REPORT ON THE UNCTAD EXPERT CONSULTATION ON NATIONAL EXPERIENCES AND SYSTEMS FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE, INNOVATIONS AND PRACTICES
Geneva, 30 October to 1 November 2000
Silvia Rodríguez Cervantes (GRAIN & Universidad Nacional, Costa Rica) [1]
The purpose of this report is to give a selective summary of the results of a meeting recently organised by the United Nations Conference on Trade and Development (UNCTAD) on the protection of traditional knowledge, innovations and practices.
The background document prepared for the meeting (TB/B/COM.1/EM.13/2) says that this issue is gaining increasing attention for several reasons including: a) the role of traditional knowledge in the conservation and sustainable use of biodiversity; b) its importance as a source of income, food and health care for a large number of people in developing countries, despite its rapid erosion; c) concerns about the usurpation of traditional knowledge through the patent system, without compensation for or prior informed consent of its original custodians; and d) the need to elaborate adequate systems for its protection.
Given its importance, the member states of UNCTAD have decided to take up work on this issue as part of their activities in the field of trade and environment.
The invitation to the meeting yielded an excellent response as the seminar was attended by more than 150 representatives of governments, indigenous peoples? organisations, universities, non-governmental organisations and the private sector from nearly 80 countries, as well as a number of specialised intergovernmental agencies. However, notably missing from the room were representatives from peasant and fisherfolk organisations.
In the opening session, Mr Ruben Ricupero, Secretary General of UNCTAD, recognised right away the value of traditional knowledge for human development. Further on, he described ?the paradox of our times?: while information is flowing today at a faster pace and lower cost, there is a growing tendency to appropriate knowledge and expand the borders of the patent system through intellectual property rights (IPRs). He insisted on the relevance of the meeting as a means of sharing national experiences and analysing different instruments which are being tested to protect traditional knowledge, whether or not they comply with formal IPR systems. UNCTAD, he stressed, is not trying to impose any blueprint for protection, such as patents, since the agency knows that traditional societies may or may not agree with these processes. There is no single approach to the matter.
Over the following days, 28 people from government, NGOs, companies and indigenous organisations, as well as independent consultants, made formal presentations. We also heard short contributions about national experiences in protection of traditional knowledge, most of them in their preliminary phases. The final session was devoted to drawing up conclusions which would not be binding on UNCTAD member states.
Given that the main protagonists of this whole matter are peasant communities and indigenous people -- after all, we are talking about the protection and use of THEIR knowledge -- this report will focus on their concerns first and then highlight the views of other participants, rather than follow the structure of the meeting.
1. The position of the holders of traditional knowledge
We can draw out a number of learnings from the documents presented by the Coordinating Body for the Indigenous Peoples? Organisations of the Amazon Basin (COICA) and the Organisation of African Unity (OAU), from the presentations made by Alejandro Argumedo of the Indigenous Peoples? Biodiversity Network and Maui Solomon, an indigenous lawyer from New Zealand, and from the recommendations made by the indigenous groups present at the meeting.
To start with, we have to stress that indigenous peoples were not discussing this issue for the first time. The document submitted by COICA reminded us that since at least 1994, or more than six years now, different indigenous peoples? organisations have been thinking about how to protect their knowledge and their biodiversity as well as the impacts of IPRs. Without being exhaustive, because we know of many other meetings drawing up similar conclusions [2], the document draws attention to the declarations coming from the following regional meetings: Santa Cruz de la Sierra, Bolivia, 1994; Tambunan, Sabah, East Malaysia, 1995; and Suva, Fiji, 1995. In great similitude, the various declarations lay down the following principles and positions:
* The right to self-determination and the right to recuperate land and resources form the basis for the protection of indigenous knowledge. * For a number of reasons, IPR systems are not appropriate to protect traditional knowledge. * The most effective means for indigenous peoples to fulfill responsibilities to their descendants is through the customary transmission and enhancement of their knowledge. * Life is a common property which cannot be owned, commercialised or monopolised by individuals. Based on this world view, indigenous peoples find it difficult to relate intellectual property rights issues to their daily lives. Accordingly, the patenting of any life form or processes is unacceptable to indigenous peoples. * Indigenous peoples are willing to share their knowledge with humanity provided they determine when, where and how it is used.
Prof. J.A. Ekpere of the Organisation of African Unity shared the perspective of traditional knowledge holders in Africa, much of which coincided with the main points of the COICA document. Prof. Ekpere remarked that ?For Africa, classical intellectual property rights on biological diversity could have profound implications, apart from their conflicting orientation with the basic tenets of the Convention on Biological Diversity. What is needed as a matter of urgency is an appropriate system to legally secure the rights of local communities and people.?
He pointed out that Africa has elaborated a draft model legislation on Community Rights and Access to Biological Resources as one effort to construct a sui generis system to take care of the rights of farmers, local communities and plant breeders. This was undertaken with the idea that any other system will likely be similar to patents, which are more oriented to the needs of industrialised countries.
The presentations made by Alejandro Argumedo and Maui Solomon coincided with the perspectives described above. They brought forward more arguments about the basic conflict between intellectual property and customary legal systems of indigenous peoples. For Solomon, the priority is to support and further develop indigenous peoples? systems, since they reflect and give sustenance to their cultural values and help sustain biodiversity.
Finally, it?s important to mention that the recommendations tabled by the indigenous groups at the UNCTAD meeting reiterate the principles that have been voiced since 1994 and which must form the starting point of any discussion on the protection of traditional knowledge. What is at stake is the knowledge of local peoples and with it their cultures and their ecosystems. For that reason, local communities themselves have to be the ones who define what is protected, how this will be done, when and through what measures.
2. Perspectives which support and give further context to the position of traditional knowledge holders
Among the speakers who concurred with the position of the indigenous peoples, we can mention among others the representative of the Scientific Section of UNESCO (UN Educational, Scientific and Cultural Organisation), Douglas Nakashima. After reaffirming the importance of protecting traditional knowledge, he emphasised that current IPR systems are not the right tools to do so, even if they seem like a logical solution to the problem. As he put it, ?Existing IPR arrangements are culturally inappropriate for protecting traditional knowledge systems. Today, efforts are turning towards the considerable more challenging task of defining completely new or sui generis systems for protection.?
Geoff Tansey, an independent consultant [3], focused on food systems and stressed that indigenous and traditional knowledge is to be found among small farmers, pastoralists, fisherfolk and artisans. If we want to protect and compensate this knowledge, it?s not enough to try to do so with IPR tools. It would be necessary, rather, to promote fundamental changes in food production and trade. In other words, the context surrounding the protection of traditional knowledge is broad and complex, and narrow approaches will prove themselves limited and insufficient.
During the discussions, several people such as the delegate from the Dominican Republic and Mr Gonzalo Oviedo of World Wide Fund for Nature (WWF) shared similar concerns. Oviedo expressed his fear that IPR systems and the World Intellectual Property Organisation (WIPO) become the centres of gravity for the protection of traditional knowledge. Even if they could be useful, he said, both are very reductionist and the whole matter would be narrowed down to the economic utility of knowledge. He proposed that the issue be addressed through the Convention on Biological Diversity instead.
3. Proposals which are self-serving and ignore the perspective of indigenous peoples
One of the most central positions in this grouping was advocated by Mr Tim Roberts of the International Chamber of Commerce (ICC). He said that knowledge should be free, with exceptions. Those exceptions are patents, copyright and, conceivably, traditional knowledge. He lost no time in laying down the rules of the game and said that if traditional knowledge is to be protected, the system of protection has to comply with certain conditions: it must be practical, not restrict access to knowledge that is in the public domain and be consistent with other forms of IPR.
Suman Sahai of Gene Campaign, as well as the representative of the Philippines, questioned this point of view. They found it unacceptable that protection of traditional knowledge should be subordinate to the IPR system.
Mr Shakeel Bhatti of WIPO and Mr Barry Greengrass of UPOV (Union for the Protection of New Plant Varieties) were most concerned with demonstrating the capacity and experience of their respective organisations in the field of intellectual property, offering their support to legally protect traditional knowledge since the IPR systems they administer are flexible enough to do so. Nevertheless, this flexibility doesn?t really seem so big since Greengrass, in the same tone as the representative of the ICC, admitted that the UPOV system could accommodate traditional knowledge only when and where this did not challenge UPOV?s basic principles.
The presentations made by the IPR proponents showed a definite bias towards a commercial approach to protecting traditional knowledge. Their idea is to convert TK into marketable goods and services, in total disregard for the perspective expressed by the holders of TK such as the indigenous peoples. Nakashima?s viewpoint, to go back to his intervention, clashed entirely with this single-minded trade agenda: ?Greater emphasis must be placed on levelling the playing field and appreciating traditional knowledge not as sets of information but as integral components of other living and dynamic societies and cultures. Traditional knowledge conservation therefore must pass through the pathways of conserving language (as language is an essential tool for culturally-appropriate encoding of knowledge); ensuring knowledge transmission; strengthening the control of traditional societies over the processes of change that affect them; and conservation and continued access to the environments upon which their way-of-life depends.?
4. General conclusions
The presentation of a few experiences by country representatives helped us realise that the protection of traditional knowledge is an area still under development, with more questions than answers, despite the strong impulse to respond to the CBD and face the challenges of the World Trade Organisation?s agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). There are a few exceptions such as Peru, which already has a complete legislative proposal near approval and, for what concerns handicrafts and folklore, the Czech Republic and Panama. Nevertheless, even in these cases, only practical experience will tell us if their approaches are appropriate or not to truly protect the knowledge, land and cultures of indigenous peoples and local communities.
Despite the slowness and delays affecting national proposals, there is a general recognition beyond any doubt now that traditional knowledge is important for food, health and ecosystems management. As a consequence, its protection has to be diligently ensured. The expert consultation organised by UNCTAD demonstrates, nevertheless, that the process is littered with obstacles, dangers and points of conflict:
1. Even though there is no unanimity on how to protect traditional knowledge, and opinions are divided as to whether IPRs are part of the problem or part of the solution, there is a growing tendency to conclude that national laws will never be sufficient and that the world therefore needs an international agreement in this area. Industrialised countries, such as Switzerland, have been arguing this at the WTO. WIPO is now pushing for it. Whatever good intentions they may have, neither Switzerland nor WIPO represent the holders of traditional knowledge whose very rights are under discussion. Any attempt to negotiate an international convention on traditional knowledge which is not founded on an initiative of the people whose rights are in question is starting on the wrong foot and on the wrong premises.
2. As to the matter of which agency would be the likely candidate to facilitate such a multilateral approach, there are no obvious answers. During the UNCTAD consultation, several scenarios were discussed, each with their own limitations. The CBD is one option, since it is supposed to cover all issues related to biodiversity. But protection of traditional knowledge has to embrace handicraft and folklore (songs, clothing, instruments) as well. UNESCO has experience in promoting protection of folklore and dealing with IPR issues as they affect bioethics, but has done no groundwork on community rights nor biodiversity per se. WTO, WIPO and UPOV all govern multilateral IPR treaties, but none of them are proper institutions for taking on traditional knowledge or biodiversity. As to UNCTAD, its mandate is to ensure that trade works in favour of development, and protection of traditional knowledge is not primarily a trade issue. The indigenous peoples proposed the establishment of a sub-working group on traditional knowledge under the United Nations Working Group on Indigenous Peoples. This could be a promising option if, as the indigenous groups themselves said, representatives of peasant organisations, fisherfolk and other local communities could also participate.
3. The conclusions of the expert consultation demonstrate a kind of myopia that governments and agencies, including UNCTAD, seem to have when they take up the issue of traditional knowledge, bypassing the root of the problem as indigenous and other local communities live it. For example, you cannot dissociate the protection of traditional knowledge from the struggle for self-determination and other types of rights that local communities and indigenous peoples revendicate for themselves. Nor do we find a clear willingness to restrict or remodel current IPR systems -- as embedded in the TRIPS Agreement or UPOV Convention, for example -- in so far as they threaten or negatively impact on holders of traditional knowledge in the first place. If you evade the problem at the ground level (the needs of traditional knowledge holders) and at the global level (the IPR system) and what you seek is compatibility and bridges between the mainstream system and whoever is left out of it, then all these proposals for more inclusiveness will be riddled with tension and contradictions. Calls to accommodate traditional knowledge within TRIPS, to make its protection consistent with the rules of the global trade system through WTO, and/or to create a framework for collective rights within the IPR system, as the UNCTAD meeting proposed, will not take us in the right direction.
4. There was also much focus on legal tools to protect traditional knowledge, be they classic IPRs, sui generis IPRs or non-IPR sui generis rights. These three options are constantly on the table but very little attention is going toward other, non-legal mechanisms to protect and promote traditional knowledge with a view to strengthening local innovation systems. These mechanisms should go beyond the typical databases, community registers, codes of conduct or access contracts that we always hear about. There seems to be some poverty of spirit and thinking about other types of actions and tools that communities and indigenous groups can use to adequately control their resources and knowledge for local innovation.
5. We are continuously trapped, by government and industry, in mercantile discussions about community knowledge as a commodity and the sharing of benefits as a monetary transaction (or sometimes as a non-monetary transaction the terms of which are often set by people far from the community from whom resources and knowledge are extracted). This was evident in many of the discussions and papers at the November meeting.
6. Finally, the UNCTAD expert group meeting made one thing very clear. Both WIPO and UPOV are determined to maintain and expand the grips of their intellectual property regimes. They both want to incorporate traditional knowledge and local communities into the IPR systems that they operate. This is extremely dangerous, for it will further weaken local communities by absorbing them into legal constructs that are biased towards development paradigms which they don?t and can never control.
Any international recognition of the problem at hand, so long as it is properly articulated from the perspective of farmers, fisherfolk and indigenous peoples, would be very useful. The danger, however, is that powerful governments of the North or international agencies start defining in their own terms what these peoples? rights regarding traditional knowledge are and how they should be implemented.
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[1] I would like to thank Renée Vellvé for her careful observations and comments on the initial draft of this report. [2] I would like to add the three Mesoamerican Fora on Community Intellectual Rights held since 1997 in Costa Rica with participation from all of Central America and Mexico, as well as the International Seminar on Sui Generis Rights held near Bangkok in December 1997, where these principles were broadly discussed and shared. [3] The ideas from this author were taken from his presentation, since he requested that his paper not be cited.
References:
The following papers as submitted to UNCTAD, Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices. 30 October-1 November 2000, Geneva:
* Barry Greengrass. (2000). Plant Variety Protection and the Protection of Traditional Knowledge. * Coordinating Body for the Indigenous Peoples? Organisations of the Amazon Basin (COICA). (2000). * Ekpere, J.A. (2000). Sui generis Legislation and Implementing Protection of Community Rights in Africa: Issues to Ponder. Submitted as his personal opinion which does not necessarily represent the OAU position. * Kopse, A. and Girsberger, M. (2000). Draft Guidelines on Access and Benefit Sharing Regarding the Utilisation of Genetic Resources: A Proposal of International Guidelines by Switzerland, presented to the Fifth Conference of the Parties of the Convention on Biological Diversity. * Maui, Solomon. (2000). Strengthening Traditional Knowledge Systems and Customary Law. Submitted as consultant for UNCTAD. * Nakashima, Douglas. (2000). Traditional Knowledge, Resisting and Adapting to Globalisation. Submitted as UNESCO: Science Sector (Draft) * Recommendations to UNCTAD from Indigenous Groups in Attendance. * Roberts, Tim. (2000). Protecting Traditional Knowledge (slide presentation). * Xiaorui, Zhang. (2000). Traditional Medicine and its Knowledge. Submitted as World Health Organisation: Department of Essential Drugs and Medicines Policy.
Additionally:
* UNCTAD. (2000). New Avenues Needed To Protect
Traditional Knowledge, Urge Experts at UNCTAD Meeting.
Press Release, 3 November.
http://www.unctad.org/en/press/pr2868en.htm
*
UNCTAD (2000). Outcome of the Expert Meeting,
TD/B/COM.1/EM.13/L.1, 9 November. Available in French,
English and Spanish.
http://www.unctad.org/en/special/c1em13do.htm
The author may be contacted at silviar(at)racsa.co.cr