PROTECTING INDIGENOUS KNOWLEDGE USING INTELLECTUAL PROPERTY RIGHTS LAW: THE MASAKHANE PELARGONIUM CASE

Abstract

The use of indigenous knowledge (IK) and indigenous bio-resources by pharmaceutical and herbal industries has led to concerns about the need to protect indigenous communities' interests in regards to the use of IK and indigenous bio-resources. Some commentators believe that intellectual property rights (IPR) law can effectively be used to protect IK and indigenous bio-resources, while others are more sceptical. An analysis of the Masakhane Pelargonium case reveals that while the Masakhane community's successful use of IPR law in a case against Schwabe Pharmaceuticals has been lauded as a successful example of a marginalised community using IPR law to protect IK, the facts and results of the case are more ambivalent. Importantly, the Masakhane case shows that existing community resources and the level of mobilisation of the community affect the community's ability to use IPR law effectively. A consideration of the broader context in which IPR law is used is required in order to determine how useful IPR law may be for a particular indigenous community seeking to protect its knowledge and bio-resources. In addition, it also indicates that we need to start recognising communities' existing resources and their determination to be more pivotal to the success of IK-IPR cases.