Title: Constitutional and international legal framework for the protection of genetic resources and associated traditional knowledge: a South African perspective

Authors: James Chapangara Mugabe; Lonias Ndlovu; Desmond Osaretin Oriakhogba

Addresses: University of Venda, University Road, Thohoyandou, Limpopo, 0950, South Africa ' University of Venda, University Road, Thohoyandou, Limpopo, 0950, South Africa ' University of the Western Cape, Robert Sobukwe Road, Bellville 7535, South Africa

Abstract: The value and utility of traditional knowledge in conserving and commercialising genetic resources are increasingly becoming apparent due to advances in biotechnology and bioprospecting. However, the absence of an international legally binding instrument within the WIPO system means that traditional knowledge associated with genetic resources is not sufficiently protected like other forms of intellectual property. This means that indigenous peoples and local communities (IPLCs) do not benefit from the commercial exploitation of these resources. The efficacy of domestic tools to protect traditional knowledge and in balancing the rights of IPLCs and intellectual property rights (IPRs) is still debated. This paper employs a doctrinal research methodology based on desktop research of international and regional law instruments and the Constitution of the Republic of South Africa, 1996, to determine the basis for balancing the protection of genetic resources and associated traditional knowledge with competing interests of IPLCs and IPRs in South Africa.

Keywords: genetic resources; traditional knowledge; biopiracy; indigenous peoples and local communities; WIPO-IGC; convention on biological diversity; CBD.

DOI: 10.1504/IJIPM.2024.142413

International Journal of Intellectual Property Management, 2024 Vol.14 No.6, pp.589 - 615

Received: 13 Oct 2023
Accepted: 03 Dec 2023
Published online: 30 Oct 2024 *

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