Abstract

RAATH, Andries  and  BRITS, Pieter. Indigenous knowledge as a protectable cultural heritage asset: Notes on the proposed protection of indigenous knowledge in South Africa. Tydskr. geesteswet. [online]. 2019, vol.59, n.3, pp.345-366. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2019/v59n3a3.

The protection of indigenous knowledge has received considerable attention in the recent past.The intention of this scrutiny has been to promote the rights of vulnerable indigenous communities by amending existing legislation to regulate the intellectual property embodied in their cultural assets. The manner in which this has been done raises interesting and important questions insofar as a paradigm shift towards cultural relativism can be discerned. Not only can aspects of this change be detected in the policies of international bodies concerned with the regulation of intellectual property, but the growing influence of this point of view is also evident in the South African legislative framework as reflected in recent amendments and proposed amendments to intellectual property legislation on indigenous knowledge. Since the second half of the twentieth century, the rejection of race as a legitimate legal criterion for distinguishing between people has facilitated the vogue for multiculturalism and the international emphasis on cultural identity. In this respect, the structural anthropology of Claude Lévi-Strauss (1908-2009) has become an influential source of ideas and it has produced a theoretical justification for cultural relativism - an approach accepted and promoted by Unesco since 1952. Lévi-Strauss voiced the idea that the whole of man's existence is permeated with and determined by culture. Other philosophers entered the debate, including Will Kymlicka, Charles Taylor, Martha Nussbaum and Jürgen Habermas. Their main discourse topics centred on the recognition of group rights for protecting cultural identity and the implications of such protective measures. This approach was eventually adopted by various post-independent African states. The original purpose of this line of thought was to protect the authentic holders of cultural rights by focusing on their indigenous status. African states, however, expanded this protection beyond the first original indigenous communities to include all African peoples. As a result, some groups, such as the San, are still marginalised in countries such as Botswana, and it seems as though the South African legislator is treading a similar path. The status of indigenous knowledge forms the basis for affording rights in intellectual property to indigenous communities. In 1996, Hennie Strydom called attention to the serious implications of the increasing support for the philosophy of cultural identity, especially the growing acceptance of cultural relativism. The South African National Heritage Law, which came into being in 1999, clearly shows how closely cultural heritage is aligned with cultural identity and indigenous knowledge. The South African Department of Science and Technology's 2004 policy document followed this approach by emphasising indigenous knowledge as a cultural heritage asset. This policy emanated from the notion that the ownership of intellectual property resides with traditional communities, and it affirmed the contention that African cultural values, which stand juxtaposed against globalisation, provide an imperative for promoting an African identity. Since this frame of reference limits the rights of individuals as authors, designers and appliers of indigenous knowledge, South African scholars have voiced concerns about the material aspects of the policy. Criticism was raised against the implication that the protection of indigenous knowledge can only be accomplished on the basis of cultural relativism. Lesley Green, for example, expressed fear that a "new medievalism" could be cultivated. Against this backdrop, the paradox of equating traditional value frames of knowledge with a rights-based discourse and the possibility that indigenous knowledge was as subject to power plays as other branches of science and history were highlighted. In spite of these concerns, the process of promulgating legislation on indigenous knowledge has progressed to the point where the second Bill on the Protection, Promotion, Development and Management of Indigenous Knowledge was published in 2016. For the purposes of the bill, "indigenous knowledge" means knowledge that has been developed within an indigenous community and has been assimilated into the cultural and social identity of that community. In this article, the authors focus on the implications of the protection of indigenous knowledge as cultural heritage assets by considering cultural identity and commenting on the dangers of cultural relativism encapsulated in the proposed legislative protection.

Keywords : Claude Lévi-Strauss; cultural identity; cultural relativism; indigenous knowledge; multiculturalism.

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