WIPO Journal - World Intellectual Property Organization

146 The WIPO Journal
Copyright
The traditional principles of copyright are also not suited to protect IKS:
• Ownership:
copyright law is intended to protect an individual author/creator of a work or someone to
whom he has transferred his rights. As pointed out above, IKS has, in most cases, no
individual owner. Rather, it is owned by the entire community.
• Originality:
in order to be protected by copyright law, the work must be original. IKS is not original. It
has been around since time immemorial and is in the public domain.
• Reduction to permanent form (fixation):
traditional copyright law requires fixation: the work must be recorded in some permanent
form. Some IKS does not meet this requirement because it has never been recorded or fixed
in permanent form. It is simply known to all or some members of the community.
Based on this analysis, the workshop concluded that if IKS is to be protected, traditional intellectual
property laws are not up to the task. The workshop noted, however, that the Botswana Copyright and
Neighbouring Rights Act 2000 11 contained a number of less traditional elements that already protected
most of the aspects of IKS which fall in the category of performing and visual arts. For example, although
the Act still requires originality, it no longer requires fixation in permanent form. All that the Act requires
is an “original intellectual creation”. It could be oral, written or even in the creator’s mind. The Act thus
extended copyright to cover works that more typically fall into IKS without fundamentally changing the
nature of copyright. The Act is further discussed further in the third section.
Not all elements of IKS can be accommodated simply by modifying traditional intellectual property
laws. For example traditional medicine and handicrafts were not covered by existing laws in Botswana.
Moreover, unlike copyright law, any changes to traditional industrial design law to accommodate IKS
would change the fundamental nature of that law. Therefore the workshop concluded that there was need
for Botswana to develop a national policy on the protection of IKS and to enact more legislation to protect
such systems. This legislation could be stand alone legislation (the sui generis approach) or a Chapter or
Part in the Industrial Property Act 1996 (the juridification approach). Botswana chose to take the
juridification approach, creating distinct protection for IKS, while incorporating it into the industrial
property laws. The resulting law is discussed further in the fourth section.
The workshop also discussed how best to ensure that IKS benefits local communities. In addition to
IKS legislation, the workshop endorsed the view that contract law could be used to protect IKS: those
who come to developing countries to exploit IKS would be required to enter into licensing agreements
with the communities that own the IKS whereby the licences would be required to acknowledge the
licensors as owners, and to pay them a royalty from the proceeds resulting from the exploitation of IKS
in the developed world. It was further agreed that there is a need to inform the public about their rights in
IKS. The people need to know their rights—the right to information. The resulting laws reflect and
implement these views as discussed further later.
11 Now the Copyright and Neighbouring Rights Act 2008, Cap 68:02.
(2011) 2 W.I.P.O.J., Issue 2 © 2011 Thomson Reuters (Professional) UK Limited