FRONT PAGE

Stop exploitation of
indigenous knowledge

By W. Bradnee Chambers and Alphonse Kambu

Threats to our way of life come in many shapes and forms – degradation of the Earth's ecosystems, disease, social unrest. Indigenous peoples must face all of these, and now confront additional, equally serious, pressure on their livelihoods.

As holders and purveyors of "traditional knowledge," indigenous groups are failing to receive adequate protection from exploitation and loss through international copyright and patent rules under the World Trade Organization's Trade Related Intellectual Property Agreement (TRIPs). Many of these issues were under discussion at COP7 of the Convention on Biological Diversity in Kuala Lumpur.

Indigenous peoples from the Ainu of Japan to the Inuit of Canada share a profound knowledge of their environment. This knowledge is passed from generation to generation, mostly orally through stories and cultural practices. The knowledge may be a simple life lesson, a tale with a moral ending or practical knowledge on cultivating crops, making a fishnet or harvesting seeds.

Of most interest to the developed world, however, is traditional knowledge about plants and animals that could potentially have a commercial application in industrial practices, medicine or health.

Unauthorized patents on this knowledge require that indigenous peoples remain vigilant of agreements like TRIPs. The agreement, which sets the global standards for domestic intellectual property rules, has failed to create safeguards that would prevent commercial exploitation of traditional knowledge under domestic law. This unlikely pair of issues was placed on the global political agenda in 2001 when the WTO launched the Doha developmental trade talks.

But the Doha negotiations to protect traditional knowledge have been slow. Traditional knowledge issues have been overshadowed by larger, more mainstream issues such as agriculture subsidies and investment. Moreover, efforts to negotiate rules that better protect traditional knowledge have been stymied by some large developed countries that continue to drag their feet.

Some of these countries have hidden agendas, such as not wanting their indigenous communities to gain international rights outside their sovereign states. Other developed countries argue that intellectual property rights are to protect new knowledge, thus traditional knowledge is by definition not eligible for such protection.

Despite the determination of some developed nations to undermine the legal merit of protecting traditional knowledge, many countries continue to see the TRIPs agreement as the only effective means to achieve this goal. In contrast to these laggard nations, several other countries have made real proposals that could make some serious inroads to protect traditional knowledge under the TRIPs agreement.

The European Union has proposed a requirement that patent applicants disclose the origin of bioresources associated with traditional knowledge, with legal consequences outside the scope of patent law.

Switzerland has proposed an amendment to the Patent Cooperation Treaty, which is the international standard to which TRIPs adheres. The amendment would require that domestic laws ask patent applicants to disclose the origins of any traditional knowledge. Failure to disclose could hold up a patent being granted, or affect its validity.

Developing countries such as Brazil, Cuba, Ecuador, India, Peru, Thailand and Venezuela have proposed an obligation to disclose the origins of biological resources and traditional knowledge and a requirement to prove that they have "prior informed consent" from the owners. Many African countries want a system of redress to prevent the "misappropriation" of traditional knowledge.

Despite these promising proposals, most suggestions coming out of the Doha Round are reactive: Measures to protect traditional knowledge are only activated when there is risk of exploitation.

For example, protection under TRIPs would be activated when a patentee files an application or attempts to overturn patents that have not secured the consent of the knowledge holders.

Though these are an important start, proactive measures that would allow for indigenous peoples to use the international patent and copyright rules to protect their knowledge are also needed. Such a system could be possible if the WTO made some minor adjustments to its existing rules and allowed for recognition of databases and registries that have begun to inventory traditional knowledge.

A study released by UN University Institute of Advanced Studies at COP7 suggests that existing databases established by the Inuit of Nunavik in Canada, the BioZulua Database created by Fudeci in Venezuela, and also indigenous peoples registries in India, Vanuatu and Australia could be a useful mechanism to prevent the loss of traditional knowledge.

There are also other means that the WTO could implement that would go a long way toward improving protection of traditional knowledge. Such measures include: recognizing traditional knowledge as trade secrets held by the indigenous tribes themselves, or creating special laws and explicit copyright and patent rules for traditional knowledge under the TRIPs agreement.

The Doha Round has had several recent setbacks; Cancun was only the latest. The deadline to conclude the round was initially set for Jan. 1. But now with only a year to go, pressure will be mounting to conclude as soon as possible. Amid the rush to make deals on the larger issues, let's hope that some of the "smaller" ones – like protecting traditional knowledge – are not forgotten.

W. Bradnee Chambers is a senior researcher at the United Nations University-Institute of Advanced Studies. Alphonse Kambu is a postdoctoral fellow at UNU-IAS and chief of the Bindeku and Kamaneku People of Papua New Guinea. This commentary first appeared in the February 21 edition of The Japan Times. These are their personal views. 

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