Chairperson, the ACDP appreciates that indigenous knowledge of communities may be open to exploitation by foreign countries. We also share the view that indigenous communities should derive every benefit from their indigenous knowledge. We therefore support the principle of this Bill. However, as the other speakers have said, the central issue is whether it is appropriate to integrate the protection of indigenous knowledge into current intellectual property protection laws.
Intellectual property is a specialised and complex branch of the law. Even as a lawyer I have difficulty understanding it. Are we not trying to drive a square peg into a round hole? The main objection raised by experts in the field is that a basic principle of intellectual property is operating in reverse in this Bill. Works of traditional knowledge are already in the public domain; how can they then be accorded exclusive, private status, as required in intellectual property laws?
Additionally, conventional intellectual property has a limited lifespan, which contrasts with the permanent protection sought to be given in this Bill. The answer is surely a sui generis Act, and this is the way that it should have been processed.
We are aware that the World Intellectual Property Organisation has also been struggling to protect traditional knowledge for some years. And we have the opportunity to set the benchmark here. It is anticipated that soon, maybe next year or in a while to come, a customised law, a sui generis law and an international treaty will be presented by the World Intellectual Property Organisation. Would it not have been more appropriate to await this development - or even that we set the benchmark with a sui generis law that would then assist the international domain and the way forward?
Finally, it is alleged by various commentators that there will be monumental problems in establishing the subsistence and ownership of property to be protected, and then in bringing successful claims to enforce the rights and payment of the envisaged royalties. Who, then, will be making the money? It will be the lawyers and the litigants in this matter. The ACDP will regrettably not support this Bill.