Subject Matter of Protection

Section 2 - Interpretation

In this Act, unless the context otherwise requires —“traditional knowledge” means an idea, knowledge, practice, use or invention, written or unwritten which, may be associated to biological diversity, is a cultural, traditional or spiritual belief or value of a group of people.

Beneficiaries or Rightholders

Section 117 - Rights conferred by traditional knowledge

(1) Ownership and other rights to traditional knowledge shall belong to the owner of the traditional knowledge.
(2) Where traditional knowledge is collectively owned, rights over it shall be exercised and enjoyed collectively in accordance with cultural practices.
(3) Notwithstanding subsection (2), local communities which have registered individually for similar or identical elements of traditional knowledge shall have the option to exercise and enjoy their rights over the traditional knowledge individually.
(4) An applicant community which comprises of individuals from different countries including Botswana, shall have the right to register and acquire rights over traditional knowledge in Botswana and in the other countries.

Scope of Protection

Section 121 - Specific rights over traditional knowledge

(1) Protection of traditional knowledge under this Act shall confer on the owner the following exclusive rights —

(a) where the subject matter of protection is a product, the right to prevent third parties without consent from making, using, stocking, offering for sale, selling, commercializing, importing or exporting the product or any element thereof;
(b) where the subject matter of protection is a domesticated animal, cultivated plant or any micro-organism, the right to prevent third parties without consent from reproducing, multiplying or preparing for reproduction through an offer of sale, sale, importing, exporting or any form of commercialization;
(c) where the subject matter of protection is a design or an object of a functional or aesthetic nature including any element of handicrafts, the right to prevent third parties without consent from making or reproducing any object with a similar configuration as regards shape, colour, material, technique and the overall style or visual impression of the handicrafts that are characteristic to it;
(d) where the subject matter of protection is a name, a symbol, an emblem or any distinctive sign of a religious, spiritual, cultural or economic nature, the right to prevent third parties without consent from any kind of use, both in maternal language or any other language that consist of an identical or similar sign on a product or on a product
associated with services, making of labels, packages or other material that reproduce or contain the signs for a commercial or any other purpose.

(2) No person shall distort a registered traditional knowledge in any way, especially distortion of a spiritual or cultural identity of a community that owns traditional knowledge or any act that implies direct or indirect use of the knowledge for any purpose including scientific or academic research, without the owner’s consent.
(3) Notwithstanding the provisions of subsection (1), where the subject matter of protection is a product which has been put in the market in Botswana by either the owner or by a third party with the consent of the owner, commercial acts in respect of the product shall not be regarded as distorting the cultural identity of the community or in any way contribute to it.
(4) Where, upon registration of traditional knowledge, an owner takes reasonable steps to keep part of the elements of the traditional knowledge a secret, no person shall disclose or acquire the undisclosed knowledge in any manner contrary to honest commercial practices.

Exceptions and Limitations

Section 124 - Exploitation of traditional knowledge rights by others

(1) The Minister may, on grounds of public interest, after hearing any local community that owns traditional knowledge, authorize the scientific, commercial or industrial exploitation of that knowledge or any element of it, by a third party, where—

(a) the exploitation does not distort or offend the cultural identity of the local community; and

(b) the local community is granted an equitable share of any benefit derived from such scientific, commercial or industrial exploitation.

(2) The exploitation granted under subsection (1) shall be limited by the scope and duration of the authorization and shall expire when it can no longer be justified on the basis of public interest.