Manuela Carneiro da Cunha
Professor of Anthropology, University of Chicago
At this historical juncture, UNESCO can play a central role in the protection of intellectual rights in traditional culture. A widespread shift in legal thinking toward a generalized privatization of knowledge suggests the extension of Intellectual property rights to cover traditional knowledge. But in this paper, I argue that such a measure, while attending to a matter of equity, would endanger the continued production of this knowledge. To pursue both equity and preservation, I argue that traditional knowledge should be put in the public domain, but only under two conditions: if the public domain itself is protected from misappropriation and if there is a fair retribution whenever such knowledge leads to commercial ventures. Just as TRIPS (Trade-Related International Property Agreements) has ensured that the private domain as expressed by Intellectual property rights is protected worldwide, the public domain needs to be similarly protected from piracy. Each country can enforce such regulation of the public domain within its own boundaries. Yet one country’s public domain might be privatized in another country. Thus, UNESCO and WIPO are in a unique, instrumental position to carry this project, which is clearly within their mandate.
A double standard prevailed until a few years ago for seeds, drugs, and other such products in contrast to genetic resources and associated knowledge. The latter, on the premise that they could potentially benefit all of humankind, were deemed to be its common heritage and hence freely accessible. Seeds and drugs, on the other hand, while equally potentially beneficial to mankind as a whole, were protected by Intellectual property rights (Cunningham 1993). Two alternative responses to this inequity came initially to mind (we will later see that there are more than just two options). One’s choice seemed to be either to pursue a privatization of genetic resources and traditional knowledge or to advocate a suspension of intellectual property rights on products derived from them, putting these products into the public domain. In the seventies and the eighties, and in connection with seeds, this latter option seemed to gain some ground, particularly through the FAO (Food and Agriculture Organization), which acknowledged the contribution of generations of farmers. The version of UPOV (Union for the Protection of Plant Varieties) that was accepted in 1975, for instance, exempted farmers from the regulations imposed on everyone else regarding the exchange of seeds or their reutilization from one year to the next.
In the early nineties, privatization gained momentum. UPOV was amended in 1991 and toughened, affording protection to plant breeders that come very close to patenting. In 1992, the Convention for Biological Diversity (CBD) established that genetic resources should fall under the sovereignty of national states. Furthermore, many states translated sovereignty into property, though the two concepts are by no means equivalent. But the most drastic of all these instruments, because of the commercial sanctions attached to it, was TRIPS, which came out of the Uruguay Round of the GATT Negotiations in 1994. TRIPS provisions are mandatory for every member of the World Trade Organization. Under TRIPS, Intellectual Rights were granted protection irrespective of the country where the right had originated. States must internalize legislation accordingly, although at different paces; developing nations were given until 2000 to comply, whereas the least developed countries were granted another five years.
Although I lumped them together for the sake of pointing to the growth of privatization, CBD and TRIPS respond to very different interests and even contradict each other in certain aspects. CBD was drafted under the auspices of the United Nations in the context of the Rio Earth Summit and is perceived to take into consideration the interests of resource-rich countries, most of them in the Southern Hemisphere. It was signed and ratified by more than 170 countries. The most notable exception is the United States, whose President signed the Convention in 1993, but whose Congress refused to ratify it. The United States, on the other hand, was the main force behind the TRIPS Agreement, which ultimately serves its technological preponderance. As mentioned above, commercial sanctions in the form of trade retaliations account for the persuasive power of TRIPS.
The CBD explicitly deals with the rights of local people, and it does so in collective terms. Article 8(j) recognizes that each contracting party shall
subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of benefits arising from the utilization of such knowledge, innovations and practices.
How are countries to implement the CBD? Several general meetings have already been convened, the fifth held in Nairobi in the spring of 2000, and the issue of Indigenous and local knowledge at these meetings has gained unprecedented importance. Under the sponsorship of Spain, two events to discuss this single issue were organized. While the first one was a seminar, the second, held in Seville about two months before the Nairobi Convention in 2000, brought in official delegations from over one hundred countries and was preceded by an Indigenous Forum.
Thus, the nineties saw a growth in public visibility of the issue of local and Indigenous knowledge. Paradoxically, they also seem to have confined mainstream institutions searching for appropriate approaches to the issue within the narrow boundaries of the decade’s generalized push for privatization.
The defense of the expansion of the public domain, important in the UN until the eighties, and which echoes debates advocating public domain for software (see Boyle 1996), lost some ground. Rather, mainstream institutions were arguing for the extension of intellectual property rights to local knowledge with all their associated features and in particular an exclusivity clause.
The problem with applying intellectual property rights to traditional knowledge and enforcing an exclusivity clause is that it changes the basic ways this knowledge is produced. If that knowledge were simply a legacy from the past, there would be no problem at all. But knowledge, as part of culture, is essentially innovative. Local knowledge is based on speculation and experimentation, and it needs to have a proper institutional base. Moreover, traditional knowledge is part of a way of life that has inherent value in itself.
What then is a workable legal logic? Indigenous people have been arguing in several international forums that one cannot separate traditional knowledge from a much larger context, which includes land and sociability. But even if one were to isolate and focus exclusively on traditional knowledge, would the aim be to use it, along with its practices and innovations, for profit in the market, or more inclusively to promote its continued existence? Is it merely present knowledge we would be discussing, or present and future knowledge? That is, are we focusing on available knowledge or rather on the processes that produce knowledge? “What is Traditional in Traditional Knowledge,” the final document of the Convention of the Parties in Buenos Aires in 1996, reads, “ is not its antiquity but the way it is acquired and used.”
It is sometimes argued that there are radical differences between contemporary western systems of knowledge and traditional knowledge. Whereas there are indeed important differences, lumping together all traditional knowledge systems might underplay precisely what needs to be emphasized: the extreme diversity of these systems. The real conundrum is, as I see it: how is one to organize the interface, not between two very different systems, but rather between one globalized IPR system and a multitude of different local regimes with specific colonial histories?
The issue therefore cannot be discussed in the abstract. Let us take as an example one proposal that is on the table and that has been gaining ground in Ethiopia and in many Latin American and English-speaking African countries, although it originated in Southeast Asia. I am referring to the Community Intellectual Rights as they were originally proposed by the Third World Network (Nijar 1994, 1996). Note that the term property is conspicuously absent in the expression. The basic idea is that traditional knowledge should stay in the public domain for anyone to use, but that originators should share in the benefits when it is used for commercial purposes. Furthermore, these rights should not be subject to time limits. This is in stark contrast to contemporary practice of IPRs, which requires exclusivity and a limited timeframe.
In other words, the expectations of the two systems are reversed: free access and public domain versus monopoly and secrecy; unlimited time frame for intellectual rights versus loss of intellectual rights after a certain time.
It is worth remarking that in the seventies and the eighties, UNESCO and WIPO (World Intellectual Property Organization) devised instruments such as the domaine public payant to address similar issues in their dealing with the protection of folklore. Domaine public payant is a system by which a user of materials in the public domain is required to pay for a compulsory license. UNESCO and WIPO issued the Tunis Model Law in 1976, which dealt with folklore among other copyright legislation. In 1982, they issued the “Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions,” which was followed by its international instrument counterpart, the “Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions” (Kuruk 1999, 813-16). Although much could be argued in relation to the states being the recipients of the domaine public payant fees and there being no necessary provisions for channeling them to the local people, the fact remains that this is an important attempt at dealing with the intangible heritage.
Protection of the Public Domain and the Role of UNESCO
Because of TRIPS, countries have been obliged to respect within their boundaries the intellectual protection granted by other countries. But the converse is not true: no generalized obligation exists for countries to recognize each other’s public domain. As a result, knowledge that has been in the public domain for generations in one country might be privatized and enjoy IPRs in another country. The original country is not only excluded from benefits but also ironically obliged by the TRIPS Agreement to honor such an intellectual right. What was originally in the public domain in the country could come back, thanks to these regulations, as private property.
This being the situation, it is no wonder that accusations of piracy are being launched against First World countries. Australian breeders are being accused of using material held in trust by the Consultative Group on International Agricultural Research (CGIAR) germplasm banks (in the public domain) and patenting it (RAFI 1997). The United States Patent Office (USPO) granted a patent to a variety of ayahuasca, a plant known all over the western Amazon for its hallucinogenic properties. Stabilization of the extract of widely known Indian neem was sufficient for the USPO to grant it a patent, which was subsequently acquired by a giant corporation, W. R. Grace & Co. Indian NGOs are disputing foreign patents on thirteen traditional products, of which the most well known is neem. A notable decision, a first, was achieved in regard to another U.S. patent on turmeric. This patent was revoked by the USPO in 1997, two years after having been granted, after the New Delhi-based Council for Agriculture Research raised objections on the basis of Indian prior traditional knowledge and use of the substance (Shiva 1997).
That a patent on turmeric could have happened in the first place can be partly explained by still another set of double standards in the U.S. patents procedures. Internally, prior art can be proved, as it should be by its very nature, through public use. But for foreign public domain to be recognized in the United States, a written and accessible source is required (Sections 102 a and 102 b of U.S. Patent Law, personal communication by P. Ossorio).
The situation is so unclear and volatile that major germplasm repositories, such as the Kew Gardens, have temporarily suspended providing material on request and the CGIAR banks have called for a moratorium on granting patents on material they hold. Understandably, so has the Coordinating Body for Indigenous Organizations of the Amazon Basin (COICA).
The matters I have been discussing are not merely legal. They have a strong moral component. Legally, any biological resource collected prior to the Convention for Biological Diversity is not bound by its rules. The collector does not have to recognize the source country’s sovereignty, nor does the collector have to acknowledge or reward in any way the people who conserved the resource and first experimented with it.
Yet, on moral grounds, important bodies like the aforementioned Kew Gardens and the CGIAR banks feel uneasy with the situation and are struggling to set guidelines. Ethnobotanical databanks, from which many pharmaceutical companies get relevant information, are likely to be involved soon in similar ethical concerns. Similarly, academic researchers have moral qualms about publishing any ethnobotanical data, since this amounts to putting it in an unprotected public domain, free to be appropriated by anyone.
In short, this state of affairs is hindering many kinds of scientific, educational, and cultural activities.
No country on its own can ensure that other countries will respect its internal regulations unless an International Convention is subscribed to. This is where UNESCO and WIPO can have a decisive role. They could develop an international agreement under which countries could make traditional knowledge publicly available, with the provisions that:
One might argue that the attempt at enforcing such a model in relation to folklore failed in the eighties for lack of political support. Neither the “Model Provisions” nor the “Draft Treaty” for the Protection of Folklore were adopted anywhere. And yet, one has to consider the unprecedented mobilization of traditional people and some governments around the issue of local and Indigenous knowledge after the Convention for Biological Diversity of 1992. This is a totally new situation that would permit UNESCO to launch a successful initiative.
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