Sui Generis counterplan solves

(Dr. John Ouma-Mugabe holds a PhD in Political Science from the University of Amsterdam and a Bachelor of Science (Agriculture) from the University of Nairobi. He is the Professor of Science and Innovation Policy at the Graduate School of Technology Management at the University of Pretoria, and a Senior Associate Fellow at the Science Policy Research Unit at the University of Sussex, UK. December 1998, Intellectual Property Protection and Traditional Knowledge: An Exploration in International Policy Discourse. Paper Prepared for the World Intellectual Property Organization, Geneva, Switzerland. ACTS Press, African Centre for Technology Studies, p. 97-125. //CPSW – GHS-LHM)

Second, countries should invest in the creation of sui generis legislation suitable to their cultural and political conditions. They should explore the development of systems that will first and foremost protect traditional knowledge as intellectual property of indigenous and local peoples. Such systems should also encourage (or even require) the flow of benefits from bioprospecting to indigenous and local peoples. According to Dutfield, “legislation could be drafted in such a waya as to allow a community to become the successor in title of . . . discovery and development process. Under this interpretation, indigenous communities would have the right to protect traditional practices utilizing intellectual property rights mechanisms, stopping the usual appropriation by others of the commercial value arising from their knowledge. As a right holder, they would have exclusive rights to withhold from third parties their consent to make, use, an offer for sale, or import the plant variety that they developed.” Third, it is crucial that new research be conducted on traditional forms of intellectual property and how traditional knowledge was/is protected by indigenous and local peoples in different parts of the world. Case studies illuminating how indigenous and local peoples perceive intellect and whether they treat it as property worth protecting would be useful. This work would form the basis for national and international processes to establish property protection regimes suitable for traditional knowledge and innovations. Conclusions This paper has provided a review of literature on intellectual property protection and traditional knowledge. In our view, conventional intellectual property law does not adequately cover or protect traditional knowledge and innovations of indigenous and local peoples. However, non-patent forms of intellectual property protection could be exploited to protect the knowledge and innovations. For example, trade secrets and trade marks offer flexibility for protecting traditional knowledge and innovations. Indigenous and local peoples do not have strong institutional arrangements to safeguard their property and enforce trade secrets and trade marks in modern economic space. We propose that countries invest in the establishment of sui generis regimes covering traditional knowledge and rights.