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A new UNU Institute of Advanced Studies (UNU-IAS) report recommends vital changes to international law to eliminate a modern absurdity for indigenous people who possess highly valuable ancient knowledge about medicinal and other uses of plants: a Catch-22 requirement that, in order to protect their secrets, they must put them in the public domain for all to see.

Existing international rules about protecting intellectual property rights are an affront to the culture and customs of many indigenous peoples and need to be revamped, according to the report, The Role of Registers and Databases in the Protection of Traditional Knowledge.

It says that, to decide whether a new product seeking patent protection is novel or based upon traditional knowledge, officials require free access to indigenous secrets.  Several countries have inventoried traditional knowledge in publicly-accessible databases for this purpose as a way to prevent its commercial theft.

In many indigenous cultures, however, traditional knowledge is highly guarded, passed down from one generation to the next through codes of conduct and customary law, frequently including initiation rights as a prerequisite for receiving the information.

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Obliging indigenous people to offer public documentation of TK for intellectual property protection purposes is insensitive to centuries-old cultural practice in many places and may lead to injustice, the report says.

The report cites by example a legal challenge to a patent over Ayahuasca, a rainforest plant used in spiritual and cultural ceremonies, in which US patent regulators refused to accept the oral evidence of an Amazon shaman about his people’s traditional knowledge of the plant’s healing properties.

“The challenge for the world community is to devise a process to prevent the piracy of traditional knowledge without jeopardizing the cultural integrity and ways of indigenous peoples,” says report author Brendan Tobin, coordinator of the UNU-IAS Biodiplomacy Initiative .

This may require following the example of the Inuit, who maintain a very high level of secrecy over their TK registers but grant government officials confidential access to the information as necessary.

Released at a global meeting of Parties to the UN Convention on Biological Diversity in Kuala Lumpur, the report recommends:

• Allowing oral evidence of traditional knowledge;

• Establishing means for such evidence to be given in a confidential manner; and

• Providing for limited and restricted access to confidential databases.

The report says registers and databases developed and held by indigenous groups, museums, botanical gardens and universities, among others, are essential for protection of traditional knowledge.  However, these groups and institutions need a common code of conduct – obtaining, for example, explicit acceptance of the rights of indigenous peoples over their TK as a pre-condition of access to the information.  The report calls for databases held by non-indigenous peoples to be managed with the participation of indigenous people in a form trusteeship for their benefit.

It calls on national governments and international organizations to:

• Review existing laws and policies to develop more culturally sensitive search procedures related to TK;

• Require that companies demonstrate prior informed consent as a condition for scientific or commercial use of TK;

• Ensure that intellectual property rights are supportive of the UN Convention on Biodiversity and of international human rights;

• Engage indigenous peoples in developing TK registers worldwide and a regime for protecting the information.

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