Minutes - TRIPS Council - View details of the intervention/statement

H.E. Ambassador Dr. Walter Werner
5   PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE
34.   South Africa is a Contracting Party to the Convention on Biological Diversity (CBD) and ratified the Nagoya Protocol on Access to Generic Resources and Fair and Equitable Sharing of Benefits Arising from their Utilization in 2013 which came into force October 2014. 35.   The Access Benefit Sharing (ABS) legal framework for South Africa is contained in Chapter 6 of National Environmental Management: Biodiversity Act No 3, 2003. This Act regulates, inter alia, bioprospecting involving indigenous genetic and biological resources; the exportation of indigenous genetic and biological resources for purposes of bioprospecting or any other research purpose; and provides for a fair and equitable sharing by stakeholders in benefits arising from bioprospecting. 36.   South Africa also requires disclosure of the use of traditional knowledge or biological resources in patent applications. Sections 30 (3A) of the Patents Act No. 37 of 1952 as amended by Act No. 20 of 2005 require that:  "(3A) Every applicant who lodges an application for a patent accompanied by a complete specification shall, before acceptance of the application, lodge with the registrar a statement in the prescribed manner stating whether or not the invention for which protection is claimed is based on or derived from an indigenous biological resource, genetic resource, or traditional knowledge or use." 37.   These amendments to the Patents Act came into force on 14 December 2007 by proclamation and with the publication of Regulations for the Patents Amendment Act. As a result, every applicant for a patent (with the exception of provisional patent applications) filed in South Africa on or after 14 December 2007 is required to lodge a declaration or statement in respect of traditional knowledge or use of indigenous biological resources, irrespective of the nature of the invention sought to be protected. 38.   The South African National Recordal System (NRS) is a defensive anti-appropriation strategy which was launched on 24 March 2013 by the Department of Science and Technology (DST) in response to the Indigenous Knowledge System (IKS) Policy adopted by the South African government in 2004. The Recordal System, which is loosely modelled upon India's Traditional Knowledge Digital Library (TKDL), seeks to capture, preserve, manage and disseminate traditional knowledge in digital format, while simultaneously enabling processes to derive benefit from the traditional knowledge. The NRS, which has been developed in phases, currently focuses on traditional knowledge of both African traditional medicine and indigenous foods, while the protection of traditional knowledge relating to arts, crafts and farming practices will be developed at a later stage. 39.   Despite the already extensive legal regime that applies in South Africa, we still experience significant instances of biopiracy and misappropriation. National regimes are therefore necessary, but insufficient steps to protect traditional knowledge or the use of indigenous biological resources. A multilateral system within the context of the TRIPS Agreement that regulates disclosure and access remains the best guarantee against misappropriation of genetic resources and traditional knowledge. 40.   In respect of procedural issues, South Africa once again calls on the Secretariat to update the three factual notes contained in documents IP/C/W/368/Rev.1, IP/C/W/369/Rev.1 and IP/C/W/370/Rev.1. We further reiterate our support for a briefing by the CBD Secretariat on the Nagoya Protocol and subsequent developments.
14.   The Chair proposed that, following past practice, agenda items 3, 4 and 5 would be addressed together. He noted that there had been important developments in these areas in many WTO Members. However, these developments had not been shared with the Council. Particularly, there had been no response or update to the Illustrative List of Questions on Article 27.3(b) (IP/C/W/122) since 2003; and only 25 Members had responded at all. Likewise, there had been no notifications to the TRIPS Council of domestic laws that related to the protection of genetic resources and traditional knowledge. He encouraged delegations to submit responses to the Checklist or update their previous responses; as well as to notify any relevant changes in legislation. At the previous meeting, delegations had continued their discussion on two long-standing procedural issues, namely the suggestion first made in November 2012 that the Secretariat update the three factual notes on the Council's previous discussions on TRIPS/CBD and related items; and the proposal initially submitted in October 2010 that the CBD Secretariat be invited to brief the Council on the Nagoya Protocol to the CBD. He said that he had no new developments to report in this regard.
15.   The representatives of India, South Africa, Ecuador, China, the Plurinational State of Bolivia, the United States of America, Japan, Brazil, Canada, Switzerland, Australia, Indonesia and Chile took the floor.
16.   The Council took note of the statements made and agreed to revert to the matters at its next meeting.
IP/C/M/91, IP/C/M/91/Add.1