African customary law and the protection of indigenous cultural heritage: challenges and issues in the digitization of indigenous knowledge in South Africa

Abstract

Information and communication technologies (ICTs) have revolutionised the global appropriation of indigenous knowledge (IK) to unprecedented levels. Consequently, the question of how this knowledge should be safeguarded from illicit use has received increased attention. Some commentators have backed existing intellectual property rights (IPRs) as the only means to protect the material. Others have proposed using the alternative sui generis solutions. The article is based on the study that advocates the third way: the use of customary laws of indigenous communities to protect their own cultural heritage. The study interrogates the assumption that the existing status quo provides the only viable protection for IK. It argues that IPRs are incompatible with the goals underlying the protection of IK and give rise to ineffectual solutions. The study explores why customary law should be accepted as law, and how it can satisfactorily be used by indigenous communities in South Africa to protect their own cultural heritage. The Delphi method was used for the collection and analysis of data. A review of literature was also conducted to trace related issues. The study concedes that the application of customary law may encounter implementation challenges. However, it argues that a genuine desire to safeguard indigenous cultural rights can engender the discovery of lasting solutions.

Keywords: Indigenous knowledge, indigenous knowledge system, customary law, intellectual property rights, sui generis, delphi method, digital innovation South Africa (DISA)