Articles
The governance of genetic resources, traditional knowledge and traditional cultural expressions under the Congo's legal system:
what best way forward?
2019 Volume 2019 Issue 96 Pages 231-271
Details
2019 Volume 2019 Issue 96 Pages 231-271
In view of the high potentials of genetic resources, traditional knowledge, and traditional cultural expressions for sustained and diversified economic growth and global innovation, this paper reflects on the legal protection genetic resources, traditional knowledge, and traditional cultural expressions enjoy under the Congolese legal system. It first reviews the debate surrounding the international protection of this subject matter and examines the progress that has been achieved thus far in global and regional negotiation forums. Regarding genetic resources, I suggest a range of policy objectives to developing countries in general but to the Congo in particular. In addition to being simple providers of genetic resources, these objectives include taking audacious steps to become active users, thus boosting their biotech sectors and attracting more investments. The paper further assesses how genetic resources, traditional knowledge, and traditional cultural expressions are handled under South Africa's system, a provider country, and reflects on how Japan can contribute to the debate by bringing a user perspective to the table.
The methodological approach herein used is both qualitative and quantitative and to a certain extent, doctrinal whereby relevant data where obtained through in-person interviews with key stakeholders; primary and secondary sources: National laws, conventions, treaties, official documents as well as internet-based resources.
The Democratic Republic of Congo is extremely culturally diverse and endowed with an astounding and indescribable biodiversity. It plays a significant role in the conservation of Africa's Congo Basin forests, the second-largest area of tropical forest in the world after the Amazon.1 Furthermore, as one of the megadiverse countries, it is home to one of the richest and biologically important forest ecosystems with the highest number of species in roughly all categories of genetic resources. Dense forests and woodlands cover more than half of the DRC's total land area, which play a critical role in maintaining global climatic cycles as well as ensuring neighboring local communities 'livelihoods.
However, despite its wealthy biodiversity resources, the Democratic Republic of Congo does very little to ensure the legal protection of its genetic resources, traditional knowledge, and traditional cultural expressions. In fact, the DRC has only enacted one law relating to the conservation of nature that loosely touches on issues pertaining to genetic resources, traditional knowledge, and traditional cultural expressions, for which enforcement measures are in critical shortage. The DRC to this day has not translated some international treaties pertaining to biodiversity and genetic resources protection into its national laws, such as the UPOV Convention, the FAO International Treaty on Plant Genetic Resources for food and agriculture. It is still battling to come to grips with the adequate implementation of the Convention of Biological Diversity as well as its The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity which have vested sovereign2 ownership of biological resources and associated traditional knowledge upon countries where they are found and have set general requirements as regards their access and benefit-sharing conditions.
Aside from its wealthy reserves in terms of mining resources, the huge biodiversity potential of the DRC is being increasingly coveted. It has lured biotechnological corporations' interests for their bio-trade and bio-prospection activities as it has become clear that market opportunities for products derived from biodiversity are increasing exponentially.
From their patent activities, a study has shown that companies operating in the areas of biocides/insecticides such as BASF and Bayer; pharmaceuticals such as Ciba Geigy and Human genome sciences as well as those who operate in the development of new crops such as Monsanto and chemical products such as Henkel and Sumitomo relied heavily on biodiversity and organisms directly collected from Congo3 and there is no evidence that these resources were accessed upon rules set forth by the above-mentioned international instruments. This makes it clear that there is a wide range of general and specialized technology areas and markets of relevance to biodiversity from the DRC. Therefore, with this being said, it is perhaps timely for Congo to strengthen its laws and policies as regards genetic resources, traditional knowledge and traditional cultural expressions by striking the appropriate balance between reasonable protection and appropriate access.
At the international stage, although the Convention on Biological Diversity has endeavored to clarify the debate over the appropriation of genetic resources, protection issues remain at a critical bottleneck, especially on the multilateral scale where developing countries are pushing for an international framework to govern the subject matter. In that process, they often have to come to grips with the skepticism and lack of commitment from developed countries who seem intent on maintaining the status quo.
Public domain and common heritage have often been put forward to justify why genetic resources and associated traditional knowledge should be freely accessed. This perspective is strongly criticized and opposed by developing countries who advocate for an international binding treaty that will help protect those resources from misappropriation or from being improperly patented.
Definition of key termsThe identified key terms for the purpose of this section are the following: genetic resources, traditional knowledge and traditional cultural expressions.
Aside from the expression "genetic resources" that is defined in the Convention on Biological Diversity4, the rest of key terms do not enjoy an internationally agreed definition and are subject to conflicting perspectives.
However, traditional knowledge is widely referred to as consisting of a set of know-how, skills, innovations, practices, teachings or learnings and its developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.5
The WIPO interchangeably uses the term 'traditional cultural expressions'and 'expressions of folklore' as synonyms to refer to tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested.6 Examples include traditional music, performances, narratives, names and symbols, designs and architectural forms.7
As mentioned above, these terms do not reach an international consensus among member states and are subject to different interpretations in national laws. For the time being, talks are ongoing on the opportunity of an international legal instrument for the protection of traditional cultural expressions. This initiative is most welcome given the importance of cultural heritage.
The International state of affairsThe most prominent forum that hosts negotiations as regards the opportunity for an international treaty in respect to genetic resources, traditional knowledge and folklore is the following:
The WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge, and Traditional Cultural ExpressionsThe WIPO (World Intellectual Property Organization) is a specialized agency that is part of the UN system and, therefore, has clients which are member states that oversee its program, objectives, and set its budget. The WIPO essentially carries out missions ranging from promoting creative activity, protecting intellectual property, facilitating international negotiations, and administering IP treaties.
Under the auspices of the WIPO, the IGC was founded in 2000 and was tasked to oversee negotiations on three key themes, namely: Genetic Resources (GRs), Traditional Knowledge, and Folklore. It has been convening negotiations pursuant to its mandate that gets renewed by the WIPO General Assembly every two years.
The structure was named the Intergovernmental Committee on Intellectual Property, GRs, TK, and Folklore (IGC) and it is a forum wherein WIPO member states discuss the intellectual property issues that arise in the context of access to genetic resources and benefit-sharing as well as the protection of TK and TCEs.8
All in all, the IGC has various origins and rationales that are not covered in this section. The bottom line, however, is that in terms of achievements, the IGC process has stimulated the increased recognition of TK within the patent system.9 Furthermore, under its auspices, the WIPO has developed other resources, such as glossaries, surveys of national experiences, a laws database, and training programs, which have proved useful for member states and others.10
Under its current mandate, the objective of the IGC is to try to reach an agreement on an international legal instrument (s), without prejudging the nature of outcome (s) relating to intellectual property, which will ensure the balanced and effective protection of genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs).11
The IGC discussed GRs for the first two sessions of the mandate, and the following four sessions – beginning with the 37th session – are devoted to TK and TCEs.
The lengthy negotiations at the IGC have often been stalled by persisting and conflicting views between developing countries and their developed counterparts over the protection of traditional knowledge and folklore given, for instance, their peculiar nature.
An example of this occurred in July 2018, during the 36th session of the IGC. The United States blocked12 a second revision of the text related to genetic resources which was yet to be approved by most IGC members. The decision praised the progress that had been made on GRs and was calling on members to proceed with other issues on the IGC's agenda.
One of the merits of the IGC is perhaps the increase in the involvement of indigenous peoples and local communities to the IGC talks, compared to their engagement in former forums concerning GRs, TK, and TCEs.
Although consensus seems to be waning between members of the IGC after nearly two decades of its establishment, the determination of developing countries to secure an international agreement means there is yet a glimmer of hope.
Last of all, the landmark contribution brought by the IGC on the debate over the protection of GRs, TK, and TCEs within the IP system is perhaps the adoption of the tiered or differentiated approach in the protection of TK and TCEs during its 27th session in 2014. This approach recommends different levels of protection of TK and TCEs depending on whether they are secret, sacred, publicly available, or widely diffused. I will further elaborate on this in the section related to suggestions as one of the ways forward to resolve issues of the lack of appropriate legal frameworks for the protection of TK and TCEs within the Congolese legal system.
Developing countries, especially the African Group will feel satisfied of the results of the discussions taking place at the IGC only when they culminate into a binding international treaty in the fields of GRs, TK and TCEs.13
Initiatives at the African UnionGiven the abundance of natural resources of its member states, the African Union has been at the forefront of biodiversity-related discussions in many international forums to advocate the position of its members.
The notable and very first initiative that was adopted within the Scientific, Technical and Research Commission (STRC) of the then-OAU (now AU) was the June 1998 African Model Law for the protection of the rights of local communities, farmers, and breeders, and for the regulation of access to biological resources. The African Model Law happened to be very forward-looking as it laid down a range of user requirements to observe that were later adopted by the Nagoya Protocol. These ranged from prior informed consent, mutually agreed terms, and benefit-sharing.
The Model Law was merely centered on two key terms: communities' rights and farmers' rights.
It further contributed to inspire the adoption of other main sub-regional IP and TK-related instruments such as the Swakopmund Protocol that was adopted under the African English-speaking countries' organization named ARIPO and helped trigger discussions at the French-speaking OAPI on the need to adopt a similar legal instrument although negotiations never culminated to the adoption of a legal text as we will further demonstrate in the following lines.
African regional IP organizations initiatives in favor of the protection of GRs, TK and TCEsOn the African regional scale in respect to Intellectual Property, two organizations co-exist namely the ARIPO which brings together English-speaking countries; and the OAPI which is merely consisted of French-speaking countries.
ARIPOThe African Regional Intellectual Property Organization is a 1914 African member states intergovernmental organization headquartered in Harare, Zimbabwe. It was established as a forum of cooperation in matters ranging from patents and other IP matters. It was established by the Lusaka Agreement in year 1976.15 It lays down a regional IP system that coexists with National systems of Member States.16 ARIPO's member states are mostly English-speaking countries.
In respect to the protection of TK and TCEs, ARIPO came up with the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore on August 9, 2010 and it came into force from January 2012. The Protocol set up a sui-generis protection of TK and TCEs and aimed at providing a legal instrument that empowers TK holders to utilize their resources for economic development; to prevent misappropriation; to address the transboundary issue of plural ownership of resources as well as to provide a single response on behalf of the African delegates at the IGC negotiations.
In respect to trans-boundary resources, some scholars have proposed the adoption of common pools because individual developing countries will lack the bargaining power to benefit from bioprospecting if they act alone, they would do better to pool their sovereignty and form genetic resource supply cartels that would include all countries possessing identical genetic resources and they agree on a rate for benefit sharing of products deriving from the resources.17
Moreover, Gerd Winter claims that ''user states are obliged to share the benefits derived the utilization of GRs with states providing the GRs. Thus, provider states and user states are expected to create bilateral exchange relationships. Legal practice and national levels have proved that individualistic approach lacks efficiency.''18 Therefore, for efficiency and justice, common pools happen to bell well suited.
The common pool scenario will consist of a collaboration between providers of GRs and users whereby providers of resources become users when participating in the R&D process, and users become providers by feeding their R&D results into the pool.19
The ARIPO's protocol proved to be a good milestone on a regional scale in respect to the protection of TK as well as TCEs. It now belongs to Member States to follow suit and adopt similar measures on the national scale.
OAPIAs its sister organization discussed above, the Organisation Africaine de Propriété intellectuelle is a regional IP Organization headquartered in Yaoundé, Cameroon. It is consisted of 17-member states20 sharing French as common language. It was established by the Bangui Agreement on March 2, 1977 which was later amended in year 1999. Unlike ARIPO, OAPI does not have a system that coexists with National systems. Conversely, the system implemented by OAPI sets up a uniform system of protection of IP rights whereby the Organization grants IP rights on behalf of Member States.21
Regarding the protection of TK and TCEs, OAPI has been less successful than ARIPO as it adopted two different texts respectively on the protection of traditional knowledge and elements of Folklore but have since been sent to member states for evaluation and perusal and no significant progress has emerged ever since.22
More and more voices are calling for a unification of the two regional IP organizations and positive omens are displayed as delegates of both organizations often meet to discuss such connections opportunities. However, it seems as though the two systems might prove tricky to merge for a number of obstacles ranging from language barrier and other institutional peculiarities.
Initiatives in the SADEC regionThe Southern African Development Community (SADC) is a regional economic community that aims, among other goals, to promote sustainable and equitable economic growth and socio-economic development in Southern Africa.23
The SANbio project, a biosciences network for improving livelihoods, emerged from under its umbrella. Its mission is to facilitate innovation in support of the development of a knowledge economy in Southern Africa.24 It is carried out by the NEPAD and hosted by the CSIR to provide the necessary administrative support. It brings together the South African Department of Science and Technology and the Finnish Ministry of Foreign Affairs as part of the Finnish-Southern African Partnership program. It also aims to strengthen bioscience projects in the SADEC region by merely focusing on food and health to curb poverty.
Under the SANbio, two projects are being run in respect to product development originating from traditional knowledge and genetic resources in two countries of the SADEC region, namely Botswana and Zimbabwe. The projects are coordinated with the involvement of the private sector.25 The projects focus on the Botswana marula fruit and the Zimbabwean resurrection bush tea.26 As part of the administrative support it is supposed to offer to member countries, the CSIR assists the governments of both Botswana and Zimbabwe, two countries lacking in national ABS laws, in implementing benefit-sharing agreements between users and holders of the above-mentioned projects related to traditional knowledge associated with GRs.
The legal and regulatory landscape regarding the protection of genetic resources, traditional knowledge and traditional cultural expressions in Congo's legal systemThe fast-paced emergence of the global knowledge economy rendered all forms of creativity and innovation even more valuable, especially in biotechnology. It also triggered the need for the recognition of new beneficiaries of rights that were not initially enshrined in the global conventional Intellectual Property Rights regime. Genetic resources had assumed increasing economic, scientific, and commercial value to a broad range of stakeholders. Traditional knowledge and other tradition-based creations such as traditional cultural expressions had at the same time taken on new economic and cultural significance within a globalized information society.27
Aside from its huge reserves of mining resources, the Democratic Republic of Congo is tremendously endowed with biodiverse-rich ecosystems, thereby featuring among the world's 17 megadiverse countries.28 Additionally, the Congo has immense potential in terms of cultural heritage29, given the diversity of its ancient traditions, peoples, and their wide variety of languages and dialects. This represents a huge potential to diversify its mining-reliant economy and offset its economic disadvantages while alleviating poverty and uplifting its peoples' living conditions.
Additionally, the Congo can gain something significant out of this globalized knowledge economy by utilizing its biological resources and rich traditional knowledge to attract biotechnology-related investments or also endeavor itself to invest in this sector and become both a provider and a user of those resources.
The country has ratified the Convention on Biological Diversity and the Nagoya Protocol on Access and Benefit Sharing of Genetic Resources, respectively, in March 1995, and February 2015.
However, there still exist a couple of discrepancies in the above-mentioned laws and the need for tailored national legislation to cater for the complexity of TK and TCEs is more than timely, especially for a country so biologically and culturally endowed like the Congo.
Before going through the different laws that form part of the Congo's legal frameworks in respect to ABS, TK and TCEs, I offer a brief overview of some species of potential commercial interest that can be found in the Congo.
Species of potential commercial interest in DRCThe DRC considerably faces a lack of taxonomic information and this makes it difficult to have a comprehensive mapmaking of all the available genetic resources and the traditional knowledge associated to it as well as their respective holding communities.
However, from their patent activities, a study has shown that companies operating in the areas of biocides/insecticides such as BASF and Bayer; pharmaceuticals such as Ciba Geigy and Human genome sciences as well as those who operate in the development of new crops such as Monsanto and chemical products such as Henkel and Sumitomo relied heavily on biodiversity and organisms directly collected from Congo.30 This makes it clear that there is a wide range of general and specialized technology areas and markets of relevance to biodiversity from the DRC.31
The following five species have been identified in patent documents as having contributed in some way to the development of final products:
Acetogenium kivuiThis is described as an anaerobic, thermophilic and non-sporeforming species bacteria32 which was originally isolated from Lake Kivu33, located in the border between DRC and Rwanda. From this bacteria, a process for production of alcohols was developed through a fermentation process carried out by a group of chemical companies, among others, INEOS Europe Ltd.34
Corynanthe pachycerasThis is a tree that is believed to originate from Central Africa and has a bark that contain yohimbine.35 The latter is used in a range of herbal remedies and has been linked with patents filed by companies such as Schwabe Wilmar GMBH36 and others who claimed an extract from the bark also its use as a treatment for a number of ailments.
Harungana madagascariensisFound in both habitats and forests, this species is believed to originate from sub-Saharan Africa and served to develop a method of reducing blood glucose if taken in. Though no specific mention of DRC as source of origin was made in the patent filed by Shamn Pharmaceuticals Inc37 the company did mention the use of traditional knowledge originating from the Congo. Yet, this was long known by the local communities as a traditional remedy to several medical conditions.
Uvaria brevistipitataFrom this plant located in the DRC, a treatment of HIV patients was developed and patented by a US company.38
BonoboScientifically referred to as Pan paniscus, the bonobo originates from the forests of DRC and is seen as the closest relative to Homo Sapiens.39
This US claimed the isolation and characterization of a novel primate T-cell lymphotropic virus designated STLVpan-p.40 the virus is believed to have been isolated from zoological collections in the USA that were born in the DRC.41
The 5 cases mentioned above give an insight on the potential of resources of commercial interest that can be found in the DRC. With appropriate taxonomic research, there is a probability to identify more species that can prove indispensable in the research and development avenues of biotech and pharmaceutical industries.
It is therefore suitable and timely for the DRC to consider new avenues of protection of genetic resources and traditional knowledge emanating from its territory lest they are improperly patented elsewhere without appropriate contractual arrangements as set forth by international instruments.
However, caution should be taken in the drafting of such a framework so that it strikes the right balance between unfettered access and appropriate protection.
The nexus between Intellectual Property legislation in Congo and protection of indigenous rightsDRC is part of most of the main Intellectual Property's multilateral agreements ranging from the Paris Convention, Berne Convention as well as the TRIPS agreement. On the national scale, DRC have also implemented National IP laws to support this dynamic although these laws still need to be aligned and harmonized to international standards so as to meet compliance requirements and challenges posed by the fast-paced global economy.
Before its independence, DRC IP legal system was mainly regulated by five legal instruments, namely:
-The Sovereign Belgian Royal Decree of October 29, 1886 on Patents;
-Sovereign Belgian Royal Decree of April 26, 1888 on trademarks;
-Royal Decree of April 24, 1922 on the Deposit of Industrial Designs;
-Decree of June 21, 1948 on the Protection of Copyright and
-Ordinance No. 41/63 of February 24, 1950 on Unfair Competition
A couple of years after its independence in June 1960, DRC conducted reforms that led to the enactment of the Law No 82-001 on Industrial Property in January 7, 1982 as well as the Ordinance-Law No 86-033 on the protection of Copyright and Neighboring rights in April 5, 1986.
The Law on Industrial Property (Patents Law)As mentioned above, the Industrial Property's Law was enacted in 1982 and offers protection for inventions (patents), geographic indications, industrial designs, trade names, trademarks and trade secrets42. The Congolese Patent law is based on the first to file principle and grants a 20-year protection for patents and 15 years for pharmaceutical patents43. However, the law provides no possibility of substantive examinations44 for ordinary patents except for food and pharmaceuticals45 and leaves the burden of prior art and novelty examination to the sole responsibility of the applicant.
In addition, the law provides for three types of patents namely:
-inventions patents: defined as those which, on the date of filing or of priority of the related application, have not yet been patented.
-import patents: those for which, on the date of filing or of priority of the related application, the holder had already obtained an invention patent in a foreign country.
-improvement patents: those which concern any improvement of an already patented invention.
Situation of Genetic resource related patents in the Congolese Patent LawThe Congolese Patent Law neither does provide any provision regarding genetic-resource related inventions nor special requirements concerning the filing of patents deriving from a biological resource. Yet, with the country's tremendous wealth in biodiversity and traditional as well as indigenous knowledge, such requirements would be of so much help in enhancing transparency over the patenting of dubious genetic-resource related patents. It is particularly unfortunate and concerning that the matter does not seem to be included in the ongoing amendment of the Patent Law.
Patents developed using genetic material and/or traditional knowledge in Congo are registered without any requirement of source disclosure or evidence of prior informed consent from local communities where they were found.
As a country willing to diversify its economy, amending the Patent Law in a way that is supportive to the implementation of the Convention on Biological Diversity and the Nagoya Protocol's mechanisms of benefit-sharing would help prevent biopiracy, enhance technology transfer and boost the biotechnological sector hence creating new job opportunities.
The Copyright Law (Ordinance-Law No 86-033)Ordinance-Law No 86-033 on the protection of Copyright and Neighboring rights in April 5, 1986 is the main legal instrument governing Copyright in DRC. It provides protection to performers, producers of phonograms and broadcasting organizations as well as to producers of videograms. The law provides for lifetime protection to the author of works and 50 calendar years after his death.
Protection of Traditional Knowledge in the Copyright LawAlthough there is not a globally accepted definition of Traditional Knowledge, it is sometimes defined as the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills, and innovations.46 Traditional knowledge can be found in a wide variety of contexts, including: agricultural knowledge; scientific knowledge; technical knowledge; ecological knowledge; medicinal knowledge, including related medicines and remedies; and biodiversity-related knowledge, etc.47
There is no express mention of traditional knowledge in Congo's Copyright Law. However, the Law protects folklore and works derived from folklore48 which can be construed as part of traditional cultural expressions (TCEs). The law defines folklore as artistic, literary or scientific work passed from generation to generation and constituting one of the basic elements of the traditional cultural heritage;49 and defines works derived from folklore as work composed of elements borrowed from the traditional cultural heritage.50
However, the protection herein conferred to folklore and works derived from folklore does not seem to be effective in safeguarding local communities and custodians' benefits as the law vests the copyright in the State which shall exercise it under arrangements laid down by the President of the Republic.
I now offer an appraisal of the different environment-related laws that cover matters ranging from genetic resources, traditional knowledge and traditional cultural expressions in the Congo.
Environment related LawsThe Constitution of DR CONGO recognizes to all Congolese the right to a healthy and safe environment, conducive to a full development.51 It also recognizes customary authority and guarantees all Congolese the right to culture, the freedom of intellectual and artistic creation, and that of the scientific and technological research. It also guarantees copyrights and ownership of intellectual property and protects them by law as discussed earlier.
The environment legal frameworks were adopted based on the spirit of the constitution that yearns for a safe and healthy environment. The notable law to be tackled here is the following:
No 14/003 of 11 February 2014, related to the Conservation of NatureThe protection of GRs, TK, and TCEs against bio-piracy in Congo is entrusted to a national authority that the law does not specifically name52 and refers the matter to an implementation measure (decree) to intervene at a later point. However, the National Competent Authority, appointed in accordance with the Nagoya Protocol, acts as that authority pending the enactment of the said decree. We will further discuss this in the point relating to stakeholders involved in the management of Genetic Resources and traditional knowledge in the Congo.
Based on the perusal of article 50 of the law, it is understood that the State vests the responsibility of identifying the holders of traditional knowledge associated with genetic resources within local communities in the customary authority.
Moreover, article 60 of the law states that access to biological and genetic resources as well as traditional knowledge is subject to fair and equitable sharing of monetary and non-monetary benefits arising from their utilization.
Lastly, article 62 provides for joint ownership of Intellectual Property rights arising from access to biological and genetic resources for industrial and commercial purposes and joint venture.
It is worth pointing out that the law provides some vague core principles that do not sufficiently deal with the protection of GRs, TK, and TCEs and does not effectively address the risk of misappropriation.
This section has revealed that in the Congo, IP laws are ill-suited for the protection of traditional knowledge and traditional cultural expressions as they do not provide solid measures for the protection of these resources. Although I support the view of a sui-generis protection regime for traditional knowledge and cultural expressions, as it has been proven to cater best to their peculiarities, I am also of the view that IP laws should be drafted in a way mutually supportive to indigenous knowledge protection laws especially when it comes to issues relating to disclosure of source of origin to curb issues of wrong patenting commonly labelled as bio-piracy.
As regards the law relating to the conservation of nature which loosely touches on access and benefit sharing issues as well protection of traditional knowledge and cultural expressions, in the absence of a solid national legislation aligned to the Nagoya Protocol, a series of implementation measures should be enacted to give substance to this subject matter. In this regard, criticisms have been raised towards the law for lacking clear and adequate benefit-sharing rules53 as well as for saying very little regarding the Intellectual Property regime governing the inventions developed with genetic resources and associated traditional knowledge.
It is worthwhile pointing that some provisions in relation to benefit-sharing can be found in other legal instruments such as the Forest Code, which provides for benefit-sharing with communities based on logging and conservation concessions. However, these provisions suffer from a lack of clarity and enforcement in most cases and require a complete revamping.
This being said, I have deemed fit to carry out a comparative study and explore best practices and good experiences from other protection regimes to see what can Congo adopt from others and how it can strategically adapt those experiences taking into account its own interests and policy objectives. The studied countries are South Africa and Japan. This choice is motivated by the fact that South Africa is big provider of genetic resources and has perhaps the most equipped legal framework as regards genetic resources coupled with traditional knowledge and cultural expressions and has hosted many debates and case studies in respect to IP and indigenous knowledge protection. Japan was chosen given the uniqueness of its system. As a user of genetic resources, it does not require a prior informed consent before accessing its resources. Also, because of Japan's environmental leadership whereby it championed and spearheaded many environment-related negotiation forums, one of the most notable ones being the Nagoya Protocol in 2010.
The comparative study has the ambition of finding out how can Congo strike the right balance between a provider-oriented protection and a user-oriented access of genetic resources and contemplate an equilibrated and attractive regime.
Brief overview of south Africa's model of protection of genetic resources, traditional knowledge, and traditional cultural expressionsSouth Africa is one of few African countries to have a comprehensive legal and policy framework in place for access and benefit sharing (ABS) 54 as well as strong indigenous knowledge protection systems.
The paramount role that indigenous knowledge plays in the development of inventions for human welfare cannot be questioned. Several business models nowadays rely heavily on traditional knowledge, genetic resources, and traditional cultural expressions to remain competitive and prosperous, regardless of industry. Pharmaceuticals are constantly in the lookout for new plants and chemical compounds to manufacture new drugs and cosmetics. They work tirelessly to produce innovative products out of biological resources and associated traditional knowledge, let alone the food industry and the nutraceuticals.
This represents an interesting opportunity for developing countries to strategically utilize their biological resources to boost local indigenous innovations and capture the best possible value. Although the issue of financial capacity and expertise might hinder those efforts, if national policy objectives were made top priority, an important budget line could be dedicated to research and development.
In line with the above, South Africa was perhaps one of the first African countries to define clear policy objectives as part of its National Development Plan (NDP), Vision 2030, which calls for greater emphasis on innovation, improved productivity, more intensive pursuit of a knowledge economy, and better exploitation of comparative and competitive advantages.55 The policy uses intellectual property as the main tool for promoting these objectives.
South Africa is the third most biodiverse country56 in the world, after Indonesia and Brazil, and has a huge interest in biodiversity conservation.
In addition, it has one of the most culturally diverse populations scattered around the country as well as a wide array of indigenous and local communities coupled with rich traditional knowledge. It is believed that of the 50,000 African indigenous plant species, 24,000 are endemic to South Africa.57 There is a high reliance on the medicinal uses of indigenous plants and it is submitted that 70% of the population consult a traditional healer.58
Given this impressive wealth and the high stakes in terms of the risks of misappropriation of these genetic resources and the associated traditional knowledge thereof, South Africa issued the Indigenous Knowledge Systems Policy (IKS) in 2004, which aimed at assisting in the country's efforts of poverty alleviation.
In addition, South Africa has enacted a wide range of legal and regulatory instruments geared toward safeguarding these resources and ensuring that genuine holders get fair rewards from their assets. The country was a trailblazer with respect to benefit-sharing agreements which emerged after the controversial Hoodia case that involved the CSIR and the San and Khoi communities.
The legal and regulatory apparel surrounding genetic resources, traditional knowledge, and traditional cultural expressions is quite streamlined in South Africa and has the merit of securing communities' indigenous rights while striking the appropriate balance in terms of the sharing of benefits.
However, there's been criticism from some commentators that redundancy and overregulation hold sway in the country when it comes to the protection of indigenous knowledge. It has appeared that many laws overlap and lay down different requirements for access to indigenous knowledge. This, in turn, leads to much bureaucracy as well as legal uncertainty for researchers and users while raising unreasonable expectations from local communities and other knowledge holders.
As discussed earlier in this paper, South Africa chose to amend its IP law in 2005 so as to include a requirement of disclosure of origin or source of the genetic resources and associated traditional knowledge that led to an invention for which a patent is being filed. Then, in 2013, another amendment occurred to give recognition and protection to certain manifestations of indigenous knowledge as a species of IP regardless of the harsh criticism from many IP purists and lawyers who strongly believed that indigenous knowledge deserves a sui generis regime of protection to cater for its complexities. The said amendment triggered a change in four of the existing Intellectual Property (IP) statutes, namely the Copyright, Designs, Performers Protection, and Trade Marks Acts59, so as to include indigenous assets in the ambit of their protected subject matters.
The scholarship community is unanimous, or almost, on the need of an effective protection for indigenous knowledge. The debate resides at times on the adequate means of that protection. The passing of the IPLAA in South Africa as a law met a growing opposition and criticism from the scientific and research community. The biggest voiced concern was the fact that the law was treating TK as eligible for IP protection on an equal footing with patents and copyrights and therefore was ill-suited to fulfill the goals it was intending to pursue namely encourage innovation and creative works. However, this does not apply to TK as works deriving from it do already exist and are already being used by others.60in addition, TK can sometimes be collectively owned whereas traditional IP rights reward a single individual.
It is worthwhile noting that currently, a new bill that was adopted in 2016 and named "Indigenous Knowledge Systems Bill" is on the verge of being passed to an act and has received mixed reviews from the scholarship community. It certainly has the merit of addressing the concerning confusion brought about by the IPLAA in putting indigenous knowledge in the same protection regime as conventional IP subject matters by providing a sui-generis protection mechanism attuned to the international as well as regional trends and prevailing lines of thought. However, the IKS Bill fell short in reducing the red tape and bureaucracy, as it provides for a lengthy process leading to the obtention of a license prior to accessing the indigenous knowledge, a process that lacks user-friendliness.
What role Japan as a global environmental leader can play?
Japan has long been at the forefront of environment-related discussions in a range of international and regional forums. It has also played a proactive role in environmental leadership to ratify major international conventions such as the CBD, unlike its industrialized counterparts, namely the United States.
In addition, Japan has demonstrated a commitment towards environment-related issues by hosting first the Kyoto talks in 1997 that led to the adoption of the Kyoto Protocol, an agreement to reduce greenhouse gas emissions of industrialized states. This was followed by COP 10 in 2010, which culminated in the adoption of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity.
Moreover, Japan supports a range of projects aiming at helping developing countries meet their environment-related objectives through the Japan Biodiversity Fund, for instance, as well as efforts made through the GEF.
As Miranda A. Schreurs mentions: "Japan became among the world's largest donors of ODA and assistance targeted explicitly for the environment".61 In June 1992, the cabinet adopted the Official Development Assistance Charter, which included environmental protection as one of its four basic principles.62
However, Japan's environmental leadership is a rather recent development as the country has received several harsh criticisms in the past from major environmental NGOs such as Greenpeace for pollution issues and questionable wildlife practices.63 This has prompted the government to consider passing environmental legislations to make Japan's ODA environment-friendly and more transparent.
In the following section, a review of Japan's framework in relation to GRs, TK, and TCEs will be addressed.
Japan's situation: uniqueness of the systemJapan is endowed with rich biota and marine biodiversity that is worthy of protection in the spirit of the CBD and the Nagoya Protocol, which it ratified in 2017, thereby double-hatting the roles of user and provider of genetic resources and traditional knowledge. However, Japan has avoided implementing national laws in respect to the protection of genetic resources, traditional knowledge, and traditional cultural expressions despite the fact that the country holds a variety of TK as well as indigenous peoples commonly known as the Ainu.64
Instead, Japan has chosen to implement guidelines and implementation measures in respect to ABS-related activities and has postponed talks regarding the opportunity of a national legal framework to translate the Nagoya Protocol as well as frameworks in respect to the protection of indigenous knowledge owned by local communities.
It seems as though Japan's mindset is user-oriented as the country's user-specific guidelines and implementation rules are geared towards supporting the national biotech companies in their overseas bioprospecting activities.
The softness of guidelines and the lack of legally binding power of Japan's ABS measures is perhaps cultural-related as Japanese companies and scientists do not need coercive measures to comply with what is expected from them. This is because the failure to comply with this could lead to reputational damages, a commodity carefully valued and cherished. For publicly funded universities and research centers, the lack of compliance can amount to budgets cuts from the line ministry.
All genetic resources brought to Japan under the Nagoya Protocol are subject to reports to the Ministry of Environment, which stands as the official checkpoint. Japanese users first rely on Japanese resources as the first source of genetic resources. Recently, we have witnessed a shift of attention in academic research whereby most Japanese universities, research centers, and biotech companies tend to drive their research towards microbiological genetic resources instead of plant genetic resources, which are explored by merely a few seed companies.65
This trend has been proven as recently three Japanese professors have been awarded Nobel prizes in the areas of physiology, iPS cells, and cancer therapy.
This would imply that the position of Japan's research community has shifted from natural products to microbiological or human cell processes. Thus, there is less reliance on bioprospecting activities overseas as Japan is considered sufficiently endowed with resources domestically.
In addition, Japanese companies now tend to opt for chemical syntheses instead of accessing foreign genetic resources.66 In the latter case, there is no direct access organized as companies deal with intermediaries such as microbiologists to gain access to those resources. That said, it is better from a Japanese user's perspective to ease access to resources and promote win-win research partnerships by removing burdens so as to allow research to be conducted more smoothly
This paper aimed at reviewing the legal landscape in the Congo with respect to the protection of GRs, TK, and TCEs so as to determine if they enjoy the suitable and tailored protection they deserve. It has emerged from the analysis that the Congo lacks the appropriate legal frameworks with regards to the protection of these assets. The existing patent law does not provide for any kind of requirement in relation to inventions stemming from genetic resources and associated traditional knowledge. In addition, although the copyright law provides for some sort of recognition for folklore and works derived from it, it falls short on establishing clear protective mechanisms for it and the communities holding them.
Moreover, the Congo lacks a proper ABS national law that lays down clear rules in respect to the protection of genetic resources in alignment with the Nagoya Protocol. The existing law on the Conservation of Nature provides for a section dealing with matters surrounding ABS but still redirects several key issues to future enforcement decrees.
In light of the above, the beginning of a solution could perhaps be the enactment of a sui generis law that would provide for a tiered approach for the protection of TK and TCEs, depending on their level of disclosure or publicity. The more the knowledge is known, the less protection it will enjoy.
TK and TCEs prove difficult to regiment given their peculiar nature. As Manuel Ruiz Muller puts it: "there exists a widespread belief that TK can be controlled and subject to effective use restrictions".67 Information is one of (if not the most) complicated goods to control and protect, especially when it becomes shared, dispersed, and disseminated among communities and indigenous people.68
The analysis conducted on South Africa's and Japan's ABS systems have exposed two different perspectives from providers and users. It is, therefore, a necessity for the Congo to endeavor to bridge the gaps between these two perspectives in order to bring the best out of them. It is important to regulate ABS issues. However, at the same time, a proper balance needs to be struck by putting in place flexible and user-friendly rules to attract more users and scientists for the enhancement of research and development.
1 "Land rights and nature conservation in Democratic Republic of the Congo", IUCN Publication, 2016
2 Article 15, Convention on Biological Diversity.
3 P Oldham. et al. (2013) Biodiversity in the patent system: A country study of biodiversity, genetic resources and global patent activity for the Democratic Republic of Congo, prepared for GIZ one world analysis, 2013. P.12.
4 Art. 2 of the CBD defines genetic resources as genetic material of actual or potential value. Genetic material in turn defined as any material of plant, animal, microbial or other origin containing functional units of heredity.
5 World Intellectual Property Organization (WIPO), Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), The Protection of Traditional Knowledge: Draft Articles, 31st Sess, WIPO/GRTKF/IC/31/4 (2016), Annex at 5, online: <www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_31/wipo_grtkf_ic_31_4.pdf>.
6 Ibid.
7 Ibid.
8 Background Brief, The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, WIPO Publication, No. 2, 2015. Available at http://www.wipo.int/edocs/pubdocs/en/wipo_pub_tk_2.pdf
9 Background Brief, Ibid
10 Ibid.
11 IGC 2018/2019 biennium mandate, accessible at http://www.wipo.int/export/sites/www/tk/en/igc/pdf/igc_mandate_2018-2019.pdf
12 http://www.ip-watch.org/2018/07/02/wipo-ip-genetic-resources-committee-makes-progress-despite-block-weeeweend/
13 Kongolo, T. African contributions in shaping the worldwide Intellectual Property System, Routledge, 2016, p. 287.
14 The following countries are ARIPO's member states: Botswana, The Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Liberia, Rwanda, São Tomé and Príncipe, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.
15 Lusaka Agreement, 1976.
16 Kongolo, T. Ibid, p. 76.
17 Dutfield, Graham, Ibid, P. 19.
18 Genetic Resources, traditional knowledge, and the law solutions for access and benefit sharing/ edited by Evanson C. Kamau and Gerd Winter, Earthscan, 2009, p.19.
19 Kamau, E.C., G Winter. 2013. Common Pools of Genetic Resources: Equity and Innovation in International Biodiversity Law. London and New York: Routledge, p.4.
20 The following countries are OAPI's member states: Benin, Burkina Faso, Cameroon, the Central African Republic, Chad, Comoro Islands, Congo, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Mali, Mauritania, Niger, Senegal and Togo
21 Bangui Agreement, March 2, 1977, Preamble.
22 Interview with Fabrice Manga, Legal expert, Service of Distinctive Signs, OAPI on October 5, 2018 at Kansai University.
23 SADC consolidated Treaty, Article 5 (a)
24 SANbio website accessible at http://www.nepadsanbio.org/about-sanbio
25 Interview with Dr. Sechaba Bareetseng, SANbio Programme Manager and CSIR/South Africa Researcher, October 16th, 2018 at Kansai University, Japan.
26 Ibid
27 Report of Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore, First session, Geneva, April 30 to May 3, 2001, WIPO Doc. WIPO/GRTK/IC/1/13, para. 19.
28 See http://www.biodiversitya-z.org/content/megadiverse-countries
29 DRC national cultural policy, 2005
30 P Oldham. et al., ibid, p12.
31 Ibid.
32 Ibid.
33 Leigh, J.A., Mayer, F. & Wolfe, R.S. Arch. Microbiol. (1981) 129: 275. https://doi.org/10.1007/BF00414697
34 P Oldham. et al., ibid, p.13.
35 Ibid.
36 Ibid.
37 Ibid.
38 See patent number US005607673A available at https://patentimages.storage.googleapis.com/e8/95/6b/1284b30c8f9c90/US5607673.pdf
39 Ibid.
40 See patent number WO1995029240A1, available at https://patents.google.com/patent/WO1995029240A1/fr?oq=WO1995029240A1
41 Ibid.
42 Congolese Law on Industrial Property, 1982, Art 2.
43 Ibid, Art 36.
44 Ibid, Art 31.
45 Ibid.
46 (See WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999 &rdquoIntellectual Property Needs and Expectations of Traditional Knowledge", at p. 25)
47 Ibid.
48 Ordinance-Law No 86-033 on the protection of Copyright and Neighboring rights in April 5, 1986, Art 4 (n,o)
49 Ibid, Art 6 k
50 Ibid, Art 6 l
51 2006 DRC Constitution as amended on 20 January 2011, Arts 53-55.
52 Law on Conservation of Nature, Art 52.
53 See Comments on the draft benefit-sharing plan presented by Democratic Republic of the Congo for the Mai Ndombe Emissions Reduction Program (March 27, 2017 version) at http://www.redd-monitor.org/wp-content/uploads/2017/08/PIREDD_benefit_sharing_-plan_comments_final.24.08.2017.pdf
54 Wynberg, R. 2018. "One Step Forward, Two Steps Back? Implementing Access and Benefit Sharing Legislation in South Africa." In Routledge Handbook of Biodiversity and the Law, edited by C. McManis and B. Ong, 198–218. London: Routledge. P.1
55 The Bio-economy strategy, Department of Science and technology, South Africa, 2013. Available at https://www.gov.za/sites/default/files/Bioeconomy%20Strategy_a.pdf
56 South Africa is the third most biodiverse country in the world according to the South African National Biodiversity Institute (SANBI). Report available at https://www.sanbi.org/about/about-sanbi/
57 Prof. Vinesh Mahraj, presentation at Kansai University on October 18th, 2018.
58 Ibid.
59 Act no. 28 of 2013: Intellectual Property Laws Amendment Act, 2013, explanatory note.
60 Aina N Vilho, A Critical Analysis of the Protection of Traditional Knowledge within the Namibian Legal System, Master thesis, University of Cape Town, 2014, p.59.
61 Miranda A. Schreurs (2004) Assessing Japan's Role as a Global Environmental Leader, Policy and Society, 23:1, 88-110, DOI: 10.1016/S1449-4035 (04) 70028-4 available at https://www.tandfonline.com/doi/pdf/10.1016/S1449-4035%2804%2970028-4
62 Miranda, Ibid.
63 Ibid.
64 The indigenous Ainu people of the northern Japan archipelago and its environs are known for their cultural distinctiveness. They have been officially recognized in June 2008 by the Japanese Diet as an indigenous people of Japan (An Introduction to Ainu studies, Center for Ainu and indigenous studies, Hokkaido University, March 2018.
65 Interview with Dr. Sumida the Japan Bioindustry Association on December 19, 2018 in Tokyo, Japan.
66 Interview with Ms. Maho Matsumoto, section Chief, Japan's Ministry of environment, on December 18, 2018, Tokyo, Japan.
67 Daniel F. Robinson, et al, Protecting Traditional Knowledge: The WIPO Intergovernmental committee on Intellectual Property, Genetic resources, Traditional Knowledge and Folklore, Routledge 2017. p. 132.
68 Daniel F. Robinson, Ibid.
