TRADITIONAL KNOWLEDGE UNDER COMMERCIAL BLANKET
by Someshwar Singh
Geneva, 4 Nov 99 -- It is all in the name of progress. Centuries-old cures, customs and practices, derived from man's harmonious interaction with nature, must now open up to the world of dollars and cents, thanks to the new international trade regime rules on intellectual property, the TRIPS Agreement..
A two-day round-table on intellectual property and traditional knowledge, organized by the World Intellectual Property Organization (WIPO) ended here Tuesday. Many experts, government NGO representatives assembled to discuss how to bring the essentially "informal" domain of traditional knowledge into the "formal" intellectual property system.
While most developing countries are struggling with implementing new laws which may face a backlash of public outcry as essential drugs prices, for instance, start sky-rocketing, WIPO describes the upcoming deadline for implementing the TRIPS agreement in glowing terms.
"A hallmark of the new, worldwide relevance of intellectual property is the upcoming entry into force, on January 1, 2000, of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for developing country members of the World Trade Organization."
Despite the fact that many groups representing the "traditional knowledge" sector have reservations about being forced to put a price on ideas that they have nurtured for generations, and the fact that for years - in fact even now - the modern, technologically advanced sectors are virtually usurping ideas and practices without adequate or no compensation, WIPO says "constructive engagement" will bring progress.
"As has happened so often in the past regarding newly-discovered or developed forms of protectable subject matter (computer programs, integrated circuits, databases, for example), constructive engagement with legitimate, if newly-articulated needs for protection of human creativity and innovation will enable the formal intellectual property system to contribute effectively to economic growth and social and cultural progress."
Financial stakes are high. For example, in 1995 the estimated market value of pharmaceutical derivatives from indigenous peoples' traditional medicine was $43 billion world wide.
Under current intellectual property law, there is no obligation for companies which utilize the traditional medical knowledge of Aboriginal Peoples to provide any compensation to recognize their equity in the commercial application of this knowledge.
Moving beyond the confines of "folklore", which was typically discussed in copyright and copyright-plus terms, traditional knowledge (TK) would be broad enough to embrace traditional knowledge of plants and animals in medical treatment and as food, for example.
By so doing, the focus shifts from copyright to those of patent law and biodiversity rights. This shift is, in part, an explanation for the suggestions for sui generis solutions to the protection of TK.
A WIPO background paper, in fact, notes that "a particular contemporary impetus for the formulation of Indigenous positions on the protection of traditional knowledge has been the current debate concerning the review of Art. 27.3 (b) of the plant variety provision of the TRIPS Agreement."
A number of developing countries (India, Kenya on behalf of the African Group and some of the Latin American countries) have formulated proposals at the WTO, in terms of the review of Art. 27.3(b) and current preparations to the Seattle meeting and the review of the relevant provisions of the TRIPS, rules for the protection of rights of indigenous peoples and their folklore and knowledge.
But some leading industrialized countries like Canada have tried to shift consideration of this to the World Intellectual Property Organization (WIPO) on the ground of NGOs having better access to it, even as the industrial countries try to use the secretive WTO talks to strengthen the rights of their corporations in patenting.
The WIPO background paper also carries excerpts from a statement on the above review by a federation of Indigenous Peoples groups on 25 july 1999. In fact, it adds that the statement provides a convenient encapsulation of much of the debate on traditional knowledge.
The statement begins with the observation that "Humankind is part of Mother Nature, we have created nothing and so we can in no way claim to be owners of what does not belong to us. But time and again, Western legal property regimes have been imposed on us, contradicting our own cosmology and values."
It expressed concern that Article 27.3 (b) "will further denigrate and undermine our rights to our cultural and intellectual heritage, our plant, animal, and even human genetic resources and discriminate against our indigenous ways of thinking and behaving."
The statement draws the distinction between private proprietorial rights and "indigenous knowledge and cultural heritage (which) are collectively and accretionally evolved through generations ... The inherent conflict between these two knowledge systems and the manner in which they are protected and used will cause further disintegration of our communal values and practices."
"Obviously," says WIPO, "the statement is largely taken up with issues of access to genetic resources and its promulgators appreciate that notwithstanding their misgivings, the TRIPs system has become an established part of the intellectual property firmament."
It adds, "However, they plead for a legislative structure which 'Builds upon the indigenous methods and customary laws protecting knowledge and heritage and biological resources' and which prevents the appropriation of traditional knowledge and integrates 'the principle and practice of prior informed consent, of indigenous peoples' as communities or as collectivities."
A case-study of Philippines, prepared by Mr. David Daoas, Chairperson of the country's National Commission on Indigenous Peoples (also contained in the WIPO background paper) recounts the many threats posed to traditional systems that sustained health care, environment, agriculture, arts, music and dance.
An archipelago of more than 7,000 islands, the Philippines is home to 126 ethno-linguistic groups, most retaining their traditional identity by virtue of non-submission to foreign domination.
It is ironic, notes the study, that the Philippines, a rich source of traditional medicine, is a big market of foreign drugs that are often not affordable to the marginalized sectors of society like the indigenous peoples. 'Traditional practice is replaced, worse, it is being commercially exploited in the international market.'
From the traditional knowledge on the medicinal values of herbs, pharmaceutical companies have further researched and are now gaining millions worldwide. Recently, the talong or eggplant, ampalaya or bitter gourd and makopa or rose apple were "discovered" to remedy diabetes and now owned by a US firm (Baguio Midland Courier, 9/19/99).
The study notes that the introduction of modern architecture replaced traditional architecture to extinction, while traditional music and designs are being exploited, and recognised is fashion centres like Paris.
"The American occupation at the turn of the 20th century, witnessed the drastic change in the Philippine landscape and its population," the study notes. "Devastation of natural resources was all over with the massive logging and large-scale mining. A legacy perpetuated by Filipinos themselves toward the end of the Millennium."
At first, the study adds, "the consciousness of struggle was on warding off physical intrusion into ancestral domains and commercial exploitation of natural resources. The outrage was focused on the wanton display and commercialization of traditional arts and artifacts. Sadly, indigenous peoples themselves helped facilitate the export of materials from indigenous cultural communities."
The indigenous peoples were duped, says the study, at the beginning of the century with the introduction of centralized government. "Unlike armed invasion, centralized government is totally a new concept to indigenous peoples. A foreign invasion which amassed indigenous peoples' wealth not with the use of arms but with legalities."
What TRIPS would do, it appears, is spread that canvas of legalities worldwide - with incentive of a few dollars more!
For instance, the recent passion for environmental sensitivity in Western countries has resulted in a heightened interest in natural products, the WIPO paper notes. Australia has a burgeoning "bush tucker" industry guided by the Australian Native Bushfood industry Committee.
Research into these products has been guided by the knowledge of indigenous peoples. Pharmaceutical, biotechnology and personal care companies, such as 'The Body Shop' have focused their attention and their advertising, upon plants and animals which have been demonstrated by indigenous peoples to have beneficial qualities.
This has saved those companies considerable expense in obtaining that knowledge through their own research. A dramatic example of this, notes the WIPO paper, is the Merck agreement.
In 1991, Merck, a transnational pharmaceutical company, entered into a bioprospecting agreement with the Costa Rican Association Instituto Nacional de Biodiversidad (INBio), a non-profit organization. Under the agreement, which has been criticised by a number of public interest NGOs, over a two year period, Merck received 10,000 plant samples. The samples were supplied with information about their traditional use.
Merck has paid a reported $1.35 million for the 10,000 samples, and has agreed to pay a royalty of between two to three percent. If one of the 10,000 samples becomes a billion dollar drug, then Merck has agreed to pay 20 to $30 million in royalties. Conceivably, the royalties from the 10,000 samples could earn Costa Rica well in excess of $100 million per annum. In the debate about the protection of TK, the implied beneficiaries of this protection are traditional peoples. But the truth of the equation is actually quite clearly spelt out in an industry viewpoint, also contained in the background WIPO paper, which in one of its transparency-presentation pages has this clear assertion "NO PATENTS, NO BENEFITS."
The WIPO paper says discussion of protection of TK assumes the necessity for this protection and also assumes that the primary beneficiaries of this protection will be indigenous peoples and community groups. However, the state as guardian of its people's cultural heritage, also has an interest in the preservation of the traditional knowledge which exists within it.
The various African laws which seek to protect folklore, stress its significance as part of the national heritage. "Multiculturalism has begun to replace nationalist uniformity as the new orthodoxy. An incidental beneficiary will be the national state, first from the vigour of cultural health and secondly, from the commercial exploitation of traditional knowledge."
A corollary to the assumption of the necessity to protect TK, the paper adds, is the assertion of the right of indigenous peoples and traditional communities "to determine the appropriateness of the use being made of their culture."
Thus Dr. Erica-Irene Daes, declared that "each indigenous community must retain permanent control over all elements of its own heritage. It may share the right to enjoy and use certain elements of its heritage under its own laws and procedures, but always reserve a perpetual right to determine how shared knowledge is used."
Today in Australia, indigenous peoples regard the protection of TK as an issue of self-determination. For other countries, with a less unfortunate colonial history, the issue of who controls the protection and conservation of TK might be less politicised.
Among the political issues which have been raised in Australia are: whether Eurocentric intellectual property law can be trusted with the subject of traditional knowledge. Similarly, it has been suggested that "a suspicious eye should be cast over any assertion of legal or moral authority by non-indigenous people to adjudicate disputes between traditional and non-traditional artistes."
According to a WIPO background paper, for WIPO's work programme, the scope of enquiry extends to all of the tradition-based creativity and innovation of human beings, irrespective of existing terminology or definitions, and the term "traditional knowledge" (TK) is used to refer inclusively to all relevant subject matter.
As the United Nations specialized agency responsible for the promotion of intellectual property (IP), WIPO undertook a series of fact-finding missions (FFMs) "to identify and explore the intellectual property needs and expectations of new beneficiaries, including the holders of indigenous knowledge and innovations, in order to promote the contribution of the intellectual property system to their social, cultural and economic development."
These missions were intended to enable the "study of current approaches to, and future possibilities for, the protection of intellectual property rights of holders of indigenous knowledge, innovations and culture."
From the FFMs, WIPO has learned that TK is a rich and diverse source of creativity and innovation. The FFMs revealed that traditional knowledge systems are frameworks for continuing creativity and innovation in most fields of technology, ranging from traditional medicinal and agricultural practices to music, design, and the graphic and plastic arts. WIPO also learned from the FFMs that the IP issues related to TK cut across the conventional branches of IP law, such as copyright and industrial property. In many cases, TK holders do not separate "artistic" from "useful" aspects of their intellectual creations and innovations; rather, both emanate from a single belief system which is expressed in daily life and ritual.
The FFMs also revealed that numerous indigenous and local communities have protocols for protection of TK and TK-based innovations under customary law. In general, the FFMs showed the richness and diversity of TK on a global scale, both in terms of its inherent creativity and as potential matter for IP protection.
WIPO's exploratory work has shown that TK is a rich source of creativity and innovation. To promote better understanding and wider consensus, it would like to address basic conceptual problems and test practical solutions to the protection of TK.
Thus, its future work-plan includes a number of activities involving exchange of information and consultation activities on identification and documentation of protectable subject matter, pilot projects and national and regional levels on the use of existing IP system to protect TK, exploration of customary law governing custodianship, use and transmission of TK and its relationship to the formal IP system.
Proposals of mechanisms for the protection of TK have ranged across two axes. Along one axis are suggestions to improve the private law rights of the creators or custodians of TK. These suggestions range from proposals to modify existing copyright law through to the creation of sui generis traditional TK rights.
Along another axis are suggestions to deal with the protection of TK as a public law right. These suggestions range from the creation of a public protection authority, through domain public payment proposals, to the empowerment of indigenous Peoples' protection agencies.
Reservations, however, have also been voiced by a number of commentators, the WIPO paper points out. For example, Rosemary Coombe questions the applicability of private law concepts to cultural expressions. Another paper cited, questions whether property concepts are cognizable under customary Aboriginal law. Daes explains,
"...indigenous peoples do not view their heritage as property at all- that is something which has an owner and is used for the purpose of extracting economic benefits - but in terms of community and individual responsibility. Possessing a song, story, or medicinal knowledge carries with it certain responsibilities to show respect to and maintain a reciprocal relationship with the human beings, animals, plants and places which the song, story or medicine is connected. For indigenous peoples, heritage is a bundle of relationships rather than a bundle of economic rights."
There is room for conflict between the emerging IP regimes for TK and the Draft Declaration on the Rights of the Indigenous Peoples (with another meeting just ended in Geneva without final agreement - one of the issues of discord being whether it should have "people" or "peoples").
Article 12 of the Draft Declaration recognised the right of indigenous peoples to 'practice and revitalise their cultural traditions and customs, including the right ... to maintain, protect and develop the past, present and future manifestations of their cultures, such as .. artifacts, designs, ceremonies, technologies and visual and performing arts and literature, as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs." (SUNS4545)
The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.
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