South African Heritages and Their Owners

After twenty-two hours of flying time, my airplane descended through the clouds that cover Table Mountain overlooking the city of Cape Town, South Africa. As I rode past long stretches of impoverished shanty towns and rolling hillsides of gated mansions overlooking the beauty of Table Bay, the contrasts of the city and its histories of colonialism and apartheid also came into focus. I had arrived to conduct preliminary dissertation research around struggles of intellectual property rights (IPRs), indigenous knowledge, and biotechnology. I've frequently questioned my choice of a "western" research topic that draws attention from more pressing concerns within South Africa, such as HIV/AIDS. However, multiple South African communities voice concern about IPRs, and it's become apparent that legal contentions arising from them are deeply intertwined within the legacies of colonialism and apartheid that shape the country.

What brought me to southern Africa was my interest in the case of Hoodia gordonii, a succulent plant grown in the southern Kalahari Desert region. For generations during the famines that came with genocidal campaigns against and the displacement of the indigenous San people, they relied on it to suppress appetite. In 1996, the South African Council for Scientific and Industrial Research (CSIR) patented the P57 compound that is responsible for the appetite suppressant properties of the plant. CSIR and its partners—Phytopharm, a British biotechnology firm, and Unilever, a Dutch multinational consumer product company—are developing the compound as an anti-obesity product for global sale by 2008. I conducted informal interviews with activists, lawyers, and indigenous community members involved in campaigns around the patenting of Hoodia and the subsequent signing of a benefit-sharing agreement in 2003 requiring CSIR to allot between six and eight percent of the projected £309 million in annual profits to San communities. A number of the social actors I spoke with still question the fairness of the contractual terms. They are developing strategies for distribution of funds, working towards further cultural recognition of the San community, and negotiating new roles for the San through the development of Hoodia products.

During two months in Cape Town, I investigated two other issues involving IPRs. I attended a public meeting involving efforts by marginalized groups to perform and share traditional music as a way to reclaim the cultural heritages suppressed under colonialism and apartheid. Concerns were raised around issues of copyright law and how community members could gain authorship control over their own traditional music. Additionally, I was invited to attend the first meeting of the Living History Project of the African Genome Education Institute. The project gives community members the chance to learn their genetic ancestry through the mapping of their DNA. It has been conducted purposefully within the public domain, and the Institute disavows any ownership claim on the blood samples.

Each of these cases raises important questions in the area of intellectual property law. What I learned in my fieldwork is that debates and struggles around IPRs are at the center of efforts by marginalized communities to reclaim and reimagine their cultural heritage and identities within the current process of post-apartheid transformation in the "new South Africa." These efforts occur alongside government-supported programs and discourses around intellectual property and biotechnology that are concerned both with supporting and maintaining the collective citizenry of the "rainbow nation" and with its positioning as a global economic power and source of innovation. I will explore these ideas further in my dissertation as I work towards a more robust analytic for examining intellectual property law.

Foster traveled to Cape Town under a International Institute Graduate Student Fieldwork Fellowship for International Studies.