Indigenous People and the Protection of Intellectual Property Rights (IPRs) in Zimbabwe

Abstract

Indigenous people in Zimbabwe possess a wealth of indigenous resources, which has always sustained them and their preceding generations. Indigenous resources are disappearing at an alarming rate due to exploitation by non-indigenous people. The exploiters of indigenous resources are benefiting from the indigenous resources at the expense of the indigenous communities who own the resources simply because they do not have IPRs. The sustainability of indigenous resources is being compromised by a lack of intellectual property rights (IPR) which accords the indigenous people’s right to own and protect their resources. This paper assessed the rights of indigenous people and the initiatives put in place to protect the intellectual property rights of indigenous peoples in Zimbabwe. Qualitative descriptive research was used to establish the perceptions, feelings and behaviours of respondents in their natural setting. Interviews and document reviews were used to collect data from indigenous people and IP practitioners. The results indicated that the protection of indigenous people’s intellectual rights is quite imperative, hence the urgent need for implementation of the IP policy in Zimbabwe. The study recommends more legal instruments that support the protection and preservation of indigenous knowledge in Zimbabwe.

1. Introduction

Zimbabwe’s indigenous people have been underprivileged with the right to their intellectual property. These indigenous people possess a wealth of knowledge and wisdom, which can sustain them and their preceding generations for eternity. The sustainability of their indigenous knowledge and resources is being compromised by a lack of intellectual property rights which accords them the right to own their knowledge and resources [1]. Unfortunately, in spite of the United Nations Declaration on the Rights of Indigenous Peoples, Zimbabwe remains among some countries that are yet to comply with the comprehensive and exhaustive instrument. The transformation of the global economy into a knowledge-based economy where knowledge becomes valuable when recognised and transferable within intellectual property rights frameworks calls for the protection of the indigenous peoples’ intellectual property.

The World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was established in 2000 as a result of economic globalisation to bring close attention to various kinds of knowledge in different parts of the globe [1]. Deliberations on the intellectual property (IP) issues that arise from the need to protect and access genetic resources, indigenous knowledge and traditional cultural expressions (TCE) were made in the above forum. The existing frameworks for intellectual property rights (IPR) have been anticipated as likely alternative means to protect indigenous knowledge, but the knowledge holders have demanded a legal instrument with a justified ability and authenticity to protect their rights [2]. Indigenous people, globally, have also demanded clarity on the legal systems and traditional leadership’s role in the fortification and safeguarding of their knowledge. This approach necessitates the mutual supportiveness of the current measures used for the protection of traditional knowledge and other global systems and practices discussed in various global conventions. Article 31 of the UN Declaration on the Rights of Indigenous Peoples recognises the rights of indigenous people over their traditional cultural expressions, indigenous knowledge and indigenous resources which include their related intellectual property rights [3]. However, the available intellectual property laws is sadly inadequately protecting Indigenous Peoples’ intellectual property rights, thus denigrating their relevance in society. The existing laws seem to support inventions and creative works which do not include intangible heritage. Indigenous peoples’ intangible cultural heritage, ranges from, traditional songs and dances, knowledge of medicinal plants and environmental conservation, languages, folklore, stories, beliefs poetry, riddles and many more [4]. All this knowledge is their intellectual property which is often treated as belonging to the ‘public domain’ and is continuously being embezzled by those within the established industry.

For centuries, indigenous people have been marginalised, disenfranchised, isolated and disposed of their ancestral lands. Despite being deprived of their own rights, indigenous people have also been labelled backward and superstitious culminating in the suppression of their religious, ethnic, cultural and linguistic particularities. Indigenous people throughout the world have been oppressed and suppressed, and their rights and well-being were ignored [2]. However, a new generation of educated indigenous men and women rose up in the nineteenth century during the course of the civil and human rights movement. Several indigenous organisations were developed in most developed countries such as the United State of America, Canada, Australia, Brazil and many more. The United Nations Conference on the Discrimination of Indigenous Communities held in Geneva in 1977 was the first conference to mobilise indigenous people globally. More than 150 representatives from various indigenous groups attended the conference [2]. This conference laid the foundation for a united coordinated indigenous community through the establishment of a global network that allowed them to lobby for their rights and to present their demands publicly. Indigenous people’s demands reached some level where they became noise to the ears of the international community, and they could no longer ignore them. Several international organisations began advocating for the interests of the indigenous peoples and the rights to their intellectual property. The International Labour Organization (ILO) headquartered in Geneva, Switzerland, was the first United Nations (UN) body to deal with indigenous peoples’ issues in 1929 [4]. ILO Conventions 107 and 169 stipulated several indigenous peoples’ rights, including rights to natural resources and preservation of their languages and culture. The establishment of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in 2000 to discuss intellectual property issues relating to indigenous knowledge and intangible cultural expressions was a great move towards the solution to indigenous peoples IP issues [2]. However, the indigenous people felt that the existing legal framework was not quite clear on their rights to IP and hence demanded an instrument that recognises the holistic nature of indigenous peoples’ intellectual property rights.

2. Contextual setting

Zimbabwe’s IPR system can be traced back to 2014 when the country developed its first draft IP Policy with the assistance of the Inter-Ministerial Committee on Intellectual Property [5]. Zimbabwe’s IP Policy was later produced by the Ministry of Justice, Legal and Parliamentary Affairs, with technical assistance from WIPO under the framework of the WIPO Development Agenda [http://www.wipo.int/ip-development/en/agenda/] and other stakeholder consultations [6]. On 28 June 2018, the National Intellectual Property, Policy and Implementation Strategy was launched to direct and promote the ‘IP generated activities by focusing on managing innovation as well as research and development more effectively among research institutions, tertiary schools, small and medium enterprises (SMEs) and individuals’ [4].

Indigenous peoples in Zimbabwe have sought recognition of their rights and identities which they have been deprived of since time immemorial. Indigenous people have been responsible for protecting and preserving their culture, religion, natural and sacred resources for years, yet throughout history, their rights have always been violated. Indigenous peoples today are arguably among the most disadvantaged and vulnerable groups of people in the world despite having their wealth of knowledge and resources [7]. Fortunately, the international community through United Nations and other indigenous organisations have recognised the need for special measures to protect the rights of indigenous peoples and maintain their distinct cultures and way of life globally [3]. The World Intellectual Property Organization (WIPO) defines indigenous/traditional knowledge as ‘any knowledge originating from a local or traditional 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 codified knowledge systems passed on from one generation to another’ [6]. The term covers a number of technical fields including agricultural, health, environmental conservation, education and training, culture and many more. The indigenous peoples’ intellectual property lies in the fields of agriculture, wildlife management, health and culture [8].

3. Problem statement

Indigenous Peoples are distinct social and cultural groups of people sharing the same ancestral links to their lands and natural resources. They have their own unique way of relating to their environment which is different from the way the other dominant societies do. Indigenous people have distinct characteristics that make them unique. Despite their social and cultural differences, indigenous peoples globally share common problems related to the protection of their rights as distinct peoples. The rate at which indigenous resources are being exploited and abused by non-indigenous people is worrisome in Zimbabwe. While there is reverence from the international communities for the importance of indigenous knowledge and indigenous resources, there are no binding instruments to protect the knowledge and sacred resources from exploitation. Without a clear and comprehensive legal instrument to protect the indigenous resources, which are the indigenous peoples’ intellectual property, there could be continued exploitation of the resources until they completely disappear from the communities.

4. Purpose of the study

The aim of this study is to assess the rights of indigenous people and the initiatives put in place to protect the indigenous people’s intellectual property rights in Zimbabwe.

5. Literature Review

5.1 The rights of indigenous people and the protection of their intellectual property

Indigenous intellectual property comprise information, practices, beliefs and attitudes that are unique to every indigenous culture. Removal of traditional knowledge from the indigenous community causes the community to lose control over the utilisation of the knowledge, hence the need for IPRs [5]. Indigenous people have the right to protect their intellectual property, from inappropriate use or misappropriation [9]. The need to protect their traditional knowledge and practices from commercial exploitation has caused indigenous people to seek an audience from international indigenous communities. Some individual researchers, agriculture and pharmaceutical companies are patenting or claiming ownership of traditional medicinal plants which have been used by traditional people for generations. The same also applies to traditional songs and dances, stories, practices and beliefs, to mention just a few. In many cases, such companies, individuals and organisations fail to recognise the indigenous people’s right to their own knowledge and deprive them of their fair share of the financial benefits that accumulate from the usage of their knowledge, skills and practices. According to the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (ARIPO), the following exclusive rights shall be conferred to the holders of traditional knowledge [6]

1. rights to authorise the exploitation of their traditional knowledge; and

2. rights to prevent anyone from exploiting their traditional knowledge without their prior informed consent

Section 19 of the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (ARIPO) calls for the protection of expressions of folklore against unlawful acts such as misappropriation, misuse and unlawful exploitation [6]. The Contracting States are therefore required to provide suitable and effective legitimate and practical measures to protect the indigenous people’s intellectual property against unauthorised publication, broadcasting, printing, distribution, public performance, rental, communication and access to their intellectual property. Prior Informed Consent should be sought before such actions are taken [6]. According to the United Nations Declarations on the Right of Indigenous Peoples, Article 31:

1. ‘Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge, and traditional cultural expressions, as well as the manifestations of their sciences, technologies, and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literature, designs, sports, and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights’ [3].

A number of instruments have been developed to protect the rights of indigenous peoples and their intellectual property. Some of the instruments include

1. the International Labour Organization’s Convention No. 169,

2. the Universal Declaration on Human Rights,

3. the International Covenants on Economic, Cultural, Social Rights, Civil and Political Rights, and

4. the draft UN Declaration on the Rights of Indigenous Peoples [9].

‘However, the nature of indigenous peoples’ intellectual property, which is often inseparable from spiritual, cultural, social and economic aspects of indigenous life, and the notion of collective ownership of such property is not adequately addressed in existing international intellectual property law’ ([9], p. 1-2).

5.2 Initiatives to protect indigenous peoples’ intellectual property

The establishment of the Intergovernmental Committee on Intellectual Property and Generic Resources, Traditional Knowledge and Folklore by WIPO members in 2000 prompted an agreement to develop global legal instruments that would provide comprehensive and effective protection for all indigenous knowledge, including intangible cultural heritage [10]. There are various laws available in the conventional IP legal system to protect innovations and inventions but do not address the indigenous knowledge rooted in the minds of individuals and environments and transmitted orally from one generation to the next. There is a need for individual countries to develop their own IP systems (sui generis) that are specially designed for the protection of such indigenous knowledge which is orally transmitted [11]. It is also suggested that indigenous knowledge should be documented for easier transmission and patenting, although it is also feared that once the knowledge is available for wider dissemination and access, there will be greater chances of abuse and misappropriation of the knowledge by foreigners [12].

6. Methodology

A qualitative descriptive research design was used in this study. Qualitative research was used to investigate the lives of indigenous people, including their behaviours, emotions, experiences, feelings, social set up and their relationship with other people, [13]. ‘Qualitative descriptive studies tend to draw from naturalistic inquiry, which purports a commitment to studying something in its natural state to the extent that is possible within the context of the research arena’ [14]. Interviews and document analysis were used to solicit the views of participants on the protection of indigenous people’s intellectual property rights in Zimbabwe. Data were collected from 10 participants, seven indigenous people and three IP practitioners. Participants were selected because of their ability to provide the information relevant to the study [15]. All participants’ informed consent was sought before the research began. Participants were told of their ability to draw from the study any time they felt they were no longer comfortable with the study. Participants’ confidentiality was also ensured. The results of the study were used for the purposes of the research only.

7. Results and discussion

This section presents and discusses the research findings based on the following themes that emanated from the data collected:

1. Significance of indigenous resources

2. The IP policy in Zimbabwe

3. Initiatives to protect IP rights for indigenous people

7.1 Rational for protecting indigenous resources

Participants were asked how important the indigenous resources were to the indigenous communities in Zimbabwe. All participants agreed that the indigenous resources were should be protected because they define who they are, and they are also their source of livelihood. Participants indicated that indigenous people relied on vegetative resources for their medicines, carpentry, firewood and for their rituals, hence the importance of protecting them for future generations. They indicated that they have their own indigenous ways of protecting their resources, but they have no power to stop foreigners from exploiting them. Some participants revealed that all their life they had been depending on the indigenous resources for survival, and their worry was some of the resources were now scarce because of abuse by foreigners who do not value them the way the owners do. It was also revealed that some indigenous communities were displaced and were relocated because their land was now used for other developmental purposes. Some of the shrubs and trees and roots they use as medicine have been destroyed. The destruction of the trees and shrubs meant that the medicinal plants would not be available again given that some trees and plants are only found in certain geographical areas and not in others. Their most fear was if the destruction continues throughout the country, there could end up with no traditional medicine at all, hence the need to protect the resources for eternity.

7.2 The IP policy in Zimbabwe

The results from this study indicated that the ZNIPPIS 2018–2022 is yet to be put into action, hence they could not comment on it. However, the respondents applauded the government for taking such an initiative which showed that they were taking the concerns of indigenous people seriously. Although most of the indigenous people prophesied ignorance of the existence of the ZNIPPS, they were positive that the government would take measures to protect their IP rights. The indigenous people were mostly concerned about the time the government was taking to address their concerns because most of the resources were fast becoming scarce because of abuse and vandalism.

7.3 Initiatives to protect IP rights for indigenous people

It is unfortunate that all the seven participants among indigenous people indicated that they were not aware of any initiatives being taken by the government to protect their IP rights. The respondents from the IP practitioners showed that the development of the ZNIPPIS was a step towards implementing the national IP policy which would cater for the needs of the indigenous people. However, the policy document does not explicitly explain how the intangible cultural heritage of the indigenous communities was going to be addressed in terms of intellectual property rights. On the ZNIPPIS action plan on point 3.4.6(e), the government shall establish a model licensing system for all information products, and it is assumed that indigenous knowledge is part of the information products Since indigenous knowledge is resident in the minds of individuals, it is not clear how the knowledge would be patented since it is not a creation or invention. It was established that various laws were enacted in Zimbabwe to protect the rights of individuals’ creative works, for example, Traditional Medicinal Practitioners Council Act of 1981, Patent Act, Copyright and Neighbouring Rights Act and Trademark Act, but the laws do not address the intangible cultural heritage of the indigenous people. Documents reviewed also showed great efforts to protect the rights of indigenous people from international organisations such as the United Nations, WIPO, ILO, UNESCO and many more.

8. Conclusion

The study therefore concludes that Zimbabwe has made strides towards the protection of indigenous people’s intellectual property by developing the ZNIPPIS which is yet to be implemented. It is hoped that once the IP policy is fully implemented and operational, all the worries of indigenous people will be addressed. They will be enjoying the economic benefits of their indigenous knowledge.