund Research institutions, libraries, museums Information & research infrastructure

14. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Biodiversity Act National Environmental Management: Biodiversity Act (2004) (Dept of Environmental Affairs & Tourism) Chapter on Bioprospecting, Access & Benefit-Sharing Promulgated, but implementing Regulations not yet finalised Prior informed consent Material transfer agreements & benefit-sharing agreements Bioprospecting Trust Fund (for payments due under BSAs) Draft Regulations released March 2007 Consultation workshops Comments due in 4 May 2007 Objectives: Permitting system for research, bioprospecting & export of indigenous biological resources Contents of MTAs & BSAs Ministerial authority Extent of delegation Extent of oversight Capacity

15. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Permits Research Pre-commercial, no clear commercialisation plans Using traditional knowledge Bioprospecting Ready to begin commercialisation Includes filing of patent applications, clinical trials Export Of indigenous biological resources for research Only SA citizens/permanent residents/organisations may apply May do so jointly with foreign individual or organisation Questions about liability

16. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Agreements MTAs Required where anyone has given access to the applicant to the indigenous biological resources concerned May be a community, individual, the Minister, government agency BSAs Required where anyone has given access to the applicant to the indigenous biological resources concerned Also where research is based on traditional uses of the indigenous biological resources by an indigenous community, or where knowledge or discoveries of an indigenous community relating to the indigenous biological resources concerned will be used in the research Monetary, non-monetary, “in kind”

17. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Intellectual property considerations Conventional IP system Where appropriate, make use of trade marks, collective marks & certification, geographic indications, copyright Patents – no inherent limitation on patenting of “life forms” in SA Disclosure of origin requirement in patent applications Declaration required for all complete patent applications at the SA patent office, irrespective of technical field “Information relating to any role played by an indigenous biological resource, a genetic resource or traditional knowledge or use in an invention.” Proof – bioprospecting permit? False statement grounds for revocation of patent rights Sui generis rights DTI tasked with formulating Developments in WIPO

18. 2 nd BRICS Workshop Rio de Janeiro, Brazil 25-27 April 2007 © CSIR 2006 www.csir.co.za Concluding points All of these initiatives are at an early stage Building trust between stakeholders Responsive government Broad consultation Compromises Is there adequate alignment between govt departments? Eg Compatibility of IP Framework with Bioprospecting Reg’s Capacity Broad support for initiatives, much goodwill Careful balance to be struck between ensuring protection & fair treatment on the one hand, and facilitating R&D, especially collaborative (international) R&D on the other, to avoid discouraging and disincentivising the development of the products, processes and services which can contribute to growth and poverty eradication