Traditional Intellectual Property Protection in Tanzania: The Case of Traditional Medicinal Knowledge

Kihwelo, Paul Faustin (2009) Traditional Intellectual Property Protection in Tanzania: The Case of Traditional Medicinal Knowledge. ["eprint_fieldopt_thesis_type_phd" not defined] thesis, The Open University of Tanzania.

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Abstract

This study addresses the global issues that relates to protection of indigenous traditional knowledge with special emphasis to traditional medicinal knowledge. The core issue of TK protection and in particular traditional medicinal knowledge lies at the centre of the current global IP protection mechanisms. The problem that this study has addressed is the failure of the existing conventional intellectual property regime to afford protection to traditional indigenous intellectual property, in particular traditional knowledge systems. Of particular importance is the traditional medicinal knowledge in Tanzania. The study found that a tremendous amount of knowledge in the world cannot easily be protected under the two branches of intellectual property, that is to say, patent law which is selective as to the type of invention that can be protected as most patents are not for significant technological breakthroughs but for small incremental improvements on the state of art. The other branch is copyright protection, which is restricted to individuals and a small number of people. Nor can traditional knowledge be protected under any other branch such as trade secrets or geographicalindications for the simple reason that western IP protection mechanisms focus on private ownership and for a specific period of time whereas TK centers on communal ownership and perpetually protected. The study has found out that commercial interests, for example in the pharmaceuticals business, very often violate indigenous intellectual property rights in particular in the area of traditional medicinal knowledge. Such violations at present do not constitute a formal breach of written legal standards, as neither national legislation nor international standards acknowledge the rights of indigenous people. However the study has observed that these enterprises should somehow still be made accountable to indigenous customary law. This fact cannot any longer be ignored by Governments, the UN-system and business entities. The study has addressed various theories for the protection of traditional knowledge. Among these theories is the solution to seek to protect intellectual property under the intellectual property in the form of “positive protection” or “defensive protection”. Positive protection refers to the acquisition by the TK holders themselves of an IPR, such as a patent or an alternative right provided by sui generis system. Defensive protection refers to the provisions adopted in the law or by the regulatory authorities to prevent IPR claims to knowledge, to cultural expressions, or to a given product being granted to authorized persons or organizations. The study has revealed that traditionally intellectual property has always been protected in its various forms, be it traditional medicinal knowledge, blacksmith and traditional songs and dances. Different societies have always adopted different ways of protecting traditional intellectual property. In the area of traditional medicine informal IP regimes are used and the most popular one in Tanzania is the secrecy regime. The secret regimes operate independently of governmental regulation or even community support. The secrecy regime rests on innovator’s ability to prevent the public disclosure of his or her innovation. Under a secrecy regime, innovative traditional healers employ their inventions only themselves, and benefits arise for the traditional healer only as long as the medicinal knowledge remains. On the other hand traditional medicine is protected through the complex system of rituals, magical and spiritual powers that surround indigenous medicine. This study has revealed further that obtaining international consensus on a binding instrument has proved to be quite a challenge. While some countries have not simply been convinced about the need to protect traditional knowledge internationally, other states which see such a need prefer that the matter be addressed in a non binding declaration rather than a binding treaty. After assessing the various international and regional initiatives for protection of the study has revealed that despite such efforts that the international community has taken so far and despite the fact that the international community underscores the contribution of traditional knowledge to sustainable development, little efforts have been taken to secure adequate and effective binding instrument for the protection of traditional knowledge. This seems to be the outcome of the perceived prejudices of the developed world regarding indigenous knowledge as being primitive, barbaric, heathenism and in some occasions associated directly with witchcraft. The study after assessing the various forms of biopiracy in Tanzania and the attempts to protect traditional medicine, it proceeds to conclude that the nub of the arguments for protecting TK presented thus far has been that the existing intellectual property laws have been the product of Western capitalism, which has glorified the virtues of individual efforts in furthering the knowledge systems. Thus, the patent and copyright laws were designed to safeguard the interests of the individual inventor or the authors and creators of artistic works. The temporary monopoly that was provided to both the inventors and authors and other creators of artistic works, through the grant of IPRs, was aimed at providing them with the incentive to further hone their skills. By nature, therefore, IPRs, as we understand them now, are designed to prevent anyone other than the inventor or the creator from using these products of human intellect without express authorization from the author under prior agreed arrangement. Finally the study recommends that given the fact that TRIPs does not prevent the protection of traditional knowledge, Tanzania should enact a specific law on protection of their rich traditional knowledge which remains unprotected despite the rich diversity spots available in Tanzania. This can take into account the current model law on TK approved by ARIPO member states and similar legislation such as the Forest Act and the Forest Regulations. Protection of TK at national level will be a step further while awaiting for the plans to have a legally binding treaty for the protection of TK at global level, which seems to be taking decades due to lack of consensus.

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