UN Report: Indigenous Rights Ignored In Global IP Policy
Published on 14 January 2010 @ 9:47 pm
By David Cronin for Intellectual Property Watch
The cultures of indigenous peoples have frequently been ignored when global standards on intellectual property were being set, a new United Nations report has stated.
Intellectual property issues feature prominently in State of the World’s Indigenous People, the first UN publication that aims to give a comprehensive overview of how the 370 million individuals considered as indigenous fare in terms of their health, education, income and access to employment.
Launched in Brussels and New York on 14 January, the report notes that global IP standards are mainly based on Western legal and economic principles that emphasise private ownership of knowledge and resources. Such principles, it says, “stand in stark contrast to indigenous worldviews, whereby knowledge is created and owned collectively and the responsibility for the use and transfer of the knowledge is guided by traditional laws and customs.”
The full text of the report is available here [pdf].
The report from the UN’s Economic and Social Affairs Department notes that some artists and craftsmen belonging to indigenous peoples have availed of IP rules to gain copyright protection for “tangible” products such as wood carvings, silver jewellery or sculptures and that some traditional art, foods and clothing are subject to trademarks. Generally, however, traditional knowledge and folklore has not been eligible for IP protection as it does not apply to “old” creations. As a result, IP rules leave “most indigenous traditional knowledge and folklore vulnerable to appropriation, privatisation, monopolisation and even biopiracy by outsiders,” the report says.
It cites a dispute over the Hoodia cactus as an example. Almost 60 years after anthropologists recorded how the San tribe in Africa ate this cactus to keep hunger at bay, the South African Council for Scientific and Industrial Research patented P57, the plant’s appetite-suppressing trait in 1995. When P57 was used to bring a lucrative slimming drug to market, the San alleged that biopiracy had occurred and threatened to sue the council. In 2002, the council agreed that future royalties from the drug would be shared with the San.
The report expresses particular concern about discussions being undertaken at the World Intellectual Property Organization (WIPO) on traditional knowledge. In 2001, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore was set up under WIPO’s auspices. The committee’s work has progressed slowly and to date no agreement has been reached on such issues as how traditional knowledge can be protected from being appropriated by corporations.
Some indigenous peoples believe, the report says, that WIPO is “not an appropriate forum to set standards because it is limited by its mandate to promoting intellectual property rights as the only viable path to protecting traditional knowledge.”
Lars-Anders Baer, president of the parliament for the Saami people in Sweden said that there has been “a lot of political tension” between industrialised and developing countries over issues relating to traditional knowledge. Nonetheless, he expressed hope that discussions on intellectual property will pay greater heed to issues affecting indigenous peoples in the future.
An informed source said that “there was never a suggestion that WIPO is seeking a monopoly on the debate” relating to traditional knowledge “or that it thinks that the IP aspect is the most important” in the discussions over how knowledge should be protected. “WIPO is not trying to force TK [traditional knowledge] into the current system,” the source added. “It is a matter of adapting the current system to address TK.”
James Love from Knowledge Ecology International, an organisation that monitors the setting of intellectual property rules, said that staff at WIPO’s Geneva headquarters had made a “good faith effort intellectually to explore the issues” of concern to indigenous peoples. He added, though, that “an endless set of grievances” have been raised in the negotiations and progress has been hampered by discussions over global inequalities. “It’s not like there are no merits to the grievances but it might be better to unpack the issues,” he said, suggesting that a breakthrough could be found on protecting folklore if it was separated from other questions.
The UN report acknowledges, meanwhile, that there is no agreed worldwide definition of indigenous peoples. A working definition has nonetheless been offered by some scholars, indicating that indigenous peoples are those who belong to a community with historical roots in a particular location that precede its colonisation or invasion by an outside force.
A UN spokesman said that just as its member states have discussed terrorism without having a precise definition of what it is, the lack of an agreement on what exactly constitutes an indigenous people did not prevent governments from addressing related topics.
David Cronin may be reached at info@ip-watch.ch.
Categories: News, Biodiversity/Genetic Resources/Biotech, Copyright Policy, English, Environment, Human Rights, Trademarks/Geographical Indications/Domains, Traditional and Indigenous Knowledge, United Nations, WIPO
19 January 2010 at 3:00 pm
[...] Patents are about exclusion and monopoly and they tend to be inherently unethical, as a new UN report seems to suggest. From IP Watch: The cultures of indigenous peoples have frequently been ignored [...]
19 January 2010 at 6:07 pm
[...] webpage … Download the report [pdf] … Read a UN release on a press conference on the launch … Read an IP Watch article on the report … [...]
21 January 2010 at 7:09 am
Fine work! I wonder if Mr. Sha Zukang, Under-Secretary-General for Economic and Social Affairs of Jiangsu China considers himself to be an indigenous person of China. The Han majority comprises more than 92 percent of the population of this vast nation of indigenous ethnic minority groups, some of which have been assimilated, or are not recognized by the Chinese government.
An unfortunate situation that I experienced firsthand while serving as an International Expert in Xiangxi Autonomous Prefecture of Hunan Province was the considerable number of Han people who forged papers stating that they were ethnic minority peoples of China to gain economic and educational benefits that were designated for ethnic minority peoples. This situation needs to be more carefully monitored by the Chinese government given the significant level of corruption by local governments in autonomous regions.
Dr. Amy Eisenberg
International Society of Ethnobiology
USA
21 January 2010 at 7:44 am
Dear David
Hoodia is not in the Cactaceae. It is a succulent xerophyte in the family Apocynaceae that is widely used traditionally by the San people of southern Africa as an appetite suppressant, thirst quencher and as a cure for severe abdominal cramps, haemorrhoids, tuberculosis, indigestion, hypertension and diabetes. Various uses have been recorded among Anikhwe (Northern Botswana), Hai om (northern Namibia ), Khomani (north western South Africa ), and the !Xun and Khwe (originally from Angola ) communities. Less is known about the use of this group of plants by other indigenous people, but some records show limited use of Hoodia parts as food items, albeit not as preferred food items. Hoodias are known to be used for cultural purposes in some areas (Hargreaves and Turner, 2002). Although relatively difficult to cultivate, Hoodia ‘ s are attractive plants and are also used for horticultural purposes.
The Council for Scientific and Industrial Research (CSIR) in South Africa isolated an active compound (P57) for appetite suppression from H. gordonii . The CSIR licensed the rights for further development of P57 and the setting up of a sustainable production system to Phytopharm in the UK . Phytopharm in turn sub licensed the rights to Pfizer for the development and global commercialization. Pfizer has recently returned the clinical developmental rights.
In terms of a benefit sharing agreement with the CSIR, all the San communities in the range States will benefit from the development of P57.
Hoodia is being widely marketed as a commercial appetite suppressant. Some of the trade in Hoodia is illegal in terms of regulations in southern African countries and may also infringe on patent rights and benefit sharing agreements. This document provides information on Hoodia to promote sustainable and fair trade in Hoodia products .
DISTRIBUTION OF HOODIA
Hoodia species occur in summer rainfall areas in Angola, Botswana, Namibia, and South Africa as well as winter rainfall areas in Namibia (MET 2002). Only one species if found east of 26 degrees longitude, i.e H. currorii subsp. lugardii , which occurs in Botswana and the Limpopo province of South Africa. The centres of diversity for Hoodia are in Namibia (11 taxa) and South Africa (9 taxa).
Although the genus Hoodia is widespread in southern Africa, herbarium records indicate that Hoodia gordonii only occurs in South Africa and Namibia . Any claims about other areas of distribution should be verified by a competent taxonomist.
CULTIVATION
Cultivation trials are currently underway in South Africa (under the auspices of the CSIR) and on a small scale in Namibia (National Botanical Research Institute). At present, only a small quantity of material has been harvested from cultivated material.
CONSERVATION STATUS
Some species of Hoodia occur in very large populations over large areas. This includes H. gordonii , which is the species most sought after for trade. There are, however, other closely related species that are less abundant, occurring in isolated patches with an overall low density, and a relatively small distribution range. A relatively common feature is that most species have patchy distributions. The threatened status for some Hoodia species has been assessed recently (see Table) and ten of the 16 taxa have been classified as threatened in these assessments.
TAXON NAME Range States STATUS 1997 STATUS 2002
Hoodia alstonii (N.E.Br.) Plowes NA, ZA nt VU (NA)
H. currorii (Hook.) Decne. subsp. currorii NA LR
H. currorii (Hook.) Decne. subsp. lugardii (N.E.Br.) Bruyns BO, ZA, ZM? nt
H. dregei N.E.Br. ZA R
H. flava (N.E.Br.) Plowes NA, ZA nt LR
H. gordonii (Masson) Sweet ex Decne. NA, ZA nt LR
H. juttae Dinter NA R VU
H. officinalis (N.E.Br.) Plowes subsp. delaetiana (Dinter) Bruyns NA R EN
H. officinalis (N.E.Br.) Plowes subsp. officinalis NA, ZA nt
H. parviflora N.E. Br NA LC
H. pedicellata (Schinz) Plowes NA VU
H.pilifera (L.f.) Plowes subsp. annulata (N.E.Br.) Bruyns ZA R
H. pilifera (L.f.) Plowes subsp. pilifera ZA R
H. pilifera (L.f.) Plowes subsp. pillansii (N.E.Br.) Bruyns ZA V
H. ruschii Dinter NA I VU
H. triebneri (Nel) Bruyns NA R VU
BO = Botswana , NA = Namibia , ZA = South Africa , ZM = Zimbabwe
EN = Endangered, VU = Vulnerable, LR = Low Risk, LC = Least Concern (IUCN categories of threat, 1994)
R = Rare, V = Vulnerable, I = Indeterminate, nt = not threatened (IUCN categories of threat, pre-1994)
PERMITS
Hoodia species, including H. gordonii, are protected species in southern Africa . This means that permits are required for certain activities.
Botswana
· Hoodia gordonii does not occur in Botswana . Other Hoodia species are protected by the Agricultural Resources Conservation Act [CAP. 35:06]. Regulations for harvesting of veld products were published on 26 March 2004.
Namibia
· H. gordonii , as well as other species of Hoodia , are listed as protected species in Namibia .
· No harvesting is permitted until Namibia has reviewed the status of Hoodia species (national policy framework in progress).
· Namibian authorities are concerned that collectors are harvesting illegally and that the wrong species are being harvested (i.e. not H. gordonii )
South Africa
According to current records, the natural distribution range of H. gordonii in South Africa is only in the Northern Cape province . There are also reports of other sites in the Western Cape .
Northern Cape Province :
· H. gordonii , as well as other Hoodia species, are listed as protected species under the Environmental Conservation Ordinance No.19 of 1974.
· No one is allowed to harvest, collect, damage, collect seeds, trade (import or export) or transport any Hoodia material without a valid permit from the Permit Section of the Directorate of Conservation Service in the Northern Cape .
· Cultivation requires a relevant permit from the same Permit Section.
· Any export also requires a phyto-sanitary certificate. Phyto-sanitary certificates can be obtained from the National Department of Agriculture
Western Cape Province
· Conservation status and permit requirements are the same as in the Northern Cape Province .
In terms of Nature Conservation Ordinance 19 of 1974 for ANYONE to trade in Hoodia (or any protected flora), that person will need to be registered and licensed by the Western Cape Nature Conservation Office. Any party involved in the commercial trade of Hoodia , whether it is the primary grower (who grows and harvests the material for sale) or the end seller (who buys it from the grower for processing and resale) must be registered and licensed. Furthermore, an export permit is required to export Hoodia in any form (raw or processed) out of the Province (an Ordinance permit) and out of the country (a CITES permit).
INTERNATIONAL REGULATIONS
CITES listing:
Botswana , Namibia , and South Africa submitted a proposal to the 14th Conference of the Parties of CITES to list all species of Hoodia on Appendix II. This proposal was accepted in January 2005 and it is now prohibited to trade in any parts and derivatives of any Hoodia species without a permit. A permit can only be obtained from the relevant permitting authorities of each country and can only be issued for trade in cultivated plants or wild plants where the trade can be shown not to have a detrimental effect on wild populations (a CITES non-detriment finding). The listing of Hoodia makes provision for exemption from CITES permits where traders participate in controlled harvesting and production systems in collaboration with the CITES Management Authorities of Botswana/Namibia/South Africa, but no such agreements are yet in place. Importing countries must ensure that a valid CITES export permit has been issued by the country of origin for any trade.
Further information is available from the CITES website:
http://www.cites.org/eng/cop/13/raw_props.shtml
PERMIT CONTACTS:
Botswana
Ms Budzanani Nsoso
Agricultural Resources Board
Private Bag 00424
Gaborone
Botswana
Tel. +267 395 0740
Email: bnsoso@gov.bw
Namibia
Dr Pauline Lindeque (PhD)
Director Scientific Services
Ministry of Environment and Tourism
Private Bag 13306
Windhoek , NAMIBIA
Tel: +264 61 263131 Fax: +264 61 259101
Or: Pierre du Plessis, criaawhk@iafrica.com.na
Sonja Loots
National Botanical Research Institute
Private Bag X13184, Windhoek
Email: sonjal@mweb.com.na
South Africa :
Northern Cape :
Maxie Jonk (Permit Section)
Directorate of Conservation Service
Private Bag X5018
KIMBERLEY 8300
South Africa
mjonk@grand.ncape.gov.za
Conservation status:
Elsabe Powell
Directorate of Conservation Service
Private Bag X5018
KIMBERLEY 8300
South Africa
Western Cape
Permit section:
Contact person: Deon Hignett, Dhignett@pawc.wcape.gov.za
CSIR:
Dr Marthinus Horak
CSIR
P.O. Box 3095\
Pretoria 0001
South Africa
+27 -12- 841 2670
email: mhorak@csir.co.za
June 2005 Wendy Foden
14 September 2010 at 12:18 pm
[...] Indigenous traditional knowledge is also “usually held by the owners and their descendents in perpetuity, rather than for a limited period.” (IPW, Traditional and Indigenous Knowledge, 14 January 2010). [...]