An examination of the WIPO’s treaty on genetic resources and associated traditional knowledge and its implications on South Africa

Abstract

On 24 May 2024, the World Intellectual Property Organization (WIPO) recently adopted the WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge. The Treaty creates an international obligation for patent applicants to disclose the source or origin of genetic resources (GRs) and associated traditional knowledge (TK) in patent applications. It represents a significant step toward curbing the misappropriation of GRs and TK, particularly for developing countries that have long advocated such measures. This Thesis evaluates the merits and demerits of the WIPO GR-ATK Treaty, the question whether the Treaty strengthens or challenges the existing legal framework in South Africa, and how regional and international commitments may influence its implementation. While the Treaty sets minimum standards for disclosure and sanctions, it affords Contracting Parties substantial flexibility in how these obligations are to be implemented. The key argument is that Indigenous People and local communities have the right to their resources and should benefit from the utilisation of such resources at international level through the mandatory disclosure requirement. The Treaty leaves room for future expansion of its scope to address emerging technologies and derivative products, ensuring that the framework can evolve in response to new challenges. The findings of the Thesis indicate that the disclosure requirement is narrow in its current application, and that its flexibility offers developing countries an opportunity to push for stronger protection through bilateral arrangements, including free trade agreements. There is a need to further ensure stronger protection of GR and associated TK at international and regional levels