Indigenous Groups Express Concerns On IP Protection Of Their Knowledge

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By Kaitlin Mara
Representatives of global indigenous groups were in Geneva last week to exchange views on the role of intellectual property in the protection of indigenous and traditional knowledge and folklore.

Indigenous groups participated an informal meeting held on 22-23 February, and in the weeklong meeting of the World Intellectual Property Organization Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) (IPW, Traditional and Indigenous Knowledge, 29 February 2008).

The informal meeting was co-hosted by the International Centre for Trade and Sustainable Development and the Swiss Federal Institute of Intellectual Property. Indigenous representatives in the meeting did not come to a clear consensus on how WIPO should proceed in protecting indigenous and traditional knowledge, but there were several places where their central ideas overlapped and where lessons might be drawn.

The informal event was designed to provide a casual atmosphere for the exchange of ideas between groups normally facing each other across a negotiating table. It included not only indigenous representatives from several nations, but also representatives from WIPO, and from several national governments, such as the United States as well as non-profit organisations.

Clearest of the statements expressed by indigenous sources was the need to respect indigenous understandings of knowledge – often very different from the Western perspective – and the need to be able to communicate any international resolution that might arise to people in their localised contexts.

Can Patents Protect Indigenous Knowledge?

Le’a Malia Kanehe, a Native Hawaiian and legal analyst for the Indigenous People’s Council on Biocolonialism (IPCB), used genetic resources as an example: many people interpret indigenous calls for participation as meaning they want a hand in the commercialisation of genes extracted from their native lands, she said, but this is missing the point. What they want is the right not to own these things, she added.

Kanehe said Native Hawaiians believe the plants and the birds are their ancestors, and that they owe respect to them because they came first. She added: “I can talk about bioprospecting in legal terms, but for this aspect of culture people just talk past each other.” As such, she said, the WIPO proposal of disclosing the origin of a genetic product does not go far enough towards protecting traditional knowledge.

At the close of the weeklong WIPO committee discussions, Kanehe characterised the member states’ attempts to protect traditional cultural expressions as “bending over backwards like gymnasts.” But she said, “When discussing genetic resources, states make no mention of our rights. They all completely fall down.”

In statements to the committee, IPCB criticised the US government’s failure to consult with tribes who have a legally-recognised government-to-government relationship with the federal government, as well as other indigenous peoples within the United States, particularly referring to the Native Hawaiian peoples. IPCB cited a recent development in US law as an example of why indigenous peoples are asserting their rights to genetic resources originating in their traditional territories.

On 31 January, the Supreme Court of the State of Hawaii granted an injunction barring the State of Hawaii from selling or transferring “ceded” lands from the public land trust until native Hawaiian claims have been resolved to those lands which were taken by the US during the 1893 overthrow of the internationally recognised sovereign Kingdom of Hawai’i, she said. Kanehe said that, “the logical application of the Hawaii State Supreme Court to these discussions on genetic resources is that the vast genetic resources within the State of Hawaii are legally barred from sale or transfer. You can see that in this context, disclosure of origin in patent applications or any other IP mechanisms do nothing to address the usurping of our sovereignty and wrongful taking of our resources.”

IPCB Director and Founder Debra Harry (Northern Paiute) said that in her evaluation, certificates of origin and disclosure of origin requirements in patent applications will fall short of protecting indigenous peoples’ rights unless there is a clear recognition of the resources originating in and from indigenous peoples’ territories.

Collective Ownership v. IP Rights

In general, there was uncertainty with terms in the informal meeting, with people expressing frustration that the indigenous perspective on traditional knowledge as deeply integrated with their culture was captured by neither the western concept of “ownership” nor its concept of “stewardship.”

Greg Younging from the Creators’ Rights Alliance, an advocacy group in Canada that defends indigenous artists, also pointed out it is difficult to communicate indigenous ideas in the international legal context, as it guided by a foreign system of ideals from which indigenous groups are trying to decolonise themselves.

Neeti Mahanti, representing India’s indigenous people, said she was concerned that with indigenous groups in India speaking such a wide variety of languages and with so many of the major stakeholders spread out in rural areas all over the country, protections would not be adequately communicated to the people who most need to know about them.

Also considered important was the need to acknowledge and affirm the idea of collective property rights. “Indigenous nations have collective ownership over their traditional knowledge” said Younging.

Rodrigo de la Cruz of Ecuador’s Quichua people said that Ecuador’s Constitution already acknowledges collective intellectual property rights, and expressed the hope that the IGC would reaffirm that right and extend it to include access to genetic resources.

But from this point of commonality opinions among indigenous representatives began to diverge, loosely falling into two groups: those who felt the intellectual property system was completely irrelevant for the protection of indigenous knowledge and those who felt the system could have some uses in protecting traditional knowledge if applied carefully and limitedly. A common concern was the right to refuse to share traditional knowledge for commercial use, which many indigenous communities find objectionable.

Harry spoke out strongly against the use of IP for indigenous knowledge (IK), saying the IP system was “inappropriate” for IK protection as IP sets out rights that are monopoly based, short-term and time-specific, IP rights also are alienable, she said, and IK is by nature collectively held, inherent, inalienable, and held in trust for future generations. What is needed is a stipulation under access and benefit sharing requiring “parties [to] uphold their obligations under agreements regarding the rights of indigenous people” as ensconced in the UN declaration on the human rights of indigenous people, she said.

Others felt as though there was a role for the IP system, but in select ways. Albert de Terville of Saint Lucia said indigenous people in his home country, aided by the fact that they represented a third of the small island’s population, had organised thirty years ago on issue of protecting traditional knowledge. He said the group he represents is prepared to work with WIPO, but primarily needs technical services and advice for dealing with the complex global IP system, but they should maintain control over their knowledge.

Peru and others are seeking a “binding international legal instrument” for the protection of traditional knowledge within WIPO. And in WTO, they are seeking the amendment of the TRIPS agreement to include the obligation to disclose the origin of genetic resources and associated TK in the patent system, specifically in Article 29 bis of the Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), an amendment which has the backing of more than seventy other nations.

There was general agreement that traditional knowledge (TK) should be both preserved and also protected from misappropriation and misuse, though there was disagreement as to how to do so. One suggestion was the keeping of a database of indigenous knowledge that could be used in the case of misuse. Musu Usman Ndamba from the Mbororo pastoralist people in Cameroon said that he hoped a public database would be made of his people’s knowledge to prevent it being lost as younger generations practices the traditional way of life less and less.

Neyra raised his home country’s example: Peru keeps a confidential database for TK, allowing indigenous peoples to keep their knowledge safely out of the public domain but allow for legal protection in the case of abuse.

Harry opposed databases entirely, saying IK is not static and therefore the format is inappropriate. She also took issue with the IP system putting knowledge in the public domain, quoting Mike Myers of the Seneca Nation in saying “western law has no right to protect my knowledge because it has no right to my knowledge.”

Non-Indigenous Responses

The US official strongly opposed any kind of international instrument, in either WIPO or TRIPS, as unhelpful and as “putting the cart before the horse.” It is necessary to first define what we want, and what is already there to work with to get what we want, before we can talk about international legislation. In response to Neyra’s idea to protect against misuse and preserve secrecy of indigenous cultural expressions through the use of a confidential database, the US official said “there’s a trade secrets protection clause already in TRIPS.”

A Swiss official took a stronger stance. The nation has submitted two proposals to WIPO, one requiring national legislatures to be able to require disclosure of source of genetic resources with an amendment to the patent cooperation treaty, and one asking for the creation of an online system of government agencies that could compile information on source origin. Switzerland has accordingly changed its patent law to declare any applicant must declare source for patent processing to happen. If an applicant declares falsely, there is a penalty of CHF100,000 and the applicant will be required to publish their findings in national newspapers. These changes take effect on 1 July, 2008.

The Swiss official expressed concern that “the longer we discuss the less we really create something which is sustainable.” Mahanti of India echoed this position, saying she hoped when people went to talk in the working groups at IGC they “do not harden [their] positions,” keep [their] country perspectives, but think of the indigenous community of the entire world and the many things that must be achieved.

Kaitlin Mara may be reached at kmara@ip-watch.ch.

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Comments

  1. says

    I am greatly interested in such stimulating issues which relate to indigenoous knowledge .I do believe that modern knowledge system do not have an answer to all our problems but there is need to complement modern knowledge with indigenous knowledge.Intellectual property should be first be scrutinised but otherwise it is a positive legal tool to protect indigenous knowledge.We should also take into account the cultural , spiritual aspect of indigenous knowledge before we consder the possibilities of IP.Overally indigenous knowledge should be protected from plagiarism , and plunder as a way to motivate those who generate and coordinate it

  2. CHISITA .C.T says

    It is a fact universally acnowledged that modern knowledge systems can not solve human-kind’s problems becaus there are some perculiar cultural problems which require the use of traditional knowledge.This scenario has seen many countries promulgating legislation that promotes the complementatlit of both tradiotional and modern knowledge systems, for example in Africa south of he Sahara tradional medicine is part of the main stream health delivery system.

  3. jwalsh says

    Just a quick note: Indigenous knowledges are also modern, contemporary, cutting edge, etc. They were always growing and developing before colonialism and continue to do so. However, there are unique methods and practices of knowledge sharing, knowledge keeping and conducting research that are neither adequately nor appropriately addressed by non-Indigenous legislation or ideologies.

  4. CHISITA.c.t. says

    Intellectual property is now a topical issue that should be part of the training in higher and tertiary training in Library and Information Science.iCurrently the topic is part of our curriculum and we would be glad to share knowledge and experiences with other professionls in the similar field .We are more concerned with the ethical and legal, economic and political issues in the management of knowledge.We strongly believe in the principles of knowledge sharing and feel that we can breidge the gap by exchanging knowledge on Knowledge management and Intellectual property rights.

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