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New avenues to protect TK urged by experts

by Kanaga Raja

Geneva, 6 Nov 2000 - New avenues should be explored to protect traditional knowledge (TK) from exploitation and extinction, said experts at an UNCTAD meeting in Geneva this week.

Some of the avenues suggested are the strengthening of customary laws, grassroots initiatives and possible international mechanisms. The most promising avenue, they thought, would be to bridge traditional collective rights with the more modern and western concept of intellectual property rights.

The expert meeting on “Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices”, which was held in Geneva from 30 October to 1 November, and billed as the first in UNCTAD’s history to involve indigenous groups in the organisation’s intergovernmental work on such a large scale, was attended by over 150 representatives of governments, non-governmental organisations, UN specialized agencies, academia and the private sector, coming from nearly 80 countries.

The UNCTAD Secretary-General, Rubens Ricupero, in opening the expert meeting, said that the “appropriation” of knowledge is one result of the falling barriers to the flow of information which characterises our times. The paradox is that at the same time, new economic barriers are being erected to the flow of information. Of greatest importance, he stressed, is to put all forms of knowledge, traditional or otherwise, to the service of development as the “very essence of the process”.

A background note to the meeting from the UNCTAD secretariat said that “promotion of TK is a necessary but not sufficient requirement for its preservation and further development.”

UNCTAD added: “To harness TK for development and trade, developing countries need assistance to build national capacities in terms of raising awareness on the importance and potential of TK for development and trade; developing institutional and consultative mechanisms on TK protection and TK-based innovation; and facilitating the identification and marketing of TK-based products and services. There is also a need to promote an exchange of experience among developing countries on national strategies for TK development, sui generis systems for the protection of TK and the commercialization of TK-based products and services. Special attention should be given to building such capacities in LDCs.”

Traditional knowledge, according to the UN Convention on Biological Diversity (CBD), refers to “the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles” as well as “indigenous and local technologies”.

Most agree that TK is generally held collectively, transmitted orally from generation to generation, and dynamic, evolving over time. Access to and use of TK within communities is generally governed by a wide variety of unwritten customary laws. This knowledge is indispensable for the poorest segments of society, including women, indigenous communities and rural inhabitants in developing countries, particularly the LDCs.

Up to 80% of the world’s population depends on traditional medicine for its primary health care, and two thirds also depend on the foods provided through TK of species and farming systems.

According to Robert Hamwey of the UN Environment Programme, in indigenous communities worldwide, TK has prevented land and soil degradation, fisheries depletion, biodiversity erosion and deforestation.

Xiaorui Zhang of the World Health Organisation (WHO) notes that at the same time, there has been a global upsurge over the past decade in the use of traditional medicine and complementary and alternative medicine, primarily herbal medicines and acupuncture, in both developed and developing countries.  TK-derived products, such as non-wood forest products, are traded internationally. Moreover, TK is an important input into many modern industries, including pharmaceuticals, cosmetics and agribusiness.

However, traditional knowledge, along with cultural diversity and biodiversity, is disappearing at alarming rates. The World Wildlife Fund (WWF) says that one half of all existing plant species are expected to be extinct within 3,000 years and 90% of all languages will be extinct within a century.

Gonzalo Oviedo of the WWF emphasises that the loss of language leads to loss of knowledge, the process accelerated by cultural change and globalisation.  Furthermore, according to the WHO, the unsustainable commercialization of traditional medicines and medicinal plants is causing global biodiversity loss, with much of the resulting profit failing to compensate the holders of TK.

The UNCTAD meeting discussed the possible means of harnessing TK for development and trade, after examining the role and protection of it in key sectors.

The experts agreed that the challenge is to ensure equitable sharing of the benefits; to protect the intellectual property rights (IPRs) of both the custodians and developers of TK systems; and to prevent the loss of TK and biodiversity wherever possible.

There were divergent views on the extent to which the existing IPR regime can actually protect TK.

Indigenous groups attending the meeting felt that this was not possible. They said that the current IPR system, comprising international agreements, patent and copyright protection and other legal instruments, is “inappropriate” for the recognition and protection of TK systems because of the “inherent conflicts” between the two forms of protection.

“IPRs are founded on private, economic rights, whereas indigenous peoples’ systems are values-based” and include “both rights to use, and obligations to respect, the natural world”.

The indigenous groups called for a ban on the patenting of life forms because such patenting “attacks the values and livelihoods of indigenous and traditional peoples”. They argued that too much emphasis is being placed on the commercial value of TK and not enough on conservation and further development.

Similarly, Douglas Nakashima, UNESCO’s representative, contended that existing arrangements for protecting IPRs “serve to protect knowledge by setting the rules for their commercial exploitation [but] in fact deliver up local knowledge to the global marketplace”.

According to the WHO, some 95% of all world patents are held in developed countries, while the “vast majority” of plant genetic resources and other forms of biodiversity are found in, or originate from, developing countries.

An example of the inequalities was provided by Suman Sahai of the Gene Campaign, who said that the twigs from the tetu tree are traded in India at 20 cents a kilo, but the tree’s extracts on the international market fetch $15,000 per kilo. She and other participants proposed benefit-sharing and commercialization schemes for TK in which the originating communities would receive an equitable portion of revenues derived from their knowledge and genetic resources.

The experts emphasised the need for a TK protection system that would be consistent with other forms of IPRs and said that “bridging” the collective rights applicable to TK with the IPR regime seemed to be “the most promising avenue”.

Many agreed that priority should be given to strengthening existing customary laws and suggested a “pluralistic legal approach” that would accommodate the interests of local and indigenous communities.

According to Wend Wendland of the World Intellectual Property Organization (WIPO), IPR is a broad and dynamic concept not limited to the known and existing categories. He added that the system has evolved, and can continue to evolve, to meet new needs, including several of those expressed by TK holders.

The applicability of the TRIPS Agreement and national experiences were also debated.

The TRIPS agreement sets minimum requirements for the protection of six categories of IPRs, including patents and trademarks. Its stated objective is to ensure that the protection and enforcement of IPR contributes “to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and=20economic welfare, and to a balance of rights and obligations” (Art.7).

However, TRIPS is frequently criticized as being “born out of big business interests”. Moreover, the TRIPS does not explicitly address the protection of TK.

Some experts argued that TK should be included in the Agreement so as to prevent its misappropriation internationally. One possibility would be to require the disclosure in patent applications of genetic resources and TK used in product development (certificate of origin). Others argued that it is better to keep TK out of the WTO altogether and discuss it in such forums as the CBD.

The experts shared national experiences in developing alternative policy measures and non-legal measures, including codes of conduct for researchers and commercial entities or grassroots initiatives, such as community-controlled databases.

The experts also described national biodiversity policies aimed at avoiding over-reliance on imported goods at the expense of indigenous materials and TK and at implementing the principle of “one product, one community”, to avoid intra-community rivalry (Malaysia).

Sri Lanka proposed a global or regional bio-collecting society that would monitor access to local biodiversity and genetic resources. The rights of TK holders could also be acknowledged through upfront payments, fees for material services and the involvement of local researchers and communities in R&D.

The experts described a number of countries that have already begun updating their legal systems and national patent laws for the protection of TK, and called for a “bottom-up” approach to development policies, building on the resources and strengths of local and indigenous communities.

In recommendations for national actions, the experts said there is a continued need for raising awareness of the role and value of TK among indigenous and local communities, policy makers and other stake-holders. Indigenous and local communities, particularly women, should be fully involved in policies aimed at protecting traditional knowledge, practices and innovations. Apart from using suitable modern IPR instruments for appropriate cases, a national sui generis system for protection of IPR may be useful.

Such a sui generis system, the experts said, could include as common elements:

rights on TK could be collectively held; registers of knowledge; clear systems of access to such rights and benefit-sharing; clarifying land resource rights as part of holding TK rights; wide participation and consultation; and create effective incentives for research. In addition, TK protection needs to be reflected in other national policy areas such as agriculture, forestry, investment and finance.

At the multilateral level, the experts said that many institutions are carrying out work programmes on TK. There should be continued coordination and cooperation between the inter-governmental organizations concerned, the experts recommended. TK protection should be discussed in the WTO.

The regional diversity reflected in the debate call for a regional approach to the protection of TK and the commercialization of TK-based products.

National sui generis systems by themselves, the experts recommended, will not be sufficient to adequately protect TK. Therefore there is need for exploring an international mechanism for protecting TK, which may explore minimum standards of an international sui generis system for TK protection. Traditional, local and indigenous communities should be involved in building an international framework for collective rights.

Among other recommendations UNCTAD was asked to assist interested developing countries in exploring sui generis systems for the protection of TK, including possible multilateral aspects of such systems.

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