Does Africa need benefit-sharing more than patents?
The discussion around the recent SciDev.Net article by Kazhila Chinsembu, (see African science must regain control of local resources) continues, with new contributions from Malawi, South Africa and Zambia.
Pamela Andanda, lecturer in law, School of Law, University of the Witwatersrand, South Africa
Chinsembu's article elicited mixed and interesting reactions, but they have not yet considered the regulatory and legal issues surrounding ownership of technologies derived from natural resources.
The problem with patents is that we need to encourage benefit-sharing arrangements between Africa and industrialised countries. The UN Convention on Biological Diversity contains a broad regulatory framework, and requires countries to foster the equitable sharing of benefits derived from biological resources.
The most common form of such benefits is patent rights. Patents do not cover rights over physical objects, for example the natural resources from which an invention is derived. Instead, they regulate who can exploit technical information disclosed by inventors.
This is relevant in many disputes. For example, Kenya is currently pursuing compensation from a US company that commercialised material developed from bacteria taken from Kenyan lakes in 1992. Genencor International is reported to have bought the samples from the Netherlands-based scientists who collected them, then cloned and patented an enzyme now used in laundry detergents (see Biopiracy row over Kenyan lake bacteria).
Kenyan authorities apparently want part of the proceeds generated by Genencor, (now owned by Danish company Danisco). But given that patents only cover technical developments, it is not clear on what basis the Kenyan authorities can be given a share of the proceeds.
Broader regulations are needed. We should focus on this issue instead of limiting ourselves to 'science that Africa does not own'. Let us admit that Africa's natural resources are often used for inventions that, once patented, acquire different ownership.
Patrick Nabiswa, in his reaction to Chinsembu's article, suggests we "devise effective policies to ensure samples shipped abroad for research are not secretly used to the continent's disadvantage" (see Should Africa reject science it does not own?).
This is worth pursuing further from a regulatory perspective. For instance, what considerations should a policy framework cover?
Or is it equally viable to consider putting some legal framework in place? I suggest we consider a model law for Africa within the framework of the African Model Law on Safety in Biotechnology, which was endorsed at the meeting of the African Union in Maputo in August 2003.
The Model Law deals exclusively with genetically modified organisms used for agriculture. Perhaps African countries should expand its scope to encompass all aspects of benefit-sharing in the area of Africa's natural resources used by researchers overseas. Given the limited scope of patent law, it would be more viable for us to focus on proactively entering into binding benefit-sharing arrangements even before patents are granted.
By engaging in this debate, SciDev.Net can play a key role in informing policy development in Africa.
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Symon Osman Mandala, senior science and technology officer, Department of Science and Technology, Ministry of Industry, Science and Technology, Malawi
The discussion around the article by Chinsembu highlights one thing for me — that there is very little collaboration and networking between African researchers and those from the West. We need to think how we can make collaboration and networking more effective.
Science is so dynamic that there is always room for improvement. So while we should not encourage wholesale adoption of technologies without considering their environmental impacts, the notion of African resources for Africans defeats the whole idea of effective collaboration, networking and knowledge sharing — and this is a backbone of science and technology.
Relying on crude technologies when better and improved versions are available is simply inefficient. Instead, we must apply knowledge to improve them and get the most out of them.
Victor Kawanga, national branch coordinator, Commonwealth Forestry Association, Lusaka, Zambia
I beg to disagree with the views of C. S. Prakash (see Should Africa reject science it does not own?). In a sense, Chinsembu has tried to highlight three points:
First, the question of why there is such inertia in African science.
Second, there are inconsistencies in how African knowledge is treated. In the case of traditional medicine, this could mean that potentially important medicines might never be mass-produced.
Third, that the cultural values and systems that sustained early African civilisations are being eroded.
Prakash is looking at things from the surface. Establishing an enquiry (as science demands) would help. I suggest he goes deeper into each of these issues. That said, I also blame Africans for easily falling prey to external values and systems.