23432 (/') Indigenous Knowledge and ^ v Intellectual Property Rights .iI.iiiii) |nternational trade in genetic re- resource that is intangible in nature. It _sources, often referred to as bio- usually involves the protection of some 0' trade involves high economic stakes form of invention created by the hu- today. The sale of drugs based on tradi- man mind. This includes a wide variety tional medicines alone amounts to over of creations, ranging from new music, US$ 32 billion (1 billion equals 1,000 novels, drugs, to computer software _ million) a year. It has been estimated and products obtained from the use of that by consulting indigenous peoples, indigenous knowledge. bio-prospectors can increase the suc- The CBD introduced the notion of in- cess ratio in trials from one in 10,000 tellectual property rights as a strategy samples to one in two. In the experi- for conserving biodiversity by granting ence of another expert, traditional countries sovereign rights over their knowledge increases the efficiency of resources. This was complemented by screening plants for medicinal proper- the Agreement on Trade-Related Intel- ties by more than 400 percent. Without lectual Property Rights (TRIPS). The the input of indigenous knowledge, inclusion of TRIPS into the mainstream many valuable medical products used of the WTO system established new dis- extensively today, would not exist. ciplines for many countries in patents, Prior to 1992, traditional knowledge copyrights, geographical indications, and resources were seen as the com- trademarks and industrial designs. The mon heritage of mankind. There were main objective of the agreement is to no international (and in most coun- create an international standard for tries national) laws regulating access minimum intellectual property rights to genetic resources As a result, there (IPR) protection. No. 19 was an increase in the commercial use April 2000 of the knowledge and biological re- sources of indigenous peoples. The rapid depletion of environmental re- IK Notes reports periodically on Indig- enous Knowledge (IK) initiatives in sources and the need to reward both Sub-Saharan Africa. It is published by users and providers, gave rise to the the Africa Region's Knowledge and Learning Center as part of an evolving Convention on Biological Diversity IK partnership between the World (CBD), which for the first time ac- Bank, communities, NGOs, develop- knowledged the value of indigenous ment institutions and multilateral orga- vg()ONS 8.,S.a- knowledge and resources. It estab- article are those of the authors and lished a framework for providing access should not be attributed to the World to genetic resources and a means for Bank Group or its partners in this ini- gsr,>\X<-s>'< ouS a r tiative. A webpage an IK is available at fair and equitable benefit sharing. http://www.worldbank.org/aftdr/ik/ Intellectual property is a means of default.htm acquiring ownership over a particular 2 Intellectual property rights: conflict or synergy? Problems of applicability Does the protection of indigenous knowledge and resources The individualistic nature of IPRs creates several complica- through the establishment of IPRs promote or hinder the tions, when applied to local communities. They fail to take channeling of equitable economic benefits to the custodians? into account the fact that these communities have a holistic Critics argue that IPRs are a threat to biodiversity by limiting approach to their environment. Such communities find it dif- access to resources and the products derived from them. ficult to separate the resources from which their livelihood They encourage companies to patent inventions derived from stems into distinct economic and social assets. indigenous knowledge and resources, without equitably shar- As far as IPR is concerned, this leads to another critical ing the commercial rewards with these communities. The ad- problem. How does one define an innovation and a benefi- vocates of TRIPS claim that it encourages technology trans- ciary in local communities, given the need to prove novelty fer, which could be one strategy for equitable benefit sharing. and non-obviousness. In most traditional communities, There are several other issues that arise in this debate which knowledge is acquired over time and passed on from one gen- will be dealt with and reconciled by examining strategies for eration to the next. Through this process it keeps evolving working within existing IPR regimes and widening their and changing in character. Therefore, it is difficult to estab- scope where necessary, to conserve indigenous knowledge lish when such knowledge was actually discovered and when and biodiversity. it entered the public domain. The second aspect of the dilemma involves the community aspect of indigenous knowledge. It is developed by being shared amongst the members of the community such as the elders who have the wisdom of years of experience which adds further value to knowledge. In this sense it has always been in I K N o tes the public domain of the community and therefore fails to meet the non-obviousness criteria of a patent. And when an would be of interest to: entire community is involved in the evolution of traditional Name knowledge, how does one identify the inventor? The problem is further complicated in cases where the same indigenous In.stitultinn knowledge is used by different communities across the world. For instance, if a particular herb is used by the Maasai in Address Kenya, as well as by the Amazonian Indians, how does one identify the rightful inventor? Towards a synergy These issues may be reconciled by working within the frame- C==_ * *. ** - -.work of TRIPS through the use of different forms of intellec- tual property rights. These include geographical indications which are more applicable to community based inventions. i -. * E * -- Another possibility is to widen the scope of IPRs to include i -- a _the notion of community based rights. This may include sui - 1* * E: * * ** * generis (of its own kind; constituting a class alone) forms of protection which are more innovative than the use of patents. 3 Some suggest that patent laws be modified to ensure that can give others such as a business firm a competitive advan- all patent applications disclose the country of origin of bio- tage. They could be an effective way of protecting indigenous logical materials and traditional knowledge used to develop knowledge. Local communities could restrict access to their the invention. A related issue involving the patenting of in- territories and information to outsiders through agreements digenous practices is the need to document them. The prob- that secure confidentiality and economic benefits. Such prac- lem with most indigenous practices is that they are passed on tices have been initiated in countries such as Ecuador with from one generation to the next through oral traditions and the support of the Inter-American Development Bank. not written records. In order to prevent traditional knowl- edge that is already in the public domain from being pat- Suigeneris: access and equitable benefit sharing ented as a new invention in another country, it is vital to pro- vide written documentation of such practices. This way, in- Some of the biggest controversies surrounding IPRs concern digenous communities can challenge patents being granted the protection of local plant species. The TRIPS agreement to others for practices that are traditionally their own. The states that members may exclude from patentability... World Bank's Indigenous Knowledge database and a similar initiative by WIPO to register traditional practices are initia- 'Plants and animals other than micro-organisms and essen- tives in this direction. tially biological processes for the production of plants and ani- In addition, the creation of national, regional and interna- mals other than non-biological and microbiological processes. tional registries of traditional knowledge could support ben- However Members shall provide for the protection of plant efit sharing among industry and local communities. They varietieseitherbypatentsorbyaneffectivesuigeneris system could support IPR- related measures such as strengthening or by any combination thereof"- (Article 27.3b) traditional knowledge's status as prior art, enabling 'defen- sive publications'. Sui generis refers to methods of protection other than the Aside from patents, there are other possible mechanisms use of a patent. The most common form of sui generis protec- for establishing intellectual property rights over indigenous tion for new varieties of plants involves some kind of "plant knowledge and resources. These include the use of geo- breeders rights". At the international level, a number of graphical indications (place names or words associated with countries havejoined together in the International Union for a place to identify the origin, type and quality of a product - the Protection of New Varieties of Plants (UPOV), and negoti- for example "Darjeeling tea"). These are unique in their abil- ated an International Convention for the Protection of New ity to reward collective traditions while allowing for evolu- Varieties of Plants. The Convention lays down minimum stan- tion. They emphasize the relationships between human cul- dards of protection that national systems should accord. It tures and their local environment and can be maintained as enables breeders to enjoy the so-called 'breeder's privilege" long as the collective tradition survives. It is immaterial which gives them the freedom to use protected plant variet- whether the inventor is an individual, family or large corpora- ies in their breeding programs to generate other (derived) tion. Indigenous communities claim their knowledge is not varieties. to be freely bought or sold. Similarly, a geographical indica- Such forms of protection have generated some concerns tion lacks the typical private property characteristic of being amongst developing countries, most of which seem to be un- freely transferable. founded. The fear, for example, that farmers will no longer be Other forms of protection include copyrights and trade se- allowed to carry on with their traditional farming practices as crets. Copyrights are often used to protect traditional folk- a result of a patent or sui generis form of protection being is- lore from unauthorized duplication. WIPO has protected sued for a product that has been used by them over a long folklore from different parts of the world as copyrights. Trade period of time, is misplaced. A product or process that has secrets are a means to protect confidential information that been used publicly is not new and therefore cannot be pat- 4 ented. Only new plant varieties will be eligible for protection Conclusion and even then, the onus is on the breeder to seek protection. It is not compulsory. Thus, farmers will be able to retain seed Intellectual property rights can provide an effective means of from their harvest for sowing on their land (this has come to protecting indigenous knowledge systems and plant variet- be known as the "farmers' privilege"). ies. This note emphasizes the critical importance of docu- Sui generis offers the possibility to move beyond traditional menting indigenous knowledge in writing, which can then be forms of IPR and examine other mechanisms for regulating used to challenge a patent claim on knowledge that is already access to resources and equitable benefit sharing. These in the public domain. Second, it highlights the usefulness of could include contracts between the users and custodians of other forms of intellectual property rights than patents such these resources, such as Material Transfer Agreements. In as geographical indications. These may be of more use to in- Cameroon, for instance, the US National Cancer Institute digenous communities seeking to regulate access over their signed a contract with the government following the discov- resources, as they can be applied to knowledge that evolves ery of a forest plant species with a potential anti-AIDS chemi- over time and with the input of the local community at large. cal. Cameroon provides plant samples in return for payments This leads us to the possibility of widening the TRIPS agree- which are used for indigenous community development ment to ensure that patents disclose the origin of genetic re- projects to conserve the forests. sources and use of indigenous knowledge and consider sui Others argue that suigeneris systems that allow for consid- generis forms of intellectual property such as community erable innovation in the form of protection offered need to be based rights to secure equitable benefit sharing. expanded even further to include community-based rights and traditional resources rights. NGOs such as the Third World Network advocate an alternative rights regime that re- flects the culture and value system of local communities. They argue that, to take into account the dynamic nature of traditional knowledge, the concept of 'innovation' needs to be redefined beyond what typifies industrial innovations. This could be embodied in community-based rights. Academics have advanced a more holistic approach that in- tegrates property rights with everyday customary laws and practices. They claim that indigenous knowledge cannot be separated from other indigenous rights such as human rights, rights to land and self government. One possible solu- tion could be an integrated rights approach through the es- tablishment of traditional resource rights which could pro- vide a framework of principles upholding the rights of tradi- tional communities. These can serve as guidelines to estab- lish other rights such as sui generis property rights. This article was written by Siddhartha Prakash, Consultant, Africa Region, World Bank. It is reproduced in an abridged version with the permission of the original publisher: "Towards a synergy between biodiversity and intellectual property rights" by S. Prakash, September 1999, Journal of World Intellectual Property, Vol. 2, No. 5.