Pamela Andanda (Law, University of Witwatersrand)
THE INTEGRATION OF TRADITIONAL KNOWLEDGE INTO THE INTELLECTUAL PROPERTY REGIME USING VALUE-ADDED JUSTIFICATION AND GRAMMATICAL ANALYSIS OF DERIVATIVE WORKS
Attempts to integrate traditional knowledge (TK) into the intellectual property (IP) regime is contentious mostly due to the inherent differences between TK and IP, which have led to concerns that such a regime is incapable to preserving and protecting the holistic nature of TK (Andanda, 2012). The fact that ‘the IP needs of TK holders are shaped by their contact with the formal IP systems on the one hand and informal IP regimes that prevail in their societies and communities on the other…’ (WIPO, 2001) makes TK a good example of what Justice Stewart correctly described as property rights that have their origin independent of the constitution and the law (1972). The cross-cultural nature of the two different regimes that govern TK has led to situations where the rights of TK holding communities are erroneously considered to be in the public domain particularly when considering the originality of derivative works that may contain elements of TK.
Focusing on copyright law’s protection of derivative works that the courts in the USA (International News Service, 1918) and South Africa (Moneyweb, 2016) have approached very differently, this paper analyses the prospects of applying the approaches that underlie these decisions with a view to proposing ways of integrating TK into the IP regime in a manner that respects and preserves the essence of works such as folklore and musical works from inappropriate use by unauthorised third parties.
The trend in these decisions seems to focus on protecting derivate works on the basis of value-added justification, which Hughes (1988, p.309) correctly argues, ‘underpins intellectual property law.’ Applying the theory underlying value-added justification, this paper unpacks the essence of such value, based on the well-established approach in carrying out an objective comparison between the derivative works and works containing prior material on which derivative works are based for purposes of establishing the originality of the latter works. Indeed, the tool of analysis that is used in the objective comparative process is grammar. In most legal systems that are non-inquisitorial, this deliberative process entails reasoning with things in the sense that courts have to consider works that are in existence in order to determine whether they warrant protection through intellectual property law or they would rather be left in the public domain to be used by everyone. The paper further interrogates Hughes’ assertion, in considering the justification of property rights in IP, that ‘…intellectual property is either labour, personality or theft’ (1988, p.290).
WIPO (2001) Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999).
Pamela Andanda is Professor of Law at University of the Witwatersrand in Johannesburg. Her research interests are in the areas of intellectual property, biotechnology, health law, bioethics, policy analysis, commercial law and governance of biomedical research. She has published extensively in these fields and is currently a consortium member of the TRUST project.
Andanda, P. ‘Striking a balance between Intellectual Property Protection of Traditional Knowledge, Cultural Preservation and Access to Knowledge’ the Journal of Intellectual
Property Rights 2012, 17(6) 547-558.
Hughes J, ‘The Philosophy of Intellectual Property,’ the Georgetown Law Journal 1988 (77) 287-366.
Justice Stewart’s statement in Board of Regents v. Roth 408 U.S. 564, 577 (1972).
International News Service v The Associated Press (248 U.S. (1918); 215).
Moneyweb (Pty) Ltd v. Media24 (Pty) Ltd and Fadia Sallie, (31575/2013)  ZAGPJHC 81 (5 May 2016).