WIPO Journal - World Intellectual Property Organization

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