South Africa’s TK Bill Debate: Sui Generis versus Intellectual Property Protection of Traditional Knowledge?

Afro-IP is running a poll here to gather views on South Africa’s Intellectual Property Laws Amendment Bill (the “TK Bill”) which is up for debate before parliament and on the verge of becoming law in South Africa.

As the visibly unhappy Anton Mostert Chair of Intellectual Property at Stellenbosch University explains, the Bill was drafted by taking four of the existing Intellectual Property (IP) statutes, namely the Copyright, Designs, Performers Protection, and Trade Marks Acts, and writing into them provisions aimed at granting protection to traditional works akin to the subject matters of the individual statutes.

There is no doubt that TK is worthy of protection. The five main reasons advanced for its protection are:

Equity. (TK generates value that is currently inadequately recognised and compensated)
Conservation of Biodiversity. (Protection of TK can help conserve the environment and promote sustainable agriculture and food security)
Preservation of Traditional Practices. (Framework for maintaining practices and knowledge embodying traditional lifestyles)
Prevention of Biopiracy. ( for example, US Patent number 5, 401, 5041 in respect of healing properties of Turmeric found in India)
Promotion of the Use and Importance of TK in Development.

However, while there is consensus that indeed TK is worthy of protection, there appears to be some disagreement on HOW best to protect TK, with two main options being put forward:

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