TITLE: Protecting Traditional Knowledge: The Challenge of Respecting Rights and the Danger of Vested Interests. Consideration of the Peruvian Draft Law on Protecting Indigenous Peoples? Collective Knowledge and a Latin American Communication to the Third Ministerial Conference of WTO AUTHOR: Brendan Tobin, Asociacion para la Defensa de los Derechos Naturales (Peru) PUBLICATION: Draft submitted to BIO-IPR by the author DATE: 31 October 1999 NOTE: The Peruvian government's press release announcing the publication of the draft law was circulated on BIO-IPR on 29 October. The Proposal on Protection of the Intellectual Property Rights Relating to the Traditional Knowledge of Local and Indigenous Communities, tabled by Bolivia, Colombia, Ecuador, Nicaragua and Peru as preparation for the WTO's Third Ministerial Conference, is available in Spanish, English and soon French through http://www.wto.org/online/ddf.htm (document WT/GC/W/362 of 12 October 1999). Comments on the text below should be forwarded directly to the author, whose contact details are at the end. PROTECTING TRADITIONAL KNOWLEDGE: THE CHALLENGE OF RESPECTING RIGHTS AND THE DANGER OF VESTED INTERESTS CONSIDERATION OF THE PERUVIAN DRAFT LAW ON PROTECTING INDIGENOUS PEOPLES' COLLECTIVE KNOWLEDGE AND A LATIN AMERICAN COMMUNICATION TO THE THIRD MINISTERIAL CONFERENCE OF WTO DRAFT October 1999 Brendan Tobin Coordinator Asociacion para la Defensa de los Derechos Naturales (ADN) The Peruvian government has during the past month led two important initiatives which are destined to bring the issue of protection of indigenous peoples? rights over their collective knowledge relating to biological diversity to the fore at the forthcoming Third Ministerial Conference of the World Trade Organization (WTO). On the 21st of October 1999, the Peruvian Patent Office (INDECOPI) together with other relevant national authorities published a draft law for the protection of indigenous peoples? rights over their collective knowledge relating to biological diversity. The draft is an interesting and, frankly, brave attempt by a developing nation's patent office to provide a technical proposal on potential protection for indigenous knowledge for wider national and international consideration. It is part of a wider and more ambitious initiative which Peru, backed by other Latin American governments, is bringing before the Third Ministerial Conference of the WTO in Seattle in November 1999. The joint proposal from Bolivia, Colombia, Ecuador, Nicaragua and Peru calls upon the WTO to commission necessary studies for identifying the intellectual property mechanism required to protect indigenous knowledge at the global level, with a view to the adoption of such a regime during the next round of trade talks. Opinions will, no doubt, differ regarding the advisability of requesting the WTO to tackle this issue, and the potential inappropriateness of referring to indigenous rights over the product of their collective intellectual effort in the terms of intellectual property. However, there is no real doubt that what is required is a regime to protect indigenous peoples? property rights over their intellectual effort, whatever the politically and culturally correct terminology for describing such a regime may be. Likewise, there is no doubt that the Peruvian proposal contemplates that any such mechanism would be of a sui generis nature, and not one based upon the principles of existing intellectual property rights (IPR) regimes per se. Furthermore, calling for treatment of this issue within the framework of WTO is perhaps advisable, to avoid marginalization of the issue from debates on global trade which impact upon indigenous peoples human rights over their knowledge. The Peruvian draft legislative proposal, for all its innovativeness, has clearly been drafted with a view to complying with existing legal regimes governing intellectual property, and the material which may be subject to protection. In particular the proposal?s adoption of the notion that material in the so-called public domain cannot be the subject of protection is a worrying development. The inclusion of provisions which support traditional concepts of public domain may lead to abrogation of indigenous human rights regarding protection of their cultural heritage and collective property. That the country, calling upon the WTO to commence studies of the appropriate mechanisms for protecting indigenous rights over their knowledge, might consider adopting precedent-setting legislation which would legalize the historical, cumulative unapproved acquisition and appropriation of indigenous peoples collective property, is a cause for much concern. Considering the lack of detailed studies in this and other sensitive areas relating to potential legal protection of collective property, the Peruvian authorities would be advised to avoid adopting any legislative proposal which might lead to a legitimisation of historical abuses of indigenous ancestral property rights. Public domain and appropriation of indigenous knowledge The concept of public domain is an occidental legal principle, which effectively excludes from protection all material which has been disclosed or commercialised prior to the application for protection under intellectual property regimes. As such, it works to prevent retroactive applications for protection of material which has become known to the general public. However, its effect in many instances has been to restrict the flow of information of potential commercial value, and often of significant scientific interest, as inventors seek to formulate ever more innovative applications for obtaining monopolistic rights over the relevant innovation. That indigenous peoples, whose human right to protection over the product of their intellectual effort has been effectively denied, if not actively ignored and impeded, should be offered protection only for that portion of their knowledge which has not been appropriated to date, is to add insult to the compound injury of centuries. There is in fact no immutable precept of law which would deny national or international authorities from adopting a regime which granted indigenous peoples rights over their collective knowledge, whether or not it had fallen into the public domain. Experience in the USA which adopted copyright legislation during the mid-1970's to provide protection for material in the public domain, in order to comply with international legal obligations, is a case in point. The Peruvian authorities would, therefore, be advised to revise their published draft in order to avoid promulgation of a law which might establish an inappropriate precedent prior to the carrying out of in-depth studies regarding the nature of indigenous knowledge, and the limitations which might be placed upon the all-embracing nature of public domain, in so far as it refers to such knowledge. In fact, it is considered appropriate that, in all aspects of the development of any regime of this nature, the drafters be guided not by the strictures of existing legal principles, as much as by considerations of the nature of collective property, the manner in which it has been acquired, distributed, and diffused by third parties, and the customary laws and practices by which such property was governed by its custodians. Undoubtedly, it is likely to prove not only impractical but impossible to extend rights of indigenous peoples over all their traditional knowledge, in particular that which has been so widely distributed that it is no longer possible to identify the original inventors/custodians. But the difficulties which might be faced in establishing a regime which differentiates rights, based upon the extent to which information has been distributed, and the possibilities of identifying the people or peoples who were responsible for its development, does release national or international authorities from the obligation to investigate the issue in greater depth, prior to adopting legislation which might dispossess custodians forever. The intention of the custodians of knowledge, when sharing, disclosing or otherwise releasing information to third parties, and the manner in which the information fell into the public domain, as well as the extent of distribution, must be considered relevant to the question of the right of third parties to use such knowledge for their scientific or commercial purposes. It is to be remembered that article 8 (j) of the Convention on Biological Diversity (CBD) calls upon governments to promote the wider use of indigenous and local communities knowledge, innovations, and practices with their consent. The very wording of the clause presumes that amongst the knowledge, whose wider use the State is obliged to promote, will be information in the public domain. Otherwise, the requirement to seek consent would be to all extents and purposes redundant, as indigenous peoples? consent would be needed to acquire access to information not already in the public domain. The private sector, too, has shown a willingness to respect the rights of indigenous peoples over their knowledge even when in the public domain. A case in point was the negotiation of a know-how licence agreement, between Aguaruna federations of the Peruvian Amazon and Searle Co., the pharmaceutical arm of the Monsanto Corporation (Peruvian ICBG Agreement). In this agreement, the licensee (Searle Co.) accepted the proposition that all Aguaruna knowledge associated with the biological resources to be collected should be considered the know-how of the Aguarunas. Therefore, under the terms of the licensing agreement, use of that knowledge is dependent upon the holding of a valid know-how licence; and benefits, if any product is developed, will flow in equal amounts, whether or not the relevant knowledge utilised, directly or indirectly in its production, had fallen into the so-called public domain. Members of the drafting group which prepared the Peruvian draft have widely claimed it to be based upon the form of licensing regime adopted in the Peruvian ICBG Agreement. Not surprisingly, therefore, an early draft prepared in July of 1996 included the concept that all indigenous knowledge was entitled to protection whether or not in the public domain. What or who, it may be asked, induced the national authorities to remove such protection over public domain material, much of which had been expropriated without the understanding of its custodians as to how they were being dispossessed of their rights? Could it be that interested governments whose industry would be affected have brought pressure for change in the national proposal? Have international agencies with interest in the international property regime sought to promote conformance with these dominant regimes? Or is it the desire, as expressed by INDECOPI, to find a balance between the rights of indigenous peoples and the interests of industry in using their resources, that has influenced the modifications to the proposal? In all likelihood it is a mixture of these three interest groups which has rolled back the proposal from an innovative step towards the development of sui generis legislation to a more conservative proposal which does not require serious rethinking of the equity of existing regimes. Rights of custodians versus interest of users The modification of the draft proposal to conform with the interests of industry, international IPR regimes and foreign influence brings us to the second main issue of contention with the Peruvian proposal. That is: the obvious misunderstandings on the part of the drafters with regard to (a) their mandate, and to (b) the relative legal weight of rights and interests. (a) With regard to mandate, the national authorities appear to have confused their role as servants of the rights of the populace. They apparently believe that their position as the national authority, with responsibility for determination of intellectual property rights issues, entitles them to define, in the final instance, the modalities for protection of the rights of indigenous peoples over their collective knowledge. Though empowered to adopt a regime to protect indigenous knowledge, they are, in fact, not empowered to appropriate the rights over such knowledge. This is no fine line; there should be no clouding of interests here. The rights belong to indigenous peoples. The responsibility for protecting them belongs with the State. This responsibility, which may entail adoption of a regime to protect the interests of indigenous peoples, does not transfer the right from the indigenous people to the State. The State may be called upon to balance rights between and amongst indigenous peoples. But in the long run, the regime must reflect the declared aspirations of the indigenous peoples themselves, with regard to the manner in which their rights should be respected. Fundamental questions regarding the nature of the rights over collective property, within and between indigenous peoples, must be addressed with consideration of, and recourse to, customary law and practice. Issues regarding prior informed consent, rights to oppose granting of access, mechanisms and criteria for defining benefit sharing, the existence of taboos prohibiting access to and use of elements of indigenous collective, must all be fully investigated and be taken into consideration. The weight given to these issues must in the final analysis be determined by indigenous peoples themselves, in accordance with their cosmovision, and should not be left to the subjective opinion of external professionals, whose judgement is based upon foreign cultural mores and individualistic notions of property. These and other issues, such as the role of legislation in strengthening traditional knowledge systems, and creating interfaces between formal and informal scientific traditions, are but a few of the fundamental issues which indigenous peoples must be invited to answer, and form the basis upon which a regime for protection of their interests must be established. Accordingly, the State must humble itself before its indigenous subjects and seek to ascertain their desires, and respect their rights, in a manner which is conducive to the strengthening of their cultural integrity, unification as a people, and revaluation of their knowledge systems. (b) The stated objective of INDECOPI to make a balance between indigenous peoples? rights over their knowledge and the commercial interests of the private sector in accessing such knowledge tends to show a basic misunderstanding of law. When exercising its powers to legislate, the State is obliged to respect and to articulate provisions of law to secure clearly identified rights, such as those relating to indigenous collective property. Rights, over traditional knowledge, can be identified, directly and indirectly, from national, regional and international norms. And such rights are frequently defined as being ancestral, and as subsisting without any need for formal grant by the State. In other words, the existence of traditional knowledge implies the existence of the right over such knowledge, without the need for any further act of government. However, in order to facilitate the State's recognition of such rights, and protection of such rights under the dominant legal regime, legislation is necessary, and it is this legislation which INDECOPI is currently seeking to develop in Peru. On the other hand, the State is entitled, and indeed advised, to take into consideration, in the preparation of any law, the interests of other parties with regard to accessing the subject matter governed by the aforementioned rights. It is not, however, entitled to reduce the level of protection required to secure full protection of a right, in order to respond to a commercial interest as opposed to a competing legal right. Any regime to protect indigenous knowledge must be drafted to provide the maximum level of protection to the rights holders. The State may legitimately bring to the attention of indigenous peoples the fact that an overly bureaucratic law, which involves high transaction costs for access to genetic resources and associated knowledge, may effectively stifle the interest of scientific or commercial bioprospectors, leading perhaps to a cessation of ethnobotanical biodiversity prospecting. Whether this argument would induce indigenous peoples to accept a more relaxed regulation on access is an issue for indigenous peoples themselves. It is not the role of the State to adopt the role of adjudicator between such rights and interests, and it should avoid any action which would seek to impose some form of equilibrium in this relationship, contrary to the declared wishes of indigenous peoples. Indigenous knowledge is the sole property of the custodians of such knowledge. Therefore, any regime must reflect their stated preference for the form and extent of protection. The role of INDECOPI and of similar institutions in other countries is to assist indigenous peoples to find a mechanism which will protect their rights to the fullest. Obviously, such a regime must be enforceable within the dominant legal regime. Otherwise, protection could not be secured once the knowledge has left the control of the indigenous peoples themselves. It is this role as the builder of the bridge between the legitimate aspirations of indigenous peoples and the realities and possibilities of dominant legal regimes which is the role of national authorities. However, a bridge cannot be built without supports on both sides of the river. INDECOPI has built a technical proposal. Indigenous peoples must now be given the opportunity to construct a purely indigenous proposal. Only then can a stable legal regime be constructed. Interim protection, flexibility and participatory legislative development Since early in 1996, the Peruvian Patent Office has chaired a working group on the protection of indigenous peoples' knowledge relating to biological diversity. The group which was formally established did not from the outset include any member of any indigenous people from the country. Although INDECOPI did make some early attempts to invite representatives of the two main organizations representing Amazonian peoples, failure to recognize the importance of participation, on their part, soon saw their effective withdrawal from proceedings. The working group continued their deliberations, preparing a first draft proposal by July 1996. The group continued to review this proposal, primarily behind closed doors, for another two years and once again invited indigenous organizations to discussions regarding its content at the end of 1998, before bringing it to two workshops with indigenous representatives in the early months of 1999, and to a further workshop with industry co-sponsored by the World Intellectual Property Organization (WIPO) in May of 1999. On the 26th of October 1999, five days after the official publication of the draft law for public comment, a workshop was organized in Lima by the Technical Secretariat for Indigenous Affairs (SETAI), with the support of the Association for the Defence of Natural Rights (ADN, Peru) and the International Institute for Environment and Development (IIED, United Kingdom) to evaluate the participatory process for the proposals developed to date and to provide guidance for future participation of indigenous peoples. The workshop, attended by relevant national authorities and major organizations representing Amazonian and Andean indigenous peoples and campesino [peasant] communities, provided a timely opportunity for dialogue between the framers of the proposal and those whose constituents would be most affected by its provisions. The indigenous and campesino organizations warmly welcomed the government's initiative, though there was some doubt as to who was really pushing for its earlier adoption, since indigenous peoples declared that the initiative was not on their side. There was unanimous recognition of the fact that a two-month review period was inadequate in order to enable meaningful dialogue of the proposal. Governmental representatives drew attention to various factors, both political and pragmatic, that would tend to promote the potential benefits of adoption of a revised draft within the next four to five months. And there is a general consensus amongst commentators that, subject to a number of fundamental drafting changes, the proposed law might be adopted as an interim measure to protect indigenous peoples rights from continued exposure to unapproved use due to lack of legislative protection. Should such a strategy be adopted, then the Peruvian authorities might usefully consider adopting a regime which provides secure protection against the unapproved use of resources, while ensuring that any access be subject to the approval of the majority of custodians of such knowledge. Likewise, the regime must promote equitable benefit sharing. A certain amount of flexibility will need to be built into any regime in order to enable it to be modified from time to time in response to growing understanding of its positive and negative impacts on the protection of collective property rights. The establishment of a formal review board including indigenous representation, and that of the State and private sectors, could provide a forum for consideration of the legislation?s effective implementation and provide guidance for future modifications to meet the spirit of the law?s objectives. At the same time, it is considered vital that a long-term participatory process be commenced, enabling and supporting indigenous peoples? organizations in information distribution and capacity-building regarding this topic. Such a program should be coordinated with national authorities, but should be run at the local and regional level by indigenous peoples? representative organizations. A two- to three-year program is envisioned. The first half of the program might entail distribution of information, recompilation of customary law and practice, capacity-building regarding mechanisms for protection of indigenous rights over collective property, including consideration of comparative experiences (such as local registers of knowledge, as developed in India) and working meetings within indigenous peoples based on ethnic groupings. A second phase might involve mixed working groups bringing together different ethnic groupings at the level of the Amazon, Andes and Coast. A third level of working meetings would involve joint gatherings of representatives of the Coastal, Andean and Amazonian indigenous peoples, and their development of a collective proposal on protection of their rights. Finally, a working group bringing together State and indigenous organizations might then consider the effectiveness and appropriateness of the interim regime and prepare for the adoption of an advanced regime for protection of collective property. Such a program might be carried out both at the national level and as part of a wider program amongst the Andean Community member states (Bolivia, Colombia, Ecuador, Peru and Venezuela) with a view towards implementation of a regional regime. This would provide a useful case study for the establishment of a global regime within the framework of the WTO, as formally proposed by most of the Andean Community members. It would be appropriate for the WTO to assist in providing support for the financing of such a long-term intensive participatory process. Without such a broad process, any studies carried out at the request of the WTO are likely to run into the same difficulties experienced by the technical experts in the preparation of the Peruvian draft law. For any such program to prove effective, it must have the full support of organisations representing indigenous peoples, and their commitment to provide their communities with full information regarding potential positive and negative impacts of regimes, and a broad range of potential mechanisms for realization of their rights. While it is important that indigenous peoples have full access to the broad range of opinions existing regarding the pros and cons of such a regime, it is vital that such a program is not dominated by ideology from any one particular side of the debate. To allow for domination of the information and capacity-building process by either those in favor or those opposed to adoption of a regime, would polarize the debate and would effectively prevent indigenous peoples at the local level from exercising their right to make informed decisions regarding the mechanisms for protection of their interests. The need for legislation in Peru and for participation in the final drafting process It is important to note that existing legislation on access to genetic resources, which is binding on Peru, recognises indigenous peoples rights over their collective knowledge. This appears in the form of Decision 391 of the Andean Community, which established a common regime for the five Community member states. Furthermore, national legislation on conservation and sustainable use of biological diversity recognizes the fact that the knowledge, innovations and practices of indigenous peoples relating to biological diversity are their cultural patrimony. This may effectively imply the existence of a moratorium on the access to and collection of indigenous traditional knowledge, until such time as a regime determining rights over such knowledge has been developed. However, this interpretation has not been tried before the courts, and it is considered advisable that the issue be clarified through the adoption of an interim regime along the lines of the INDECOPI proposal. However, for the regime to be acceptable and to avoid negative impacts upon indigenous peoples it is considered fundamental that a number of key issues in the proposal be given more considered deliberation. Although the working group's work has formally finished with the publication on the 21st of October of the draft law, there has as yet been no attempt by the State to establish a final formal consultation group to prepare for the revision of the draft with participation of indigenous peoples, or of other experts with demonstrated knowledge of these issues. In fact, INDECOPI continues to express the position that, on its own, it shall be the final arbiter of the weight to be given to commentaries made regarding the draft law. Commentaries by INDECOPI that volume of responses by indigenous peoples on various issues, lead to the conclusion that mass public manifestations of opposition to specific drafting may be of greater weight in bringing about needed change, than reasoned legal argument. While this would no doubt be considered bowing to the will of the people it does sound like good legislative development practice. Points to consider in revising the draft Law on Protection of Indigenous Peoples' Collective Knowledge Two issues requiring substantive changes in the draft law are worthy of brief consideration at this point in time. The first relates to public domain and the second to prior informed consent. - Public Domain - Article 37 of the draft proposal provides that indigenous peoples? knowledge cannot be the subject of use by third parties, without their prior informed consent, except where such information is within the public domain. Article 12 defines the acts which may serve to place information in the public domain. These are: diffusion through the mass media, publication and where such knowledge becomes known through acquisition of a product which has been commercialised. The first two elements of this provision are quite standard, though it would appear appropriate that some form of differentiation be made between local and regional media, as opposed to national and international media coverage. Likewise, there must be some difference between publication in an obscure technical journal and publication in a best-selling book on traditional medicine, for example. With regard to the provision pertaining to commercialised products, purchase of which may lead to access to the knowledge, this would appear to be a complex issue, deserving of more closer identification of specific scenarios where this may occur, and evaluation of the possibilities and equity of providing protection in relation to resources of high value, for example. Two interesting elements of this proposal deserve attention. In the first place, material will not necessarily be deemed to have fallen into the public domain where there has been a breach of an obligation to treat the information confidentially. This is a welcome inclusion, and might be interpreted in a manner which places the obligation on the user to show that it had not been disclosed into the public domain directly or indirectly in breach of confidentiality obligations. Whether confidentiality might be presumed in all cases where indigenous peoples have not intentionally shared knowledge, with the understanding that it will be widely distributed, is worthy of consideration. The second welcome inclusion is the requirement that 0.5% of all net sales of products including indigenous knowledge, whether or not in the public domain, is to be apportioned to an Indigenous Peoples Trust Fund which is to manage the sums to benefit of general development of indigenous peoples. The fund is to be managed by indigenous peoples representatives. While this is considered beneficial, there is some question regarding the arbitrary nature by which the figure of 0.5% has been decided upon, and the measure requires further consideration. At the same time there is concern that this provision is the only one relating to distribution of benefits and it does not appear to provide the guarantee for equity in distribution of benefits called for by the CBD and other relevant legislation. - Prior informed consent - Article 20 of the draft law states that access to knowledge is to be governed by a licence which must be entered into by the user with an indigenous people. This would appear on the face of it to ensure that collective knowledge will be regulated in accordance with the wishes of a people as a whole. However, the definition of indigenous people, which includes the definition in article 1(2) of the ILO Convention 169 regarding Indigenous Peoples in Independent Countries, also includes native communities and campesino communities. As article 20 goes on to state that the indigenous people entering into an agreement are not required to obtain the consent of other indigenous peoples (communities) who are also custodians of the knowledge, the result is to promote potential divisions amongst indigenous peoples. The result of including communities within the definition of indigenous peoples is that any single community would be entitled to enter into