Towards a clearer definition and understanding of "indigenous community" for the purposes of the intellectual property laws amendment bill, 2010: an exploration of the concepts "indigenous" and "traditional"

Abstract

Although "indigenous" and "traditional" are key concepts in the Intellectual Property Laws Amendment Bill of 2010, they are not defined therein. The Bill does, however, provide a definition of "indigenous community" that is very clear as to where one should look for indigenous communities for the purposes of this Bill, and that there is likely to be a plurality of such communities, but is very vague as to which groups exactly will qualify as being indigenous. It is uncertain whether or not the current vague wording of the definition would be strong enough to widen the much narrower understanding of indigenousness prevailing in other South African legislation, the legislation of selected other jurisdictions, and the United Nations. Recommendations are made as to how the definition of an "indigenous community" may be rephrased to address these uncertainties more clearly.