Enhancing South Africa’s traditional knowledge trade through the extension of geographical indications under the TRIPS Agreement.

Abstract

Due to the absence of an international agreement to protect traditional knowledge, divisive measures need to be taken in order to ensure that a governing structure is available, if not to fully protect traditional knowledge but at least to recognise it and limit its usage in order to prevent misappropriation. Geographical indications can provide such a governing structure, on an international level, as it is already entrenched under TRIPS. The hindrance to such governing structure being realised is that enhanced geographical indication protection under Article 23 of TRIPS is only available to wines and spirits. Negotiations have been initiated to see such enhanced protection be extended to products other than wines and spirits, such as traditional knowledge. Such negotiations started off with vigour but have since reached a stagnate point, with developing countries appealing for the reigniting of negotiations, with limited success and progress to no avail. The prime cause for the stagnation is the stalemate debate between the proponents (the EU and its supporters) and the opponents (the USA and its supporters) of the extension and thus recommendations need to be sought to identify measures to appease both parties to reach an amicable agreement. South Africa has seen success with the use of geographical indications to protect traditional knowledge, in light of the Rooibos issue. If such success is garnered through a free-trade-agreement with the EU, then success can be anticipated if geographical indication protection is extended to traditional knowledge on a multilateral level, through the WTO. It is against this background, that the research seeks to identify recommendations that can propel the support of the TRIPS geographical indication extension and see its realisation so that traditional knowledge can be enhanced in developing African countries such as South Africa