Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120100004&lang=en vol. 13 num. 4 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Editorial</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000400001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Can traditional knowledge be effectively covered under a single "umbrella"?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000400002&lng=en&nrm=iso&tlng=en <![CDATA[<b>Property rights and traditional knowledge</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000400003&lng=en&nrm=iso&tlng=en For the past several decades, there has been a push to provide some sort of right akin to an intellectual property right in traditional knowledge and traditional cultural expression. This push has encountered staunch resistance from a number of different quarters. Many of the objections are practical. However, underlying these practical concerns is a core philosophical concern. A system of traditional knowledge rights, this argument suggests, simply does not satisfy the basic rationale for granting property rights in intangibles like inventions and expressive works. Intellectual property is meant to encourage innovation and creative activity. Most traditional knowledge, by contrast, is not innovative, at least in the same sense as the inventions and works that qualify for patents and copyrights. At present, the "anti-property" camp seems to have the better of the argument, as even the World Intellectual Property Organisation has abandoned the notion of true property rights. This article seeks to refute this philosophical objection to a property model for traditional knowledge. It argues that the classic philosophical argument justifying intellectual "property" namely, that property rights are justified only as a way to spur innovation and other creative activity is incorrect in two ways. First, the argument misstates the main goal of an intellectual property system. While intellectual property may serve as an incentive for innovation, society's primary concern is not the innovation per se, but instead the dissemination of knowledge. Second, there may be policy reasons other than the development of knowledge that can justify intellectual property-like rights. The article then applies these observations to the particular question of traditional knowledge and cultural expression. It demonstrates that a system of property rights could be useful in helping to encourage the dissemination of traditional knowledge, even if that knowledge is not "new" in the classic sense. Second, other important social concerns, especially the goal of ensuring accuracy in knowledge, may justify a system of property rights. While these arguments may not ultimately support a property rights system-after all, the practical concerns remain very real-they do help to refute the underlying philosophical objection. <![CDATA[<b>Protecting expressions of folklore within the right to culture in Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000400004&lng=en&nrm=iso&tlng=en This paper explores the protection of expressions of folklore within the right to culture in Africa by considering three issues, which are the increased understanding of the right to culture in national constitutions and the recognition that customary law is a manifestation of the right to culture; an expanded understanding of the substantive content of the article 15(1) of the International Covenant for Economic, Social and Cultural Rights as part of the right to culture; and the recognition of the rights of indigenous peoples marked significantly by the 2007 United Nations Declaration of the Rights of Indigenous People. The paper demonstrates how a human rights regime may assist in overcoming some of the deficiencies in the national protection of expressions of folklore in Africa. <![CDATA[<b>Traditional knowledge and patent protection</b>: <b>conflicting views on international patent standards</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000400005&lng=en&nrm=iso&tlng=en As diseases continue to spread around the globe, pharmaceutical and biotech companies continue to search for new and better drugs to treat them. Most of these companies have realised that useful compounds for these purposes may be found in the natural resources that indigenous and local communities use. And yet, even though the importance of these biological resources to global health and economic livelihood is well recognised, the legal ownership and control of this traditional knowledge is still very controversial. This article undertakes a comparative analysis of American and European, as well as international legal regulations on patent law and traditional knowledge. Key questions include: What is traditional knowledge? How have the national patent laws of these countries treated the protection of plant variety and plant genetic resources? What are the existing international standards for patents, and what implications do they have for protecting traditional knowledge? And finally, what protection systems are emerging for the future? <![CDATA[<b>Towards a clearer definition and understanding of "indigenous community" for the purposes of the intellectual property laws amendment bill, 2010</b>: <b>an exploration of the concepts "indigenous" and "traditional"</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000400006&lng=en&nrm=iso&tlng=en Although "indigenous" and "traditional" are key concepts in the Intellectual Property Laws Amendment Bill of 2010, they are not defined therein. The Bill does, however, provide a definition of "indigenous community" that is very clear as to where one should look for indigenous communities for the purposes of this Bill, and that there is likely to be a plurality of such communities, but is very vague as to which groups exactly will qualify as being indigenous. It is uncertain whether or not the current vague wording of the definition would be strong enough to widen the much narrower understanding of indigenousness prevailing in other South African legislation, the legislation of selected other jurisdictions, and the United Nations. Recommendations are made as to how the definition of an "indigenous community" may be rephrased to address these uncertainties more clearly. <![CDATA[<b>Some tax implications of traditional knowledge under conventional intellectual property</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000400007&lng=en&nrm=iso&tlng=en The proposed incorporation of traditional intellectual property into the definition of copyright, trade-marks and designs as defined in the Copyright Act, the Trade Marks Actand the Designs Act may affect the income tax liability of parties where traditional knowledge is the object of such a transaction. The aim of this contribution is to consider the potential income tax consequences of this incorporation for those receiving income and incurring expenditure in relation to the use or disposal of traditional knowledge. <![CDATA[<b>Protecting traditional knowledge</b>: <b>does secrecy offer a solution?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000400008&lng=en&nrm=iso&tlng=en The shortcomings of using the intellectual property system to safeguard the interests of traditional knowledge holders have received considerable attention. Laws that guard against the disclosure of secret traditional knowledge to non-community members may offer a low-cost and accessible way for traditional communities to prevent the misappropriation of their traditional knowledge. This paper reviews the concerns that may arise when holders of traditional knowledge attempt to rely on claiming unfair competition and contract laws to protect their traditional knowledge.