WIPO Journal - World Intellectual Property Organization

154 The WIPO Journal
Invalidity of IKS-related IP titles
Where a title of industrial property such as a patent, trade mark, industrial design or plant variety certificate
is granted without the inclusion of the IKS component of that title, then the title is unenforceable against
third parties until the written consent of the local community owning the traditional knowledge is obtained. 50
However, the local community may, where applicable and at their discretion, seek protection for the
elements of their traditional knowledge in an alternative or complementary manner by means of other
regimes of industrial property without prejudice to the rights and interests protected by the Act. 51
This is a very important provision of the Act especially in relation to IKS-related patents. Biopirates,
researchers and numerous other third parties visit developing countries. They obtain IKS from the local
communities that they visit. They then take away the IKS with them to other parts of the world. They then
use the IKS as a springboard for their patent application for a new drug or such other product without
disclosing the IKS component of their application or even acknowledging the contribution of the IKS of
the relevant community to the development of the new product. Section 127 therefore reinforces the
principles of prior informed consent, enhanced disclosure, transparency, equity and benefit sharing currently
being implemented or discussed by the CBD, the World Trade Organization (WTO) and the World
Intellectual Property Organization (WIPO). 52 The provision will force third parties who surreptitiously
obtain IKS from local communities to disclose the IKS component when applying for industrial property
titles in Botswana or abroad.
Handicrafts
Handicrafts form a special and interesting category of IKS. Various communities all over the world produce
a variety of handicrafts. Botswana for example, is renowned for its beautiful baskets and pottery. The
Swatis are famous for their wooden curvings, glassworks and kangas. The Basotho are famous for their
cone-shaped hats and colourful blankets. The Ndebele of South Africa are famous for their striking
beadwork. The handicrafts market is extremely lucrative globally. Unfortunately, the benefits of this
market do not necessarily accrue to the local communities that make the handicrafts because of three
factors. First, third parties that visit these communities as tourists or otherwise buy the handicrafts very
cheaply and then export them and sell them at exorbitant prices abroad. Secondly, some of these third
parties enter into contracts or other informal arrangements whereby the local communities are persuaded
to produce these crafts on a large scale in return for a payment from the third party. This payment is usually
very low and in local currency. The third party then exports the handicrafts in bulk to foreign markets
where he sells them in hard currency at very high prices, thereby making an inequitable and disproportionate
profit to the detriment of the community that produced the crafts in the first place. Thirdly, in the worst
of the three scenarios, third parties visit local communities in various parts of the world and fraudulently
expropriate the design of the indigenous handicraft. They then take it abroad and mass produce it with
the benefit of modern technology, thereby destroying the market in the original indigenous version. This
kind of piracy is clearly inequitable. A very good example here is the sad story of the Ghanaian Kente
cloth. This cloth is a famous handicraft and is clearly part of Ghanaian IKS and cultural heritage. The
textile design of this cloth was appropriated from Ghana. It is now mass produced in various factories in
50 Industrial Property Act 2010 s.127(1).
51 Industrial Property Act 2010 s.127(2).
52 See Nagoya Protocol art.6. See further, WTO, WIPO-WTO Colloquium for Teachers of Intellectual Property (Compilation of WTO Documents
Concerning Intellectual Property), Geneva, June 26-July 7, 2006, Part IV, IP/C/W/370/Rev.1, pp.1–19. See also the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) art.27.3(b); CBD.
(2011) 2 W.I.P.O.J., Issue 2 © 2011 Thomson Reuters (Professional) UK Limited