Protection of intellectual property rights of indigenous knowledge in Tanzania : legal constraints and challenges

Abstract

The legal regime governing intellectual property rights (IPR) in Tanzania is based on the classical approach developed in the western capitalist system. The classical approach is the hallmark of individualism and exclusive and sometimes absolute ownership of property. It does not recognize or accommodate the communal ownership approach that is still common and relevant in most African communities, especially in issues of indigenous knowledge.
Intellectual property rights in Tanzania are governed by the Copyright and Neighbouring Rights Act of 1999, the Patents Act of 1987 and the Trademarks and Services Act of 1986. These Acts provide for moral and economic rights on copyrights, patents, and trade and service marks, respectively. The requirement of the Patents Act that for an invention to qualify for patenting, it must meet the three requirements of novelty, inventive step and industrial application makes it inhibitive rather than facilitative in promoting indigenous knowledge to the benefit of those who have created and developed it for generations as a community.
The new law on IPR and indigenous knowledge should, among other things, provide for a system that will recognize and protect the rights of an individual as well as communities of indigenous knowledge, at the same time ensuring fair and equitable benefit-sharing with communities from those who are using and profiting from that knowledge.