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Recognising the traditional knowledge of the San people:
The Hoodia case of benefit-sharing

The Issue
grounds of lack of novelty. For several NGOs that became involved in the Hoodia case, the main goal once The relationship between intellectual property rights, the patent on P57 had been granted to the CSIR was to prior informed consent, benefit sharing and the ensure that the San people would enjoy a significant protection of traditional knowledge is an international issue of debate that involves many parties, including commercialisation, and obtain proper recognition within indigenous communities. The San tribes of the Kalahari the South African legal framework of the rights of the are among the oldest communities in Southern Africa. San indigenous people concerning their traditional They are holders of traditional knowledge on the use of knowledge of the properties and use of Hoodia, as Hoodia gordonii, a succulent plant found in the Kalahari recognised in the CBD and the Bonn Guidelines. dessert, which they have historically consumed to stave off hunger on their long journeys. The San With the involvement of NGOs, the San people and
peoples were initially unaware that the South African the CSIR negotiated one of the first benefit sharing
Council for Scientific and Industrial Research (CSIR), agreements that gives the San people, as holders of
an arm of the South African government, had been traditional knowledge, a share of royalties derived
granted a patent on P57, an appetite suppressant from the sale of products containing the patented
derived of an extract of the Hoodia succulent through P57.
research carried out by the CSIR, and had plans to commercialise a Hoodia pharmaceutical product A central problem in seeking an agreement with the without their consent or their sharing of the benefits CSIR to ensure fair and equitable sharing of benefits derived from the patent and commercialisation. The derived from the P57 patented Hoodia products was the CSIR then negotiated an exclusive licence that deficiencies in South African legal framework for the transferred rights to further research and commercial protection on biodiversity and traditional knowledge. In exploitation of the patent to Phytopharm, a the Hoodia case it was difficult to assert the claims of the pharmaceutical company with a plant extract division, San people regarding the P57 patent and the future for the development of Hoodia products, which later commercialisation of Hoodia products because of the granted licences to the pharmaceutical company Pfizer lack of a clear regulatory framework establishing their and to the food multinational Unilever.1 rights. The hardships suffered by the San people, that have in time have become dispersed and impoverished, With the involvement of NGOs, the San people and the also made it difficult for the community to assert their CSIR negotiated one of the first benefit sharing legitimate claims. Only recently have the San been agreements that gives the San people a share of acquiring new land rights and efforts are being made to royalties derived from the sale of products containing recover their heritage and reunite the San population.2 the patented P57. Although the agreement has These difficulties are exemplified by the fact that during received criticism, it serves as an example for potential the early stage of the negotiations for a benefit sharing future benefit sharing agreements and other agreement the CSIR had argued that the San people no mechanisms to ensure that traditional communities longer existed and hence they had not been consulted receive recognition for their traditional knowledge and prior to the patent application for P57 nor had they tried gain a fair share of the commercialisation of the to approach the San to negotiate any benefit sharing In the case of the patenting of P57, the South African The CBD recognises that States have sovereign rights San Council, representing the San people, argued that over biological resources, but also calls on governments the CSIR did not consult with the San people nor in Article 8(j) to “respect, preserve and maintain the adequately recognised their role as original holders of knowledge, innovations and practices of indigenous and knowledge concerning the properties of Hoodia, in local communities embodying traditional lifestyles accordance to the principles laid out by the Convention relevant for the conservation and sustainable use of on Biological Diversity (CBD) and the Bonn Guidelines biological diversity.” Each State is free to determine the related to ensuring prior informed consent and benefit legal framework under which it will protect traditional sharing arrangements with traditional knowledge knowledge, implement the principle of prior informed holders. Moreover, the South African San Council also consent of the indigenous communities hold such pointed out that in the agreements between the CSIR traditional knowledge prior to accessing such resources and international partners for the development and and to provide for adequate compensation when the commercialisation of P57, the San people had not product is commercialised. Intellectual property rights been included. The validity of the patent granted to the can be a means to protect traditional knowledge, but CSIR was also questioned by NGOs and the South there can be other sui generis alternatives, which are African San Council, but not legally challenged, on being discussed in several international fora, including CBD and the World Intellectual Property Organisation granted a patent no. no. 983170 for the P57 appetite suppressant derived from Hoodia, which it was claimed, complied with standards of patentability, including non- It has been argued that the biodiversity legislation in obviousness, novelty and industrial applicability. In South Africa is weak in terms of the recognition of the August 1998 the CSIR concluded a licensing agreement customary rights of rural communities vis-à-vis the with Phytopharm for the further research, development rights of the State to regulate access and use of the and commercialization of P57. The San people had not countries’ biological resources, and the enforceability been informed by the CSIR of their intentions to patent of the rights of rural communities and proper inclusion the P57, the granting of the patent or the negotiations of prior informed consent.3 Access and use of with the companies for the possible development of biological resources is regulated in South Africa by the State through a permit scheme. The government issues research or plant collection permits to International media and South African NGOs were researchers and bio-prospectors to study and use its responsible for bringing to the attention of the San biodiversity. It has been noted that rural communities community and the broader public of the patenting of are normally not involved in the decision-making P57, the potential for commercial exploitation of the process through which the research or plant collection product and the fact that the San community, as holders permits are issued or refused to prospective applicants, of the traditional knowledge from which the P57 was and thus they are not legally empowered to control derived had not been consulted before the patent access and to minimize the misappropriation and over- application nor had been offered compensation. In June exploitation of resources such as the Hoodia plant in 2001 the British newspaper The Observer reported on the commercial development of Hoodia without the consent or involvement of the San people.7 The NGO While in the Hoodia case was a success in the sense Survival International then informed the Working Group that the South African San Council was able to of Indigenous Minorities in Southern Africa (WIMSA), an conclude a benefit sharing agreement with the CSIR NGO formed in 1996 that unites various San peoples of after long negotiations and pressure from NGOs, there the patenting of P57. Local NGOs, particularly are still many challenges for the San people in their Biowatch8, were pivotal in the process in providing struggle for the proper recognition of their associated information to the San people and to the public that knowledge. The San people are currently not receiving would otherwise have not been available and supported any revenue from the sales of many Hoodia-based WIMSA. An important personality in the Hoodia case products currently being traded in the international was Roger Chennells, a lawyer with the human rights law firm Chennells Albertyn in Stellenbosch who had commercialised outside of the CSIR agreement and been engaged in the land rights campaign for the San thus their commercialisation would appear to be in people acted for WIMSA and its support organisation, violation of Article 8(j) of the CBD and the Bonn the South African San Institute (SASI), in representing Guidelines in terms of prior informed consent and the various San peoples in South Africa in the Hoodia access and benefit sharing. Currently several NGOs and the South African San Council are campaigning for governments to take steps against the perceived il egal The group of NGOs, including those directly and legally sale of these products.5 The pharmaceutical and food representing the San peoples of South Africa, companies involved in the development of the patented approached the CSIR to ask why, prior to the P57 patent Hoodia gordonii product are also making efforts to application and subsequent negotiations with contain the illegal sale of products containing Hoodia.6 international companies for the commercial use of Hoodia and associated traditional knowledge, the CSIR The campaign for the sharing of benefits derived
had excluded and/or sidelined the San peoples. The from the commercial use of Hoodia products
NGOs argued that the CSIR should have sought informed consent of the San before acquiring and using The traditional knowledge of the San peoples on the the information concerning Hoodia and associated use of Hoodia had been collected and documented as traditional knowledge in commercial activities, in far back as the 1930s, and at that point was free to be recognition of their contribution to the conservation and accessed by researchers and for commercial preservation of Hoodia and their traditional knowledge. It exploitation, given that there were no requirements for was argued that the rights of the San to control and to prior informed consent of the communities before determine the grounds for the use of Hoodia were accessing and using their knowledge or benefit sharing undermined because they were not consulted or involved of the commercial rewards of the exploitation of such in the process, including that the granting a collection knowledge, under South African laws or any permit to the CSIR for Hoodia plants. Al egedly, two of international treaty such as the CBD. The CSIR in the arguments given by the CSIR concerning the South Africa was the main agency carrying out exclusion of the San were that 1) all the San people had research on the use of Hoodia. In 1996 the CSIR was died, and 2) the CSIR were reluctant to engage the San in the discussions because they may have raised the negotiation and the constant communication between demands that would have been difficult to satisfy.10 them that allowed for misunderstandings to be clarified and concerns to be voiced. The CSIR recognised that in Once the San communities and civil society were the first instance it should have asked for the informed informed about the patenting of P57, they forcefully consent of the San people prior to the application for the campaigned to be included in subsequent negotiations P57 patent and sought to negotiate an agreement, in the and influence their outcome. Given that the research case that the San gave their informed consent for the and further processes related to P57 by the CSIR patent, that would ensure the equitable benefit sharing of where already on their way, reversing such process the products derived from the P57. The case serves then was not seen as a realistic option by the San as an example of the necessity of ensuring prior communities. Hence, they focused their efforts on informed consent of traditional knowledge holders and, in achieving a benefit sharing agreement between the cases where such prior informed consent has been CSIR and the South African San Council, a voluntary achieved and a patent or other form of intellectual association established by the Khomani, the Xun and property is granted over elements derived from the Khwe San comunities of South Africa. Following biodiversity of which traditional communities are months of negotiations, including workshops and knowledge holders, ensuring that the benefits of their meetings funded by the CSIR that brought together commercial exploitation are equitably shared. representatives of the San, CSIR, government representatives and NGOs,11 on 1 February 2002, an The Hoodia case also highlights the need to ensure that agreement in the form of a Memorandum of the national legislation with respect to the biodiversity Understanding was reached between the CSIR and the provides adequate recognition to the rights of traditional South African San Council. The agreement was communities, in accordance to the principles and considered a significant step forward in that the CSIR objectives set out in the CBD and the Bonn Guidelines. recognised the San as holders of traditional knowledge The Hoodia case highlighted the fact that South Africa of Hoodia and became committed to negotiating a currently lacks a regulatory framework that can properly benefit sharing agreement with the South African San ensure the legal protection of the rights of the rural Council in recognition of their collective rights, including communities over biodiversity, including recognition of reaping monetary benefits of the commercial prior informed consent and protection of traditional exploitation of the P57 patents. Between February knowledge. In this regard, it is important to ensure that 2002 and March 2003 the negotiations on the terms of adequate legislation is developed, whether based on the the agreement between the CSIR and the South intellectual property system or a sui generis model. African San Council continued until a benefit sharing agreement was signed on 24 March 2003. The agreement specified the percentage of the total payments, including royalty payments (6%), made to 1 See Berne Declaration, San of Southern Africa urge the CSIR that the San people would receive upon the governments to act, Windohek, Cape Town, Zurich, commercial release of P57 products.12 Although there are debates as to whether the shares in terms of royalty payments allocated to the San in the event of 2 See Roger Chennells (2002), “The Khomani San Land successful development of pharmaceuticals based on Claim”, Cultural Survival Quarterly, Issue 26. 1. P57 were fair and sufficient or whether the San could 3 The most robust piece of legislation on biodiversity in have negotiated a better deal, the benefit sharing South Africa is the Biodiversity Act of 2004, but it is agreement could result in important financial returns for argued that it is inadequate in ensuring the protection of the rights of rural communities. For example, the Biodiversity Act of 2004 does not include adequate Successes and Lessons Learned
provisions reflecting customary laws and introducing prior informed consent. See Tonye Marcelin (2006), Although far from ideal in terms of equity and process, Biodiversity Regulatory Options: Involvement of Rural the benefit sharing agreement reached in the Hoodia Communities in Decision-Making Processes in South case is a step forward in the recognition of the Africa, The Journal of World Intellectual Property 8(6), collective rights of indigenous communities as holders of traditional knowledge related to biodiversity. 4 Tonye Marcelin (2006), Biodiversity Regulatory Importantly, it sets a precedent for future benefit Options: Involvement of Rural Communities in Decision- sharing agreements to be negotiated. In the Hoodia Making Processes in South Africa, The Journal of World case the role of NGOs, including those representing the San people, was fundamental in reaching the 5 For example, recently the Working Group of Indigenous agreement and ensuring that it was as fair and Minorities in Southern Africa (WIMSA) and NGOs equitable as possible. Important elements that lead to including Biowatch, the Berne Declaration and the the successful conclusion of the agreement was the Church Development Service wrote a letter to the trust that was achieved between the different parties in governments of South Africa, Germany and Switzerland to stop the il egal trade in unauthorised Hoodia products. See Wezi Tjaronda, San cry foul over Hoodia trade, GRAIN, March 9, 2006, originally published in New Era, Windohek. 6 See, for example, http://www.phytopharm.co.uk/hoodia_faq.html 7 See The Observer, “In Africa the Hoodia Cactus Keeps Men Alive: Now its secret is ‘stolen’ to make us thin”, 17 June 2001. 8 Rachel Wynberg from Biowatch has been significantly involved in the Hoodia case and in the development of the South African legislation on biodiversity. See http://biowatch.org.za 9 See Chennels Roger (2003), Genetic Research, Ethics and Law; Indigenous Peoples, Biodiversity, Biotechnology and the Protection of Traditional Knowledge, St. Louis, 4-6 April 2003. 10 Tonye Marcelin (2006), Biodiversity Regulatory Options: Involvement of Rural Communities in Decision-Making Processes in South Africa, The Journal of World Intellectual Property 8(6), 809-824. 11 See Rachel Wynberg (2004), Rethoric, Realism and Benefit-Sharing: Use of Traditional Knowledge of Hoodia Species in the development of an Appetite Suppressant, The Journal of World Intellectual Property, November, Vol.4, no. 4, p.856. 12 For details of the benefit sharing agreement and the negotiation process leading to the agreement, see Chennels Roger (2003), Genetic Research, Ethics and Law; Indigenous Peoples, Biodiversity, Biotechnology and the Protection of Traditional Knowledge, St. Louis, 4-6 April 2003, p.10. For further information and details about developments in the Hoodia case and the South African legislation on biodiversity, see Rachel Wynberg (2004), Rethoric, Realism and Benefit-Sharing: Use of Traditional Knowledge of Hoodia Species in the development of an Appetite Suppressant, The Journal of World Intellectual Property, November, Vol.4, no. 4, p. 851-876.

Source: http://www.ipngos.org/NGO%20Briefings/Hoodia%20case%20of%20benefit%20sharing.pdf