WIPO Journal - World Intellectual Property Organization

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152 The WIPO Journal 1. Where the subject-matter of protection is a product, the right to prevent third parties without consent from making, using, stocking, offering for sale, selling, commercialising, importing or exporting the product or any element thereof. 2. Where the subject-matter of protection is a domesticated animal, cultivated plant or any micro-organism, the right to prevent third parties without consent from reproducing, multiplying or preparing for reproduction through an offer of sale, sale, importing, exporting or any form of commercialisation; 3. Where the subject-matter of protection is design, an object of a functional or aesthetic nature including any element of handicrafts, the right to prevent third parties without consent from making or reproducing any object with a similar configuration as regards shape, colour, material, technique and the overall style or visual impression of the handicrafts that are characteristic of it; 4. Where the subject-matter of protection is a name, a symbol, an emblem or any distinctive sign of a religious, spiritual, cultural or economic nature, the right to prevent third parties without consent from any kind of use, both in maternal language or any other language that consist of an identical or similar sign on a product or on a product associated with services, making of labels, packages or other material that reproduce or contain the signs for a commercial or any other purpose. This provision is very significant because it offers to IKS protection which is mutatis mutandis similar to the protection offered to the other Intellectual Property Rights such as patents, trade marks, designs and utility models. 5. Non-distortion: registered traditional knowledge may not be distorted in any way, especially distortion of a spiritual or cultural identity of a community that owns traditional knowledge or any act that implies direct or indirect use of the knowledge for any purpose including scientific or academic research, without the owner’s consent. 41 However, where the subject-matter of protection is a product which has been put in the market in Botswana by either the owner or by a third party with the consent of the owner, commercial acts in respect of that product do not distort the cultural identity of the community or in any way contribute to it. 42 This provision is a reflection of the doctrine of exhaustion of rights in intellectual property law. 6. Confidential information: where, upon registration of traditional knowledge, an owner takes reasonable steps to keep part of the elements of that knowledge a secret, no person may disclose or acquire the undisclosed knowledge in any manner contrary to honest commercial practices. 43 This provision is in accord with s.116(2). It recognises that certain aspects of IKS may have several purposes. A plant (such as hoadia for example) may have medicinal as well as nutritional properties. The provision accordingly allows the owner of the IKS to disclose and register the medicinal properties while helping the nutritional properties secret. The licensing of traditional knowledge The Industrial Property Act 2010 contemplates that owners will enjoy the benefits of IKS and be protected through licence agreements. The process of licensing IKS will be central to the success of the whole juridification process because it goes to the heart of two of the crucial issues in the protection of IKS: the 41 Industrial Property Act 2010 s.121(2). 42 Industrial Property Act 2010 s.121(3). 43 Industrial Property Act 2010 s.121(4). (2011) 2 W.I.P.O.J., Issue 2 © 2011 Thomson Reuters (Professional) UK Limited
ight to equitable remuneration and the right to benefit sharing. The Bill provides that local communities may grant licensing agreements to exploit traditional knowledge or any element thereof to third parties, subject to the following conditions: • payment by a third party, at the discretion of the community, including payment of either a lump sum, royalty fee or participation in the benefits directly or indirectly derived from the exploitation of the knowledge; • conferment by the third party of benefits such as educational grants, medical assistance and any other benefits; • the exploitation does not lead to distortion of any kind; and • registration of the licensing agreement with the Registrar. 44 Where the exploitation of the licence leads to loss of the nature of the traditional knowledge as an element of cultural identification of that particular local community, the licensing agreement becomes invalid. 45 Compulsory licences While the debate about IKS has long focused on protection of indigenous knowledge and the people who possess it, Botswana took a step beyond to consider how to balance the public need for access through compulsory licensing. Compulsory licences are a very important feature of intellectual property law. They reflect one aspect of what are known as “flexibilities” in the protection of IPRs. Compulsory licences are usually granted in relation to patents. The Act anticipates a situation which may arise where the owner of IKS is not willing to license such IKS as provided for in s.125 of the Act. The Minister of Trade and Industry may, after hearing any local community that owns traditional knowledge, on grounds on public interest, authorise the scientific, commercial or industrial exploitation of that knowledge or any element thereof by a third party where: • the exploitation does not distort or offend the cultural identity of the local community; • the local community is given an equitable share of any benefit derived from such scientific, commercial or industrial exploitation 46 ; • the exploitation must be limited by the scope and duration of the authorisation and must expire when it can no longer be justified on the basis of public interest. 47 Restrictions of transfer, cession and assignment of rights The rights of local communities over registered traditional knowledge under the Bill may not be assigned, ceded or transferred in any manner. Accordingly, third parties may only exploit the rights in IKS through the licensing 48 and compulsory licensing 49 provisions discussed above. Section 123 is a very important provision because it ensures that individual owners and local communities can retain their ownership of traditional knowledge perpetually without losing it to biopirates, researchers and other entities. Such ownership subsists for present and future generations. 44 Industrial Property Act 2010 s.125(1)(a)–(d). 45 Industrial Property Act 2010 s.125(2). 46 Industrial Property Act 2010 s.124(1)(a) and (b). 47 Industrial Property Act 2010 s.124(2). 48 Industrial Property Act 2010 s.125. 49 Industrial Property Act 2010 s.124. The Juridification of Indigenous Knowledge Systems in Botswana 153 (2011) 2 W.I.P.O.J., Issue 2 © 2011 Thomson Reuters (Professional) UK Limited
Page 1 and 2: THE WIPO JOURNAL: ANALYSIS OF INTEL
Page 3 and 4: The WIPO Journal Table of Contents
Page 5 and 6: The Juridification of Indigenous Kn
Page 7 and 8: Indigenous knowledge systems and ex
Page 9 and 10: One of the unresolved issues was wh
Page 11 and 12: The Juridification of Indigenous Kn
Page 13: Registration of traditional knowled
Page 17 and 18: Asia and America where it is sold c
Page 19 and 20: The Economic Effects of Geographica
Page 23 and 24: minimum quality standards for regio
Page 25 and 26: Belletti et al. used a case-study a
Page 31 and 32: Sensitivity analysis As shown in Ta
Page 33 and 34: the domestic perspective. This addi
Page 35 and 36: Filing date requirements under the
Page 39 and 40: • while some provisions of the PL
Page 41 and 42: If an applicant files the internati
Page 43 and 44: However, it was noted in the Workin
Page 47 and 48: Before the Reform of the PCT in vie
Page 49 and 50: — where the priority application
Page 53 and 54: “Bending” of PCT articles in th
Page 57 and 58: Not introducing the PLT requirement
Page 59 and 60: on the future direction of global I
Page 61 and 62: IP in Global Governance: A Venture
Page 63 and 64: negotiated. 28 Similarly, the WIPO
Page 65 and 66:
IP overreach: The dangers of a boom
Page 67 and 68:
As part of the social cost or the
Page 69 and 70:
IP in Global Governance: A Venture
Page 71 and 72:
Page 73 and 74:
“geographical, historical and reg
Page 75 and 76:
facilitated the integration of the
Page 77 and 78:
Page 79 and 80:
Competition Law and IP Abuse Preven
Page 81 and 82:
Although the TRIPS Agreement has be
Page 83 and 84:
vertical licensing agreements; and
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“• the refusal relates to a pro
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Nevertheless, so far as s.51(1) is
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“In bridging the different polici
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a third party’s access to their I
Page 93 and 94:
Competition Law and IP Abuse Preven
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should further take into account
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Cumulative Index This index has bee
Page 99 and 100:
Parallel imports economics and law,
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*412409* 2011 VOLUME 2 ISSUE 2 THE
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WIPO Journal - World Intellectual Property Organization

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