Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore
by Silke von Lewinski
Kluwer Law International (2003), The Hague,
Senior Research Fellow,
Centre for the Study of Globalisation and Regionalisation,
School of Law,University of Warwick
There has been and continuous to be substantial use of and dependence on indigenous peoples’ knowledge, folklore, and creativity in a range of industries. For instance, this may take the form of use of plants as indications for discovering new medicinal drugs in the pharmaceutical industry , or incorporation of cultural expressions by the entertainment , handicraft and garment/fashion industries, or the search within genetic resources for new variation and resistance in the production of new plant varieties by the seed industry . Even our everyday lives are infiltrated by various manifestations of indigenous heritage. This may, for instance, be in the form of the names and symbols that identify our favourite football team (eg Braves, Redskins and Chiefs) or car (eg Jeep’s Cherokee) or the cartoon (eg Walt Disney’s Pocahontas) that keeps the kids quiet.
Some of these activities have raised concern about the relationship between developments in intellectual property rights and the knowledge, resources and folklore of indigenous peoples. For instance, there is worry about the misappropriation of indigenous peoples’ knowledge (and folklore) through the application of intellectual property rights, which in the context of plant genetic resources have been termed biopiracy. It is also the case that concerns have been prompted by an awareness and appreciation of the importance and usefulness of indigenous knowledge. Relevant in this respect is Kamal Puri’s view that ‘[F]olklore is a testimony of the past without which the present would have no future’ (Puri, 1998). Yet, as the late Darrell Posey notes there is a way of life and accumulated knowledge that is at grave risk: ‘With the extinction of each indigenous group, the world loses millennia of accumulated knowledge about life in and adaptation to tropical ecosystems. This priceless information is forfeited with hardly a blink of the eye: the march of development cannot wait long enough to even find out what it is about to destroy’ . Another source of concern emerges from the political and cultural articulation for self-determination and sovereignty and draws attention to, inter alia, need for control in and representation of the names, symbols and expressions of indigenous peoples. Some of these articulations are frustrated by the fact that ethnic communities, particularly in Africa, span across and are divided by political boundaries.
It is this mix of concerns that has made the protection of indigenous knowledge a mainstream topic in international negotiations concerning intellectual property rights across a range of different multilateral forums. In the past few years, discussions on this subject have been taking place at the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD), at the World Intellectual Property Organization (WIPO) which has established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, at the Food and Agriculture Organisation of the UN (FAO) where the International Treaty on Plant Genetic Resources for Food and Agriculture has been negotiated, and at the World Trade Organisation’s (WTO) Council for the Agreement on Trade-Related Intellectual Property Rights (TRIPs). The collection under review is directed at these issues and deliberations in the above mentioned multilateral forums, among others.
The collection is divided into three main parts. It begins with a conceptual section that grapples with the core categories of ‘indigenous peoples’ and ‘indigenous culture’ and how norms in human rights and principles in international environmental law have treated these categories. The second part deals with specific manifestations of indigenous resources, such as traditional knowledge, genetic resources and folklore. In each instance, attention is devoted to detailing how existing legal norms, either at the international, regional or national levels, respond to issues concerning misappropriation and protection. In addition, draft laws and models, discussions at different multilateral forums, and developments in national law. The final part attempts to tie the different threads together.
Peter Tobias-Stoll and Anja von Hahn begin the collection with the conceptual analysis. The authors rightly recognise the importance of semantics as a crucial starting point. At issue is recognition of indigenous groups as ‘peoples’, which however raises the ‘contentious’ right to self-determination accorded to peoples. Without resolving this contentious issue they note that ‘agreeing to the use of the term indigenous ‘peoples’ may be a first step in simply recognising their cultural identity and unity without making a final assessment with regard to the scope of their right to self-determination’ (pp13-14). In this respect, the authors also draw attention to the Convention on Biological Diversity which uses the term ‘indigenous and local communities’ rather than indigenous peoples. Consequently, the ambit of CBD is wider and allows for the inclusion of communities which maintain a traditional lifestyle even if they were deemed not to be indigenous. This semantic change has important bearing for local communities that have been historically relocated during colonial occupation or later under the guise of development projects. The semantic project proceeds to identify the essential characteristics of indigenous cultures or what may be considered common elements that are fundamental to indigenous cultures. They identify three core elements. To begin with, and apposite to Western rights, collective rights occupy a critical primacy and centrality in indigenous cultures. Second, ‘land means more to indigenous peoples than the mere basis for economic existence’ and is a crucial component of their cultural and spiritual survival (p15). Finally, the various manifestations of indigenous cultures, their knowledge, the land and its resources, the arts and various beliefs and values, are a composite whole, for which the term ‘indigenous heritage’ is here proposed. Unfortunately, this critical edge is not adequately carried forward into the analysis of how norms in human rights law and principles in international environmental law approach the rights of indigenous peoples. Though, the authors correctly read that international environmental law has tended to adopt an instrumentalist approach, in that it focuses on the maintenance of traditional lifestyles and the use of various resources from such lifestyles because of their presumed beneficial impact on the environment.
Part two of the collection addresses different elements and manifestations of indigenous peoples’ and their cultures: traditional knowledge, genetic resources and folklore. Matthias Leistner’s contribution is about traditional knowledge. A starting point in this analysis is the problematic of protecting traditional knowledge. The issue goes beyond the positive protection of traditional knowledge to produce a right enabling its exploitation through licenses and other means. It is also important to consider the dimensions of negative protection. The latter may include a right to be left alone but would also encompass rights aimed at protecting against misappropriation of traditional knowledge and associated resources through the grant of intellectual property rights. It is with this foundation that Leistner considers all branches of intellectual property law as having a relevant role to play in the wider protection of traditional knowledge, either positively in that the subject matter can be accommodated or negatively by circumventing the misappropriation of traditional knowledge. Thus, for example, procedural modifications in patent law, e.g. disclosure of origin and changes in examination criterion, could circumvent some problems of misappropriation. However, Leistner is also aware of the limitations of intellectual property law. This is borne out by case law in Australia dealing with protection of folklore: ‘… the approach to collectivity is still an indirect one, being based on the author, existent or not, who then has a fiduciary duty toward his community’ (p82). This limitation of formal intellectual property law is, as Leistner also recognises, compounded by systemic aspects of and accessibility to the system. The author is also unconvinced by the faith placed in contractual arrangements of access and benefit sharing, greatly promoted by the CBD, between intellectual property holders and stakeholders of traditional knowledge. Quite apart from the obvious structural and resource differences between the two parties; contracts are only binding on participating parties and require a wider legal framework for being effective. It is with these insights that Leistner recommends a long term project aimed at formulating a new right – ‘collective community intellectual property rights’.
It is in the chapter on genetic resources, written by Michael Hassemer, that the issue of biopiracy, among others, is addressed. Usefully, Hassemer recognises that ‘wild’ genetic resources are not ‘free gifts of nature’, but closely embedded in and related to the knowledge and ingenuity of indigenous and local communities. Hassemer makes an important point in drawing attention to the differences between alleged cases of biopiracy, such as the Neem and Turmeric patents, and the rosy periwinkle case. In the case of Neem and Turmeric the challenges to the patent established the lack of novelty and inventive step respectively; thus leading to the revocation of the patents. The rosy periwinkle is a plant that has been used for centuries by Malagasy healers as a cure for diabetes. Eli Lilly, a US pharmaceutical company, screened alkaloids from the plant, among a range of other plants, in its search for anti-cancer properties. Their discoveries led to two key drugs for the treatment of cancer. As the application did not have a prior use there is no infringement of pre-existing human knowledge nor a basis to suggest misappropriation of traditional knowledge. The chapter proceeds to review existing legal provisions, such as patents and plant breeder rights, mechanisms outside the domain of intellectual property law, such as access and benefit sharing arrangements, and various regional and national developments, such as the Model Law developed by the Organisation of African Unity. This part of the chapter is more a descriptive account of these developments and provisions and adds little to existing literature. This reviewer also feels that some of the critical insights of other sections of the collection do not flow into this chapter. Thus, Hassemer concludes that ‘the availability of intellectual property rights regime is a precondition for proper research, transfer of technology, and benefit sharing … contractual freedom is a keyword for biological diversity’ (pp215 -16). It is ironic that doubt about the benefits of contractual agreements expressed earlier by Leistner does not find resonance in Hassemer’s contribution on genetic resources. Interestingly, Hassemer’s contribution may also be an example of the instrumentalism of international environmental law that Tobias-Stoll and von Hahn are critical of.
Annette Kur and Roland Knaak contribute the chapter on the protection of traditional names and designations, thus moving into the domain of trademark law, laws concerning unfair competition and the area of indications of geographical origin. Referring to the WIPO’s Fact-Finding Mission on Intellectual Property and Traditional Knowledge, they cite a number of instances of the appropriation of indigenous peoples’ names, signs, designations and other cultural artefacts by non-native natural or legal persons. Two key themes are raised in this chapter: the use of intellectual property law norms and principles to negatively protect traditional names and designations and the positive protection of traditional knowledge through protection of traditional names and designations. Trademark protection is generally premised on a requirement for distinctiveness; thus, marks that serve as an indication of the description, quality or other attribute of the product should not qualify for protection. Yet, as they note in the case of Basmati, descriptive marks have been protected. Within trademark law, the authors explore three grounds for revocation and/or refusal of protection: lack of distinctive character, deceptive marks and offensive marks. While the overview indicates possibility of negative protection of traditional names and designations, the authors are well aware of the limitations of this approach. Moreover, there is a worst case scenario where those from whom the sign or name originated are enjoined from further use of the expression. To some, this may not be as devastating as the consequence of patents where further use of a traditional resource and/or knowledge is debarred. However, recognition of the embedded and deeper context of signs and expressions within indigenous cultures might suggest otherwise. Kur and Knaak also note that trademark law and laws related to indications of geographical origin are not adequate in protecting traditional knowledge, since the knowledge and/or cultural expression related to the mark remains unprotected. However, certification marks and other labels of authenticity and origin (eg geographical indications) remain useful as a proactive means of protecting products of traditional knowledge . There are other problems as well. For instance, the ‘country of protection’ principle makes protection dependent on the knowledge and perception of the public in the country where protection is sought; thus, difficulties in securing revocation.
The third manifestation of indigenous peoples and their cultures is folklore and the relevant chapter is contributed by Agnès Lucas-Schloetter. Debates about folklore predate those concerning traditional knowledge and tended to occur in relation to copyright protection (Dutfield, 2003). Lucas-Schloetter identifies three elements: anonymity, traditional character and oral mode of transmission – an approach that finds resonance in the wider literature (eg Dutfield, 2003). Again, semantics plays an important role: references to folklore tend to use the terms of ‘productions’ or ‘expressions’ and not ‘works’; thus, signifying its exclusion from the tradition of copyright and simultaneously demanding sui generis protection [p263]. Moreover, folklore manifests itself in a wide range of forms that would include music, dance, and other performing arts; history and mythology; designs and symbols; traditional skills, handicrafts and artwork (Dutfield, 2003, p 20). Protection is however complicated by a number of problems. At one end is the very diffused and widespread proliferation of the use of folklore. On the other hand, there is the problem that ethnic communities, particularly in Africa, cut across political boundaries. It is also the case that expectations for protection go beyond the demand for revenue streams and include ‘control over the uses that are made of their folklore and if excluding outsiders to the community from the market’ (p261). Lucas-Schloetter draws attention to key fundamental hurdles in using copyright as a means for responding to these expectations for protection. To begin with, copyright (in common law jurisdictions) requires ‘works’ to be fixed in a material form. Further, there is the requirement for originality, which in the case of folklore is difficult to establish because of the constant process of creativity. Equally, it is difficult to establish and identify ownership – a problem easily appreciated in the context of dated ‘works’. The duration of protection is also problematic. For ‘works’ that date back from antiquity the term of protection have well expired; however, concerns within indigenous communities suggest that protection should be without time limits. The chapter also considers the legal protection of folklore from outside the domain of intellectual property, noting case law that draws on customary law, legislations concerning cultural heritage and legal instruments in the field of human rights. These are promising options. Consequently, the general presumption that folklore requires sui generis protection.
The collection addresses a very pertinent issue concerning indigenous peoples’ rights. It provides a strong case for adopting a mixed approach that would include the use of provisions within classical intellectual property rights whilst also exploring other provisions (eg trade secrets, customary law). It may be true that defensive protection may be more achievable than positive protection as it concerns enhancements to or modifications of existing framework of intellectual property rights (eg disclosure of origin, examination of prior art). It also does not threaten the legitimacy and authority of the system of intellectual property rights. However, as noted in this collection, effective positive protection is likely to require a completely new system. The contributions in the collection will remain useful in this political exercise of imagining and building the new system.
The use of plants by indigenous communities is a constant source of knowledge for the pharmaceutical industry. This is most apparent in the area of cancer and infectious diseases and examples include the blockbuster anti-cancer agent Taxol. A potential next-generation blockbuster drug for the very lucrative anti-obesity market is based on a succulent, Hoodia, used by the San peoples of the Kalahari desert as an appetite and thirst represent (Wynberg, 2000). A dated survey of plant-based medical compounds found that 74 percent of medical drugs had the same or closely related use as the medical plants from which they were derived (Farnsworth, 1988).
In the case of music, Paul Simon’s Graceland (1986) comes to mind as an example of the use of African music tradition. No doubt, the deepening digitalisation of the music industry and the commercial growth of the genre of ‘re-mixed albums’ (dance and/or techno) through the 90s prompts greater sampling of non-western music.
Tourism, the ‘souvenirs’ industry and other allied industries do use and exploit cultural expressions and products of indigenous peoples. An estimate by the National Indigenous Arts Advocacy Association of the Aboriginal and Torres Islander art and culture industry sets the value at USD 200 million (Wiseman, 2001, pp 14 -25). Australian courts have considered some of these (unauthorised) uses as exploitative and immoral. More importantly, in Milpurrurru vs Indoform Ltd, it was observed that Aboriginal customary law could be taken into account in quantifying the damage which has been suffered (Blakeney, 1998, pp 985-1002).
At a fundamental level, it is the historical domestication of plants that provides forms the diversity that breeders use to develop new varieties; as such re-assembling this variation in new combinations. It is well accepted that initial stages of breeding began with locally adapted landraces. For example, ‘Marquis’ – the wheat variety grown across 90 percent of the North American great plains – originated from a cross between an Indian landrace, ‘Hard Red Calcutta’, and a European landrace, ‘Red Fife’ (FAO, 1998, p 27). It is the diversity of plant species that is both a treasure trove for new recombinations and insurance against future adverse conditions.
Posey, DA (2002) ‘Indigenous Knowledge and Development: An Ideological Bridge to the Future’, in Posey, DA (2002) Kayapó Ethnoecology and Culture ed. K Plenderleith (London and New York: Routledge), p 59; cited in Dutfield, G, 2003.
Many developing countries are demanding stronger protection for geographical indications at the TRIPs Council (see, in general, Rangnekar D, 2003).
Blakeney, M (1998) ‘Communal Intellectual Property Rights of Indigenous Peoples in Cultural Expressions’, Journal of World Intellectual Property 1(6), 1998, pp 985 -1002.
Dutfield, G (2003) ‘Protecting Traditional Knowledge and Folklore: A Review of Progress in Diplomacy and Policy Formulation’, UNCTAD-ICTSD Project on IPRs and Sustainable Development, UNCTAD-ICTSD, Geneva, Issue Paper No 1, 2003.
FAO (1998) The State of the World’s Plant Genetic Resources for Food and Agriculture(Rome: FAO).
Farnsworth, N (1988) ‘Screening Plants for New Medicines’, in Wilson, EO (ed) Biodiversity (National Academy Press: Washington DC).
Puri, K (1998) ‘Preservation and Conservation of Expressions of Folklore’, Cop Bull, 32(8).
Rangnekar, D (2003) ‘Geographical Indications: A Review of the Proposals at the TRIPs Council, Extending Article 23 to Products Other than Wines and Spirits’, UNCTAD-ICTSD Project on IPRs and Sustainable Development, UNCTAD-ICTSD, Geneva, Issue Paper No 4, 2003.
Wiseman, L (2001) ‘The Protection of Indigenous Art and Culture in Australia: The Labels of Authenticity’, EIPR, pp 14 -25.
Wynberg, R (200) ‘Privatising the Means of Survival: The Commercialisation of Africa’s Biodiversity’, Global Trade and Biodiversity in Conflict Issue No. 5, April 2000, GRAIN
Citation: Rangnekar, D, 'indigenous Heritage and Intellectual Property: Genetic Resources, traditional Knowledge and Folklore' by Silke von Lewinski, Book Review, Law, Social Justice & Global Development Journal (LGD) 2004 (1) <http://elj.warwick.ac.uk/global/2004-1/rangnekar.html>. New citation as at 15/07/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2004_1/rangnekar/>.