Cultural and creative industries (CCIs) constitute a major feature of contemporary world economies. Many governments have developed policies and legislation around CCIs. On one hand, the rationale has been to maximise economic gains from the CCIs whose contributions constitute significant portions of national GDPs and employment sectors. On the other hand, there is an endeavour to protect Intellectual Property (IP) rights as the knowledge economy places value on information, individual talent and skills in ways that benefit individuals and countries economically. However, IP laws have encountered challenges particularly in respect to the use and commercialisation of Indigenous Knowledge (IK), including in the CCI. However, what exactly do we mean by Indigenous Knowledge (IK)? All indigenous communities have a cultural heritage based on their history, gives meaning to their lives and defines their humanity. This cultural heritage consists of tangible, immovable, underwater and intangible cultural heritage (World Bank, 1998; Ncube, 2019). This broad spectrum of cultural heritage contains Indigenous Knowledge (IK). In other words, cultural heritage is a broad concept of which IK is a subset. Some of the major characteristics of IK are that it is anchored in a specific community; is established within the boundaries of broader cultural traditions but still developed by a specific community; often consists of intangible knowledge that is not easily codified and is conveyed orally; consists of experimental knowledge as opposed to theoretical knowledge; is learnt through repetition; and changes continuously – created and recreated, discovered and lost – even though outsiders believe it to be static (World Bank, 1998: 9).
Different South African private CCI entities and government departments, more so the Department of Sports, Arts and Culture (DSAC), have positioned IK as an integral element of national and provincial developmental strategies through formal recognition of its centrality in the CCIs. For example, DSAC’s predecessor, the Department of Arts and Culture initiated work on the promotion and copyright of indigenous music and art forms before adoption of the Indigenous Knowledge Systems Policy in 2004.
The overarching aim of this research report is to explore how cultural and creative industries practitioners who utilise or are interested in using indigenous knowledge as a primary knowledge or data source for the production of their goods and services can engage with the indigenous knowledge system, policy and regulatory frameworks governing indigenous knowledge in South Africa. Accordingly, the research was guided by the following objectives:
(1) Scoping indigenous knowledge systems policy environment
(2) Determining the current state of indigenous knowledge systems
(3) Exploring the potential of indigenous knowledge systems to contribute to the sector
(4) Identifying the legal, institutional, and social requirements pertaining to the commercialisation of indigenous knowledge systems.
This is a qualitative study based on secondary data. Through critical content analysis of relevant IK literature we were able to determine the policy, legislative and regulatory frameworks governing the use of IK as a primary knowledge or data source for the production of goods and services by CCIs practitioners. Given that existing literature is largely prospective in terms of its articulation and provisions, we proceeded to interrogate the implementation of the key provisions such as the establishment of certain structures and systems in relation to IK, and explore their functions. By so doing, we managed to explore in its fullest the policy, legislative and regulatory framework governing the use of IK. For a qualitative exploratory study, this is methodologically sufficient.
South Africa has made some progress in terms of policy and developing a legal framework for the integration, regulation, utilisation and commercialisation of IK in the production of cultural goods and services. Among others, one of the most instructive policies in this regard is the IKSP of 2004. This policy captures government aspirations to exploit IK for the benefit of local communities who possess such special knowledge while at the same time protecting them from exploitative capitalist business systems. Its economic motivations of creating employment and income not only at individual but also at a national level consolidate endeavours expressed particularly by the DSAC that oversees the mandate on artistic and cultural productions. Accordingly, the policy responds to concerns that hamper IK development and usage under the prevailing socio-economic, legal and environmental context. Thus, it lays a solid foundation for the establishment of a complex IKS architecture and a legal environment within which CCIs practitioners can produce their goods and services using IK without jeopardising individual and community IK holders.
The country has also made strides in terms of conceptualisation work regarding the integration and regulation of IK in the production of cultural goods and services. For example, as per policy imperatives, the National Recordal System (NRS) offers great potential of protecting individual and community IK holders at a national level while, at the same time, providing a one-stop shop for CCIs practitioners who intend to use IK as primary content and data to produce goods and services. The NRS thus offers a strategic opportunity of empowering communities economically and boosting the national economy. However, the complex NRS needs to be refined, particularly at community and provincial levels where Indigenous Knowledge Documentation Centres (IKDCs) appear to be still struggling to perform to their best potential, with IK holders either reluctant to submit their IK or lacking sufficient understanding regarding the modalities and benefits of doing so. It appears apparent that, in addition to further resourcing of IKS structures and processes, public awareness needs to be raised among communities.
In the legal arena, the study found that there are various legal, institutional and social requirements in place to not only preserve IK for indigenous communities but equally to ensure that the commercial exploitation of such is not detrimental but beneficial to the indigenous communities. The Intellectual Property Laws Amendment Act of 2013 and the Promotion, Development and Management of Indigenous knowledge Act of 2019 on a broader scale sets out the legal requirements of how IK should be registered and how intended users should enter into benefit sharing agreements with indigenous communities. The purpose is to ensure that any commercial exploitation of IK does not happen without benefit to the community. Various mechanisms and institutions are set up by law to ensure transparency, efficiency and recording of IK. The Intellectual Property Laws Amendment Act of 2013 establishes a National Council in respect of indigenous knowledge, a National Database for the recording of indigenous knowledge and a National Trust and Trust Fund for purposes of indigenous knowledge. The Promotion, Development and Management of Indigenous knowledge Act of 2019 creates community representatives through trustees who are appointed by the curator. The curator is appointed by the Minister and is responsible for the control of the Registration Office, subject to the directions and instructions issued by the Minister or the Director-General as delegated by the Minister. Unfortunately both these crucial two pieces of legislation are yet to come into force. Therefore, presently any recourse for the management of IKs for the benefit of indigenous communities has to be found in the existing traditional forms of intellectual property protection and promotion. Further, since these are national approaches the absence of a multilateral system deprives indigenous communities of any guarantee of the same legislative benefits when the IK is commercially exploited beyond national borders. It is therefore important for authorities to pursue multilateral approaches in line with national developmental plans in order to protect local indigenous knowledge. Further, the current state of IKS in South Africa indicates that progress has been made and compares favourably with other countries particularly in Africa. The NIKSO has been established to accommodate the NRS. The NRS makes the NIKSO a potential one-stop shop for CCIs practitioners who wish to use IK to produce their goods and services as it is devolved to provinces and various communities within the provinces. Communities can therefore create records of their IK via IKDCs that would process the data before submitting to NIKSO. Through the system, communities may therefore be protected and they may enter into mutually beneficial agreements with prospective users of their IK. However, the system still requires more resourcing, particularly at community levels. Communities need to be educated about the benefits of submitting their IK in order to protect themselves and also get economic rewards when CCIs make profits.
Lastly, the study argues that there is indeed great potential for IK to contribute tremendously in the CCIs sector and to South Africa’s economy in general. Economic fortunes can be derived for the sector, country and for specific communities that hold IK. While challenges of piracy and abuse of IK exist, it was noted that a large local and global market can be created through enhanced marketing and advertising using modern media and technologies. The comparative IK benefits enjoyed in industries such as agriculture, food production and pharmacy were also instructive in showcasing how IK has great potential for the CCI sector. However, there is still more work that needs to be done with respect to the legal requirements, infrastructure, financial resources and community awareness in order to fully realise the benefits of IK in the CCI sector.
