Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Michael Davis[2]
In recent decades there has been a growing interest by pharmaceutical and other industries in the commercial potential of biological products and derivatives. At the same time, indigenous peoples have increasingly voiced their claims and interests in these resources, especially in their traditional knowledge and practices associated with the resources. These often competing claims and interests have stimulated debate about the implications for existing property rights in natural resources, and for the conservation, use and management of biological diversity. They also highlight the tensions between notions of natural resources as the common heritage of humankind, and local and specific claims to these resources by indigenous and other communities as part of their rightful heritage.[3]
This paper enters the debate by exploring the relationships between indigenous knowledge in biological resources, and intellectual property rights (IPR) systems. In particular, the paper considers the role of the patent system in terms of its capacity to provide protection for indigenous rights in traditional knowledge related to the conservation and management of biological diversity.
There are diverse views about the capacity of IPR systems to provide effective recognition and protection of indigenous rights in biological resources and traditional knowledge. Some people believe it is possible to seek better protection for indigenous rights by working within the existing system to modify current laws. However, others argue that conventional IPR systems and indigenous knowledge systems are fundamentally different, and that an alternative system of recognition and protection is needed for the latter.
This paper examines some of the conceptual challenges in the search for common ground between these different systems. In reviewing both indigenous, and non-indigenous systems of knowledge and innovation, the paper takes up some of the issues raised by the activity known as bioprospecting – the search for potentially useful products and processes from natural resources. Following this, the paper briefly considers some of the approaches being developed which offer the potential for recognising and protecting indigenous rights in traditional knowledge and biological resources.
Contracts and agreements are considered as potential mechanisms for integrating bioprospecting, conservation of biodiversity, and protection of indigenous knowledge. Other approaches to protecting indigenous rights in traditional knowledge and biological resources will also be briefly reviewed, such as sui generis systems, regional agreements and national legislation. The paper will conclude with some suggestions for future directions.
In offering a critique of IPR systems, the paper argues in support of a better understanding of indigenous concepts and systems of knowledge. In order to gain this better understanding, the need for greater input from indigenous people, and also from disciplines such as anthropology, history, and political science is advocated.
Biological diversity refers to the variety of species at the gene, species, and ecosystem level. The world’s biological diversity is fast disappearing, mostly as a result of human activities and population growth. Biological diversity is valuable for several reasons: it supports and sustains diverse populations of indigenous and local peoples; it provides a storehouse of raw materials for use in industry, technology, science and commerce, and it also has important aesthetic and cultural values.[4]
Bioprospecting is the search for biological and genetic materials from the natural environment which have potential uses for pharmaceutical and other products and processes. This activity is conducted by commercially important industries involved in the manufacture of agricultural, cosmetic, pharmaceutical and food products. Successful bioprospecting requires an abundance of, and continued supply of biological diversity. While bioprospecting makes considerable use of natural resources, it can also, if carried out appropriately, provide an incentive for the conservation of these resources.
The biologically diverse environments that provide the raw materials for bioprospecting are often important to indigenous and local peoples as well. These peoples may assert claims to the lands and territories that support these environments, and also rights to the biological and genetic materials that make up the environments. The search for biological and genetic materials, and the development of pharmaceutical, cosmetic and agricultural products and processes from these materials relies in many instances on indigenous peoples’ knowledge of the environment and its products. Developed and used over a long period of time by indigenous and local peoples for a variety of medicinal, cultural and other purposes, this knowledge is sometimes known as ‘traditional ecological knowledge’.[5]
Although not all bioprospecting activity directly involves indigenous knowledge, given that indigenous peoples are increasingly claiming rights in natural environments, knowledge and resources, it is important to examine the relationships between bioprospecting and indigenous knowledge. There is likely to be an increasing focus on the potential, or actual indigenous knowledge component in biological and genetic materials, products and processes derived from natural environments.
The use of indigenous knowledge and the patenting of products and processes based on it raises issues both for indigenous peoples and for the research institutions and industries that use this knowledge. The full participation of indigenous peoples in bioprospecting, and effective recognition and compensation for their knowledge poses a challenge for those developing effective systems for bioprospecting and conservation. In carrying out bioprospecting, there are increasing obligations to develop measures to protect indigenous rights in traditional knowledge, and to allow indigenous peoples to share equitably in any benefits that may result. These measures should also include provisions for obtaining prior informed consent from knowledge holders for the use of products and processes based on indigenous knowledge, innovations and practices. The Convention on Biological Diversity 1996 (the CBD) is the most important international instrument which, if implemented effectively, can allow the introduction of these kinds of measures.
The effective implementation of the CBD would involve, among other things, exploring the capacity of intellectual property rights (IPR) systems to promote the protection of natural resources and to aid in the exchange of technology and biological and genetic resources. While IPR systems are available to indigenous peoples, the conceptual differences between these and indigenous systems of knowledge and innovation create special challenges. The design of alternatives to IPR, the creative uses of contracts and agreements, the development of regional agreements for environmental and resource management and control, and the introduction of sui generis approaches and special legislation are among the approaches that could be considered to address these challenges.
The Convention on Biological Diversity
The Convention on Biological Diversity emerged from the 1992 United Nations Conference on Environment and Development (UNCED). Australia ratified the CBD in 1993. In providing for states to conserve and manage biological diversity, the CBD contains some important Articles relevant to the interests of indigenous peoples. Article 8(j) encourages countries, ‘subject to national legislation’ to
... 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 the benefits arising from the utilisation of such knowledge, innovations and practices.
Article 10(c) states that Contracting Parties
shall, as far as possible and as appropriate ... protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation of sustainable use requirements.
Articles 17(2) and 18(4) are also relevant, as these concern the exchange of information, and technical and scientific cooperation, to include ‘indigenous and traditional knowledge and technologies’.
The Conference of Parties to the CBD includes on the agenda of its meetings consideration of Article 8(j) and related provisions . Much of the present focus of this work is on attempts to clarify and define the nature and scope of indigenous knowledge, innovations and practices, and to analyse case studies submitted by participating countries.[6] As part of its work on this issue the CBD Secretariat convened a workshop in Madrid in November 1997. The fourth session of the Conference of Parties (COP4) held in Bratislava, Republic of Slovakia in May 1998, decided to establish an ad hoc open-ended inter-sessional working group to further consider Article 8(j) and related provisions.
While the CBD does provide a potentially useful opportunity for countries to introduce new measures recognising and protecting indigenous knowledge and innovations, it also imposes some constraints. The requirement that implementation of Article 8(j) should be subject to national legislation may be problematic for indigenous peoples, especially if existing national laws take precedence, or where these might contradict or place limitations on any measures introduced under 8(j).[7] The CBD encourages but does not oblige countries to respect and preserve indigenous knowledge. It does however provide an opportunity, if used appropriately, for countries to introduce special national laws beneficial for the protection and conservation of indigenous knowledge, traditions, innovations and practices.[8] Some examples of national laws and developments for regulating access to, and control over natural resources are surveyed below. Articles 10(c), 17(2) and 18(4) lack the explicit qualifying language of Article 8(j), and could therefore possibly be given more emphasis when encouraging the effective implementation of the CBD to recognise indigenous interests. However, the language throughout the CBD generally retains a cautious flavour, stating that Parties ‘shall’ (rather than ‘must’ or ‘should’), and using qualifying phrases such as ‘as far as possible’, and ‘as appropriate’.
The use of the terms ‘traditional lifestyles’, ‘traditional cultural practices’, and ‘traditional knowledge and technologies’ in the CBD could be interpreted to imply the exclusion of many indigenous communities which have not retained their direct connections with lands and resources, but which nonetheless wish to protect and preserve their knowledge and innovations.[9] The implications of the use of the term ‘traditional’ in the context of discussions about indigenous ecological knowledge is a problematic one, as will be discussed below.
The use of the term ‘customary’ in Article 10(c) possibly has a more appropriate sense than ‘traditional’, since it more typically implies a set of continuing and adaptive practices which are informed by cultural rules and which are transferable to a variety of situations and usages.
In 1996, the Commonwealth, State and Territory governments endorsed a National Strategy for the Conservation of Australia’s Biological Diversity. This National Strategy is a key component in the Australian Government’s programmeme to implement the CBD. Action 1.8.2 of this Strategy is designed to:
Ensure that the use of traditional biological knowledge in the scientific, commercial and public domains proceeds only with the cooperation and control of the traditional owners of that knowledge and ensure that the use and collection of such knowledge results in social and economic benefits to the traditional owners. This will include:
(a) Encouraging and supporting the development and use of collaborative agreements safeguarding the use of traditional knowledge of biological diversity, taking into account existing intellectual property rights; and
(b) Establishing a royalty payments system from commercial development of products resulting, at least in part, from the use of traditional knowledge.[10]
While both the CBD and the National Strategy provide sound principles and a framework for introducing measures to recognise and protect indigenous knowledge, innovations and practices, effective implementation has not yet been achieved. Some outstanding issues which need to be resolved include clarifying ownership of biological resources, and ascertaining Commonwealth, State and Territory relations and jurisdictional responsibilities over natural resources. The implementation of Articles 8(j), 10 (c) and related provisions offers particular challenges. The design of an effective system for recognition and protection hinges on the need to better define, characterise and understand the nature and diversity of indigenous knowledge, innovations and practices.
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) recently passed by the Australian Parliament represents a missed opportunity to include provisions explicitly implementing the CBD, especially in relation to the recognition and protection of indigenous knowledge.
Systems of knowledge and innovation in indigenous societies are interconnected with other elements of indigenous cultural systems. As an integral part of these inter-connected systems, indigenous peoples have a vast knowledge of, and capacity for developing innovative practices and products from their environments. Although it is inappropriate to generalise, the following features are often said to be typical of indigenous knowledge systems:
These features not only serve as a working definition for indigenous knowledge; they also preclude such knowledge from being subject to protection under existing IPR systems. Although the above features may be thought of as defining characteristics of indigenous knowledge systems, more work is needed to explore the diversity of indigenous knowledge systems, as these are ultimately specific to particular local communities and groups.
Although subject to further clarification and detailed local studies, some further general principles may be relevant. For example, indigenous knowledge has both sacred and secular dimensions, and both aspects should be accorded equal validity.The physical products and expressions of indigenous cultures are intimately connected to the knowledge from which they derive, or with which they are associated. These products and expressions include ceremonial and ritual objects and performances, artistic designs, works and expressions, and song, dance and story, and subsistence and land management activities such as hunting, fishing and gathering, and the use of fire.
The protection, management and transmission of indigenous cultural and ecological knowledge, products and expressions is vital to ensuring the continuity of indigenous cultures, and for enabling indigenous peoples to adapt their societies and cultures to introduced societies, cultures and technologies.[11] One important way in which indigenous peoples maintain their cultural diversity is through the practice of indigenous knowledge. Recognition and protection of indigenous knowledge can also benefit environmental conservation and sustainable resource management.
The word ‘tradition’ is often used to denote lifestyles, cultures, knowledge and practices that were used in the past, or which belong to the time before the arrival of Europeans.[12] Reference to indigenous knowledge, as ‘traditional knowledge’ does not necessarily mean that it belongs to the past. This knowledge is continuous, and it evolves and adapts to suit changes in living situations. The term ‘tradition’ is also sometimes used to contrast a type of knowledge which differs from modern science. In this sense, the term ‘lore’, or ‘folklore’ is sometimes employed to denote indigenous cultural knowledge and practices, and to distinguish these from Western ‘science’ or ‘law’. These terms are, however, sometimes pejorative, and serve only to perpetuate the linguistic and discursive marginalisation of indigenous cultures.[13]
‘Traditional’ knowledge is defined as that which develops over a very long period of time, and is transmitted down through generations. It is based on a ‘complex fabric of existing practices and understandings’.[14] To avoid the misconception that indigenous knowledge is unchanging and tied to the past, the term ‘traditional’ as employed throughout this paper is taken to mean a dynamic and evolving set of customs and practices.
There are some important considerations in the relationships between knowledge, and its tangible applications and practices. For example, where traditional practices such as customary burning, hunting, gathering and fishing activities are no longer carried out, this does not necessarily mean that there has been a loss of knowledge of these activities. In a slightly different scenario, if practices are carried out using new methods and technologies such as firearms and vehicles, this may not imply that the practices have no basis in traditional knowledge or activities. Rather, it is likely that there has been adaptation to modern demands and conditions. Taking all these kinds of situations into consideration, the knowledge that provides a source for, and guides indigenous people’s practice is a complex mixture of what might be called ‘traditional’, and ‘new’ knowledge. It is the result of developing survival technologies and adapting to the diverse situations in which indigenous peoples live, and has been accumulated through interaction with the wider community.
The effective development of a system for the effective recognition and protection of indigenous knowledge poses some challenges to policy and decision-makers. Indigenous customary forms of property rights in land are now incorporated into Australian law through the Mabo [No 2][15] decision and the Native Title Act 1993 (Cth)(the NTA). However, there is no clarity regarding indigenous rights in natural resources, or in the intangible heritage that may attach to, flow from, or form elements of native title rights in land. Among the matters which need to be further considered is the relationship between indigenous claims in biological and genetic materials, and land tenure more generally throughout all jurisdictions. Also, the precise correspondence between indigenous claims in biological and genetic resources, and property rights in Western law needs further analysis. Another important issue is the need to clarify the nature and distribution of rights and interests, and decision-making processes in indigenous societies, in order to better understand situations in which there may be competing claims over biological and genetic resources. The connections between indigenous resource-based rights, land rights, and native title are other aspects that require further studies.
Central to these considerations is the relationship between indigenous peoples’ rights and interests in traditional knowledge relevant to the conservation and use of biological resources, and to IPR systems. For products and processes to be protected under IPR systems, they must be shown to be the result of creative or intellectual endeavour, which has substantially altered them from their original state. It is debatable whether indigenous peoples’ claims to biological resources on this basis can be considered claims to rights in ‘intellectual property’, since the biological resources that are subject to claim have generally not been substantially modified for the purposes of protection under IPR systems. This issue is explored in more detail below in relation to patents.
In Mabo & Ors v State of Queensland [No. 2] Brennan J stated that:
native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.[16]
The precise nature of the content of native title will ultimately be determined in the courts. Native title recognises that Aboriginal and Torres Strait Islander peoples have a special connection to the land. It recognises, in the common law of Australia, a unique form of property right that differs from conventional forms of title. However, to demonstrate that native title property rights extend to indigenous traditional knowledge provides a challenge, since proof of native title requires firstly proof of possession in order to establish ownership.[17] The emphasis in proving possession is on establishing a continuous link with the land in question, principally through genealogical continuity. That is, the claimants are required to establish an unbroken connection with those who held the land at the time of European occupation. It is an open question whether this connection can be demonstrated through the expression, or practice of indigenous knowledge.
In examining the categories of proof required in order to establish native title, McIntyre suggests that ‘unbroken physical presence on the land need not be proved’. He argues that native title may exist:
so long as there is substantial maintenance of a traditional connection with the land; or occupation consistent with the 'relevant circumstances, including the nature, utility, value and location of the land, and the conditions of life, habits and ideas of the people living in the area’.[18]
A similar view is propounded by Bennett, who argues that the NTA may be interpreted to include recognition of indigenous knowledge as an intellectual property right within the meanings and definition of native title. In this sense, since native title is defined according to the customs and traditions of the claimant group, then by definition it must imply the inclusion of indigenous knowledge as a form of intellectual property. The rationale for this argument is based on the notion that indigenous peoples consider that ‘knowledge of the properties of fauna and flora’ is part of their intellectual property, and is an important component of their customary laws.[19]
Indigenous peoples’ land-related activities and customary practices provide additional insights into the ways in which indigenous knowledge is expressed. These practices include customary hunting, fishing and gathering activities. If these activities can be shown to constitute expressions of native title, then it can be argued that indigenous knowledge is also, by implication, a native title right. [20] Although indigenous hunting, gathering and fishing practices appear to be connected to native title, the precise legal nature of the connection is not clear. Do these activities flow from indigenous title in land, or are they separate incidents of title in natural resources, independent from title to lands or waters?[21] What is the relationship between these rights in natural resources, and the knowledge systems that provide the basis for indigenous peoples’ uses of them?
These questions may be considered by exploring the relationship between indigenous knowledge and customary law. If indigenous knowledge is assumed to form the basis for customary law, then hunting, fishing and gathering as customary activities, are also expressions of indigenous knowledge.[22]
In the Mabo [No 2] decision, Deane and Gaudron JJ stated that Aboriginal title:
preserves entitlement to use or enjoyment under the traditional law or custom of the relevant territory or locality [and that] the contents of the rights and the identity of those entitled to enjoy them must be ascertained by reference to that traditional law or custom.[23]
Deane and Gaudron also addressed the issue of ‘tradition’ by arguing that:
the traditional law or custom is not, however, frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land.[24]
Sweeney argues that ‘there is little doubt that those rights include the right of the traditional owners to hunt, gather and forage on the land and to fish in its rivers and adjacent seas’.[25] He supports this argument by referring to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which at Section 3(1) ‘requires persons claiming to be the traditional owners of the land to, inter alia, establish that they are “entitled by Aboriginal tradition to forage as of right over that land”’.[26] Sweeney elaborates this point by stating that:
[w]hile caution needs to be exercised to avoid classifying the incidents of Aboriginal title in terms of English property law concepts, it seems clear that fishing, hunting and gathering rights can comprise part of Aboriginal title to land. However ... while customary Aboriginal fishing, hunting and gathering rights may be part of the bundle of rights comprised in Aboriginal title to land, there is no necessary nexus between them.[27]
The NTA supports this connection between customary practices and native title, as it defines native title ‘rights and interests’ to include at Section 223(2) ‘hunting, gathering, or fishing, rights and interests’. Following on from this connection, Meyers predicts that:
not only is the recognition of Aboriginal fishing and hunting rights compatible with common law concepts of interests in land, but may in fact act as a catalyst for preserving those resources for their common enjoyment and use.[28]
Despite these assertions, it will still need to be determined in law, whether indigenous hunting, gathering and fishing rights are in fact property rights, and, if they are, whether they flow from, or are conditions of native title property rights.
A recent native title decision by the Federal Court has some important implications for the connections between indigenous use and control of land- based natural resources, and hence of indigenous rights in biological knowledge and practices. In Ben Ward & Ors v State of Western Australia & Ors[29] handed down in the Federal Court in Perth on 24 November 1998, Lee J found that the Miriuwung and Gajerrong People hold native title rights to an area including parts of Western Australia and the Northern Territory. This case is useful for discussions about indigenous biological and environmental knowledge because the Court determined that the claimants held not only native title rights to occupation, use and enjoyment, but other rights relating to access, control and use of resources. These rights are:
The precise definition of ‘resources’ is not clear from this determination. But if they extend to natural living resources such as animal and plant species and products used for cultural and other purposes, then this might also imply a right in indigenous knowledge relevant to the management and conservation of these resources. The right to ‘maintain, protect and prevent the misuse of cultural knowledge of the common law holders’ appears in particular to offer a clear opportunity to introduce specific mechanisms for the native title holders in this region to protect their intellectual property rights in knowledge, innovations and practices relevant to the maintenance of the natural and cultural resources in the area.
Increasingly, courts are moving towards the recognition – within an IPR framework – that indigenous people's cultural and intellectual property rights may extend to rights in cultural knowledge held by collective land-owning groups.. For example, the relationship between intangible cultural knowledge – indigenous intellectual property – and the land owning group has been acknowledged in a recent decision relating to the Copyright Act 1968 (Cth), handed down by the Federal Court on 3 September 1998. In John Bulun Bulun & Anor v R & T Textiles Pty Ltd, Von Doussa J upheld the rights not only of the individual Aboriginal artist, but also of the clan group that holds the ritual knowledge embodied in the artwork to seek redress under the Australian legal system. [31] This landmark decision recognises the communal rights in cultural knowledge of a land owning group, and allows the group to seek legal redress for the unauthorised use of their cultural knowledge in works of art.
Besides developments in IPR systems, another area of law and policy-making that may offer opportunities for the recognition and protection of indigenous knowledge is the negotiation of regional agreements or Indigenous Land Use Agreements. The development of negotiated agreements can be pursued either within the provisions of the NTA[32] or as independent processes. Section 21 of the NTA provides a potential stimulus for the negotiated settlement of claims, and a possible mechanism for the achievement of a measure of autonomy for indigenous peoples. The recent Native Title Amendment Act 1998 (Cth) also includes provisions for the negotiation of Indigenous Land Use Agreements.
Regional agreements provide significant opportunities for the development of partnerships between indigenous peoples, governments, corporations, companies and other organisations and bodies. In formulating such partnerships, there could be opportunities to develop specific approaches to recognising and protecting indigenous rights in traditional knowledge, natural and cultural resources, and land and environmental planning, management and control. These approaches potentially provide opportunities for indigenous peoples to introduce into the negotiations and planning their own concepts, based on their customary laws, codes of ethics and notions of sustainability and responsibility for looking after their country and its resources. Models such as those being pursued in Canada may provide useful insights.[33]
Governments are also trying to define and clarify access to, control and ownership of biological resources in Australia more generally. In late 1996, a Commonwealth/State Working Group issued a discussion paper that explores some options for developing a framework to regulate access to Australia’s biological and genetic resources. Further work is also being considered on the basis of submissions received in response to the discussion paper. Clarifying rights in biological resources is a difficult task, given the extent of laws, the diverse, and somewhat ad hoc jurisdictional responsibilities, and the range of interests involved. Further work in this area will need to give a higher priority to gaining a better understanding of indigenous peoples’ claims and interests, including their claims for ownership and control over biological and genetic resources.[34]
Gaining a deeper understanding of indigenous rights and interests in traditional knowledge and practices regarding biological resources will require a conceptual shift away from the IPR system. The IPR system is rooted in a Eurocentric legal framework that encourages the dominance of monopolistic and commodity based approaches to creativity, and promotes the hegemony of legal specialists and commercial entrepreneurs. What needs to be encouraged is greater participation of indigenous peoples, and the involvement of disciplines such as anthropology, political science, and history. More attention will need to be paid to indigenous discourses, concepts and understandings of land, heritage, culture, and community.[35] Although researchers are beginning to acknowledge that there is insufficient understanding of the nature of indigenous knowledge systems and property rights,[36] it is still all too easy to make broad generalisations, at the expense of recognising diversity and the specifics of locality.
For example, there is still no clearly developed concept of group rights within Western law, nor a clear view on how they could be legally recognised and protected. What is needed is a better understanding of how indigenous societies define, manage, and articulate their roles, responsibilities and rights in resources and knowledge. Gaining an appreciation of the diversity of these issues will require consideration of at least the following:
Given that some indigenous knowledge is subject to customary rules of secrecy, any regime for recognition and protection will need to respect this, and make adequate provisions to prevent unauthorised revelation, and uses of knowledge.
The dispersal and dispossession of indigenous peoples as a result of colonisation and dispossession has resulted in a significant loss of indigenous knowledge and practices. This makes it difficult to properly identify and document indigenous knowledge. Land clearances and erosion as a result of farming, urban development, tourism and industry have led to loss of biodiversity and of natural environments, and this has in turn exacerbated the loss of indigenous knowledge.
Many indigenous people have adapted to modern technologies, lifestyles and cultural systems. This provides challenges in identifying knowledge and practices that may be said to be distinctly indigenous, and which are maintained according to customary rules, as these form part of everyday or ‘common’ knowledge. Examples might be indigenous peoples’ use of firearms and four wheel drive vehicles for hunting purposes, or their use of power boats and commercial gear in fishing activities.
IPR laws are designed to provide monopoly rights to creators and inventors, and to encourage economic and commercial growth. This system of laws, which includes patents, copyrights, plant breeders’ rights, designs and trademarks, is increasingly being challenged by new and emerging technologies. It is also being challenged by indigenous peoples themselves, who claim that their traditional knowledge, cultural products and expressions are not adequately protected by IPR systems.
Although all IPR laws are potentially relevant to the protection of indigenous knowledge, the focus in this paper is on patents, as these have the most direct application to the protection of traditional knowledge in biological resources. Although plant breeders’ rights laws also warrant detailed analysis, this is outside the scope of the present paper. Copyrights will also be briefly reviewed, since these are used increasingly by indigenous peoples to claim compensation for unlawful use of their artworks. The term ‘copyright’ is used in some of the debates about indigenous rights in traditional knowledge. Indeed, use of the term ‘intellectual property’ is itself also questionable when referring to indigenous knowledge and innovation.[37]
Indigenous knowledge is an important component of indigenous peoples’ cultural heritage, and is sometimes referred to as indigenous ‘cultural and intellectual property’.[38] There is some debate – particularly in international standard developments – about how to formulate terminology to define the subject matter of intangible heritage in which indigenous peoples claim rights. For example, in the 1993 report on her study of indigenous cultural heritage for the United Nations, Special Rapporteur Erica-Irene Daes concluded that both ‘intellectual property’ and ‘cultural property’ should be considered integral elements of indigenous cultural heritage.[39] A 1992 statement by the UN Secretary-General considered indigenous knowledge to be one of the three components of indigenous intellectual property, the others being ‘biodiversity’, and ‘folklore and crafts’.[40] Still other discourses use the term ‘folklore’, a term that in this paper is considered pejorative.[41]
Without entering into a substantial discussion about the relevance or otherwise of particular terminology, this paper does nonetheless question the appropriateness of the terms ‘cultural and intellectual property’ or ‘folklore’ to denote indigenous knowledge. For the purpose of the present discussion, it is important to note that indigenous rights in traditional knowledge form part of, and are deeply enmeshed in an integrated system of inter-dependent rights that include land, environment, social relations and cosmology. In this sense, indigenous rights to knowledge form part of a more inclusive category of rights and interests than those that are generally considered within the meaning of the term ‘intellectual property rights’.[42]
As in all societies, complex, well-defined rules and obligations govern the management of traditional knowledge and ‘intellectual property’ in indigenous societies. However, the nature of these rules may differ, as they are determined according to customs and laws of particular groups and communities. Again acknowledging the danger of generalising, and of imposing an essentialised view of indigenous cultures, what is often understood is that indigenous knowledge systems are more closely connected to cosmology and religion than are comparative knowledge systems in non-indigenous societies.
The distribution of rights and responsibilities in traditional knowledge and practices in indigenous societies differs from non-indigenous societies. There are conceivably similar patterns in the relationships between rights holders. For example, one could draw analogies with the relationship between lessee and landowner in the wider community. However, the nature of these relationships, and of their respective roles and responsibilities will depend on locality, and on the specificities of different groups and cultures. It is important to establish these details of the diversity and range of particular, localised political economies of knowledge ownership and management in indigenous societies if an effective system for protection is to be developed.
For example, some individuals may hold rights to the production of an object, performance of a ceremony, expression of a song, story or dance, the use of a design, technique or method of preparation, or the carrying out of a hunting or gathering expedition. Yet others in a community might have different kinds of rights, whether classed as ‘ownership’ rights or not, to the same knowledge, products or expressions. Still other members of a community might act on behalf of the owners as stewards, caretakers, custodians or managers. Knowledge, and its expressions and products are transmitted through generations, with clearly defined rules regarding secrecy, and who has the right to know. Often, cultural knowledge is restricted according to gender, age, ritual or social status, or other social markers.
In the context of this paper, perhaps the most significant arena for comparison is that between IPR systems, and indigenous knowledge systems. The IPR system refers to the body of laws which protects the rights of individual creators, authors and inventors. It includes copyright, patents, designs, trademarks, trade secrets, and plant breeder rights legislation aimed at conferring rights upon individuals for works and inventions, and creating monopoly rights in those works or inventions. IPRs promote a system based in ensuring that the rights of the few are protected, and encourage wealth creation and generation. This has the effect of maintaining a disparity or tension between an enclosed domain in which ideas and resources are privatised and become commodities for economic gain, and a common realm that allows the free circulation of ideas and resources for the public good.[43]
By contrast, indigenous peoples’ claims in intellectual property emphasise cultural over economic rights, and ‘consist of efforts to assert access to, and control over, cultural knowledge and to things produced through its application’.[44] While there may be the appearance here of a correspondence with patenting in the IPR sense, indigenous systems are based in a notion of community, and the maintenance of culture. As Greaves notes, indigenous people wish to control their cultural knowledge in order to ‘preserve meaning and due-honour for elements of cultural knowledge and to ensure that these traditional universes, and their peoples, maintain their vitality’.[45] In practical terms, indigenous knowledge protection may be partly achieved by extending IPR systems or by designing mutually compatible and complementary IPR/indigenous systems. Ultimately however, for many indigenous people, a primary concern is to ensure that their knowledge is adequately recognised as a distinct system in its own right, and that it is adequately protected.
In considering the protection and recognition of indigenous rights in knowledge and biological resources, a primary concern is providing benefits by way of compensation or royalties where indigenous knowledge or innovations are sought and used by the wider community. The benefits or compensation may be financial, and may consist of various forms, including royalty payments or other remuneration. Or they may be non-financial, such as rights to full and effective participation in environmental conservation and management, or to improved education, employment, health, housing and community facilities. Provision of assistance with indigenous institution building, and training are of particular benefit. Some other issues regarding benefit-sharing are discussed further below.
The use of traditional knowledge by people outside indigenous societies raises some moral and ethical considerations. As well as the need to consider the types of benefits that should be provided, another crucial requirement is that prior informed consent should be obtained from the knowledge-holders.[46] At the heart of these issues lies the fundamental notion of self-determination. The development of a truly effective system for protection and management of traditional knowledge and biodiversity conservation must be carried out by indigenous people themselves. It is critical to ensure that indigenous peoples have control over decision making about how their knowledge is applied, to whom it may be revealed, who has the authority to divulge knowledge, and which elements or types of knowledge should be protected from disclosure. In this regard, a system will need to provide adequate measures to ensure respect for confidentiality, and to protect secret knowledge from public disclosure.
There is a rapidly growing body of work that explores alternatives to the IPR system for the protection of traditional knowledge. Some of this work seeks to develop an alternative, distinctly indigenous system that is separate from, but complementary to the non-indigenous IPR system. Other approaches choose to remain within the existing legal framework, but aim to make better use of a wide range of existing laws, policies and protocols in order to establish indigenous IPR systems ‘through various national and international mechanisms’.[47]
Whichever approach is adopted, there is no doubt that the interpretation of ‘intellectual property rights’ continues to invite debate, and that the IPR system is understood in different ways by different interest groups. For indigenous peoples and their advocates, the term ‘intellectual property rights’ is not usually limited to the strict legal definition which embraces copyrights, patents and other monopoly rights. These groups prefer to think of ‘intellectual property rights’ in a broader, more encompassing sense that incorporates a range of additional subject matter beyond what is protected under conventional IPR systems, and which indigenous peoples consider important for the maintenance of their cultural identity. In this wider view, an ‘intellectual property rights’ system can also be expanded to encompass different objects, subject matter, definitions and provisions for protection. For example, it might acquire the capacity to recognise communal rights, and provide for an unlimited period over which products and expressions should be protected. Greaves explains that:
in the broader world of copyrights and patents, 'intellectual property rights' (IPR) refers to the legal rights of ownership that individuals and corporations have over the products of individual creativity and inventiveness.[48]
In its wider meaning, Greaves employs the term IPR to refer to ‘the rights claimed by indigenous people over their traditional cultural knowledge’.[49]
Emerging standards and developments in the United Nations lend support to a broader definition of intellectual property rights which has the capacity to incorporate indigenous peoples’ perspectives on their own cultural knowledge, products and expressions. For example, the Draft Declaration on the Rights of Indigenous Peoples calls for recognition of the cultural and intellectual property rights of indigenous peoples, defined as including a range of tangible and intangible subject matter not recognised within conventional legal systems. Similarly, the UN study on indigenous cultural heritage by Erica-Irene Daes defines indigenous heritage as a ‘holistic’ category that incorporates ‘cultural property’ and ‘intellectual property’, both in themselves inclusive of a wider range of cultural products and expressions than are accepted under Western laws. [50]
The conventional system of intellectual property rights (IPR) provides for certain limited monopoly rights for individuals for creation and innovation. The IPR system includes laws relating to copyright, patents, plant breeders’ rights, designs, trademarks and allied rights.[51] All these laws are relevant to discussions about protection for indigenous knowledge, innovations and practices. However, this paper focuses predominantly on patents, as these are most relevant to indigenous rights in traditional knowledge and biological diversity. Further work is also needed to explore the role of plant breeders’ rights, as these are also of crucial relevance to the protection and use of traditional plant-related knowledge. Copyright law is also briefly reviewed in this paper, since this area of IP law is increasingly used by indigenous peoples to seek redress for damages resulting from unauthorised reproductions and uses of their works of art, and therefore has important implications for the general relationship between IPR systems and indigenous rights.
Internationally, IPR systems are harmonised by the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement that was developed during the final round of negotiations under the General Agreement on Tariffs and Trade (GATT) during the mid-1990s. The TRIPS Agreement provides the basis for a globally uniform system of IPR. The Agreement is the subject of considerable debate in terms of its capacity to provide for protection of indigenous rights in traditional knowledge. Among the issues being considered is the degree of consistency between TRIPS, and the Convention on Biological Diversity. Some argue that whereas TRIPS reinforces private monopoly rights, the CBD provides for the conservation of biological diversity as a universal heritage. Importantly too, the CBD, in contrast to TRIPS, includes specific provisions for the protection of traditional knowledge, innovations and practices.
The debate about the TRIPS Agreement ranges from the view that TRIPS is fundamentally antithetical to indigenous rights in traditional knowledge, to other views that TRIPS has the capacity, either through textual revision or beneficial interpretation and implementation, to provide for protection of indigenous knowledge.[52] The provisions of the TRIPS Agreement relevant to indigenous rights to traditional knowledge include those dealing with patentable subject matter, the potential for introducing sui generis systems for protection, protection for secrecy, and the development of geographic indicators (i.e. trademarks that identify a product, image or design by its geographical place of origin). There is not the scope in this paper for a detailed examination of the relevance of the TRIPS Agreement for the protection of traditional indigenous knowledge.[53]
Copyright laws protect the tangible expressions of ideas in forms such as in works of art, recordings, and publications. As with all intellectual property right laws, copyrights provide only limited scope for protecting the rights of indigenous communities in their cultural and biological knowledge. In Australia, the Copyright Act 1968 (Cth) has been used by Aboriginal artists to seek redress for unauthorised uses of their expressions and designs in works of art. Several court decisions and unreported cases over the decades have enabled the interpretation of the Copyright Act to be extended to a limited extent, to provide improved recognition of indigenous peoples’ rights in their intellectual property. These cases are well documented.[54]
Although copyright laws and other IPR laws are all of importance in discussing indigenous peoples’ rights and interests in cultural and biological knowledge, the focus of this paper is on patents.[55] In considering ways of recognising and protecting indigenous knowledge and innovation, and providing compensation or benefits for its use, it is necessary to examine the formal system of patents, and to explore how this relates to indigenous systems of knowledge and innovation.
The Australian Patents Act 1990 (Cth) provides a monopoly right to an inventor of a product or a process. The maximum term for grant of a patent was extended from 16 to 20 years in 1994.[56] This finite period for protection is one of the impediments to using patents to protect traditional indigenous knowledge and innovations. Traditional knowledge exists in perpetuity, and is not amenable to fixed periods for protection.
Under s 13 of the Patents Act 1990, a patent holder has an exclusive right to exploit his or her invention, and can also authorise another person to exploit the invention. In Schedule 1 of the Act the term ‘exploit’ is defined as follows:
(a) where the invention is a product – make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or
(b) where the invention is a method or process – use the method or process or do any act mentioned in paragraph (a) in respect of a product resulting from such use.[57]
The owner of a patent may transfer his or her proprietary rights by assignment[58] or may permit another person to exploit his or her right by means of a licence. Often, a patent holder assigns his or her rights to a company or to some other corporate body. The Act also provides for co-ownership of patents, an arrangement that is usually made on the basis of agreement between the co-owners.[59] Section 16 of the Act also sets out the conditions for co-ownership, providing that, ‘subject to any agreement to the contrary, where there are two or more patentees’:
(a) each of them is entitled to an equal undivided share in the patent; and
(b) each of them is entitled to exercise the exclusive rights given by the patent for his or her own benefit without accounting to the others; and
(c) none of them can grant a licence under the patent, or assign an interest in it, without the consent of the others.[60]
A patent is significant for the commodification and marketing of the products and processes of industry. Some important industrial and commercial applications of patents include those employed by pharmaceutical, agricultural and cosmetic industries. The role of patents in bioprospecting and the pharmaceutical industry is discussed below.
Discussions about whether patents can protect indigenous knowledge hinge largely on the criteria by which applications for patents are assessed, and whether these are applicable to indigenous knowledge and innovations.
Section 18 of the Patents Act 1990 (Cth) sets out the terms for assessing the validity of patentable inventions. The main criteria are that the subject of a patent application, when compared with ‘prior art’, is novel, involves an ‘inventive step’, is useful, and that it was ‘not secretly used in the patent area’ prior to the claim. This section excludes from patentability ‘human beings, and the biological processes for their generation’.[61]
The concept of novelty means that an invention should not be merely a discovery of an existing, or naturally-occurring product or process. Thus, naturally-occurring products or processes cannot be patented unless they have been substantially altered or modified in some way. This seemingly straightforward criterion has been subject to some discussion in terms of what precisely constitutes an alteration beyond what is a product of nature. Although each patent application must be evaluated in its own terms, on the basis of previous cases a general rule may be that ‘a new product must differ from the old, not only in degree but also in kind in order to be a patentable advance’.[62]
A patent application must also be able to demonstrate that the product (or process) will make a useful contribution to, and have an application to manufacturing, technology, medicine or other commercial or industrial fields. Finally, an important criterion for a patent application is that the invention must be clearly described and documented.
The existence of novelty as a quality in itself can not be proved solely by an assessment of the patent application in isolation. Rather, novelty is determined by examining ‘prior art’, which can be described as ‘all the knowledge that existed prior to the relevant filing or priority date of a patent application, whether it existed by way of written or oral disclosure’.[63]
Section 7 of the Patents Act 1990 (Cth) establishes the criteria for novelty, based on what is termed the ‘prior art base’. Both Section 7 and Schedule 1 to the Act provide details of the ‘prior art base’ and of ‘prior art information’. Section 7(1) defines an invention as being ‘novel’ in comparison with the ‘prior art base’. The term ‘prior art base’ is defined in Schedule 1 of the Act as a means for deciding whether an invention is novel or involves an inventive step:
'Prior art base' means:
(a) in relation to deciding whether an invention does or does not involve an inventive step:
(i) information in a document, being a document publicly available anywhere in the patent area; and
(ii)information made publicly available through doing an act anywhere in the patent area; and
(iii)where the invention is the subject of a standard patent or an application for a standard patent – information in a document publicly available outside the patent area; and
(b) in relation to deciding whether an invention is or is not novel:
(i) information of a kind mentioned in paragraph (a); and
(ii) information contained in a published specification filed in respect of a complete application where:
(A) if the information is, or were to be, the subject of a claim of the specification, the claim has, or would have, a priority date earlier than that of the claim under consideration; and
(B)the specification was published after the priority date of the claim under consideration; and
(C) the information contained in the specification on its filing date and when it was published.
‘Prior art information’ is defined in Schedule 1 to mean:
(a) for the purposes of subsection 7(1) – information that is part of the prior art base in relation to deciding whether an invention is or is not novel; and
(b) for the purposes of subsection 7(3) – information that is part of the prior art base in relation to deciding whether an invention does or does not involve an inventive step.
Referring to previous applications or ‘prior art’ includes ‘information which has been published, by oral or written disclosure; or anything which has been in use in public, or which is part of common general knowledge.[64]
A patent application may be opposed as an administrative action within the patent office, prior to the granting of the patent. Objections can be made against a patent on the grounds that an invention lacks novelty, does not involve an inventive step, is common knowledge, has not been adequately and fully described, or is merely a discovery of something that already exists. Even after having been granted, a patent can be invalidated or revoked, usually in the courts. Thus, indigenous peoples, or indeed any members of the community, have the right to oppose or challenge a patent at the appropriate stage of the process.
Indigenous peoples and their advocates have argued that the patent system does not protect the rights of indigenous peoples who are the custodians and stewards of much of the knowledge that contributes to patentable products and processes. Some critics have protested that products and processes that are the subject of patent applications in fact derive from, or are based on indigenous and local peoples’ knowledge and innovations, and that the patenting of these denies the rights of indigenous peoples to any benefits. This issue is explored further below.
The nature of innovation and knowledge management in indigenous societies is not generally considered to be compatible with the requirements of the existing patent system. The patent system, as with other forms of intellectual property, confers ownership rights on individuals, and has as its primary objective the encouragement of economic and commercial growth. Indigenous knowledge and innovations, by contrast, are often transmitted over generations, mostly by oral means. Indigenous innovation is thus a long-term process, and is managed according to a complex system of collective rights and interests.
Notwithstanding the cautions against generalising discussed earlier, perhaps the most significant contrast between the two systems is the fact that, unlike IPR systems, indigenous knowledge systems tend not to involve the identification of a single author, creator or inventor. Given its specific features, indigenous knowledge is thought by proponents of IPR to be ‘freely available’ within the public domain, and therefore not amenable to protection by conventional IPR systems. In this view, indigenous knowledge is also thought to lack the requirements of ‘novelty’ or ‘originality’ that are the essential criteria for patents and copyrights. To be patented, an invention cannot be merely a discovery of what already exists. As Gray puts it:
It is clear that the mere existence of genetic resources on land owned or formerly owned by indigenous people will not give the indigenous people any intellectual property rights in those resources, should they turn out to have some scientific or commercial value. In order to gain protection or to prevent others from gaining it, the indigenous people would have to ‘discover’ the resources, and put them to a new use with commercial significance.[65]
The notion that indigenous knowledge of, and practices with regard to natural biological and cultural resources cannot be protected by patents is based on certain presuppositions about the characteristics of indigenous knowledge systems. It assumes a generalised, universal model of indigenous systems of innovation and knowledge management that renders these inherently unsuitable for protection under conventional IPR systems. The basis for this view is the belief that there is a dichotomy between IPR and the public domain. The IPR system of private, individual property rights which encourage commercial and economic gain, is contrasted with collective, orally-based knowledge lacking a single ‘inventor’ or ‘creator’. Since the latter system is not centred on an individual author, inventor or owner, it therefore comprises a ‘public domain’ free from the protection of laws. This model has been challenged by Boyle, among others, who argues that the concept of the public domain needs to be reconsidered in the context of current changes in the dynamics of socio-economic systems and a shift away from the centrality of a single individual author, creator or inventor. In Shamans, Software and Spleens, Boyle calls for an expansion of the concept of the public domain and for the creation of a new class of rights that can protect collective and ‘folkloric’ knowledge and expressions.[66] A number of writers and advocates for indigenous peoples’ rights argue for the creation of regimes which recognise and protect these collective rights.[67]
The patent system and the rights it confers for inventions raise issues about the nature and availability of public information. In claiming protection, the patent system requires an invention to be fully and adequately described in order to attract patent rights. There are some implications in this for indigenous peoples, in relation to the potential that exists within the present system for breaches of trust through disclosure of secret or sacred knowledge. There are currently no provisions within the patent system for protecting indigenous peoples’ rights regarding secret or confidential knowledge by requiring full disclosure of the source of products or inventions at the point at which applications for patenting are submitted.
The effect on public knowledge of patenting has also invited some other criticisms. Arup suggests that the kind of property rights created by the patent system act against the public conservation of natural resources. Providing private property rights in commodities based on the natural world, he argues, denies the ability of the wider public to participate in conservation, and to gain access to the natural world. In this view, ‘apart from its tendency to contribute to the concentration of economic power among producers ... the conferral of property rights promotes the commodification and commercialisation of essential resources’.[68] Arup asserts that this allows individuals, who are ‘usually the holders of capital resources’, to ‘capture socially accumulated and significant knowledge’, and that ‘applications of the knowledge are then driven by a concern with commercial gain’. In his view therefore, patents ‘may also provide a means to appropriate the properties of nature’. Arup expands on this theme:
the selective economic incentive of the property right is said to encourage concentration on artificial processes and products at the expense of the maintenance of natural genetic diversity and sufficiency [and] raises the claims of the high technologies above the care and skill which traditional farming has applied to the land for many centuries...the treatment of living things as mere commodities has the effect of detaching them from their complex spiritual and ecological dimensions.[69]
One of the challenging features of patent law is its requirement that an invention must demonstrate that a significant alteration has been made from what was already found or known. As has been seen, some critics of the patent system argue that the complexities required to distinguish clearly between a natural product, and one that has been fundamentally altered, contribute to the conceptual difficulties of the patent system. The challenges in establishing precise boundaries between naturally occurring products and those that have been significantly altered, or in defining categorically where an innovation becomes an ‘invention’, have profound consequences when comparing the nature of innovation in indigenous societies with conventional Western notions of scientific and technological processes.
Rubin and Fish detail some of the difficulties in using patent laws and other intellectual property rights to protect indigenous knowledge, innovations and practices. Among the issues they point to as contributing to these difficulties are the ‘collective and folkloric nature of some indigenous knowledge, the “product of nature doctrine”, and other standard requirements of patentability’.[70] Although these authors base their arguments on US patent law, the principles of their critique may also have implications for Australian laws. They state that:
The novelty requirement of US patent law prohibits the patenting of an invention that has been known, used, or published in the United States more than one year previous to the patent application. Inventors must also swear to an oath that they are the first inventors. Because much indigenous knowledge regarding plants and their medicinal uses has been published, it is likely unpatentable without significant alteration or no obvious improvement. Furthermore, it would likely be difficult for indigenous plant users to claim that they are the first to have invented a plant use, due to the knowledge having been part of their community for decades, if not centuries. The novelty of indigenous knowledge, therefore, may not be sufficient for patent law. This would not be as significant an impediment if patent law could accept the collective knowledge of an indigenous group as novel, at least when it is unknown outside of the community sharing the knowledge.[71]
The ‘product of nature’ doctrine represents another obstacle to patenting indigenous intellectual property. Generally, Rubin and Fish point out, patent law prohibits the patenting of products of nature, and ‘the substance of a patent may not merely be the discovery of some natural phenomenon’. Rather, a product or process filed for patenting must be subject to some kind of substantial alteration. As Rubin and Fish detail:
In essence, the success of an indigenous intellectual property claim under patent law would require that the knowledge involved be something beyond the use of a product of nature. It is possible that the preparations of plant remedies may satisfy this subject matter test. In this case the inventor would have produced a 'non-obvious' composition of matter derived from a product of nature by using their knowledge..... Even where indigenous knowledge appears to be a product of nature, there should be some improvement in existing patent law to protect such knowledge that contributes to other useful, novel, and non-obvious products.[72]
Some critics of the patent system base their arguments on the requirement that applications for patenting should be assessed in terms of qualities such as novelty. In this regard, Arup suggests that the administration of the patent system is too complex, and that the assessment of the novelty of a patent application requires decisions that go beyond the purely legal dimensions of patent law. He argues that behind the apparent clarity of patent legislation lie complex decision-making processes that require an ‘elaborate administrative and judicial system’. Decisions concerning the validity of patent applications therefore involve unnecessarily ‘complex considerations of law, science and economics’.[73] While it may be the case that the assessment of criteria such as ‘novelty’ and ‘non-obviousness’ requires ‘complex’ applications of inter-disciplinary expertise in ‘law, science and economics’, this does not necessarily impose an impediment on the application of the patent system. Indeed, it could be argued to the contrary, that the multiplicity of socio-economic and cultural factors that contribute to the process of invention and innovation necessitate, and may benefit from such inter-disciplinary approaches. What may be more at issue is that the complexity involved in administering the patent system potentially renders the system inaccessible to certain sectors of the community. As with all IPR laws, those communities such as many indigenous peoples who live in powerless, marginalised and often impoverished situations may be excluded from gaining equitable access to the patent system.
The relationship between the patent system, and indigenous knowledge and innovations is of particular importance when considering uses of biological diversity such as bioprospecting.
The importance of naturally occurring plants and plant products to pharmaceutical, cosmetic, agricultural and a range of other products and processes is well documented.[74] The role of patents in the pharmaceutical industry has also been the subject ofdiscussion. A patent ‘gives its owner the opportunity to control the production and marketing of a drug for a designated period of years and thus reap economic benefit from it’.[75] The use of patents by pharmaceutical and research companies to protect their rights in products and processes based on naturally occurring biological resources highlights some issues of concern to indigenous and local peoples. The following examples take up some of these issues.
Endod is an African soapberry. A United States patent was granted to the University of Toledo to use endod to kill zebra mussels.[76] The technique for this use of endod, developed by Ethiopian scientists with support from a Canadian research institution, was based on ‘hundreds of years of innovation and use by Ethiopian communities’.[77] Those who opposed the patent claim asserted that the discovery of the use of endod was ‘obvious’ (and therefore not amenable to patenting), and that the ‘real work was done by Ethiopians’.[78]
The neem tree (Azadirachta indica) is found widely throughout parts of India. It forms a central part of Indian communities’ culture and heritage. It is used by these communities for a vast range of purposes such as in medicines, toiletries, insecticides, fertilisers, and in agriculture.[79] The medicinal, pharmacological and therapeutic properties of neem have been known and used for millennia.[80]
From the early 1970s, the neem tree began to attract the attention of United States and global markets. In 1971 a US timber importer noted the properties of the neem tree, and began importing it. Following testing for a pesticidal product derived from neem extracts, the importer received clearance for this product from the US Environmental Protection Agency in 1985, and in 1988, he sold the patent for the pesticide to the transnational chemical company W R Grace & Co.[81] It is estimated that there are now some thirty-five patents over neem.[82]
The patenting and marketing by Grace of products based on neem-derived substances led to a debate about the appropriation of the intellectual property of Indian communities. Indian and Third World critics of Grace’s approach claim that the preparation of neem-based products has been part of the collective community knowledge of Indian societies for millennia, and should not have been patented by Grace. They refuted the assertions by Grace that its methods for developing neem-based products were novel, non-obvious and based on extraction methods that constituted an innovative technique, and were therefore amenable to patenting. Instead, the critics argued that the extraction and preparation of active substances from neem is a traditional innovation based on millennia of collective knowledge and practice. The critics state that
Patent claims on the various processes and products of the neem that are built on the vast cultural and intellectual heritage of the Indian people, reflect a total devaluation of the country’s intellectual heritage and an arrogance based on the assumption of superiority of Western sciences.[83]
Several neem patents have been the subject of challenges by Indian scientific and ecological interests.[84]
Another example of opposition to patents by local and indigenous peoples and their supporters is the case of the development of coloured cotton. A US plant breeder was granted Plant Breeders’ Rights for varieties of coloured cotton, which she ‘modified through conventional plant breeding to lengthen the staple for commercial weaving’. The cottons were promoted by textile companies as having come from ‘the ancient peoples of the Americas’. Although the breeder acknowledged that the ancient Amerindians held the knowledge of breeding the cotton, these peoples are not being compensated for their contribution.[85] The breeder admitted that the original cotton seeds she used were collected in Mexico and Guatemala. At the same time, local organisations in Andean countries asserted that the coloured cotton varieties that were developed and promoted constituted an ‘obvious extension of the original coloured cottons developed in South and Central America by indigenous communities’.[86]
In some of these cases there are continuing attempts by the local and indigenous peoples who claim rights in the patented products or processes to oppose the patents. If successful, such challenges may provide a precedent for possible challenges to other patents that relate closely to indigenous knowledge and practices.[87] They may also challenge preconceived notions about the nature of invention and innovation, and the extent to which modification or change to a process or a product may be classified as invention for the purposes of patent laws.
In considering these cases of patenting, one assertion that is often made (particularly by exponents of IPR systems) is that once a patent has been conferred on a product or process derived from naturally occurring products, this does not necessarily prevent the local people from continuing to use the product or substance in their own traditional ways. Defenders of the patent system also point out that intellectual property rights systems, and traditional systems of innovation can coexist without conflict or tension.
The patenting of these items that have been used by local and indigenous peoples over a long time does, however, raise some moral and ethical questions. For example, how was the knowledge about the product or process obtained, and to what extent, if any, did the local and indigenous innovators and users of the products and processes participate in the acquisition of product and its patenting? Clarification is needed of the extent to which the patented product or process actually involves indigenous knowledge and techniques. Also important is the need to ascertain whether adequate provisions (through compensation, protection, and benefit-sharing) are made for recognising the contributions of local and indigenous peoples.
The Convention on Biological Diversity encourages Parties to develop measures for the fair and equitable benefit sharing of biological and genetic resources. There are provisions for access to genetic resources and equitable benefit sharing in many articles of the CBD.[88] Articles 8(j), 10(c), 17(2) and 18(4) are especially relevant for indigenous and local communities.[89] Articles 6, 7, 8, 9, 11, 13 and 14 are also relevant.[90]
Article 15 provides for the ‘equitable sharing of benefits derived from the use of genetic resources with the Parties providing them’.[91] The basis of this Article is the sovereign right of States over natural resources within their jurisdictions.[92] Article 15(1) allows for governments to make decisions about physical access to genetic resources in their jurisdictions. This may include the introduction of national laws controlling such assess.[93] Although the CBD supports the rights of States over access to natural resources, it does not deal with ownership rights in these resources. The matter of proprietary rights is to be determined at the national level.
Access to genetic resources under Article 15 is subject to certain controls. Article 15(4) provides the basis for ‘access agreements’, and encourages the providers of genetic resources, and potential users, to negotiate ‘mutually agreed terms’ for the provision of genetic resources.[94] Such access agreements are of particular importance when discussing indigenous peoples’ roles in relation to genetic resources and knowledge of these. Access agreements may take the form of contracts, material transfer agreements, or research agreements. In Glowka’s view, such agreements ‘will likely become the primary means to (1) authorise access to genetic resources, (2) control subsequent use and (3) establish the return of benefits from their subsequent use.'[95] These provisions concerning access and use also have important implications for indigenous peoples’ tenure over their lands and natural resources.
Article 15(5) provides that access to genetic resources should be subject to the prior informed consent of the providers of the resources.[96] Under this provision, potential users of genetic resources must obtain the consent of the government providing the genetic resources before they are obtained. This consent must be based on the user giving information about how they intend to use the genetic resources.[97] Although this provision is aimed at governments as providers, it also has significant implications for providers - such as indigenous communities - within national and state jurisdictions.[98] Although the principles of Article 15 could be used to ensure that indigenous peoples benefit equitably from the uses of genetic resources, there is no specific requirement under the CBD that these principles be observed.
In general, the ‘primary rationale for Article 15 is to create the broad international legal and policy framework for benefit-sharing to take place between the Parties of the CBD’.[99] In this context, it is useful to review some approaches that are being developed or considered to achieve controls over access to biological resources, and provide mechanisms for benefit sharing.
The challenge for governments and policy makers is to develop systems of access to biological resources that can achieve several objectives at the same time. These include the conservation and sustainable use of biological diversity, the effective and sustainable conduct of bioprospecting, recognition and protection for indigenous knowledge, innovations and practices, and provisions for equitable benefit sharing by knowledge holders, owners and providers. One way of achieving these goals is through various forms of contracts and agreements. Another approach is to introduce an alternative sui generis system through measures such as special legislation. The latter approach is often advocated, as noted by Glowka:
Special approaches to provide indigenous and local communities with control over the knowledge associated with genetic resources are particularly needed because, except in limited instances, current forms of intellectual property protection, such as patents and plant breeders’ rights, cannot be applied for either technical reasons or because they are contrary to the practices and beliefs of some communities.[100]
In this view, sui generis systems ‘should be designed to protect the knowledge associated with genetic resources separate from existing intellectual property rights systems’. Until such sui generis systems are introduced, various tools such as community registers, and the use of trade secrets and know-how licenses may be introduced to protect indigenous knowledge.[101] The development and introduction of an effective sui generis system beneficial to indigenous peoples’ interests may take considerable time to complete. In the meantime, contracts and agreements are widely canvassed as useful approaches that offer some flexibility.
Contracts and agreements offer the potential for developing creative approaches to bioprospecting and protection of indigenous knowledge, innovations and practices. Glowka considers that contracts and agreements ‘will likely be the primary means to reflect an agreement for access and subsequent benefit-sharing’.[102]
There are some well-documented examples of contracts and agreements for bioprospecting and benefit-sharing. Some of these were submitted as case studies to the Secretariat of the Convention on Biological Diversity, for the fourth meeting of the Conference of Parties to the Convention, held in Bratislava, Republic of Slovakia in 1998.[103]
Possibly one of the best known examples of a benefit-sharing agreement is that developed between the giant pharmaceutical company Merck, and the Costa Rican non-profit conservation agency INBio. Merck provides up-front fees to INBio for the screening of plants for substances that may assist in developing AIDS-related cures. A proportion of the up-front fees, and fifty percent of any royalties will be provided directly for conservation purposes. This arrangement is primarily a contract for the screening of natural products derived from a rich and biodiverse environment. Although this contract is described in some of the literature as a useful model for partnership arrangements between governments and pharmaceutical organisations, it apparently does not directly involve any indigenous knowledge providers.[104]
Another example of a bioprospecting agreement is one that has been developed between Shaman Pharmaceuticals and Healing Forest Conservancy. In contrast to the Merck agreement, Shaman derives its products directly through collaborative arrangements with indigenous peoples. The company established an independent non-profit organisation called Healing Forest Conservancy, which claims that it ‘supports biodiversity conservation and protection of cultural diversity and will independently determine how resources can best assist indigenous communities and organisations’.[105]
Further examples of contractual arrangements for bioprospecting benefit-sharing are those developed under the auspices of the International Cooperative Biodiversity Group (ICBG). The ICBG is a programme sponsored jointly by the US National Institutes of Health (NIH), the National Science Foundation (NSF) and the US Agency for International Development (USAID). Its objective is to ‘address the related issues of biodiversity conservation and the promotion of sustained economic development through drug discovery from natural products’.[106] ICBG projects being developed in Nigeria and in Cameroon aim to distribute benefits derived from the uses of biodiversity back to indigenous and local communities through independent trust funds.[107] In the Nigerian case, a Trust Fund operates under a Board of Management, which will ‘consult and collaborate with village heads and professional guilds of healers in determining the nature of compensation to apply or projects to embark upon in any given locality’.[108] The Board of Management is the ‘executive/administrative organ of the Fund’, and will include among its membership, traditional leaders, traditional medical practitioners, government representatives, scientist and an ecologist.[109]
A similar ICBG project has been developed in Suriname, where the ‘Suriname ICBG group works with local tribal people to conduct some of the bioprospecting activities’.[110] For the Suriname project, the development of a Forest Peoples’ Fund is proposed, to ‘ensure up-front benefits from bioprospecting go to Suriname and its tribal communities’.[111] In general, the ICBG programmeme aims to;
link and promote drug development with the “interdependent issues” of biodiversity conservation, sustainable economic development, and the protection of the intellectual property of indigenous peoples.[112]
In their discussion of the relative merits of bioprospecting contracts, Rubin and Fish describe ways in which these can be used to ‘facilitate patent protection for indigenous knowledge, whether it is currently patentable subject matter or not’.[113] These authors consider that bioprospecting contracts should include provisions for protecting indigenous knowledge ‘in any sections dealing with the collecting, patenting, and licensing of local knowledge that leads to patentable inventions’. The authors outline some of these:
... to optimize the ability of local and indigenous plant users to secure patent protection, a bioprospecting contract should ensure that all indigenous knowledge collected is well-documented regarding its origin, processes and applications. Careful documentation, kept confidentially, will assist in later patent application and filing. Agreements should state that nothing stated within them will abridge the intellectual property rights of nationals and local people under the laws governing the contract. Parties may also stipulate that 'shamans' or 'local or indigenous peoples' may be inventors under the agreement. This is particularly important in anticipating a situation where a shaman and a prospector are both responsible for an invention or where the contributions of local plant users are, by themselves, insufficient for patent requirements. An ideal position for this assertion of the rights of indigenous people would be in a provision regarding the ownership of inventions or patent rights of the contracting parties.[114]
One way in which a bioprospecting contract can be used to prevent unauthorised use of indigenous knowledge is through a licensing arrangement. Where there are joint inventors of a patented product, licensing rights are allocated to all inventors. In this way, indigenous knowledge holders and providers can be equal partners in a jointly held invention, and can therefore supervise the invention.[115] Contracts can also provide mechanisms for compensating indigenous people for the use of their knowledge. One way of achieving this is through royalty schemes. These ‘present an opportunity for the remuneration of indigenous knowledge, the conservation of biodiversity, and the support of educational, commercial, and research efforts’.[116]
The advantages of benefit-sharing are many. They can provide incentives for knowledge holders, local and indigenous peoples to conserve biological diversity. Benefits may also include non-financial components such as employment opportunities and skills and training programmemes. Benefits can also provide important incentives to local and indigenous peoples for full and effective participation in bioprospecting, and in biodiversity conservation. Provision of benefits - both financial and non-financial - can assist in building indigenous institutions, in advancing political and economic autonomy, and contribute in important ways to indigenous peoples’ cultural maintenance and survival.
There are also some aspects of developing benefit-sharing arrangements that will require very careful consideration. For example, contracts should properly reflect the interests of indigenous peoples, and not be imposed through coercion by companies intent on securing their business interests. Contractual arrangements must also be developed by ensuring that all indigenous peoples with interests and authority are fully included in the negotiations. Further, these agreements should ensure that benefits are equitable, at appropriate levels, and fully reflect the requirements and interests of the intended recipients. Contracts and agreements must also incorporate effective mechanisms for the protection of knowledge and for preventing unauthorised disclosure. They may include provisions for penalties against misuse of indigenous knowledge. Contracts and agreements should be developed using fully participatory processes.
Although contracts and agreements offer flexibility, and the potential for including negotiated terms, they are ultimately limited. These kinds of arrangements may tend to be ad hoc, lacking in consistency, and without adequate mechanisms for implementation and monitoring. They generally do not have the sanction of any state or national laws.
Potentially more effective, longer term solutions to ensuring protection for indigenous knowledge, innovations and practices, and providing for equitable benefit-sharing may be achieved through the development of sui generis systems such as national laws. Ideally, these kinds of laws would provide institutional recognition and protection for fundamental indigenous rights, while also regulating conservation and sustainable use of biological diversity, and bioprospecting. Although many advocate sui generis systems as the preferred solution to effective recognition and protection for indigenous rights to traditional knowledge, these approaches should also be approached with some degree of caution. Ideally, sui generis systems would be developed to provide for beneficial recognition and protection of indigenous rights. However, there is also a risk that the introduction of sui generis systems could actually diminish or erode, rather than uphold and strengthen indigenous rights.[117]
In considering the development of sui generis approaches it is instructive to consider some existing and emerging international standards and indigenous statements which provide a framework within which beneficial sui generis systems could be introduced. The Draft Declaration on the Rights of Indigenous Peoples (the Draft Declaration) was developed during more than a decade of discussions at the United Nations Working Group on Indigenous Populations. The Draft Declaration provides at Article 24 for indigenous peoples’ rights to ‘their traditional medicines and health practices, including the right to the protection of vital medicinal plants, animals and minerals’. Article 29 provides that indigenous peoples are:
entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property [and] ... have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.
This Declaration, developed by indigenous peoples and their representatives, is a strong statement of the aspirations of indigenous peoples regarding their distinct rights. The Draft Declaration is currently being considered by a special working group of the United Nations Commission on Human Rights.
The International Labour Organisation Convention 169 (ILO 169), introduced in 1989 as a revision of an earlier Convention, is currently the only international instrument on indigenous rights that provides obligations to signatory countries. Although ILO 169 is a weaker statement than the Draft Declaration, as a convention it has greater force, and it also requires countries that have ratified it to submit regular reports, and to be subject to monitoring. ILO 169 contains several Articles relevant to the protection of indigenous peoples’ cultures, environments, and religious and political systems.[118] The Australian Government has not yet ratified ILO 169.
There is some debate among indigenous and advocacy organisations regarding the relative merits of developments such as ILO 169 and the Draft Declaration. Although the text of ILO 169 is considerably weaker in its provisions for indigenous rights than that of the Draft Declaration, the ILO instrument is the only one that currently has a formal status in international law. As such, those who are advocates for this Convention argue that it offers at least a level of minimum rights that can provide a foundation upon which further standards can be elaborated. Unlike the Draft Declaration, ILO 169 also provides a mechanism for reporting and monitoring, and therefore places some obligations upon countries that have ratified it to uphold and maintain a certain level of standards for indigenous peoples. As a Declaration, the Draft Declaration does not have the obligatory provisions of a convention. The Draft Declaration is still only in draft form, and is subject to a process of debate and possible revision in the UN. Despite these uncertainties regarding the eventual status of the Draft Declaration and the non-binding nature of its provisions, it nonetheless offers in its present form a strong aspirational statement of indigenous rights.
Another area of work is being pursued by the United Nations specialised agencies of the Educational Scientific and Cultural Organization (UNESCO) and the World Intellectual Property Organization (WIPO). UNESCO is currently reviewing its 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore. This Recommendation was the focus for discussions during a UNESCO/Smithsonian conference held in Washington DC on 27-30 June 1999, with a view to revising it in the light of developments in the decade since its adoption. Among the recommendations resulting from that conference was a decision to reconsider the term ‘folklore’, and to determine a more appropriate terminology on the basis of further studies, and consultations with indigenous and local peoples. The 1989 Recommendation is currently the only international statement providing a sui generis approach to protecting intangible cultural heritage.
WIPO commenced a programme of consultations with indigenous peoples in 1988, with the objective of exploring the implications for the IPR system of these peoples’ claims and interests in intellectual property and traditional knowledge. WIPO is conducting a series of discussion forums and regional visits.
A growing body of indigenous statements and declarations also provides a framework within which sui generis systems for protecting indigenous knowledge may be introduced. These include the following:[119]
Although these statements do not have binding force, they nonetheless provide an important discourse that can guide, and ultimately influence international law.[120]
In addition to these treaties, statements and declarations providing specifically for indigenous rights, wider human rights instruments provide an additional source of support for indigenous rights. The Universal Declaration on Human Rights 1948 provides important foundational principles. The International Covenant on Civil and Political Rights (ICCPR), adopted by the UN in December 1966 and which came into force in March 1976, is a significant cornerstone for fundamental human rights and freedoms. Indigenous peoples have used the communication mechanisms under the Optional Protocol to the ICCPR to seek recognition of their self-determination rights under Article 27 of this instrument.
A growing body of environment and heritage related instruments and developments provides additional incentives to the formulation of improved standards for indigenous rights.[121] These developments include Agenda 21, the Statement of Forest Principles, and the Rio Declaration – all outcomes from the 1992 United Nations Conference on Environment and Development. Chapter 26 of Agenda 21 is an important statement of principles, programmemes and actions for building and strengthening indigenous institutions and participation. There are also environment-related standards being developed through various organs of the United Nations, such as the Commission on Sustainable Development. UN studies such as the report on indigenous cultural heritage prepared by Special Rapporteur Erica Irene-Daes for the Sub-Commission on Prevention of Discrimination and Protection of Minorities, and the Ksentini study on human rights and the environment add to the list of developing standards.[122]
The development of sui generis approaches would ideally be based on new forms of legislation that provide specifically for recognition and protection of indigenous forms of intellectual property. These may provide for recognition of the particular features, such as collective rights, that distinguish indigenous knowledge and intellectual property from conventional systems. There are many examples of sui generis systems, but these vary considerably in terms of the extent to which they incorporate indigenous rights, including benefit-sharing and community forms of ownership.
There is much planning and activity across the world at national and sub-national levels to devise various legislative, policy and administrative schemes to regulate access to genetic resources. Glowka discusses some of these, and identifies five groups of legislation, summarised here.[123]
Examples of these exist in several African countries (eg, Gambia, Kenya, Malawi, and Uganda), and in the Republic of Korea. These are ‘only enabling in nature’, and ‘merely charge a competent national authority to examine the issue in order to provide more specific guidelines or regulations sometime in the future’.[124]
Examples of these, either as laws, or in draft stages, are in some Central and South American countries (eg Costa Rica, Peru, and Mexico), in Eritrea, Fiji, and in the Seychelles. Glowka states that these ‘tend to be more detailed’ than the enabling legislation described above. They also ‘clearly establish the Mutually Agreed Terms (MAT) and Prior Informed Consent (PIC) principles’.[125]
This group comprises ‘the most comprehensive pieces of access legislation surveyed’.[126] An example is that introduced in the Philippines, which comprises an Executive Order 247 (1995) and an Administrative Order 96-20 (Implementing Rules and Regulations on the Prospecting of Biological and Genetic Resources) (1996).
Examples of these are found, at the national level, in the US and Nigeria. In the US, these consist of proposals to control removal of research specimens from national parks; in Nigeria, the proposals aim to ensure prior informed consent prior to bioprospecting in Nigerian national parks. Similar examples have been identified at the sub-national level. In Western Australia, the government enacted legislation to:
explicitly clarify the authority of the state government under the Wildlife Conservation Act 1950 and the Conservation and Land Management Act 1984 to enter into exclusive agreements for the removal of forest produce (including soil) or flora to promote the use of flora for therapeutic, scientific or horticultural purposes (Part 3, Conservation and Land Management Amendment Act 1993).[127]
An example of these is Decision 391 of the Andean Pact, which ‘creates a common regime for access to genetic resources’. This Decision was published in July 1996, thereby becoming law in all five member states: Bolivia, Colombia. Ecuador, Peru and Venezuela.[128] Another regional approach has been developed in Southeast Asia, between Malaysia, the Philippines, Thailand and Australia. In 1992 these countries endorsed the Manila Declaration, which is a set of guidelines to ‘facilitate access to biological resources’.[129]
Some of these national, sub-national or regional contain important provisions regarding the rights of indigenous communities. For example, the Manila Declaration includes among its principles, ‘the establishment of implementation measures such as efficient licensing and prior informed consent processes as well as mechanisms to protect the rights of indigenous and local communities and ensure their compensation’.[130]
Andean Pact Decision 391 ‘confirms that biological resources which contain genetic resources or derivatives that are sought can be subject to the private or collective property rights of individuals or indigenous and local communities’.[131] In addition, Decision 391 also:
recognises the rights of indigenous and local communities over their knowledge, innovations and practices associated with genetic resources and derivatives. The right to control access to indigenous and local knowledge, innovations and practices rests with the communities themselves, but is subject to national legislation (article 7).[132]
National laws are gradually being introduced by various countries (such as Costa Rica, Thailand and South Africa), and at regional levels (such as by the Organisation of African Unity). It will be useful to maintain an inventory of these developments as they present opportunities for comparative assessment.
The development and introduction of these kinds of national and regional regimes for regulating access to biological resources provide important opportunities for countries to build on relevant international standards and treaties. They illustrate some of the possibilities for devising innovative approaches that combine sustainable use and conservation of natural and cultural resources with the recognition and protection of the distinct rights of indigenous peoples.
The development of regional agreements for land and environmental management, as noted earlier in this paper, also provides potentially useful sui generis approaches, in which protection of rights in traditional knowledge, and conservation and management of land, environment and resources can be fashioned using indigenous law as a basis.
Approaches to protecting indigenous knowledge are well documented. One of these promotes a model for protection of what are termed ‘traditional resource rights’.[133] This model seeks to integrate conventional intellectual property rights systems, human rights and other legislation and policy, to provide a ‘bundle of rights’ as a tool for indigenous peoples to achieve recognition and protection of their knowledge, traditions, innovations and practices relating to the natural environment. Although useful, this approach is founded within the Western legal system. To develop a truly sui generis approach to protecting indigenous knowledge will require stepping outside the Western legal framework, to explore ways in which indigenous law can be used as the foundation for protection and recognition.
The Canadian-based advocacy organisation, Rural Advancement Foundation International (RAFI) suggests a variety of approaches including working within the present IPR system.[134] Some of the alternatives they propose are variations of copyright laws, and trademark labels of authenticity. Suggested modifications to the patent system include the establishment of new deposit rules, documenting gene bank accessions to better reflect indigenous origins, and IPR ombudspersons and tribunals to decide cases of disputed patent claims.[135] RAFI has proposed a number of sui generis solutions, some of which are based on extensions to existing intellectual property rights regimes. These include better use of inventors’ certificates to accommodate indigenous knowledge holders and innovators, and further development of international standards such as the WIPO/UNESCO Model Law on Folklore. RAFI also suggests the use of bilateral contracts, which are encouraged under the Convention on Biological Diversity. These contracts could take the form of materials transfer agreements and bioprospecting agreements. Other initiatives suggested are conservation compensation mechanisms, and the development of an ‘intellectual integrity framework’.[136]
Another approach is based on establishing a conceptual framework for the recognition and protection of community rights in local natural and biological resources. One example of this is a model developed by Gurdial Singh Nijar and others of the Malaysian-based Third World Network in 1994. Under this proposal, a ‘community intellectual rights Act’ would establish a sui generis system for the ‘protection of the innovations and the intellectual knowledge of local communities’.[137] Other community rights initiatives are being developed in India.[138]
There have been some developments in Australia aimed at recognising and better protecting Aboriginal and Torres Strait Islander peoples’ rights and interests in cultural and intellectual property, including cultural and biological knowledge. In 1994, the Commonwealth Government released an Issues Paper called Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples.[139] This paper recognised the longstanding problems of unauthorised use of Aboriginal and Torres Strait Islander peoples' designs, images and artistic expressions. It provided an overview of areas where the Copyright Act was unable to provide adequate protection for indigenous peoples against the misuse of their artworks.
Following the release of Stopping the Rip-Offs, several Commonwealth Government departments and agencies began formulating responses, including recommendations for reform that would address the inadequacies in existing IPR laws to protect indigenous rights. Stopping the Rip-Offs did not consider the subject of indigenous ecological knowledge, as it held that this area of indigenous rights was outside the scope of the paper, which was limited to matters within the Copyright Act. However, this area is being considered by other agencies such as the Aboriginal and Torres Strait Islander Commission.[140]
The existing system of intellectual rights offers limited recognition and protection for Aboriginal and Torres Strait Islander peoples’ knowledge, innovations and practices. The patent system confers monopoly rights to individual or corporate inventors and innovators, and provides for these individuals or corporations to exploit their inventions. While indigenous peoples have the same access as any other citizens to patents and other intellectual property laws, these systems do not in themselves offer solutions to recognising and protecting indigenous knowledge systems and property rights and providing for indigenous peoples to share equitably in benefits derived from the wider uses of their cultural knowledge, products, expressions and practices..
Achieving the mutual goals of sustainable use and conservation of biological diversity, together with recognition and protection for indigenous rights will require some creativity of approach. Recognising the unique contributions of indigenous peoples and protecting their cultural and biological knowledge poses particular challenges. Further work could include a pilot project in a selected area or region to assess the feasibility of a regional integrated system of knowledge and innovation. This could include the following components:
The development of more effective systems to protect indigenous knowledge could seek to integrate conventional intellectual property rights systems with alternative systems based in indigenous law. The creative combination of IPR systems with contracts and agreements, and the development of a community-based sui generis system for recognition and protection of indigenous rights could form the basis for the development of a local or regional integrated knowledge and innovation system.
Informed by international standards and developments, an integrated knowledge and innovation system could be developed by bringing together key stakeholders and interest groups. These could include peak, local and regional indigenous organisations and representative bodies, conservation organisations, industry, science, and research organisations, government and non-government sectors.
Ideally, a system should be established to enable indigenous peoples to control their own traditional knowledge systems. To develop such a system will necessitate thinking outside the Western legal framework, and exploring ways in which indigenous law can be used as the foundation for protection and recognition.
[1]This paper is substantially based on a consultancy report to IP Australia, completed in 1998.
The author would like to thank IP Australia for permission to use that report as the basis for this article, and is especially grateful to Sue Farquhar of IP Australia for her support for that project and for her encouragement for the revised version. Discussions with other staff at IP Australia on an early draft also enabled the author to substantially enhance the final consultancy report. This paper has benefited from discussions with Donna Craig, and from the comments of an anonymous reviewer. The ideas and opinions expressed in this paper are, however, those of the author, and do not represent those of IP Australia or any of the author’s employers, present or past.
[2] Michael Davis is a researcher and policy specialist with a particular interest in indigenous rights in traditional knowledge and intellectual property. He currently works with the Aboriginal and Torres Strait Islander Commission in Canberra.
[3] See for example A. B. Cunningham, ‘Indigenous knowledge and biodiversity: Global commons or regional heritage?’, Cultural Survival Quarterly, Vol 15, No 3, Summer 1991, pp. 4-8.
[4] See Josephine Axt, M. Lynne Corn, Margaret Lee, and David Ackerman, Biotechnology, Indigenous Peoples, and Intellectual Property Rights, Report for Congress, Congressional Research Service, Washington, DC, USA, April 16, 1993, Andrew Gray, Between the Spice of Life and the Melting Pot: Biodiversity Conservation and its Impact on Indigenous Peoples, IWGIA Document 70, Copenhagen, Netherlands, August 1991.
[5] See for example Nancy M. Williams and Graham Baines, eds, Traditional Ecological Knowledge: Wisdom for Sustainable Development, Centre for Resource and Environmental Studies, Australian National University, 1993.
[6] See UNEP, Convention on Biological Diversity, Subsidiary Body on Scientific, Technical and Technological Advice, Second Meeting, Montreal, 2-6 September 1996, ‘Knowledge, innovations and practices of indigenous and local communities’, Note by the Secretariat, UNEP/CBD/SBSTTA/2/7, 10 August 1996; UNEP, Convention on Biological Diversity, Conference of the Parties to the Convention on Biological Diversity, Third Meeting, Buenos Aires, Argentina, 4-15 November 1996, ‘Knowledge, innovations and practices of indigenous and local communities: Implementation of Article 8(j)’, Note by the Executive Secretary, UNEP/CBD/COP/3/19, 18 September 1996.
[7] See for example Donna Craig, ‘Implementing the Convention on Biological Diversity: Indigenous peoples’ issues’, Contribution to IUCN Commission on Environmental Law, Technical Paper on Legal and Institutional Issues Arising from the Implementation of the Convention on Biological Diversity, presented to the Regional Conference on the Biodiversity Convention, Manila, 6-8 June, 1994; Lyle Glowka, Francoise Burhenne-Guilmin and Hugh Synge, in collaboration with Jeffrey A. McNeely and Lothar Gundling, A guide to the Convention on Biological Diversity (Environmental policy and law paper no.30), IUCN, Gland, Switzerland, 1994.
[8] See for example the introduction by the Philippines of a law, Executive Order No. 247, which regulates the research, collection and use of biological and genetic resources. This is discussed below.
[9] Donna Craig, ‘Implementing the Convention on Biological Diversity: Indigenous peoples’ issues’, Contribution to IUCN Commission on Environmental Law, Technical Paper on Legal and Institutional Issues Arising from the Implementation of the Convention on Biological Diversity, presented to the Regional Conference on the Biodiversity Convention, Manila, 6-8 June, 1994; Lyle Glowka, Francoise Burhenne-Guilmin and Hugh Synge, in collaboration with Jeffrey A. McNeely and Lothar Gundling, A guide to the Convention on Biological Diversity (Environmental policy and law paper no.30), IUCN, Gland, Switzerland, 1994.
[10] Commonwealth of Australia, National Strategy for the Conservation of Australia’s Biological Diversity, 1996, p 14.
[11] See for example, Howard Morphy, ‘“Now you understand”: an analysis of the way Yolngu have used sacred knowledge to retain their autonomy’, in Nicholas Peterson and Marcia Langton (eds), Aborigines, land, and land rights, Australian Institute of Aboriginal Studies, Canberra, 1983, pp 110-133.
[12] Henry T. Lewis, ‘Traditional ecological knowledge: some definitions’, in Nancy M. Williams and Graham Baines, op cit.
[13] On discourses of dispossession in Western legal and political terminology, see for example Michael Davis, ‘Competing Knowledges? Indigenous Knowledge Systems and Western Scientific Discourses’, Paper presented to conference Science and Other Knowledge Traditions, James Cook University, Cairns, 23-27 August 1996.
[14] Eugene Hunn, ‘What is traditional ecological knowledge?’, in Nancy M. Williams and Graham Baines, op. cit, pp 13-15.
[15] Mabo and Ors v State of Queensland (No. 2) [1992] HCA 23; (1992) 107 ALR 1.
[16] Op cit at 42.
[17] See Greg McIntyre, ‘Proving native title’, in Richard H. Bartlett and Gary D. Meyers, eds, Native title legislation in Australia, The Centre for Commercial and Resources Law, The University of Western Australia and Murdoch University, Perth, Western Australia, 1994, pp 129-131.
[18] Ibid, p 156, quoting Kent McNeil, Common law Aboriginal title, Clarendon Press, Oxford, 1989, p 201.
[19] David Bennett, ‘Native Title and Intellectual Property’, In Paul Burke, ed, Land, rights, laws: issues of native title, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, Native Titles Research Unit, Issues Paper No.10, April 1996.
[20] Ibid.
[21] Desmond Sweeney, ‘Fishing, hunting and gathering rights of Aboriginal peoples in Australia’, UNSW Law Journal, Vol 16, No 1, pp 97-160 at p 103.
[22] The relationship between hunting, fishing and gathering, and customary law is discussed in M. Fisher, Aboriginal customary law: the recognition of traditional hunting, fishing and gathering rights, Australian Law Reform Commission, Research Paper No. 15, May 1984.
[23] Mabo and Ors V State of Queensland (No 2) (1992) 107 ALR at 83.
[24] Ibid.
[25] Sweeney, op cit., p 104.
[26] Sweeney, op cit, p 104, note 36.
[27] Ibid, p 104.
[28] Gary D. Meyers, ‘Aboriginal rights to the “profits of the land”: the inclusion of traditional fishing and hunting rights in the content of native title’, in Richard H. Bartlett and Gary D. Meyers, eds, Native Title Legislation in Australia, The Centre for Commercial and Resources Law, The University of Western Australia and Murdoch University, Perth, Western Australia, 1994, p 215.
[29] Ben Ward on Behalf of the Miriuwung and Gajerrong People V State of Western Australia & Ors (1998) 1478 FCA.
[30] Ibid at 13.
[31] John Bulun & Anor V R & T Textiles Pty Ltd, Unreported, FCA, 3 September 1998. See also Martin Hardie, 'The Bulun Bulun Case', Indigenous Law Bulletin, Vol 4, Issue 16, (November 1998), pp 24-26.
[32] Preamble and s 21.
[33] There is a large and growing literature on regional agreements. See for example Terry Fenge, Political Development and Environmental Management in Northern Canada: The Case of the Nunavut Agreement, North Australia Research Unit Discussion Paper No. 20 (October 1993), North Australia Research Unit, Australian National University, Canberra, 1993; Benjamin J. Richardson, Donna Craig and Ben Boer, ‘Indigenous Peoples and Environmental Management: A Review of Canadian Regional Agreements and their Potential Application to Australia’, Environmental and Planning Law Journal, Part I, Vol. 11, No 4 (August 1994), pp 320-343; Benjamin J. Richardson, Donna Craig and Ben Boer, ‘Indigenous Peoples and Environmental Management: A Review of Canadian Regional Agreements and their Potential Application to Australia’, Part II, Environmental and Planning Law Journal, Vol 11, No 5 (October 1994), pp 357-381; Benjamin J. Richardson, Donna Craig and Ben Boer, Regional Agreements for Indigenous Lands and Cultures in Canada: A Discussion Paper, North Australia Research Unit, The Australian National University, Darwin, 1995; Peter Jull and Donna Craig, ‘Reflections on Regional Agreements: Yesterday, Today and Tomorrow’, Australian Indigenous Law Reporter, Vol 2, 1997, pp 465-493; Patrick Sullivan, ‘Regional Agreements in Australia: An Overview Paper’, Land, Rights, Laws: Issues of Native Title (Editor: Anne Pyle), Issues Paper No 17, Native Titles Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, April 1997; Justice Robert French, ‘Local and Regional Agreements’, Land, Rights, Laws: Issues of Native Title (Editor: Anne Pyle), Regional Agreements Paper No. 2, Native Titles Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, August 1997; D. E. Smith, ‘Indigenous Land Use Agreements: New Opportunities and Challenges under the Amended Native Title Act’, Land, Rights, Laws: Issues of Native Title (Editor: Lisa Strelein), Regional Agreements Paper No 7, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, December 1998.
[34] Commonwealth-State Working Group on Access to Australia’s Biological Resources, Managing Access to Australia’s Biological Resources: Developing a Nationally Consistent Approach, Discussion Paper, October 1996.
[35] See for example Michael Davis, ‘Competing Knowledges? Indigenous Knowledge Systems and Western Scientific Discourses’, Paper presented to conference Science and Other Knowledge Traditions, James Cook University, Cairns, 23-27 August 1996; Neil Lofgren, ‘Common Law Aboriginal Knowledge’, Aboriginal Law Bulletin, Vol 3, No 77, December 1995, pp\ 10-12; Deborah Bird Rose, ‘Exploring an Aboriginal land ethic’, Meanjin, 3, 1988, pp 379-387; Helen Verran, ‘Imagining ownership: Working disparate knowledge traditions together’, Republica, Vol 3, ed, George Papaellinas, Angus and Robertson, Sydney, 1995, pp 100-107; Amanda Pask, ‘Cultural appropriation and the law: An analysis of the legal regimes concerning culture’, Intellectual Property Journal, Vol 8, No 1, December 1995, pp 57-86.
[36] See for example Sarah Lee Pinel and Michael J. Evans in Tom Greaves, ed, Intellectual Property Rights, A Sourcebook, Society for Applied Anthropology, Oklahoma City, USA, 1994, pp 51-53; Darrell A. Posey, ‘International agreements and intellectual property right protection for Indigenous peoples’, in Tom Greaves, ed, p 236.
[37] In this author’s view use of the term ‘copyright’ or ‘intellectual property’ to denote indigenous rights in innovation and knowledge is misleading, since the subject matter that indigenous peoples wish to protect that is often labelled ‘intellectual property’ comprises a wider range, and is a more ‘holistic’ category than that protected under Western IPR systems. Moreover, indigenous rights in traditional knowledge are embedded in a system of integrated and inter-related rights that include land, culture and cosmology. Recognition and protection of this system of rights therefore requires a different philosophical approach founded on an indigenous law system, rather than one based on ‘copyright’. I am grateful to Donna Craig for helping me to clarify some of my thoughts about these aspects of indigenous rights.
[38] Erica-Irene Daes, Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, E/CN.4/Sub.2/1993/28 July 1993; also see Tom Greaves, ‘Introduction’ in Greaves, Tom, ed, Intellectual Property Rights for Indigenous Peoples: A Sourcebook, Oklahoma City, USA, Society for Applied Anthropology, 1994, p ix.
[39] Daes, op cit, pp 31-32.
[40] United Nations Economic and Social Council, Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, Forty-sixth session, Discrimination Against Indigenous Peoples, Intellectual Property of Indigenous Peoples: Concise Report of the Secretary-General, E/CN.4/Sub. 2/1992/30, 6 July 1992, p 2.
[41] The term ‘folklore’ has been used in the development of standards by UNESCO and WIPO (World Intellectual Property Organization) for the protection of intangible cultural heritage. More recently, however, UNESCO has begun to acknowledge that indigenous and local peoples do not wish this term to be used to denote their heritage. This acknowledgement was explicitly articulated in a statement from the UNESCO/Smithsonian Conference on Traditional Knowledge and Folklore held in Washington D.C. on 27-30 June 1999. For a discussion of indigenous, and non-indigenous discourses and the role of terminology, see Michael Davis, ‘Competing knowledges?’, op cit.
[42] I am indebted to Donna Craig for helping me clarify some of these thoughts.
[43] For discussions of common property and resource ownership see James Boyle, Shamans, Software and Spleens: Law and the Construction of the Information Society, Harvard University Press, Cambridge Massachusetts, and London, 1996; A. B. Cunningham, ‘Indigenous knowledge and biodiversity: Global commons or regional heritage?’, Cultural Survival Quarterly, Vol 15, No 3, Summer 1991, pp 4-8; and various papers in Peter Larmour, ed, The Governance of Common Property in the Pacific Region, National Centre for Development Studies, Pacific Policy Paper 19, and Resource Management in Asia-Pacific, Research School of Pacific and Asian Studies, the Australian National University, Canberra, 1997.
[44] Tom Greaves, ‘Introduction’ in Greaves, Tom, ed, Intellectual Property Rights for Indigenous Peoples: A Sourcebook, Oklahoma City, USA, Society for Applied Anthropology, 1994, p ix.
[45] Ibid.
[46] See for example Henrietta Fourmile, ‘Using Prior Informed Consent Procedures Under the Convention on Biological Diversity to Protect Indigenous Traditional Knowledge and Natural Resource Rights’, Indigenous Law Bulletin, Vol 4, Issue 16 (November 1998), pp 14-17.
[47] Greaves, op.cit, p ix.
[48] Ibid, footnote 1.
[49] Ibid.
[50] Daes, op cit, pp 31-32.
[51] World Intellectual Property Organisation (WIPO), Introduction to Intellectual Property: Theory and Practice, Kluwer Law International, London, The Hague and Boston, 1997, pp 3-5.
[52] For a brief indication of this range of views see Tony Simpson, Indigenous Heritage and Self-Determination: The Cultural and Intellectual Property Rights of Indigenous Peoples, Document – IWGIA No. 86, Copenhagen, 1997; Gurdial Singh Nijar, In Defence of Local Community Knowledge and Biodiversity: A Conceptual Framework and Essential Elements of a Rights Regime, Third World Network, Paper 1, Penang, Malaysia, 1996; Cultural Survival Canada, ‘Colonizing creation’, Issues Brief, Ottawa, July 1997; Gaia Foundation & GRAIN, ‘Global trade and biodiversity in conflict’, Issue No 1, April 1998; Jean Christie, ‘Biodiversity and intellectual property rights: Implications for Indigenous peoples’, Ecopolitics IX: Perspectives on Indigenous Peoples Management of environmental Resources, Northern Territory University, Darwin, 1-3 September 1995, Conference Papers and Resolutions, pp 61-77.
[53] For some discussion of the relevance of the TRIPS Agreement to indigenous rights in traditional knowledge see for example Graham Dutfield, ‘Intellectual Property Rights, Trade and Biodiversity: The Case of Seeds and Plant Varieties’, Background Paper provided for the Inter-sessional Meeting on the Operations of the Convention on Biological Diversity, Montreal, Canada, 28-30 June 1999, IUCN, June 1999; see also Darrell A. Posey and Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities, International Development Research Centre, Ottawa, 1996, pp 90, 102-3.
[54] Michael Davis, Indigenous Peoples and Intellectual Property Rights, Research Paper No 20 (1996-97), Information and Research Services, Department of the Parliamentary Library, 1997; Attorney-General’s Department, Commonwealth of Australia, Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples, Issues Paper, October 1994; Terri Janke, Our Culture, Our Future: Proposals for the recognition and protection of Indigenous cultural and intellectual property, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997; Ian McDonald, Protecting Indigenous Intellectual Property: A Copyright Perspective, Australian Copyright Council, March 1997.
[55] For a discussion of IPR more generally as these relate to indigenous peoples see for example Michael Davis, Indigenous Peoples and Intellectual Property Rights, op cit.
[56] Under s 4 of the Patents (World Trade Organization Amendments) Act 1994 (Cth).
[57] Patents Act 1990, Schedule 1, p 97.
[62] Axt et al, op cit, pp 50-54. The discussion by these writers concerns United States patent laws, and may not be all relevant to the Australian situation. It is beyond the scope of the present paper to compare US with Australian patent systems.
[63] WIPO, Introduction to Intellectual Property: Theory and Practice, op cit, p 125.
[64] Colin Golvan, An Introduction to Intellectual Property Law, The Federation Press, New South Wales, 1992, p 82.
[65] Stephen Gray, ‘Vampires round the campfire’, Alternative Law Journal, vol 22, No 2, April 1997, p 61.
[66] See James Boyle, Shamans, Software and Spleens: Law and the Construction of the Information Society, Harvard University Press, Cambridge Massachusetts, and London, 1996.
[67] See eg Darrell A Posey and Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities, International Development Research Centre, Ottawa, 1996.
[68] Christopher Arup, Innovation, Policy and Law: Australia and the International High Technology Economy, Cambridge, Cambridge University Press, 1993, p 73.
[69] Ibid, p 74.
[70] Steven M. Rubin and Stanwood C. Fish, ‘Biodiversity Prospecting: Using Innovative Contractual Provisions to Foster Ethnobotanical Knowledge, Technology, and Conservation’, Colorado Journal of International Environmental Law and Policy, Vol 5, No 1 (Winter 1994), pp 23-58 (quote, p 46).
[71] Ibid, p 46.
[72] Ibid., pp 46-47.
[73] Arup, 1993, p 64.
[74] See for example, Michael Blakeney, ‘Bioprospecting and the protection of traditional medical knowledge’, European Intellectual Property Review, Vol 19, No 6, (June 1997), pp 298-303; Michael Davis, Biodiversity and Indigenous Knowledge, Research Paper No. 17 (1997-98), Information and Research Services, Department of the Parliamentary Library, 29 June 1998; Axt et al, op cit.
[75] Josephine Axt, M. Lynne Corn, Margaret Lee, and David Ackerman, Biotechnology, Indigenous Peoples, and Intellectual Property Rights, Report for Congress, Congressional Research Service, Washington, DC, USA, April 16, 1993, p 1.
[76] Rural Advancement Foundation International, Conserving Indigenous Knowledge: Integrating Two Systems of Innovation, Ottawa, 1994, p 13.
[77] Ibid., p 13.
[78] Ibid., p 14.
[79] Vandana Shiva and Radha Holla-Bhar, ‘Intellectual piracy and the neem tree’, The Ecologist, Vol 23, No 6, (Nov/Dec. 1993), pp 223-227; Vandana Shiva, Afsar H. Jafri, Gitanjali Bedi, and Radha Holla-Bhar, The enclosure and recovery of the commons: biodiversity, indigenous knowledge and intellectual property rights, Research Foundation for Science, Technology and Ecology, New Delhi, India, 1997, pp 35-36.
[80] Vandana Shiva, Afsar H. Jafri, Gitanjali Bedi, and Radha Holla-Bhar, op cit, pp 35-39.
[81] Ibid, p 37.
[82] RAFI, op.cit., p 14.
[83] Shiva, Jafri, et. al., pp 35-36.
[84] Ibid, p 39.
[85] RAFI, op cit, p 15.
[86] The Crucible Group, People, Plants, and Patents: The Impact of Intellectual Property on Trade, Plant Biodiversity, and Rural Society, International Development Research Centre, Ottawa, 1994, p 10.
[87] Eg Darrell A Posey and Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities, International Development Research Centre, Ottawa, 1996, p 80.
[88] Eg articles 1, 15, 16, 20 and 21. Lyle Glowka, A Guide to Designing Legal Frameworks to Determine Access to Genetic Resources, IUCN, Gland, Switzerland, Cambridge and Bonn, 1998, p 3.
[89] Ibid, p 15.
[90] Ibid, p 18.
[91] Ibid, p 3.
[92] Ibid, p 4.
[93] Ibid, pp 4-5.
[94] Ibid, p 8.
[95] Ibid, p 8.
[96] Ibid, p 9.
[97] Ibid; See also Henrietta Fourmile, 'Using Prior Informed Consent Procedures under the Convention on Biological Diversity to Protect Indigenous Traditional Ecological Knowledge and Natural Resource Rights', Indigenous Law Bulletin, Vol 4, No 16 (1998),p 14.
[98] Glowka, op cit, p 15.
[99] Ibid, p 12.
[100] Ibid, pp 38-39.
[101] Ibid, pp 40-42.
[102] Ibid, pp 39, 42-43.
[103] UNEP, ‘Synthesis of Case-Studies on Benefit-Sharing’, Note by the Executive Secretary, Conference of Parties to the Convention on Biological Diversity, Fourth Meeting, Bratislava, 4-15 May 1998, UNEP/CBD/COP/4/Inf.7, 4 May 1998.
[104] There is an extensive literature on the Merck/INBio Agreement. See for example, Axt et al, op cit, Caroline Oddie, ‘Bio-prospecting’, Australian Intellectual Property Journal, Vol 9, No 1 (February 1998), pp 6-20; Walter Reid, et al, (eds), Biodiversity Prospecting: Using Genetic Resources for Sustainable Development, World Resources Institute, USA, 1993.
[105] Oddie, op cit, p 19.
[106] Maurice Iwu and Sarah Laird, ‘The International Cooperative Biodiversity Group Drug Development and Biodiversity Conservation in Africa: Case Study of a Benefit-Sharing Plan’, Case Study submitted to the Secretariat of the Conference of Parties to the Conference of Parties to the Convention on Biological Diversity, February 1998.
[107] Ibid, p 19.
[108] Ibid, p 23.
[109] Ibid, p 24.
[110] Marianne Guerin-McManus, et al, ‘Bioprospecting in Practice: A Case Study of the Suriname ICBG Project and Benefits Sharing Under the Convention on Biological Diversity’, unpublished paper, 1998, p 3.
[111] Ibid, p 8.
[112] Janet McGowan and Iroka Udeinya, ‘Collecting Traditional Medicines in Nigeria: A Proposal for IPR Compensation’, in Greaves, ed, op cit, p 39.
[113] Rubin and Fish, op cit p 47.
[114] Ibid, pp 47-48.
[115] Ibid, p 48.
[116] Ibid, p 51.
[117] Henrietta Fourmile, personal conversation.
[118] Eg Articles 4, 5, 8, 13 and 23.
[119] For discussion of indigenous statements see Darrell A Posey and Graham Dutfield, Beyond Intellectual Property: Toward traditional resource rights for Indigenous peoples and local communities, International Development Research Centre, Ottawa, 1996; Darrell A Posey, Traditional Resource Rights: International instruments for protection and compensation for Indigenous peoples and local communities, IUCN, Gland, Switzerland, 1996.
[120] For a discussion of the role of these statements and declarations in international law, see Johanna Sutherland, ‘Representations of indigenous peoples’ knowledge and practice in modern international law and politics’, Australian Journal of Human Rights, Vol 2, No 1, (Dec. 1995), pp 39-57.
[121] Posey and Dutfield, op cit, esp. Chapter 11.
[122] United Nations Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment, Final Report by Fatma Zohra Ksentini, Special Rapporteur, E/CN.4/Sub.2/1994/9, 6 July 1994.
[123] Glowka, op cit, pp 23-71.
[124] Ibid, p 23.
[125] Ibid, p 23.
[126] Ibid.
[127] Ibid.
[128] Ibid, p 24.
[129] Ibid, p 25.
[130] Ibid.
[131] At article 6.
[132] Ibid, p 26.
[133] Posey and Dutfield, op cit.
[134] Rural Foundation International, Conserving Indigenous Knowledge: Integrating Two Systems of Innovation, Ottawa, 1994.
[135] Ibid, pp 42-46.
[136] RAFI, op cit, pp 39-54.
[137] Gurdial Singh Nijar, In Defence of Local Community Knowledge and Biodiversity: A Conceptual Framework and the Essential Elements of a Rights Regime, Third World Network, Paper 1, Penang, Malaysia, 1996.
[138] Shiva, Jafri, et. al, op cit.
[139] Commonwealth of Australia, Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples, Issues Paper, Attorney General’s Department, Canberra, 1994.
[140] See for example Terri Janke, Our Culture, Our Future: Proposals for the Recognition and Protection of Indigenous Cultural and Intellectual Property, Discussion Paper commissioned by the Aboriginal and Torres Strait Islander Commission, Canberra, 1997.
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