by Martin Khor

Geneva, 3 Oct 99 -- Leaders of indigenous people's organisations attending a WIPO Roundtable meeting on intellectual property and traditional knowledge have criticised the WIPO approach in attempting to impose an intellectual property rights regime on traditional knowledge.

They called on WIPO, governments and other multilateral organisations to explore other ways to protect and promote indigenous and traditional knowledge outside of the traditional IPR regime.

Several indigenous people's representatives who participated in the WIPO roundtable in Geneva (1-2 November) were critical of many of the papers presented and of what they perceived to be WIPO's attempt to co-opt indigenous knowledge into the global patent and IPR system. They spoke up often at the meeting to voice their viewpoints.

More than a hundred indigenous people's organisations separately issued a statement calling on governments to amend the TRIPS Agreement, Article 27.3 (b), to mandatorily ban the patenting of all life-forms, all naturally occurring processes, and of traditional knowledge on the use of biological resources.

Near the end of the WIPO Roundtable, the Indigenous Peoples Caucus, representing the indigenous peoples present at the meeting, issued a Statement that was orally presented by Victoria Tauli-Corpuz of the Tebtebba Foundation, an international indigenous people's research centre based in the Philippines.

"We are concerned over the way in which this present Roundtable is organized," said Tauli-Corpuz. "It seems that this was primarily organized to reinforce the mandate of WIPO to promote and implement the dominant intellectual property rights regime and to assert that intellectual property rights is the only viable path to protect traditional knowledge.

"However, we have heard many interventions from this meeting saying that intellectual property rights as embodied in the existing international conventions and the TRIPS of WTO may not be the adequate and appropriate mechanisms to protect indigenous and traditional knowledge."

Tauli-Corpuz said that WIPO, governments and other international organisations should "maintain an open mind and be more daring in exploring ways and means to protect and promote indigenous and traditional knowledge outside of the dominant IPR regimes.

"WIPO should not insist in imposing that the IPR regime it is implementing, particularly patents, is what should be used to protect traditional knowledge. Other forms of protection should be explored and developed in partnership with indigenous peoples and other traditional knowledge holders.

"Any effort to negotiate a multilateral framework to protect indigenous and traditional knowledge should consider indigenous practices and customary laws used to protect and nurture indigenous knowledge in the local, national, and regional levels."

Tauli-Corpuz reiterated the call of indigenous peoples all over the world against patenting of life-forms and life-creating processes, referring to the statement of over a hundred indigenous people's groups opposing patenting of life in TRIPS , which she said was consistent with several proposals put forward by developing countries during the WTO preparatory process for Seattle.

Tauli-Corpuz said the indigenous people took exception to a statement at the Roundtable by a representative of a European transnational corporation that there is no incompatibility between the CBD and the TRIPS Agreement.

"We believe there is a serious conflict on the rights and obligations of member-states between the two treaties, particularly between Article 8 (j) of the CBD and Article 27.3.(b) of the TRIPS Agreement. Article 8 (j) calls on governments to respect, preserve, and maintain knowledge, innovations, and practices of indigenous and local communities in biodiversity conservation and encourage equitable sharing of benefits arising from the utilization of such knowledge.

"On the other hand, Article 27.3.(b) of TRIPS legitimizes private property rights in the form of intellectual property over life and processes entailed in modifying life forms. But these are rights for individuals, corporations, and states, not for indigenous peoples and local communities. Governments are asked to change their national intellectual property rights laws to allow for patenting of micro-organisms and non-biological and micro-biological processes."

Tauli-Corpuz added that many developing country governments recognize this incompatibility and in fact they already tabled proposals on this which can be found in the Revised Draft of the WTO Ministerial Text.

She referred to a paragraph of the draft stating that Article 27.3.(b) should be amended to take into account the CBD and the need to clarify that all living organisms and their parts cannot be patented; and to ensure the protection of innovations of indigenous and local farming communities and the continuation of traditional farming practices.

She also reiterated that any discussion on traditional and indigenous knowledge should always refer to the articles on the Draft Declaration on the Rights of Indigenous Peoples, particularly Articles 24, 25, 26, and 29 which clearly established that rights to indigenous knowledge, innovations, and practices (referred to as intellectual and cultural heritage) cannot be discussed in isolation from indigenous peoples' rights to their territories and resources.

"We see a problem in the fact, that while on one hand the UN is evolving international standards for the protection of indigenous peoples and efforts are made to protect traditional knowledge through the CBD and FAO International Undertaking; on the other hand, there are other international agreements like the WTO Agreements which are undermining these."

The statement called on WIPO to undertake studies on the most appropriate means of recognizing and protecting traditional knowledge, medicinal plants, seeds, and expressions of folklore of indigenous peoples and local communities.

On WIPO's technical assistance, the statement proposed that indigenous peoples who are the knowledge-holders should become the main trainers and that indigenous peoples organizations and communities should be provided resources from WIPO to undertake their own capacity-building efforts to protect and promote their knowledge.

"Prior Informed Consent should be the common thread among all the proposals being brought forth to protect indigenous knowledge, whether these are intellectual or non-intellectual property rights protection. PIC is defined to mean that indigenous peoples and local communities will be consulted, informed and their full consent obtained before any appropriation or research of their knowledge is undertaken," the statement added.

"There should be a list of all the knowledge, genetic resources, medicinal plants, seeds, etc. which have been stolen from indigenous peoples and some form of indemnification may be given to those who own and developed this knowledge. This can be put into a fund which will help further build indigenous peoples' capacities. The arts and artifacts which were also stolen should be repatriated back to the original owners.

"We call on the WIPO to create a mechanism within its structures which will allow for more meaningful participation of indigenous peoples. Other specialized agencies of the UN are already undertaking dialogues with indigenous peoples towards the formulation of policy guidelines on indigenous peoples. Since WIPO claims it is the body which has a key role in traditional knowledge then it should also formulate its own guidelines." (SUNS4545)

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

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