Interview – Indigenous Concern Over Rising Focus On IP In WIPO TK Talks 02/06/2016 by Intellectual Property Watch 1 Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) The views expressed in this article are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors. Indigenous peoples have been the victims of repeated acts of biopiracy while the international community has failed to act to prevent it, indigenous representatives said in an interview this week. The World Intellectual Property Organization has been discussing ways to address that issue for some 16 years, without success. As negotiators continue to seek consensus on what a potential treaty could achieve, indigenous peoples feel the spotlight has drifted from their issues to technical issues of the intellectual property system and highlighted attention on users of the system. Over the years, the voluntary funds that allowed indigenous participation at WIPO have been depleted and repeated calls for funds by WIPO, indigenous peoples, and some delegations have remained unanswered. In the eyes of indigenous peoples, this reflects a lack of interest of WIPO members in having their participation, rendering the process illegitimate. The 30th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 30 May to 3 June. Intellectual Property Watch‘s Catherine Saez sat down this week with two indigenous peoples representatives to ask about their take on the current negotiations, in particular if any change had been noticed since the IGC resumed its work in February, after a one year hiatus. Below is the interview with Nelson Kantule from the Kuna Peoples in Panama (Kunas unidos por la madre tierra), and Preston Hardison, policy analyst for the Tulalip Tribes in the United States (Note: Kantule’s remarks were delivered in Spanish and interpreted in English). Intellectual Property Watch (IPW): How are the negotiations going from the perspective of indigenous peoples since the IGC resumed at the beginning of the year? Nelson Kantule: My participation on behalf of my association is to seek protection of indigenous knowledge, however, this is not the focus of the discussions at the IGC and the lack of Kuna woman selling molas in Panama market representation of indigenous peoples at the sessions is encouraging this disregard. At this session of the IGC, we are only five representatives of indigenous peoples compared to about 12 when the funding was sufficient. I think countries do not really mind about us not participating, they did not provide any funds. If the discussion is about the traditional knowledge of indigenous peoples, how can this be done without our participation? If discussions continue in this manner, without our participation, that makes the IGC illegitimate. Preston Hardison: Of course our position is that the proceeding cannot continue without indigenous presence. We have our supporters but several states are not supportive of us at all. The ability to move forward on these negotiations at the end of the day depends on consensus. We are in such low numbers that we have not been able to influence the outcome, but on the other end, given the positions some of the states are taking, it is not very clear to me that having more people in the room would actually change things. Countries are showing up in those negotiations with instructions from capital that are saying they don’t want to make movement on recognising the indigenous peoples’ rights or the local communities’ rights. At the end of the day, for us to have an effect we have to move states on our issues, but after 16 years we are finding there are some states we have never been able to move. IPW: What are the most important issues in those negotiations? Kantule: What I hope is that our resources and our knowledge are respected, and that protection is provided after all the robbery that we have suffered, that would be the first thing. So states should protect our genetic resources, traditional knowledge and traditional cultural expressions. At WIPO, the interests of pharmaceutical lobbies and big companies are prime and they will never protect collective rights. It is an art to understand how to influence the process. As indigenous peoples, we have to learn how WIPO is thinking. Hardison: It was clear to us the mandate of this committee when it was established was to look at ways to protect traditional knowledge because the concern at the time was about biopiracy and misappropriation. It was clearly about recognising the rights of indigenous peoples and local communities. It has changed over the years, in significant ways. Right now, for example, our discussions on genetic resources partially have more to do with intellectual property aspects of the Nagoya Protocol [The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity] that were left un-negotiated. States are just negotiating their issues among themselves on genetic resources, and there is even discussion on the part of some members of whether we even need to include traditional knowledge. IPW: Should Indigenous Peoples’ knowledge and resources be protected through the IP system? Hardison: In the early years we talked a lot about sui generis legislation. At first we thought if we could get a system that was sui generis and expand the intellectual property system to encompass customary law and multiple forms of knowledge it might make for a much more interesting and democratic intellectual property system. However, it became very quickly very clear that the intellectual property system itself just did not have the vision to do that. Some members have gone way back from the idea of sui generis system. We have been very clear that traditional knowledge is not a form of information and not a form of intellectual property, it is a form of cultural heritage, it’s a way of life, it is embodied in the land, in the ancestors, in their relationships with their kin, such as brother animals, sister plants. Traditional knowledge is just not information in the way intellectual property sees it. The problem is the IP system is designed to exhaust all rights. In a circular system, the idea is you need economic incentive to get innovation. The trade-off and bargain was a state would grant you a temporary right that would expire and that would all go into the public domain: We have been very clear that this is not an incentive system that gets indigenous peoples to innovate. Their knowledge is never meant to go into the public domain. Even when indigenous peoples share their knowledge with outsiders, they expect the outsiders to respect the obligation that comes with the knowledge. It is less about property rights than obligation. As they have been saying over and over again, indigenous peoples want their knowledge respected. And what we find after the break is there has been no change on the part of the different positions parties are taking. We do have our supporters, and it is heartening to see more and more raising the issue that the principle (of the instrument) should also take into account the rights of the holders of traditional knowledge. But again, other members are only focusing on the needs of the IP system, the innovators, the corporations, and have also picked up this idea of the needs of society as a whole. They tend to view traditional knowledge as being something that the greater society can actually make demands for access [to], and because of the demands of society as a whole it should not be permanently protected. There is growing support within WIPO IGC membership in recognising and respecting indigenous peoples’ rights, but a number of WIPO members refuse to reference any human rights language or any human rights documents. I am happy to note that in Article 9.2 of the revised document there is a reference to Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples (the article is bracketed indicating no consensus on the text). IPW: Listening to opening statements, it seems that the issue of indigenous peoples is maybe slipping away. Hardison: It is slipping away, this is how it started this week, but during the negotiations, some members started to intervene on our behalf. But even for members who support us, there is still a strong focus on the development agenda. Our position has not been against the development agenda per say, but it always must occur by free, prior and informed consent. Indigenous peoples must have the right to decide what traditional knowledge they want to make available for the wider development purposes of the countries they live in. When the IGC renewed its mandate, two new words appeared in the mandate: the negotiations should be “effective” and “balanced.” These words were inserted at the last moment and they were necessary to keep the negotiations going. We believe they are really code words to talk about industry because there is a perception for some of the members that too much emphasis was being put on the indigenous peoples and local communities. What we see though, is exactly the opposite has happened. It is again those members that put that language in that are now focusing on all other interests expect indigenous peoples and local communities’. They just don’t mention it. IPW: In the broader context of the world, which has become digital, and where even personal information is hard to protect, how can traditional knowledge be protected? Hardison: In discussions on databases we have been very cautious. Some indigenous peoples reject them. It would be difficult to dismiss them entirely. They are some academic publications which contain traditional knowledge. It would be very difficult to get any country to support asking laws to suppress this. We have to live with some databases of traditional knowledge but we oppose expending them. For example, there should be no new databases on unrevealed and new traditional knowledge, unless indigenous peoples give their free prior and informed consent, which might not be advisable in this case. We have said that any information in these databases even if it is in a publication, is not evidence of it being in the public domain, but instead it is evidence of a property right. At the start of the discussions on international databases, proponents of these databases assured us that they would be only available for the use of patent offices. This time on the consolidated document (the document from which delegates started work this week), they are talking about making databases open to corporations and researchers and the public. We want to know what are their realistic safeguards as we don’t want a cure worse than the disease. Certainly we have patent problems, but the greater problem for many tribes is that once non-indigenous peoples find out about the value of their animals and plants, they come and just steal them. It is not just monopolistic use that worries us but rather the use that harms the resource that harms indigenous access to the resource to continue their culture. So we have great concern that anything that reveals traditional knowledge can lead people to the resource as well and non-monopolistic use can also be very damaging. We have to educate the public about what indigenous peoples want in terms of respect for their traditional knowledge and genetic resources. It is going to be the public that enforces the corporations that are biopirates. Corporations don’t want their reputation smeared, they don’t want to lose money if people start boycotting them. So educating the public to be prepared to press on corporations and enforce corporate social responsibility and that is the big advantage of disclosure of origin. IPW: What would be your wish list for those negotiations? Kantule: We wish for an international recognition of our rights over our resources and their origin. We also would like that the intellectual property system recognises human rights and other rights and be constrained by them. The system also should recognise the value of mother earth. If you do not respect mother earth you will always be in opposition with indigenous peoples and biodiversity will continue to be destroyed. The current system just exploits the resources and does not respect the balance that is necessary to preserve the earth. Hardison: In my ideal world, you would want an instrument that has true balance, and looks at the rights and interests of all of the rights holders and stakeholders. But it also should recognise principles that there are some places you do not go. The idea of balance is that there is a need to be a balancer, and it assumes that the governments have the right to allocate rights and interests among people of equal standing. We believe this regime must respect the rights of indigenous peoples that cannot be balanced with the interests of corporations. We would like to see a recognition that traditional knowledge is not in the public domain unless there is evidence that indigenous peoples have decided to place it there. IPW: Is the system of access and benefit-sharing, providing there is free prior and informed consent, considered a good thing for indigenous peoples? Indigenous people are striving to live in their cosmo-vision and have their dignity. Access and benefit-sharing is a contractual approach focused on the active access and some immediate benefits, but it is not looking at whole ways of life and ways of being and not really holistically protecting indigenous peoples in their culture in the long run. This conversation has been left out of the development agenda and the IGC conversation. ABS [access and benefit-sharing] is an important start but indigenous peoples are looking for long-term partnerships that are dedicated to help them preserve their right to choose their way of life, and how they want to develop. It is unclear whether the existing access and benefit-sharing regime will do that, and certainly I don’t think the patent system can deliver on that. IPW: If the patent system is not appropriate, which other system would be? Hardison: The patent system won’t go away, so we have to deal with the patent system. It has been the principle in the United States that tribes have the right to protect their knowledge in their territories, but once it passes into the United States territory, it comes under the jurisdiction of the United States, who says that their constitution prevents them from protecting it. And that’s a big, big, problem. That is a bigger problem about becoming a pluri-cultural society and respecting multiple forms of legal systems including customary laws of indigenous peoples. The way these negotiations have gone we have not been able to get that language here because the intellectual property system is so extreme that even for the ones who support us, it is a difficult language for them to accept. It was different in the CBD (Convention on Biological Diversity). A lot of people worked in biodiversity and understood how customary law, for example, preserves biodiversity. We never had that conversation going here. What we are mostly doing now is getting the bare minimum, keeping them from classifying traditional knowledge as being in the public domain without them agreeing that indigenous peoples have universal rights. Indigenous peoples have rights and they are not based in the intellectual property system. [Note: Hardison delivered a statement today on the floor of the IGC on the week’s negotiations.] Image Credits: Wikipedia Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related "Interview – Indigenous Concern Over Rising Focus On IP In WIPO TK Talks" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.