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New Study Shows Traditional Knowledge under Threat: Faulty Laws, Lack of Trust Stymie Promising Advances
14 November 2008
UNDER EMBARGO UNTIL 11 A.M. THURSDAY, 13 NOVEMBER IN PARIS (10 A.M. GMT)
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PARIS - (13 November) Despite global moves to improve traditional rights, the wisdom and knowledge accumulated by indigenous communities over thousands of years is still being lost or plundered for corporate profit, according to a report released in Paris today by an international coalition of experts.
"Laws on intellectual property rights are so confused they are reducing intellectual property rights claims by indigenous people to barely a trickle," said Tania Bubela of the School of Public Health, University of Alberta (Canada), co-author of the International Expert Group on Biotechnology, Innovation and Intellectual Property's study. "It has become clear that we need more than property rights to protect traditional knowledge and ensure fair and equitable benefit sharing with indigenous communities for the use of their knowledge."
The study was released today at a conference of international biotech and IP experts, convened by Sciences Po and The Innovation Partnership, a non-profit consultancy specializing in the understanding, use and management of intellectual property in industrialized and developing countries. The authors looked at how traditional knowledge is treated in three countries-Brazil, Kenya and Northern Canada, each of which has its own unique indigenous knowledge systems, innovations, customary laws and practices, and its own approach to protecting them.
"Many countries have made moves to protect traditional knowledge, but they have largely been ineffective because they focus on who owns the property rights," said Bubela. "The extreme difficulty of determining this has effectively acted as a road-block to progress."
In Brazil, for example, the study found that legislation passed in 2001 has failed so far to achieve a key goal-to encourage the scientific and commercial development of indigenous knowledge of medicinal plants.
"To date, only seven phyto-therapeutic items developed with Brazilian human and technological resources are on the market in Brazil," said Edson Beas Rodrigues Jr of the Faculty of Law, University of São Paulo, Brazil, and one of the study's co-authors. "On the other hand, more than 700 patents on such items have been issued or filed worldwide, almost entirely by foreigners."
This is a matter of considerable concern, said Rodrigues. "There is a real risk that the holders of traditional knowledge will receive no monetary benefit at all from the commercialization of that knowledge."
Part of the reason for the lack of progress is an overly bureaucratic system. But perhaps more important is the interpretation that the use of traditional knowledge and components of local biodiversity may depend on the free and informed consent of all the local communities that potentially or actually hold them.
"The way that laws are interpreted, many villages, many communities, are considered to own some share of the traditional knowledge, Rodrigues said. " The outcome of Brazil's efforts to create a viable framework for TK has instead led to an overabundance of overlapping property rights. This is what others have called ‘the tragedy of the anti-commons,' where high transaction costs and the inability to negotiate prevent any progress at all."
The authors' conclusions are described in a case study released today as part of a new groundbreaking report - Toward a New Era of Intellectual Property: From Confrontation to Negotiation - from the Montreal-based International Expert Group on Biotechnology, Innovation and Intellectual Property. The authors of the report and case studies were invited to present their findings in Paris by the renowned French research university, Sciences Po, which is working to encourage debate regarding the future of intellectual property and biotechnology.
"We found the same stumbling blocks in the traditional communities of Brazil as we did in the boardroom of a corporation that holds the patent to a gene that can determine the chance a woman will develop breast cancer," said Dr. Richard Gold, from McGill University and chair of the International Expert Group that produced the report. "Most striking is that no matter where we looked, the lack of trust played a vital role in blocking negotiations that could have benefited both sides, as well as the larger public."
The authors of the case study on traditional knowledge note that there is also an absence of mechanisms to moderate unrealistic claims to benefits by those who hold the information, and there is nothing to prevent the hold-out power of one or more groups of TK holders. By relying on a property-based scheme, said Rodrigues, the current legal framework in Brazil does not establish appropriate limits or balance the exclusive rights vested in holders of traditional knowledge against other national interests, most importantly the conservation of biodiversity and the fostering of a local biotechnology industry based on Brazil's rich biodiversity. The legal framework in Brazil is now under review.
In Kenya, property laws are of little use in protecting traditional knowledge. The study drew on the plight of the Turkana, a pastoralist indigenous group in the semi-arid northwest of the country.
"The Turkana have a huge wealth of traditional knowledge about their environment and how to manage it which goes to the very root of their existence and their identity," said Kent Nnadozie of McGill Faculty of Law, another of the study's co-authors.
"Resource ownership boundaries in the community are blurred and therefore are not an appropriate basis for determining traditional knowledge", said Nnadozie. "A herd-owner might be seen as owning the resources contained within a given area, but his close relatives and also certain outsiders have rights of access, too, and will use these resources without his permission."
Moreover, title to land for indigenous communities remains legally tenuous in Kenya: title can be-and often is-extinguished through compulsory government acquisition.
"This has highly negative effects on the community," said Nnadozie. "It reduces their ability to use their resource wealth, and retain their traditional knowledge regarding biological resources and medicinal plants."
The study found that the Turkana's traditional knowledge is rapidly disappearing or otherwise losing its context, as it continues to integrate with other systems and become subject to external influences. While such knowledge is most often spread across particular communities or groups of communities, protecting it under existing legal mechanisms has not been possible. Even where such knowledge resides in one person or a small group of people, ascribing the rights to it for protection under contemporary intellectual property rights system has been problematic.
Developments in northern Canada suggest a way forward for countries struggling to deal with traditional knowledge, according to the study's authors.
"The Indigenous people of northern Canada have suffered for centuries from European settlement and the introduction of European-style laws", said Bubela. "The core role of traditional knowledge in structuring community relationships with the land and the fabric of society was disrupted."
The study found that the situation only started to improve with recent moves toward autonomy. Not only has legal "space" for indigenous peoples" rights in their traditional lands, activities, culture, and self-governance been created, such rights have also been given constitutional status. Indigenous people in northern Canada are now in the process of reclaiming their identity and traditions after generations of colonialism and discriminatory government legislation and action and significant abuses.
"This is a first step toward reconciliation with the peoples of the north and provides a framework through which traditional knowledge can be protected," said Bubela.
"The co-management of land use and natural resources that has come about through this shift in the legal landscape has allowed traditional knowledge owners to be part of decision-making processes." said Bubela. "Self-government allows even greater powers of autonomy and the establishment of governance institutions that blend traditional and modern practices. Such institutions can also provide the resources for negotiating rights to and, where appropriate, the commercialization of traditional knowledge."
The study's authors believe this is the key for the adequate protection of traditional knowledge.
"The dominant argument, internationally, has been that traditional knowledge can be protected by property rights," said Bubela. "Our case studies have shown that, in practice, this is very hard to do. In our view, promoting autonomy and capacity for self-governance for indigenous communities rather than property is the key."