Resumen

RAATH, Andries  y  VERHOEF, Gerardus. Difficulties in the legal protection of indigenous spiritual knowledge, information in the public domain and the implementation of the existing normative systems for the regulation of intellectual-property rights in South African law. Tydskr. geesteswet. [online]. 2021, vol.61, n.1, pp.155-176. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2021/v61n1a10.

The South African National Heritage Resources Act 25 of 1999 paved the way for Indigenous Knowledge Systems (IKS) policy development and the statutory protection of spiritual resources as cultural heritage in two pieces of legislation. In terms of this Act, "living heritage" means the intangible aspects of inherited culture, and may include ritual and the holistic approach to nature, society and social relationships. Places and objects are to be considered part of the national estate if they have cultural significance or other social value because of their strong or special association with a particular community or cultural group for social, cultural or spiritual reasons. "Cultural significance" means aesthetic, architectural, historical, scientific, social, spiritual value or significance. In terms of the Indigenous Knowledge Systems (IKS) Policy, Role of Department of Science and Technology in Policy Implementation, and Key Achievements of the Department's IKS Programme (2016), the development and implementation of Ubuntu-based commercialisation and business models for sustainable livelihood, thriving societies and improved quality of life are stated as a strategic objective. Furthermore, Ubuntu is regarded to be the nodal point of bio-innovation in the Ubuntu-based innovation chain. The National Research Foundation's (NRF) Indigenous Knowledge Systems Framework Document of June 2018 extends the IKS funding instrument scope to cover Ubuntu and cosmology, taxonomies, pedagogies and methodologies. The NRF's 2018/19 call for IKS proposals invites applications that address and respond to IKS epistemology inclusive of Ubuntu. The 2004 IKS policy emanates from the notion that the ownership of intellectual property resides with indigenous communities, and it affirms that African cultural values, which are juxtaposed with globalisation, provide an imperative for promoting an African identity. The Protection, Promotion, Development and Management of Indigenous Knowledge Act 6 of 2019 (IK Act, 2019) was promulgated in August 2019. In terms of the IK Act, 2019, "indigenous cultural expressions" means expressions that have cultural content that developed within indigenous communities and have assimilated into their cultural and social identity. For purposes of the IK Act, 2019 "indigenous knowledge" means knowledge, which has been developed within an indigenous community and has been assimilated into the cultural and social identity of the community. The wide definition of indigenous knowledge - inclusive of indigenous spirituality - and its encompassing effect on the creation of indigenous knowledge rights are considered in this article. The Intellectual Property Laws Amendment Act 28 of 2013 (IP Amendment Act, 2013), which has not yet come into effect, could also have a vast impact on indigenous spiritual protection. The IP Amendment Act, 2013 provides for the recognition and protection of manifestations of indigenous knowledge as a species of intellectual property. To this end, certain intellectual property laws are amended to provide for the protection of relevant manifestations of indigenous knowledge as a species of intellectual property, viz. The Performer's Act, 1967, to provide for the recognition and protection of performances of traditional works; the Copyright Act, 1978, providing for the recognition and protection of indigenous works; the Trade Marks Act, 1993, recognising indigenous terms and expressions, and the Designs Act, 1993, to provide for the recognition and registration of indigenous designs. In this article, the effects of the possible implementation of the two acts with the view to protect indigenous spiritual knowledge and expressions are considered, the increasing privatisation of public domain knowledge is discussed and the effects of listing categories of indigenous knowledge as sacred, secret or confidential information on open democratic discourse are assessed. Lastly, the authors point out that the balancing of rights claims to intellectual property and public domain-based knowledge could be seriously jeopardised if knowledge in the public domain is not awarded more extended protection against privatisation and withdrawal, something that both acts fail to address. The example in India concerning the digital protection platform of yoga-inspired knowledge as well as other traditional knowledge pertaining to agriculture and medicinal plants should be seriously considered in this regard. It is concluded that the implementation of both the IP Amendment Act, 2013 and the IK Act, 2019 seriously jeopardise public domain-based knowledge; if both the 2013 and 2019 Acts come into force, the effect could be even more disastrous for public domain-based knowledge.

Palabras clave : indigenous spiritual knowledge; Intellectual Property Laws Amendment Act 28 of 2013; intellectual property rights; National Heritage Resources Act 25 of 1999; Protection; Promotion; Development and Management of Indigenous Knowledge Act 6 of 2019; public domain.

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