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.
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