WIPO Journal - World Intellectual Property Organization

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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
Asia and America where it is sold cheaply. This has destroyed the foreign market in the original cloth. The domestic/regional market is also under threat because cheap copies of the cloth find their way into the Ghanaian and regional market. 53 What has been highlighted above indicates very clearly why there is need to protect handicrafts. The industrial property in the handicrafts belongs in law and in equity to the local communities that produce them. Accordingly, the Industrial Property Act 2010 contains specific provisions on the protection of IKS in handicrafts. It is to the discussion of these provisions that we now turn. Registration of handicrafts Designs or objects with an aesthetic or functional configuration, including clothing, pottery and any other handicrafts that constitute inseparable elements of culture, the spirituality of the tradition of any local community may be registered in the register of traditional knowledge even where there has been commercial exploitation, provided the object or design has not lost the essential link identifying the cultural or spiritual tradition of the local community. 54 The application must satisfy the provisions of cl.115 and must contain a description of the general characteristics of use, methods of making, the selection, preparation and use of raw materials of each type of product and a general description of the history and evolution of the handicraft. 55 The local community owning the handicraft may register individual parts of the handicraft which are created after registration and which may be added to the general registration. 56 Exclusive rights in registered handicrafts Subject to the provisions of s.120, exclusive rights in registered handicrafts apply to the whole series or types of handicrafts as described in the register. The rights are to prevent the making, using, stocking, selling, offering for sale, importing or exporting by third parties without consent any products that may in any manner lead to confusion by consumers as to the origin, creation or making of the handicrafts. 57 Conclusions Botswana’s Industrial Property Act 2010 is a remarkable piece of legislation for several reasons. First it makes IKS of an industrial nature part of mainstream intellectual property, thereby facilitating its registration and protection. These provisions on the protection of IKS are the best in the common law world and should definitely serve as a model for other countries that have embarked or might embark on a similar exercise to emulate. Secondly, it facilitates equitable benefit sharing through a system of licensing and compulsory licensing. Thirdly, it puts a high premium on local communities who produce the IKS by endorsing their right to recognition and by facilitating their right to equitable remuneration. Fourthly, it resolves the issue of ownership by recognising that IKS may be owned by an individual or the entire community. Fifthly, it eliminates the rampant commoditisation/commercialisation of IKS by prohibiting the assignment, cession or transfer of the rights in IKS granted under the Act. This will ensure that the ownership of IKS remain in the relevant community in perpetuity. Sixthly, it surmounts the thorny issue of duration by granting IKS indefinite duration. Seventhly, by facilitating the registration of IKS, the Act thereby recognises that 53 See further, J. Asmah, “Historical Threads: Intellectual Property Protection of Traditional Textile Designs: The Ghanaian Experience and African Perspectives” (2008) 15 International Journal of Cultural Property 271. 54 Industrial Property Act 2010 s.126 (1). 55 Industrial Property Act 2010 s.126 (2) read with s.115. 56 Industrial Property Act 2010 s.126 (3) read with s.116(2) and 121(4). 57 Industrial Property Act 2010 s.126(4). The Juridification of Indigenous Knowledge Systems in Botswana 155 (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 and 14: Registration of traditional knowled
Page 15: ight to equitable remuneration and
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
Page 85 and 86:
“• the refusal relates to a pro
Page 87 and 88:
Nevertheless, so far as s.51(1) is
Page 89 and 90:
“In bridging the different polici
Page 91 and 92:
a third party’s access to their I
Page 93 and 94:
Competition Law and IP Abuse Preven
Page 95 and 96:
should further take into account
Page 97 and 98:
Cumulative Index This index has bee
Page 99 and 100:
Parallel imports economics and law,
Page 101:
*412409* 2011 VOLUME 2 ISSUE 2 THE
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WIPO Journal - World Intellectual Property Organization

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