Book Review: Indigenous Knowledge & Intellectual Property by C Ncube and E du Plessis

Reviewed by Louis Rood.

The 2007 United Nations Declaration on the Rights of Indigenous Peoples has brought to the fore the rights of indigenous peoples to the protection of their knowledge and culture. Established legal intellectual property systems, which view knowledge in terms of private individually-owned property rights that may be commodified in a market economy, are however inadequate to protect indigenous knowledge. It is easier to identify a specific inventor or author, and to patent a single, bright idea than to do so for unique knowledge developed over time by many people in an ever evolving community culture.

Indigenous knowledge is usually committed to the memories of people in a particular geographic location and expressed in folklore, stories, songs, rituals, dances, and other cultural ways, shared orally through traditional processes within a specific community. This is transmitted from generation to generation and is embedded in the history and culture of the community. It forms an integral part of the social, economic, and technological identity of that community, and its application and adaptation by cohesive traditional societies ensures its long-term persistence, sanctity and progress within the natural, social and economic environment of those societies.

Achille Mbembe, Research Professor in history and politics at the Wits Institute for Social and Economic Research, has observed with regard to Africa: “…the existence of deep histories and entrenched cultures of curiosity, invention and innovation, long underestimated, neglected or misunderstood….In their extraordinary liveliness and frugality, these cultures of retrieval, repair and remaking of things are the repositories of tacit knowledge and skills that have not been the object of proper documentation and even less so of archiving”. (Mail & Guardian, 2017 January 6 to 12).

This collection of essays by distinguished authors and editors forms a valuable and timely examination of the complex and daunting challenges of giving substance to the rights inherent in and flowing from indigenous knowledge.

Various approaches to the protection of indigenous knowledge are assessed as well as the tension between the desire to exploit traditional knowledge for financial gain, and the desire to protect and preserve traditional knowledge. These differing approaches are reflected in draft legislation that has been formulated in South Africa, but this is a subject that is far from being resolved. The contributions that this perceptive book offers, drawing as they do from policy and legislative developments in various foreign jurisdictions facing similar difficulties, provide significant insights and critical perspectives to what lies at the heart of transformation and decolonisation.

Congratulations are due to the learnered editors Professors Caroline B Ncube LLB, LLM, PhD and Elmien du Plessis BA, LLB, LLD, as well as the contributing authors Professors Pamela Andanda LLB, LLM, PhD, and Sue Farran BA, LLB, LLM, PhD, and Hojjat Khademi LLB, LLM, as well as publishers Juta and Professor Hanri Mostert, series editor of Juta’s Contemporary Legal and Applied Research Series. Recognition of the wider importance and deep potential benefits of our rich and diverse indigenous knowledge has been invigorated by this insightful and studious publication.