Jurisprudence of intellectual property in research: African, western and modern perspectives

Abstract

There is disagreement about entitlement to, and the scope, of intellectual property rights over research knowledge. This article explores jurisprudential perspectives on ownership of research knowledge. It also features the conflict between African and western conceptions of intellectual property, and how this has affected the exploitation of indigenous knowledge with the resultant impact on traditional knowledge institutions. In modern times, the allocation of rights is relatively settled in such relationships as between employer and employee, the researcher and the funder. Between researcher and publisher, digital technology, which ensures wider circulation, has led to claims for a re-definition of the relationship under which the researcher traditionally licensed his copyright to the publisher. A similar re-definition is called for with respect to research subjects in certain research environments. In particular, the result of research conducted with user-generated data in multi-sided business models like social media sites is implicated. The research finds that there is no generic solution that will apply to all relationships but that laws should be tailored to each relationship pair, in line with the suggestions in this paper. African traditional knowledge is denied protection by criteria such as non-disclosure because of the African collectivist notion of person. While Africans are collectivist, westerners are individualistic. It is concluded that on closer inspection there are analogues in African and western notions of intellectual property that could be used to resolve seeming conflicts and protect traditional knowledge.