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    Indigenous Peoples Rights’ Reaffirmed By UN Rapporteur, Panellists, At WIPO

    Published on 5 February 2013 @ 1:05 pm

    By , Intellectual Property Watch

    United Nations Special Rapporteur on the Rights of Indigenous People

    The United Nations Special Rapporteur on the Rights of Indigenous People, James Anaya, was invited to speak at the opening of the World Intellectual Property Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) yesterday. Along with other indigenous peoples representatives, he called for more participation of indigenous peoples in the process and a focus on the protection of their traditional knowledge, while WIPO raised alarm on the almost thorough depletion of the voluntary fund allowing the participation of indigenous peoples.

    United Nations Special Rapporteur on the Rights of Indigenous People

    Panellists at the WIPO Indigenous Forum (Photo Credit: IP-Watch)

    Anaya spoke at the WIPO Indigenous Panel, presenting perspectives of indigenous peoples and local communities, at the outset of the IGC, taking place from 4-8 February.

    Taking the audience back in time, Anaya said in his statement [pdf] that “the principle of state sovereignty and the right to property were fundamental building blocks of the international legal system during the classical era.” In the same era, he said, property rights theories “professed that only land used in ways sufficiently similar to European style agriculture could result in property rights to land and resources,” referring to “European colonisation.” It was thus considered that since indigenous peoples’ cultures did not improve the land “in a manner required to acquire property rights,” they did not acquire any rights to the land.

    These considerations are part of the doctrine of “terra nullius” under which “land occupied only by indigenous peoples was regarded as vacant,” he said. From an indigenous peoples’ rights perspective, it is interesting to compare the notion of the public domain with the terra nullius doctrine, he said, as “the notion of the public domain led to understand that indigenous peoples’ collective way of gradually generating knowledge often does not result in rights.”

    The terra nullius doctrine has been rejected as contemporary international law prohibits discrimination against indigenous peoples because of the particularities of their cultures, he added.

    In 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples, which “reflects a general global consensus on indigenous peoples’ rights that is in significant part incorporated into contemporary international law,” he said.

    According to Anaya, the rights indigenous peoples regained on property encompass “all forms of natural resources customarily used” by them. “The fact that indigenous peoples tend to generate knowledge by gradually building on prior knowledge, tend to generate knowledge collectively, and tend to perceive the knowledge to vest in the collective must not result in a lack of recognition of rights,” he said, adding that indigenous peoples have a right to be genuinely involved in state decision-making processes. He called for indigenous peoples to be adequately represented in IGC deliberations so that their concerns are genuinely taken into account.

    Moreover, he said, “the ability to consent or not consent to the use of their genetic resources and traditional knowledge flows from indigenous peoples’ right to property and self-determination.”

    Other speakers were Anil Gupta, executive vice-chair of the National Innovation Foundation in India, Tarcila Rivera Zea, founder and executive director of the Centro de Culturas Indígenas del Perú, and Godber Tumushabe, executive director of the Advocates Coalition for Development and Environment in Uganda.

    Gupta, also coordinator of the Society for Research and Initiatives for Sustainable Technologies and Institutions, and the Honey Bee Network, said holders of traditional knowledge should not remain anonymous to facilitate protection, adding that the National Innovation Foundation had filed patents on behalf of indigenous peoples or communities.

    Traditional knowledge, he said, can provide a wealth of applications in various areas. He also remarked that there was no fast track system for patents based on traditional knowledge at any level, national or international, referring to the fast track systems established in several countries for “green” innovations. His organisation has received some 160,000 ideas, innovations and traditional knowledge practices from over 500 districts of India, he said, and over 450 grassroots innovations and traditional practices have been filed in India and in the United States.

    United Nations Special Rapporteur on the Rights of Indigenous People

    Panellists look on at the WIPO Indigenous Forum (Photo Credit: IP-Watch)

    Rivera Zea said registration of indigenous knowledge was often costly and this should be taken into account and ways should be established so that states promote and facilitate research and registration of indigenous knowledge, which goes “much further than genetic material.” Minerals can have specific uses, such as for the pharmaceutical industry, or the dying of clothes.

    Mechanisms should be established to ensure the full participation of indigenous peoples, she said, and indigenous peoples should not be restricted to the providers of genetic resources but there should be a full recognition of indigenous peoples as right holders of active principles and the genetic basis from which applications can be derived.

    As an example, she said indigenous peoples have converted bitter potatoes into more than 4,000 different kinds of potatoes. “Even though this was unofficial, that does not mean that we have not contributed to the fund of knowledge of mankind,” she said.

    She called for the institutionalisation of the participation of indigenous peoples in international negotiations, as is the case in working groups of the Convention of Biodiversity, the Food and Agriculture Organization of the United Nations, or the International Fund for Agricultural Development.

    Indigenous peoples are not denying progress made by modern science and technology, but do not want to continue being the subject of appropriation or robbery, she said, adding “we have to defend ourselves against appropriation by third parties,” including states.

    For Tumushabe, the international community lacks the boldness and the imagination to be able to achieve the desirable kind of progress that is needed. Saying that traditional knowledge shall be subject to national legislation “is one way of avoiding taking action,” he said. In the area of intellectual property of access to genetic resources, the process of translating commitments included in international instruments into national legislations has been facilitated by a number of actors, such as WIPO, he said, adding that the whole issue of IP has been pushed beyond the international instruments.

    “When you go to the national level, you find that WIPO is working with patent offices trying to domesticate the TRIPS [World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights] agreement or other instruments,” he said. The WTO is also very active, he said, along with the private sector engaging funds to put IP regimes in place “because it is important,” while no such investment have been made towards the protection of traditional knowledge.

    The draft instrument talks more about IP than traditional knowledge and what patents can do and what they cannot do, but there must be a way to have an instrument which focusses on the limits traditional knowledge can have on patents, he said, calling for the objectives of the instrument to be recast so that it protects the rights of traditional knowledge holders and local communities.

    WIPO Voluntary Fund Almost Dry

    IGC Vice-Chair Alexandra Grazioli of Switzerland called for contributions to the WIPO Voluntary Fund for Accredited Indigenous and Local Communities.

    The fund, which has supported participation of indigenous and local communities since its establishment in 2005, has benefitted from different contributors, among them Australia, France, Norway, South Africa and Switzerland, she said. According to most, she added, the fund has been operated successfully in a transparent, efficient and independent way. But despite the efforts of the WIPO secretariat, the fund will run out of funds after this session of the IGC. Remaining funds can only cover two or three applicants to attend IGC 24, she said.

    “This regrettable situation is a great shame,” Grazioli said, and could have the effect of harming the credibility of the IGC. The General Assembly may be asked to amend the rules of the fund in order to allow the WIPO budget to contribute to the fund under conditions, she added, calling for delegates to appeal to their capitals to remedy the situation.

    Catherine Saez may be reached at info@ip-watch.ch.

     

    Comments

    1. Rightful Owners says:

      [...] within ideoscapes, UN Special Rapporteur on the Rights of Indigenous Peoples James Anaya informed the World Intellectual Property Organization that property rights bias towards the individual [...]

    2. Native Leaders Fighting to Protect Our Natural Resources | Declaration of Indigenous Rights says:

      […] consent” in meetings with governments and international organizations. In February 2013, he spoke to the World Intellectual Property Organization, where he pointed to the centuries-long regime of […]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

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    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

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