The term sui generis is a Latin word which means of its own kind, that is forming a class of its own, or, in other words, is unique in its characteristics. Intellectual property refers to intangible property (property that has no physical existence; i.e., a chose in action), that includes patents, trademarks, copyright and registered and unregistered design rights.
A system of sui generis rights is very appropriate in the protection of intellectual property. In the sense that intellectual properties are unique items which are defined through their matter and their unique characteristics. In this view, the existing Intellectual Property Rights (IPRs) systems are not sufficient protection mechanisms. Intellectual Properties will require a special form of protection regime outside the known framework.
In most African countries, IPR systems are tailored to protect Traditional Knowledge (TK) and associated natural resources. What is Traditional Knowledge? From the face of it Traditional Knowledge could be taken to mean information that came into existence in the past. This is knowledge that has been used by generations and passed to future generations within a community. Therefore, Traditional Knowledge is part of communities’ heritage. It includes information of the use of biological and other materials for medical treatment, agriculture, production processes, music, ritual, literature, design and other arts. A common form of Traditional Knowledge in Africa is on herbal medicines.
Traditional Knowledge tends to exist in unique forms in different communities. This is highly influenced by a community’s cultures and religious beliefs. Traditional Knowledge is premised on the concept of community property ownership, whereas the existing forms of IPR regimes are based on the Western concept of property ownership, hence rendering the existing IPR regimes non-effective to protect Traditional Knowledge.
Traditional Knowledge is of great importance to communities. It is a form of wealth owed by various communities. This makes it important to protect Traditional Knowledge, for the following reasons:
To promote equity.
To conserve biodiversity – conserving the environment and promoting sustainable agriculture and food security.
To preserve traditional practices – it helps preserve self identification of a people and ensure continuous existence of indigenous and traditional people.
To preserve biopiracy.
In this light, there is great need to protect Traditional Knowledge. Some mechanisms that can be put in place to prevent the misappropriation of Traditional Knowledge include:
Documentation of Traditional Knowledge with a view of establishing a Traditional Knowledge Digital Library. This would assist in easier identification of any existing Traditional Knowledge, hence preventing its misappropriation.
Requirement for the proof of origin of materials so that any person applying for IPRs should be required to proof the originality of innovation of such material.
Proof of prior informed consent. If persons seeking IPRs are not the original owners of material, then they should prove through evidence, free and informed consent from the traditional owners.
The objectives to be pursued in the protection of Traditional Knowledge are so diverse that they cannot be comfortably accommodated under the existing IPRs systems hence the need for a sui generis system. A sui generis system of Intellectual Property Protection is one that considers community rights and responsibilities that govern the use, management and development of biodiversity, as well as the traditional knowledge, innovation and practices relating to them which existed long before private rights over biodiversity emerged, and the concepts of individual ownership and property arose.
A sui generis system may be introduced within existing laws. The advantage of this is that it would involve extensive revision of certain laws such as those dealing with wildlife, public health, patent laws, copyrights laws, laws on research and laws on agriculture among others. This has its disadvantage in that amendments do not attract a lot of publicity hence would lead to such a system not being highly recognized. Alternatively, a sui generis system may be established as standalone legislation. In this form, it would attract more publicity and generate more interest. It would also look neater. On the other hand, there are higher chances of repetitions, that is, it may overlap with other existing laws.
An effective sui generis system needs to permit effective action against any act of infringement of the rights available under the sui generis system. But the establishment of such a system is faced with various challenges. A few examples include:
The definition of the subject matter if protection. The exact material to be protected must be defined beforehand. Traditional Knowledge being our main subject of protection lacks a definite meaning.
Requirements for protection, that is, the preconditions necessary for registration.
The nature of the rights to be conferred, e.g. right to exclude others, right to obtain remuneration, or right to prevent misappropriation.
The title holders; will they be individuals, communities or the state.
The made of acquisition of protection; i.e., the process of registration.
The duration applicable. For how long should the rights conferred protect?
The enforcement measures; how can the right holder assert his/her right?
In conclusion, a sui generis system is the best method for protection of intellectual property. It would effectively operate through the involvement of the existing IPRs systems in areas in which they have been successful. Therefore, a wholesome system is the best way forward.