The Swakopmund Protocol

Background: Adopted by the Diplomatic Conference of ARIPO at Swakopmund, Namibia, on August 9, 2010 and amended on December 6, 2016, The Swakopmund Protocol for the Protection of Traditional Knowledge and Expressions of Folklore⁵³¹ is an agreement of the African Regional Intellectual Property Organization (ARIPO) which provides for the protection of traditional knowledge (TK) and folklore in member states. The Protocol affirms the principle that traditional or local communities are the custodians of their TK, its associated genetic resources (GRs), as well as folklore, and empowers them to exercise rights over their TK and folklore and to benefit from its development.⁵³² The Swakopmund Protocol clearly distinguishes traditional knowledge from expressions of folklore. The Protocol’s provisions, especially those relating to folklore, were inspired by WIPO rules.⁵³³ It gives prominence to the customary laws of African countries.⁵³⁴

531 Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, ARIPO, 9 August 2010 (entered into force 11 May 2015) [Swakopmund Protocol].

532 “Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore”, The Archival Platform, 19^th January 2011.

533 See WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/17/4 (2010); and WIPO/GRTKF/IC/18/4 (published February 2011), which compares the Swakopmund Protocol to the versions of the WIPO document discussed and adopted before the adoption of the text of ARIPO.

534 Laurier Ngombe, “The Protection of Folklore in the Swakopmund Protocol Adopted by the ARIPO (African Regional Intellectual Property Organization) (2011) 14:5 The Journal of World Intellectual Property 403, at 404.

The basic subject matters of the Swakopmund Protocol are traditional knowledge (TK), related genetic resources and folklore. The rights associated with TK include requirements to obtain prior informed consent for access to such resources and benefit sharing. As TK and associated genetic resources are more relevant to agricultural practices, analysis in this section will focus on the Protocol’s provisions relating to TK and genetic resources.

Content: The Swakopmund Protocol adopts a wide definition of TK that recognizes the role of TK in agricultural development. Under Section 4 protection shall be extended to traditional knowledge. Traditional knowledge is defined to include any knowledge originating from a local community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, where the knowledge is embodied in the traditional lifestyle of a community, or contained in the knowledge passed on from one generation to another. The term is not limited to a specific technical field and may include agricultural, environmental or medical knowledge, as well as knowledge associated with genetic resources.

Section 6 of the Protocol also recognizes collective ownership of TK.

Section 7.1-2 of the Protocol grants the owners of TK “the exclusive right to authorize the exploitation of their traditional knowledge” along with the right to prevent the exploitation of their traditional knowledge without their prior informed consent. Section 7.3 of the Protocol defines

“exploitation” of traditional knowledge in the following contexts:

(a) Where the traditional knowledge is a product:

(i) manufacturing, importing, exporting, offering for sale, selling or using beyond the traditional context the product;

(ii) being in possession of the product for the purposes of offering it for sale, selling it or using it beyond the traditional context;

(b) Where the traditional knowledge is a process:

(i) making use of the process beyond the traditional context;

(ii) carrying out the acts referred to under paragraph (a) of this subsection with respect to a product that is a direct result of the use of the process.⁵³⁵

Section 7.4 of the Protocol also grants the owners of TK the right to institute legal proceedings against any person who carries out any of the acts mentioned in section 7.3 without the owner’s permission. The Swakopmund Protocol is better suited for Africa because it defines TK and the rights that should associated with it in greater detail than in agreements like the CBD and Nagoya Protocol. This broader definition of TK would allow communities to benefit from protection of a wider range of genetic resources. The scope of protection granted to TK is similar to that conferred by IP protection on holders of patents or PBRs.

Section 9.1 of the Protocol states that the “protection to be extended to traditional knowledge holders shall include the fair and equitable sharing of benefits arising from the commercial or industrial use of their knowledge, to be determined by mutual agreement between the parties.” By this provision the Swakopmund Protocol extends TK rights to the utilization of products and processes beyond the traditional context. The provisions will help in ensuring that the owners of TK continue to benefit from it, even when TK is transformed into products and processes that enter the formal market.⁵³⁶ This position is reinforced by the provisions of Section 11 (Exceptions and limitations applicable to protection of traditional knowledge), which declare that the “protection of traditional knowledge under this Protocol shall not be prejudicial to the continued availability of traditional knowledge for the practice, exchange, use and transmission of the knowledge by its holders within the traditional context.”

535 Swakopmund Protocol, Section 7.3.

536 At 110.

Implications for Food Security in West Africa: For regions like West Africa, where food production relies greatly on plants based on traditional knowledge, the protection of holders and custodians of traditional knowledge espoused in the Protocol is a useful legal tool that can be utilized to prevent the misuse, unlawful exploitation or misappropriation of TK and expressions of folklore by member states.⁵³⁷ However, it is interesting to note that the words ‘intellectual property’ or IPRs were not used in the provisions relating the rights for protecting traditional knowledge and associated genetic resources. The term IPRs was only used in section 19.2(a)(iv) regarding folklore, where prior informed consent is required to obtain IPRs over expressions of folklore.

The absence of the words “intellectual property rights” in describing TK and related genetic resources indicates two things: Firstly, it seems that the Protocol does not view TK as intellectual property, thus the provisions promote TK as a distinct legal regime separate from IPR. While this may give greater flexibility to protecting traditional knowledge, it will grant the Swakopmund provisions relating to TK less weight in interpreting IP regulations than if TK and genetic resources were recognized as a form of IP. The provisions do not qualify as sui generis protection of PVP under Article 27.3 of the TRIPS Agreement, as they do not refer to plant varieties. Secondly, the choice not to use the words IPRs in relation to TK may indicate that the agreement defers to the norms in current IP regimes relating to the relationship between IPR and TK. Thus, the Protocol does not attempt to develop protection of TK by utilizing flexibilities to IPRs, or exceptions and limitations to patents and PVP.

Because the genetic resources owned by TK in the Swakopmund Protocol may also be owned by IPR under the provisions of the Arusha Protocol for the Protection of New Varieties of

537 Swakopmund Protocol, Preamble.

Plants,⁵³⁸ conflict between the agreements seems inevitable. The question that will arise is where ARIPO is faced with a conflict between the two Protocols, which one should prevail? While the Swakopmund Protocol recognizes the need to protect TK and associated genetic resources, it does not provide specific obligations, or sanctions to ensure the enforcement of its provisions.⁵³⁹

The language used in the Swakopmund Protocol is less specific than that used in the Arusha Protocol. For example, while Articles 31-32 of the Arusha Protocol enables third parties to obtain and exercise IPRs within the ARIPO States, TK holders are not granted similar rights by ARIPO pursuant to the Swakopmund Protocol.⁵⁴⁰ The lack of specificity would give the Swakopmund Protocol less legal weight in legal interpretation. Considering that only four West African states are members of ARIPO and signatories to the Protocol, while eight are members of the OAPI, it is less likely to impact IP regulations in ECOWAS states. Based on the above evaluations, the Swakopmund Protocol can be said to be of limited value to advancing West African food security in IP regulations.

(B) Non-IP Based Treaties