A PEEK INTO THE LEGAL AND POLITICAL ASPECTS OF PROTECTING INDIGENOUS ‘INTELLECTUAL PROPERTY’
By Hanh Nguyen
According to the Commission on Intellectual Property Rights Report (2002), scientists at the South African Council for Scientific and Industrial Research (CSIR) patented a chemical in the Hoodia cactus called P57, an appetite suppressant that was then sold to a company called Phytopharm, who then granted its licenses to the pharmaceutical company Pfizer to make into a diet pill. The potential profit from this drug was predicted to be around 7 billion USD. All the while, the San hunters of the Kalahari, one of the oldest communities in Southern Africa who had been using the same cactus to subdue hunger while hunting, were never informed nor compensated. This is but one of many cases of ‘biopiracy’ happening all over the world.
Biopiracy happens when a patent is granted for a supposedly ‘new invention’ that actually derived from resources and knowledge that belonged to an indigenous community, most often without their consent (Zainol et al. 2011). Biopiracy is unfortunately prominent within bioprospecting, which refers to the discovery of biological compounds and genes from naturally occurring sources that can be extracted to develop new drugs, antibiotic compounds, pesticides and countless other commercial and industrial applications. One factor that contributes greatly to the problem is that biopiracy is not recognised as a tort or a crime and as a consequence, lacks proper punishments (Nagan et al. 2010). International treaties were regarded by several sources to be ineffective in dealing with biopiracy (Kelter 2014; Smith 2014). Laws and jurisdictions at different levels may accidentally override each other, while foreign and customary laws might be overlooked and disregarded altogether (Robinson 2013).
Traditional knowledge is often referred to ancient heritages that can be hundreds of years old and potentially known to all ‘tribe’ members (Smith 2014), and also usually the number one target for biopiracy. In many cases, intellectual property laws were used in an attempt to protect traditional knowledge. The problem, however, lies in how ‘intellectual property’ is usually defined. Intellectual property laws are mostly Western based, while ‘traditional knowledge’ usually does not belong in modern Western society. Terms and definitions are often not universal, and Western ideals might become inappropriate in the context of different societies. For example, ‘invention’, by definition, cannot have been known by others, published or sold within one year of patent application date (Kelter 2014), but this is obviously not the case with traditional knowledge. Another tool used to combat biopiracy, patent laws, also generally requires the protected object to have an owner, or shared ownership (Dutfield, 2000). Traditional knowledge, as mentioned above, can date back hundreds of years or more, making it impossible to identify an ‘inventor’, or said ‘inventor’ could have been long dead. And while traditional knowledge can be sometimes viewed by the tribe members as belong to the tribe, other times they don’t wish to claim individual ownership over it (Smith 2014). Another point is that, according to the US Patent Act, nature laws, phenomena and abstract ideas cannot be granted patent, and so knowledge itself cannot be patentable subject (Kuruk 2007). Under these circumstances, it is nearly impossible for traditional knowledge involving biological resources to be protected under these laws. Unfortunately, things that are not covered or protected by intellectual property rights are usually perceived by the public to be free to use, meaning it can be exploited by anyone without concern for or benefit sharing with the original holder (Tedlock 2006).
Perhaps the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was negotiated in 1994 and is currently regarded as the most well-known treaty regarding intellectual property (Timmermans 2003), is the best example of this problem. The preamble of the agreement stated that it “desired to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights” (TRIPS preamble). Countries that are under the TRIPS Agreement would have to incorporate its detailed principles for the protection of intellectual property into their national legislations. However, TRIPS was based on the US legal concept of intellectual property rights, and was heavily influenced by the US laws and the Western conception of intellectual property protection (Kelter 2014). Article 27.3(b) of the TRIPS Agreement allows states to not allow the patent of living organisms that fit under the criteria of ’plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes’ (Hamilton 2006a). Most indigenous knowledge falls under this criteria, and therefore can be denied protection under TRIPS. On the other hand, TRIPS allows resources or knowledge to be granted patents with minimal concern about their origins, making it possible for patents to be granted without the need to acquire informed consent from the origin owner or state (Zainol et al. 2011, Kelter 2014). TRIPS only assists the cultures that conform to it. If an indigenous community refuses to change their laws in accordance to Western laws because of traditional custom or any reason at all, they will not benefit from TRIPS. Because of this, TRIPS causes much dissatisfaction. Many sources even view TRIPS as a facilitator for biopiracy (Liang 2011, Zainol et al. 2011) and have argued that TRIPS did not actually provide any more protection for traditional knowledge than other intellectual property system that had already been seen as ineffective (Dagne 2014).
The International Convention on Biological Diversity (CBD), regarded as being better than TRIPS by some criteria, was another effort created to protect developing countries. Unlike TRIPS, the CBD gave states sovereignty over their biological resources and traditional knowledge (Zainol et al. 2011). In 2010, the CBD adopted the Nagoya Protocol to address this issue. Under the protocol, governments have the right to grant access to their biological resources in accordance with their national legislations rather than one designated for them. At the same time, said access needs to be granted to users prior to research on the basis of mutual agreements between users and the provider country. Each side was also under obligation to obtain consents from the appropriate indigenous community, keep them involve with the process and share the benefit on mutually agreed terms. The Protocol also requests that dispute settlement mechanisms be included in previously mentioned terms. But of course, the concept of ‘sovereignty’ itself causes much controversial in the scientific community, with many being in doubt of its relevancy in the age of globalisation and the presence of organisations such as the UN, the EU, and the WTO. It might also lead to clashes between states who both seek to assert jurisdiction over a biological resource. Still, as made clear in the Protocol, sovereignty doesn’t mean extraterritorial enforcement is impossible. A state whose resources have been stolen and brought out of state can petition companies overseas to nullify patents granted for said resources. The CBD is by no mean perfect, but it does have the interests of developing countries and the protection of biodiversity at heart.
Bioprospecting is more than just finding new substances to use. Human ethics are involved through the way in which the indigenous communities and their traditional knowledge are protected. Any benefit gained from a product derived from traditional knowledge should be shared with the communities and consent should be asked beforehand. Intellectual property laws can potentially become more efficient if combined with sui generis factors, meaning individual state can tweak them to make them suitable for the situation (Dagne 2014). Suggestions have been made for a reframing of terms and redefinition of concepts that are involved with intellectual property laws. Hamilton (2006b) proposed that a ‘playground’, in which different notions of property and benefits could be brought to the picnic, would be the best way to deal with biopiracy. Further, several approaches to what can be counted as ‘natural’ and ‘invention’ should also be taken into account. It is a complex problem to resolve, but one worth pursuing for equity’s sake.
All posts are personal reflections of the blog-post author and do not necessarily reflect the views of all other DEEP members.
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