The Fundamentals of Intellectual Property Protection (IPP) and Management of Cannabis as a Medicinal
KEYWORDS AND TERMS
Access to Medicines (ATM), Pharmaceuticals, Indigenous Knowledge Systems, Innovation, Cannabis Sativa(Indica), Hemp, Historical Claim, Intellectual Property, Patent, Contralesa, Knowledge Holders, Medicinal Plants, Medicinal Control Council, Cannabis Permit & Licence, Commercialization, decriminalization
Abstract:
There is a rising demand for chronic disease treatment yet the barriers to accessing these medicines have expanded and the costs are intolerable to the poverty stricken masses mostly in rural South Africa. One of the primary human needs, medicinal health, is becoming a scarcity due to inflated market prices of basic effective medical care and products goods. South Africa shares with the rest of sub-Saharan Africa a high burden of chronic diseases, including HIV and non-communicable diseases[2]. This has led to an increasing demand for medicines for treatment of disease in a context of a weak health system[3]. The increased burden of disease has illuminated the need for the government to be more responsive to population needs and to ensure that people obtain health services (including accessing essential medicines) without suffering financial hardship[4]. The decriminalization of the Cannabis Sativa/Indica crop was the legislative answer the South African government approved, and many others around the world for the last three decades. One of the
fundamentals of the easing of legislature in this regard is the acknowledgment of specific communities, historical indigenous socio-cultural groups, kingdoms and traditional leaders and healers; as knowledge holders with historical and medicinal claims to the cannabis plant in its entirety. Thus the need to protect this knowledge as intellectual property; like strain kinds and plant genealogy that belongs to specific groups, provided a declaration of an innovation in the agricultural cultivation of this specific crop as a medicinal plant, that can be grown with almost no artificial enhancement beside the organics of water, nitrogen and domestic food nutrients; is disclosed, critiqued and endorsed for pharmaceutical use and commercialization. Skills development and upgrading of agricultural artisan-ship for these communities and others in need of the benefits of the crop can and will be out rolled by institutions like Umyalelo Innovation and Development(Pty) LTD together with governments relevant departments and other organisations playing a policy development and implementation role.
It is thus important to approach these fundamentals with an IKS school of thought as cultural appropriation is a result of intellectual property of this value being ignored or bypassed. The investigation and research must follow this approach as a study of this nature is pioneering a new field, which these knowledge holders have been utilising for centuries. The results of human endeavor that have value and are original, such as designs, publications, inventions, computer software and music[] need to be attributed to their ‘engineers’. These ‘assets’ make up a large proportion of societal and national net worth. The protection and management of Intellectual Property and Knowledge of cannabis and its cultivation for medicinal, industrial and recreational uses has become a commercial imperative, requiring the development of a set of practices that are encompassed within field of Intellectual Property Management (IPM) (Paasi et al., 2010; Rivette and Kline, 2000).
Figure 1: Umyalelo innovation & Development Property Management process, Passi J, et al 2000
Introduction
The influx of inorganic genetically modified medicinal plants/crops due to entrepreneur/producer optimum profit yield demands, forces consumers to cramp up between a rock and a hard place. The global index for household medicinal security for third world countries shows that there is not enough access to quality medicine in the average household, but there is for the elite who run these states. Our colonial hangover also makes access to natural resources a nationalist and racial political musical chairs game. Access to medicines (ATM) has attracted increased global attention as a key component of universal health coverage. ATM has also been incorporated into national constitutions, as part of the Millennium Development Goals (MDGs).As noted, inclination towards Indigenous Knowledge System (IKS), because of their Knowledge & Intellectual Property holding status granted by the Department of Health of South Africas’ Medicinal Control Council (MCC)[6], based medicinal crops to produce effective and affordable chronic medicine is a step towards remedying this phenomenon. Properly deployed patents on traditionally grown cannabis in South Africa can translate into category-leading bi-products, enhanced market share and high margins. In some cases they can even serve as the foundations for new industry (Rivette and Kline, 2000).[7]
Historical development of cannabis industrialization in Africa
Since creation, cannabis crop has been present in human evolution like any other terrestrial plant. Specific human groups and cultural groups developed a lifestyle around the crop thus domesticating and verily industrialising the crop in various ways, including recreational smoking. Wild and domestics animals are known and confirmed to also have such relations with the crop. Historically, taxation of cannabis (i.e. primitive accumulation: Harvey, 2004, p. 11-12) as well as the imposition of cannabis prohibitions under colonial and postcolonial regimes foreclosed opportunities to profit legally. Currently, African governments and Global Northern companies are together accumulating wealth by dispossessing the citizens of these countries of access to the increasingly legal, global cannabis economy. Cannabis policy reforms in the Global North have allowed legal wealth generation by private companies and publicly traded corporations. These businesses have paid African governments for policies that allow them to cultivate cannabis for export, through the payment of licensing fees that are too expensive for most citizens of the countries to pay[8].
Its common knowledge now that cannabis horticulture in Africa emerged after the crop arrived from its primary homeland, Asia. Various sources of evidence suggest a chronology and geography for the plant’s dispersal (Illustration 1). This historical biogeography produced diversity, in terms of plant genetics and human cultures of cannabis use (Duvall CS, 2019).
Illustration 1 - Historical dispersal of cannabis in Africa, Modified from Duvall (2019).
The scramble for Africa rose directly from the ashes of the dark ages ushered by the enlightment era. It brought with it industrialization. At is at this juncture that colonial expansion finally got its formulae in place and most of the country (Africa) came under colonial rule inspired by the Belgian Emperor Léopold. Cannabis was initially legal under colonial governments but widely outlawed by 1925, when it became subject to international control under the Geneva Opium Convention (Duvall, 2016; 2019, chapter 9). Even while cannabis was legal, though, colonialists diminished the production capacities of African societies through direct and indirect suppression of the crop (Duvall CS, 2019).
Colonial governments systematically impelled authorities to collect revenue from controlled territories. In South Africa, by the 1960s, in a failed attempt to collect taxes, government official would destroy homeland crops of pre-existing ‘black market’ farms using aeroplane sprayers over acres of Mpondoland fields in the old Transkei Bantustan. Several colonial governments capitalize today on cannabis by taxing pre-existing markets. As was with other minerals and resources at the turn of the 20th century, these monopolies generated significant governmental revenues, whereas trades in Angola, São Tome, Gabon, Mozambique, and South Africa were insufficiently lucrative for the colonial states to forestall enactment of prohibitionist laws (Duvall CS, 2019).
Since the South African parliament authorized the decriminalization medical in 2017 in order to benefit ill people, and in 2018 the country’s high court decided that adults have the right to garden and use dagga privately (Jansen, 2017; Zondo, 2018), it’s a well-known fact that the agricultural development and innovation of the cannabis crop is the explicit motivation decriminalization. However, as it stands these reforms do not obviously benefit African farmers, they never have especially when you compare to the lucrative back door trading that colonial governments exploited whilst prohibiting African not to exploit benefits of their traditional right.
Further, no reforms have allowed cannabis possession or consumption, and authorities have explicitly discouraged pre-existing agriculture.
As already mentioned, the current wave of liberal stances around the crop epitomize and wreak of a bad harvest of neo-colonialism. The mechanism of payment for favourable cannabis-policies has enabled Global Northern companies to accumulate wealth by dispossessing citizens of African countries of access to the increasingly legal, global cannabis economy. At present, cannabis liberalization has demonstrably benefited few Africans, but has bolstered the prospects of many Global Northern companies and shareholders active in the stock exchanges in Toronto, Tel Aviv, and Frankfurt (Prohibition Partners, 2019).
Recognition of socio cultural communities’ claim to Cannabis Intellectual Property Rights
The international community is engaged a number of legal, economic, policy and scientific issues in Intellectual Property(IP) Rights & Protection and management thereof, specifically of Indigenous Knowledge Systems(IKS). As the existing IP of IK around cannabis inadequate due to the systematic prohibitions and criminalization in Africa, to protect the holistic character a peoples IKS is a possible but strictly trans disciplinary exercise (between social sciences and pure science) that needs to be independent of neo-colonial administration. However, a number of policy issues need to be addressed:
about the role of communities and the functions of communally held knowledge in traditions that are part of heritage and culture as well as living traditions of habitat preservation and human interaction
about the structuring of economic/pecuniary incentives for the protection of IK and the rights and obligations that are anchored in responses and behavior rather than in resources.
about the objectives to be reached by IK protection and the measures necessary towards that end. In this context of medicinal cannabis, the issues that need to be examined are: what is to be protected(landrace strain and its benefits) and from whom is it to be protected; for what purpose; for whose benefit (beneficiaries and stakeholders) and in what form; will it be confined to IK in the public domain or will it cover knowledge held as secrets; and this also has sacred/religious aspects
whether or not a uniform system for the recognition and protection of indigenous peoples’ knowledge will meet the expectations of this diverse group, for whom diversity is the lifeblood[9].
It is now a well-documented fact that IKS play an important role in the global economy and is valuable not only to those who depend on it in their daily lives but also to modern industry and agriculture[10]. Most traditional societies depend on this knowledge for their food and healthcare needs[11]. There are no reliable estimates of the total contributions of IK associated with traditional crop varieties (landraces) to the global economy, but the contributions of IK in the development and growth of pharmaceuticals and biotechnology-based industries are widely reported.
It is also not well documented that there is a deliberate and distinct neo-colonial advance that is threatening the indigenous people’s knowledge of cannabis utilisation and industrialization methods with more prohibition that will close the market for non-educated rural farmers who have been producing, cultivation and processing the crop for centuries. As it was with the gold rush in the 1890s, there are various ‘’Cecil John Rhode’s’’ with Global North private financial capital, (which was initially reaped from the sweat of third world states), that are sweeping in to invest in the ‘booming economy’. What about the people who gave you the knowledge of the crop? The immediate environment attached to this lifestyle? What about reparations for the wrongful criminalisation for over a century of African breadwinners?
The indigenous people are constantly excluded from their own development opportunities thus deprived of the benefits from the use of their knowledge, innovations and practices which have been monopolized and used by others, mainly by major companies, without their authorization and without acknowledging or rewarding them for their knowledge. This needs to be overturned, and the procedural way would be to recognize indigenous people of a particular country first, then their geographical location together with their historical/traditional claims, leading to their lifestyles, culture and societal habits in their habitats
Intellectual Property and Commercialization
As one can imagine, given the complicated and controversial history of cannabis legalization, there are many obstacles and complexities that rural IK based green entrepreneurs face in securing IP rights on their products for commercial exploits[12].
Types of that may be patentable under this rule are:
Cannabis plants, such as new strains of cannabis plants, GMO cannabis, cannabis cultivation methods and equipment, etc.
Cannabis processing and extraction methods
Cannabis products, such as cannabis in edible or beverage form, cannabis oils and extracts, and products for animals
Medical uses for cannabis, such as treatments for a disease or a disorder
Pre-colonial agriculture made African cannabis into a valuable crop. Subsequent historical processes have prevented Africans from capturing the crop’s value. This is the fundamental elephant in the room that seems to be pregnant with a calf of neo-colonial descent
Prohibition has weakened the global market positions of Global Southern countries and companies(if they even exist or are liquid).
Cannabis farming has been profitable, productive, and risky for a century. In Sierra Leone in the 1920s and 1930s, and Nigeria in the 1950s through 1980s, farmers supplied domestic and export markets even though cannabis farming was hardly visible to police (Akyeampong, 2005; Ellis, 2009; Klantschnig, 2014.
Many scholars have described black-market cannabis farming in several countries. In general, illegal agriculture has several widespread characteristics. First, it is potentially lucrative. Prohibition places a price premium on cannabis, giving it a form of money earning potential that legal crops cannot offer.
Altogether, anti-cannabis sentiments pushed cannabis underground before it was legally prohibited, bootlegging the industry prematurely. Cannabis became salient in many African locations only after World War Two, when returning servicemen and merchant sailors brought it to port cities. It was thus exclusive, even if many poor farmers have earned money from cannabis, the crop has not solved problems of poverty. Agricultural economies disfavor those who lack capital. Few studies have assessed capital flows in cannabis agriculture. South Africa is a prime example. In the last 2 years, absolutely no sustainable economic progress has been recorded for a local initiatives with indigenous beneficiaries. The sum of cannabis history is that private companies have accumulated sufficient wealth and power to buy beneficial policies from African governments
Protection of the landrace variations and seed banks
Colonial governance was pernicious toward indigenous production capabilities. Several actions directly or indirectly suppressed cannabis prior to prohibition. First, some governments sought to eradicate the crop based on ulterior concerns. French Congo and Ottoman Egypt, for examples, took anti-cannabis measures before prohibiting the plant drug, thinking that drug use diminished labor availability and quality (Commissariat général du Gouvernement, 1907; Kozma, 2011). Second, colonialists viewed cannabis drug use as immoral, which stigmatized farming. This process is well documented in South Africa, where Europeans denounced cannabis gardening by 1818 although it was not outlawed until 1904 (Duvall, 2019, p. 188).
The plant’s agricultural history led to this situation. The long, pre-colonial rise of cannabis farming produced plant diversity that is valuable nowadays. Centuries of agricultural selection produced today’s valued local strains and landraces (Duvall, 2016). Africa’s cannabis varieties are coveted amongst marijuana seed producers. An American in 2012 stated, “Africa is […] the mothership for strains that […] are going to be a huge factor in the future of medical cannabis” (Bluntman, 2012). Indeed, when Uganda’s IHU imported marijuana seed from Amsterdam in 20184 (Mugerwa, 2019b), at least two of the strains–Durban Poison and Power Plant–traced to African seedstock (Wikileaf, 2019). Authorized cannabis farming in Africa does not apparently use African seeds, but, at least in Uganda, production has relied upon unrecognized African intellectual property, in the genetic material of landraces used in commercial seed breeding. The bioprospecting that has brought African seeds to the Global North to the benefit of marijuana seed sellers has not returned benefits to African farmers (Duvall, 2016).
The global marijuana seed industry, for instance, is centered in Amsterdam, where controls on cannabis were relaxed beginning in 1976. Marijuana seed producers own the largest collections of African cannabis varieties, which they use to breed high-price, hybrid seeds (Duvall, 2016). Global Northern businesses have arisen from decades of illegally developed expertise in fields from horticulture to medicine; comparable African knowledge has not been similarly valorized. Based on their expertise, Global Northerners have set standards for authorized commercial cannabis farming (Lamers, 2019b), on which Africans must be trained (cf. Medi Kingdom, 2019) Africans are relatively latecomers to liberalized cannabis economies, a disadvantage that adds to those generated earlier in the plant’s history.
Conclusion
Many African countries are contemplating liberalization. If drug-policy reforms are built upon awareness of the history of cannabis in Africa, they will place the interests of African farmers before those of Global Northern companies
References:
[2]Mayosi BM, Flisher AJ, Lalloo UG, Sitas F, Tollman SM, Bradshaw D. The burden of non-communicable diseases in South Africa. Lancet. 2009; 374(9693):934–47.
[3] Schneider H, Blaauw D, Gilson L, Chabikuli N, Goudge J. Health systems and access to antiretroviral drugs for HIV in Southern Africa: service delivery and human resources challenges. Reprod Health Matters. 2006;14(27):12–23.
[4]BvudzaiPriscilla, Magadzire, Bruno Marchal, and Kim Ward. Novel models to improve access to medicines for chronic diseases in South Africa: an analysis of stakeholder perspectives on community-based distribution model.
[5]. Paasi J, Valkokari K, Rantala T, Hytönen H, Nystén-Haarala S, and Huhtilainen, L INNOVATION MANAGEMENT CHALLENGES OF A SYSTEM INTEGRATOR IN INNOVATION NETWORKS, 2010
[6] Now known as SAPRAA (Southern African Pharmaceutical Regulatory Affairs Association)
[7] Rivette KG, Kline D, Discovering New Value in Intellectual Property, 2000
[8]Duvall CS, A brief agricultural history of cannabis in Africa, from prehistory to canna-colony, EchoGéo [Online], 48 | 2019, Online since 13 July 2019, connection on 15 July 2019. URL : http:// journals.openedition.org/echogeo/17599 ; DOI : 10.4000/echogeo.17599
[9] For details, see Bruce M.Campbell and Martin K. Luckert, Uncovering the Hidden Harvest: Valuation Methods for Woodland and Forest Resources, Earthscan, London, 2002; International Institute for Environment and Development (IIED), The Hidden Harvest: The Value of Wild Resources in Agricultural Systems, IIED, London, 1995. See also Marcelin M. Tonye, Sui Generis Systemsfor the Legal Protection of Traditional Knowledge and Biogenetic Resources in Cameroon and South Africa, 6 J.W.I.P. 5, September 2003, pp. 765774.
[10] WHO has reported that countries in Africa, Asia and Latin America use traditional medicine (TM) to help meet society’s primary healthcare needs. In Africa, up to 80 percent of the population uses TM for healthcare; see WHO Fact Sheet No. 134, revised May 2003. In India, this percentage goes up to 70 percent.
[11] Surinder Kaur VE , Protecting Traditional Knowledge: Is a Sui Generis System an Answer?
[12] Klein C, The Complicated Relationship Between IP Law & Cannabis, www.ipwatchdog.com, 2018
