Contending Issues of Intellectual Property Rights Protection and Indigenous Knowledge of Pharmacology in Africa South of the Sahara

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Introduction

Indigenous knowledge is the foundation for community development across much of the non-Western world. In several important sectors, indigenous knowledge has held local communities together for centuries and provided the necessary tools for sustenance and growth. The World Bank acknowledges that, "significant contributions to global knowledge have originated from indigenous people, for instance in medicine and veterinary medicine with their intimate understanding of their environments" (World Bank, 2013). In Africa, due to the low penetration of technology in the field of medicine (WHO, 2012), much of the population still patronize, in full or in part, traditional medical practitioners. What this means is that Africa's indigenous pharmacopeia is still very much intact and active. On the other hand, the efficacy of indigenous herbal medicine in Africa has caught the attention of researchers, western based pharmaceutical companies and global big businesses. The "discovery" patenting and marketing of the anti-obesity drug, the hoodia gordini used by South African Kung ethnic group to keep hunger at bay during hunting expeditions is a case in point. Several years after it was originally exported out of South Africa for research, Pfizer has made tens of millions of dollars in profits (Konadu 2007). This paper shall draw from numerous examples of such exploration of Africa's indigenous pharmaceuticals for profit by western interests, to discuss the issue of intellectual property rights protection in relation to the continent's wealth of indigenous knowledge. The work argues that the existing intellectual property law system is insufficient for the protection of Africa's indigenous pharmacology. This is because they are founded on notions of individual or private property ownership, which are alien to indigenous African people, and therefore, cannot accommodate the dynamics of indigenous pharmacology. It calls for a radical transformation of the existing global intellectual property rights order, in order to protect the interests of Africa's indigenous pharmacology.

The Nature of Intellectual Property Rights

Intellectual Property entails the commodification of the proceeds of the intellect and its subsequent incorporation into a legally recognised, independent and tradable object (Capling 2002). It encompasses knowledge, original thoughts and ideas, 'sounds and symbols, words and music, text and designs, formulae and blueprints' (Capling 2002, 79). The concept of intellectual property suggests that, 'ideas and knowledge can be parcelled into separable and transferable knowledge objects, which enjoy similar characteristics to material property' (May 2000, 47). Intellectual Property Rights (IPR) connotes a loose cluster of legal doctrines that regulate the utilization of Intellectual Property in the industrial, scientific, literacy and artistic fields.

The major reason advanced for IPR is to protect the rights of inventors to benefit economically from their efforts; and to provide them and other members of the public with the monetary motivation and empowerment to engage in further research. IPR is traditionally divided into Copyright, Patent, Trademarks or Industrial designs, Trade Secrets and Geographical indication.

Indigenous Knowledge

Indigenous knowledge is the variant of knowledge that is generated, and which resides within a given a given locality. It is the outcome of generations of working with and understanding one's environment to produce the best possible processes for addressing specific challenges. Indigenous knowledge has been defined as the unique, traditional, local knowledge existing within and developed around specific conditions of women and men indigenous to a particular geographic area" (Warren, 1991). The World Bank notes that indigenous knowledge is "developed and adapted continuously to gradually changing environments and passed down from generation to generation and closely interwoven with people's cultural values" (2013). …