by Chakravarthi Raghavan

Geneva, 12 Oct 99 -- Four Latin American developing countries have put forward a proposal for protection of Intellectual Property Rights of the Traditional Knowledge of local and indigenous communities, and want the Seattle Ministerial Conference to establish a mandate for a detailed study and negotiations for multilateral rules as part of TRIPS.

The proposal by Cuba, Honduras, Paraguay and Venezuela has been tabled as part of the preparatory process at the General Council, and has received the support of a number of other developing countries.

In the discussions Canada however wanted the issue to be addressed at the World Intellectual Property Organization (WIPO).

Cuba and the three others say, in their proposal, that in the process of applying the TRIPS agreement they have observed that the traditional knowledge of local and indigenous communities should be protected through one of the IPR systems or through a new ad hoc system so as to put an end to the "defence-lessness of our communities with regard to the enjoyment and protection of their knowledge."

A number of studies and reports by non-governmental groups and indigenous organizations have complained of such knowledge of local and indigenous communities which they traditionally share with others for public benefit, being "pirated" and patented in their names and as their IPRs by foreign companies and researchers from abroad.

While in some well-known cases like the patents in the US for the Indian neem and turmeric have been challenged (based on the publication in Indian pharmacopoeia of native medicines), there have been many more cases of indigenous and community knowledge, passed down by oral tradition, being 'pirated' by outsiders.

There have also been several complaints of indigenous art and music being "recorded" by outside entrepreneurs (in the music industry etc) and made into tapes or cd-roms which are copyrighted and sold. There have also been instances of use of ancient cultural motifs and designs and art being appropriated by clothes' designers and copyrighted and with demands that these be protected by the countries.

Well-known paintings and art like the Ajanta paintings or Michael Angelo's creations and works have been "misappropriated" and used by TNCs for advertising of oil, tobacco and other products.

There have been an increasing number of campaigns in various countries by NGO activists against what is seen as the WTO sanctioned "appropriation of public commons by private parties, particularly the TNCs"

The paper by Cuba and others say that though some international conventions have sought in some way to redefine the rights of these peoples by indirectly recognizing their IPRs, "we cannot ignore the fact that the debates concerning these disputes have intensified since the entry into force of the TRIPS Agreement."

The paper recognizes that various activities have also been undertaken on this complex issue at WIPO, such as the round table on indigenous IPRs held on 23-24 July 1998.

But at present, Intellectual Property is defined as a form of property, generally private, "which is a temporary exception to free competition to allow exploitation of specific creations of human ingenuity."

This exception, the four-country joint proposal says, does not offer protection for the traditional knowledge of local and indigenous communities which have a wealth of medicinal practices, art, music, literature, handicrafts and so forth, simply because this knowledge represents collective rights of a community and does not have a known author or creator.

"It is fair to recognize the specific contributions of indigenous and tribal peoples and local communities to the cultural diversity and social and ecological harmony of mankind," the four countries say.

"We therefore propose that the aspirations of these people to participate in global economic development should be recognized, without discrimination and under conditions of trade permitting access of their products and knowledge to other countries with due protection. We also propose that the need to facilitate exports of value-added products resulting from their ancestral knowledge be acknowledged, to allow their economic value thus to be better quantified and enable them to earn the means to promote development and welfare in their communities.

"We consider it unjust that countries with such communities are compelled automatically to accept the accelerated pace of technological development and to give protection to emerging technologies, without obtaining recognition or protection for the rights of the holders-custodians of this traditional knowledge."

The four countries have proposed the Seattle Ministerial Conference mandate:

* the carrying out of a detailed study of how to protect the moral and economic intellectual property rights relating to the traditional knowledge, medicinal practices and expressions of folklore of local and indigenous communities.

This study should be carried out under the TRIPS Council within two years and final report should be presented to the fourth Ministerial Conference.

* on the basis of this study and the final report, negotiations should be initiated to establish multilateral rules to accord effective moral and economic IPRs to traditional knowledge, medicinal practices and expressions of folklore to take into account the social and collective nature of these rights.

"The agreed multilateral rules should become provisions of the TRIPS Agreement and enter into force on 1 January 2004." (SUNS4529)

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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