I. Traditional Knowledge
“IN OUR DECISIONS WE MUST TAKE INTO
ACCOUNT THE IMPACTS ON THE NEXT SEVEN
GENERATIONS.”
First Nations Oral Tradition
The estimated 370 million indigenous peoples that
live across 70 countries worldwide are the holders of unique cultures,
languages and knowledge systems. Indigenous peoples have inhabited their
territories with a historical continuity and have developed a unique
relationship to their lands, which forms the very basis of their cultures. Most
indigenous peoples have been subject to experiences of subjugation,
marginalization, dispossession, exclusion or discrimination by the mainstream
societies that became dominant through conquest, occupation or settlement.
However indigenous peoples have managed to retain distinct social, cultural and
political characteristics, in particular, they have maintained a wealth of
traditional knowledge. Traditional knowledge is generated and transmitted in a
tradition-based context and forms an intrinsic part of a peoples’ self-identity.
It has been accumulated over many generations and is constantly adapting to
changing environments. Given the diversity of indigenous cultures, a variety of
traditional knowledge exists, covering a wide range of fields such as
agricultural, medicinal and ecological knowledge.
Nevertheless, some common characteristics of
traditional knowledge can be identified. In the past, indigenous peoples’
traditional knowledge has been considered to be freely exploitable. Traditional
knowledge has been appropriated without the consent of the knowledge holders
and without sharing the benefits arising out of its use. In the worst case, the
original holders of traditional knowledge have been excluded from its use by third
parties claiming intellectual property rights over traditional knowledge. In
the field of biodiversity-related traditional knowledge, this phenomenon has
entered the international stage under the key word “biopiracy”. Traditional
knowledge is further threatened by the destruction of the natural environment,
which in turn endangers indigenous cultures and their traditional knowledge
embedded therein; the assimilation of indigenous peoples into mainstream
culture and the replacement of traditional knowledge by Western science, the
loss of indigenous languages and the lack of interest in the continued use of
traditional knowledge. Growing appreciation of the value of traditional
knowledge, the need to address the causes of its loss and progressing
recognition of indigenous rights has resulted in international discussions on
the protection of traditional knowledge. Since several years, a number of
international bodies have been discussing the protection of traditional knowledge
in the framework of their specific mandates and interests, including environmental
law, intellectual property law, human rights law and trade law. However, due to
the complexity of the issue and the conflicting interests of the stakeholders involved,
no consensus for an effective legally binding instrument has been reached so far.
II.
MEANING
OF TRADITIONAL KNOWLEDGE
Traditional knowledge has been discussed in several
international fora, no consensus on an internationally acceptable definition
has been reached so far, in particular there is no legal definition of the term
in the CBD[1].
The Secretariat of the CBD refers to traditional
knowledge as;
“the
knowledge, innovations and practices of indigenous and local communities around
the world. Developed from experience gained over the centuries and adapted to
the local culture and environment, traditional knowledge is transmitted orally
from generation to generation. It tends to be collectively owned and takes the
form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community
laws, local language, and agricultural practices, including the development of
plant species and animal breeds. Some times it is referred to as an oral
traditional for it is practiced, sung, danced, painted, carved, chanted and
performed down through millennia. Traditional knowledge is mainly of a
practical nature, particularly in such fields as agriculture, fisheries,
health, horticulture, forestry and environmental management in general”.
WIPO[2]
acknowledges the diversity of traditional knowledge, stakeholders and policy interests
and therefore uses a ‘working concept’ instead of an exhaustive definition:
“ ‘traditional knowledge’ … refers to
tradition-based literary, artistic or scientific works; performances;
inventions; scientific discoveries; designs; marks, names and symbols;
undisclosed information; and all other tradition-based innovations and creations
resulting from intellectual activity in the industrial, scientific, literary or
artistic fields.”
The knowledge is either hold by individuals, by
groups or by the people as a whole, while the ownership of the knowledge
however is usually within the collective and regulated by customary law.
Traditional knowledge is transmitted mostly orally from generation to
generation and is “not static; it evolves and generates new information as a
result of improvements or adaptation to changing circumstances”. These formal characteristics
focus on the context, method and qualities of traditional knowledge instead of
its actual content, which covers “fields such as medicine, food and agriculture,
environmental management and biodiversity conservation, nutrition and cultural
objects”.
III.
PROTECTION OF
TRADITIONAL KNOWLEDGE AT INTERNATIONAL
LEVEL:
Traditional knowledge of
indigenous peoples is a multifaceted issue that touches upon a number of
different areas of law, including environmental law, intellectual property rights
and trade law and indigenous rights. Accordingly, traditional knowledge is
being discussed in numerous international fora that each have different
mandates and interests and therefore concentrate on different aspects of
traditional knowledge.
The
Universal Declaration of Human Rights (UDHR) establishes the right to the
protection of moral interests and materials deriving from any scientific,
literary or artistic production. The UDHR is not a binding document, but it is
a foundational document for the United Nations and for the two 1966 Covenants,
the International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights.
Although the UDHR does not address intellectual
property rights, Article 27[3] of the
UDHR recognizes the "moral and material interests" of authors and
inventors and the right of the public “to enjoy the arts and to share in
scientific advancement and its benefits.” This article expresses the challenge
of balancing private intellectual property rights and a vibrant public domain.
The International Covenant on
Economic, Social and Cultural Rights (ICESCR) establishes a right to the
protection of the moral and material interests resulting from any scientific,
literary or artistic production. ICESCR has 160 parties, 69 of
which are signatories. In conjunction with the 1948 Universal Declaration of
Human Rights, and recognizing the binding nature of the treaty upon its
signatories, the ICESCR can be interpreted as
guaranteeing intellectual property rights as a human right. In 2005, the
Committee on Economic, Social and Cultural Rights (CESCR) commented on
Article 15[4]
of the ICESCR, expanding it to protect indigenous groups' expressions of
cultural heritage. CESCR calls upon signatories to adopt protective measures
that "recognize, register and protect the individual or collective
authorship of indigenous peoples under national intellectual property rights
regimes and should prevent the unauthorized use of scientific, literary and
artistic productions of indigenous peoples by third parties."
The International Covenant on
Civil and Political Rights (ICCPR) recognizes the self determination of
minority groups and their right to control their culture. The ICCPR has 165 parties, 72 of which are signatories. Although the ICCPR
is silent on most cultural and intellectual property rights issues, considered in conjunction with the 1966
International Covenant on Economic, Social and Cultural Rights and the 1948
Universal Declaration of Human Rights, the ICCPR can be viewed as establishing
intellectual property rights as human rights.
Article 1
All peoples have the right of
self-determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
development.
Article 27
In those States in which ethnic, religious or
linguistic minorities exist, persons belonging to such minorities shall not be
denied the right, in community with the other members of their group, to enjoy
their own culture, to profess and practise their own religion, or to use their
own language.
4.
World
Intellectual Property Organization, 1967
WIPO is a specialized agency of the United Nations
established by the WIPO Convention in 1967 and mandated to promote the
protection of intellectual property throughout the world through cooperation
among states and in collaboration with other international organizations. WIPO
currently has 184 member states and administers international treaties. It
provides a forum for international policy debate and development of legal
mechanisms and practical tools concerning the protection of traditional
knowledge and traditional cultural expressions against misappropriation and
misuse, and the intellectual property aspects of access to and benefit-sharing
in genetic resources.
WIPO’s work on traditional cultural expressions
began in 1978 in cooperation with the United Nations Educational, Scientific
and Cultural Organization UNESCO, which 1982 resulted in the Model Provisions
for National Laws on the Protection of Expressions of Folklore against Illicit
Exploitation and Other Prejudicial Actions.
In 1998 and 1999, WIPO consulted a wide range of
stakeholders in twenty-eight countries, including indigenous peoples,
non-governmental organizations, governmental representatives, academics and the
private sector, in order to identify the intellectual property needs and
expectations of the holders of traditional knowledge and cultural expressions.
Within the several WIPO bodies addressing traditional knowledge, the
Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore (IGC) is of
primary importance and shall be illustrated below.
Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore
Following the WIPO fact-finding missions in
1998-1999, WIPO recognized that traditional knowledge cuts across the
conventional branches of intellectual property law and would therefore not fit into
the existing WIPO bodies. Thus, the WIPO General Assembly in 2000 established
the IGC in order to discuss intellectual property issues that arise in the
context of access to genetic resources and benefit sharing; the protection of
traditional knowledge, innovations and creativity, whether or not associated
with those resources; and the protection of expressions of folklore, including
handicrafts.
The work of the IGC has resulted in the development
of non-formal Draft Provisions for the protection of traditional knowledge
against misappropriation and misuse and suggesting possible international
objectives and principles.
The Draft
Provisions have the following objectives:
·
to recognize value; to promote respect;
·
to meet the actual needs of communities;
·
to prevent the misappropriation of traditional
cultural expressions/expressions of folklore;
·
to empower communities;
·
to support
customary practices and community cooperation; to contribute to safeguarding
traditional cultures;
·
to encourage community innovation and creativity;
·
to promote intellectual and artistic freedom,
research and cultural exchange on equitable terms; to contribute to cultural
diversity;
·
to promote community development and legitimate
trading activities;
·
to preclude unauthorized IP rights and to enhance
certainty, transparency and mutual confidence.
Although the Berne Convention does
not mention traditional knowledge, Article 15(4)[5]
can be interpreted to leave to the discretion of each member country how (if at
all) to protect TCEs.
The International Labor
Organization, a special agency under the auspices of the UN, was the first
international organization to attempt to define indigenous populations and to
declare the rights of such populations. ILO Convention No. 169 replaced ILO Indigenous and Tribal
Populations Convention No. 107 (1957)
that had been ratified by six African States., the ILO and the African Commission
on Human and Peoples’ Rights view this
instrument as an inspiration and a reflection of a trend towards the protection
of indigenous rights globally and in Africa.
The 169 Convention focuses on indigenous peoples’
rights to control their own institution, economic development, customs and
belief systems. It applies to "tribal peoples in independent countries
whose social, cultural and economic conditions distinguish them from other
sections of the national community, and whose status is regulated wholly or
partially by their own customs or traditions or by special laws or regulations[6]"
and to "peoples in independent countries who are regarded as indigenous on
account of their descent from the populations which inhabited the country, or a
geographical region to which the country belongs, at the time of conquest or
colonisation or the establishment of present state boundaries and who,
irrespective of their legal status, retain some or all of their own social,
economic, cultural and political institutions."
The Convention does not mention intellectual
property rights, but seeks to protect indignous culture and recognizes the
collective ownership that characterizes many indigenous populations.[7]
Article 5
1.
the social, cultural, religious and spiritual
values and practices of these peoples shall be recognised and protected, and
due account shall be taken of the nature of the problems which face them both
as groups and as individuals;
2.
the integrity of the values, practices and
institutions of these peoples shall be respected;
3.
policies aimed at mitigating the difficulties
experienced by these peoples in facing new conditions of life and work shall be
adopted, with the participation and co-operation of the peoples affected.
7.
Convention
on Biological Diversity,1993
The CBD was negotiated in the
framework of the United Nations Environment Programme and opened for signature
at the Earth Summit in Rio de Janeiro in June 1992. It entered into force in
December 1993 and currently has 191 parties. Inspired by the world’s community
growing commitment to sustainable development, the convention seeks to tackle
the loss of biodiversity “due to human activities that degrade or encroach on
habitats, increase pollution, and contribute to climate change” and aims to
achieve an ;
1. equitable
balancing of the interests of developed and developing diversity,
2. the
sustainable use of its components and
3. the fair
and equitable sharing of the benefits arising out of the utilization of genetic
resources.
Unlike earlier multilateral environmental treaties
that dealt with particular aspects of biodiversity, the convention is more
comprehensive in its approach, covering all levels of biodiversity on a global
scale as well as the sustainable use of its components and benefit-sharing and
is therefore referred to as a framework convention. The convention’s
substantive provisions cover amongst others general measures for conservation
and sustainable use, in-situ and ex-situ conservation, sustainable use of
components of biological diversity, incentive measures, research and training,
public education and awareness, impact assessment and minimizing adverse
impacts, access to genetic resources, access to and transfer of technology,
exchange of information, technical and scientific cooperation, handling of
biotechnology and distribution of its benefits and financial resources and
mechanisms. Given the number of issues covered by the convention, its
provisions are mostly of a general nature and expressed as overall goals that
obligate parties to take measures on the national level. Furthermore, most
substantive articles are weakened by additional phrases such as “as far as
possible and as appropriate”.
The convention establishes an institutional
framework for the further development of the convention and the elaboration or
clarification of general provisions and the monitoring of its implementation.
The three institutional bodies established by the convention itself are the Conference
of the Parties (COP), the Subsidiary Body on Scientific, Technical and
Technological Advice and the Secretariat. Further, the convention provides for
a financial mechanism and the establishment of a clearinghouse mechanism for
scientific and technical cooperation. The convention further enables parties to
establish additional subsidiary bodies with a limited mandate and limited
period of time. The current additional subsidiary bodies are the Working Group on
Access and Benefit-Sharing (WG ABS), the Working Group on Article 8(j) (WG 8J),
the Working Group on Protected Areas and the Working Group on the Review of Implementation
of the Convention.
With regard to traditional knowledge and access and
benefit-sharing, the COP and the two advisory bodies WG 8J[8]
and WG ABS[9]
are relevant and shall be illustrated below.
a.
Conference of the Parties
The COP is the governing body of the convention
that brings together the parties to the convention every two years, or as needed.
Its function is to review the implementation of the convention and its
development through the decisions it takes. Reflecting the breadth of issues
that the convention covers, the agenda of the meetings of the COP is very wide-ranging,
composed of thematic and cross-cutting issues. The COP has dealt with both
access and benefit-sharing and traditional knowledge in several of its
decisions.
b.
Working Group on
Article 8(j) and related provisions
The WG 8J was established in 1998 by the forth COP
meeting in order to provide the COP with advice relating to the implementation
of article 8(j). It gives special attention to the participation of indigenous
peoples. The Working Group is composed of parties and observers, including, in
particular, representatives of indigenous peoples.
The program of work, adopted by the fifth COP
meeting in 2000, further encourages in its general principles the “full and
effective participation of indigenous and local communities in all stages of
the identification and implementation of the elements of the programme of
work”. The participation of indigenous peoples is facilitated through a
voluntary funding mechanism. One of the major outputs of the Working Group are
the legally non-binding Guidelines for the conduct of cultural, environmental
and social impact assessments regarding developments proposed to take place or
which are likely to impact on sacred sites and on lands and waters
traditionally occupied or used by indigenous and local communities. The Working
Group has further reported on the status and trends of traditional knowledge
and is currently elaborating elements of sui generis systems for the protection
of traditional knowledge, innovations and practices and elements of a code of
ethical conduct to ensure respect for the cultural and intellectual heritage of
indigenous and local communities, which could contribute to the negotiations of
the international regime on access and benefit-sharing.
4.
Trade-Related Aspects of Intellectual Property
Rights (1994)
The 1994 TRIPS Agreement created a
set of minimum intellectual property standards for all members of the World
Trade Organization. Although the Agreement requires developing countries to
increase many forms of intellectual property protection, it does not mention
folklore or TCEs.
After the passage of TRIPS, the UN Human Rights
Commission studied its implications for human rights. In 2000, the Commission,
relying on that study, adopted Resolution 2000/7 on Intellectual Property and
Human Rights. The Resolution notes that “actual or potential conflicts exist
between the implementation of the TRIPS Agreement and the realization of
economic, social and cultural rights in relation to . . . the reduction of
communities’ (especially indigenous communities’) control over their own . . .
natural resources and cultural values.”
It declares that “the implementation of the TRIPS
Agreement does not adequately reflect the fundamental nature and indivisibility
of all human rights, including . . . the right to self-determination. There are
apparent conflicts between the intellectual property rights regime embodied in
the TRIPS Agreement, on the one hand, and international human rights law, on
the other.”
The Sub-Commission
urged national governments, intergovernmental organizations, and civil society
groups to give human rights primacy over the economic policies and agreements.
In 2001, UNESCO began drafting a definition of
intangible cultural heritage and formulating provisions for its protection. In
2003, the resulting Convention was adopted and in 2006 it entered into force, 121 countries
have ratified the Convention.
Article 1 lists the purposes of the
Convention as "to safeguard the intangible cultural heritage; to ensure
respect for the intangible cultural heritage of the communities, groups and
individuals concerned; to raise awareness at the local, national and
international levels of the importance of the intangible cultural heritage, and
of ensuring mutual appreciation thereof; to provide for international
cooperation and assistance." Although the Convention does not directly
discuss intellectual property rights,
Article 3 notes that nothing in the
Convention affects "the rights and obligations of States Parties deriving
from any international instrument relating to intellectual property rights ...
to which they are parties."
Article 11 provides Role of
States Parties to:
a.
take the necessary measures to ensure the
safeguarding of the intangible cultural heritage present in its territory;
b.
among the safeguarding measures referred to in
Article 2, paragraph 3, identify and define the various elements of the
intangible cultural heritage present in its territory, with the participation
of communities, groups and relevant nongovernmental organizations.
The Convention on the Protection
and Promotion of the Diversity of Cultural Expressions builds off the earlier Universal Declaration on Cultural Diversity of
(2001). Canada, France, Germany, Greece, Mexico, Monaco,
Morocco, and Senegal and
Francophone member states of UNESCO strongly supported the Convention. The United
States opposed it. 104 countries have acceded to or
ratified the Convention.
The Convention recognizes "the importance of
traditional knowledge as a source of intangible and material wealth, and in
particular the knowledge systems of indigenous peoples, and its positive
contribution to sustainable development, as well as the need for its adequate
protection and promotion." It seeks to “to reaffirm the sovereign rights
of States to maintain, adopt and implement policies and measures that they deem
appropriate for the protection and promotion of the diversity of cultural
expressions on their territory”[10].
The
Convention also seeks to mitigate the dilution of culture that follows from the
movement of cultural goods and services across national borders.
The Convention mentions intellectual property
rights once, by recognizing "the importance of intellectual property
rights in sustaining those involved in cultural creativity."
The Convention is ambiguous, however, on how much
protection to grant to TCEs. Article 6 lists the types of measures member
states may adopt to protect and promote cultural diversity.
Subsection 2(g) allows “measures aimed at nurturing
and supporting artists and others involved in the creation of cultural
expressions”
Subsection 2(e) allows for measure that “promote
the free exchange and circulation of . . . cultural expressions and cultural
activities, goods and services.” Strong support for indigenous groups as
creators of TCEs is not required by Article 7, as members states need only
“endeavour to recognize the important contribution of artists, others involved
in the creative process, cultural communities, and organizations that support
their work, and their central role in nurturing the diversity of cultural
expressions.”
The UN has been investigating the protection of minorities and
indigenous populations since 1969. On 30 January 2007, the Assembly of the
Union adopted a decision known as the UN Declaration on the rights of
indigenous peoples. 143 countries voted in favor of the Declaration. The
Declaration is the most comprehensive statement of the rights of indigenous
peoples ever developed, giving prominence to collective rights to a degree unprecedented
in international human rights law. The adoption of this instrument is the
clearest indication yet that the international community is committing itself
to the protection of the individual and collective rights of indigenous
peoples. The key provisions follow.
I.
Indigenous peoples and individuals have the right
not to be subjected to forced assimilation or destruction of their culture.
States shall provide effective mechanisms for prevention of, and redress for any
action against such right[11].
II.
Indigenous peoples have the right to practise and
revitalize their cultural traditions and customs. This includes the right to
maintain, protect and develop the past, present and future manifestations of
their cultures, such as archaeological and historical sites, artefacts,
designs, ceremonies, technologies and visual and performing arts and literature
and States shall provide redress through effective mechanisms, which may
include restitution, developed in conjunction with indigenous peoples[12]
III.
Indigenous peoples have the right to manifest,
practise, develop and teach their spiritual and religious traditions, customs
and ceremonies; the right to maintain, protect, and have access in privacy to
their religious and cultural sites; the right to the use and control of their
ceremonial objects; and the right to the repatriation of their human remains.[13]
IV.
Indigenous peoples have the right to maintain and
strengthen their distinctive spiritual relationship with their traditionally
owned or otherwise occupied and used lands, territories, waters and coastal
seas and other resources and to uphold their responsibilities to future
generations in this regard.[14]
V.
States shall establish and implement, in
conjunction with indigenous peoples concerned, a fair, independent, impartial,
open and transparent process, giving due recognition to indigenous peoples'
laws, traditions, customs and land tenure systems, to recognize and adjudicate
the rights of indigenous peoples pertaining to their lands, territories and
resources, including those which were traditionally owned or otherwise occupied
or used. Indigenous peoples shall have the right to participate in this process[15].
VI.
Indigenous peoples have the right to maintain,
control, protect and develop their cultural heritage, traditional knowledge and
traditional cultural expressions, as well as the manifestations of their
sciences, technologies and cultures, including human and genetic resources,
seeds, medicines, knowledge of the properties of fauna and flora, oral
traditions, literatures, designs, sports and traditional games and visual and
performing arts. They also have the right to maintain, control, protect and
develop their intellectual property over such cultural heritage, traditional
knowledge, and traditional cultural expressions.[16]
Etc.
IV.
RATIONALE FOR
THE PROTECTION OF TRADITIONAL KNOWLEDGE:
Protection
systems are developed as an instrument for achieving certain objectives. The underlying
reasons of policy objectives for the protection of traditional knowledge shall be
discussed in line with the three broad categories preservation, protection and promotion.
a) Intrinsic
value of traditional knowledge: Traditional knowledge should be
preserved “because of its intrinsic value to its owners, to the world, and
future generations”. Traditional knowledge forms an integral part of an
indigenous people’s identity163,164 and therefore is of cultural and spiritual
value.
b) Economic
value of traditional knowledge: Traditional knowledge is not only
valuable for the indigenous peoples holding it, but also benefits national
economies in monetary terms and has important input on markets such as
pharmaceuticals, cosmetics, agriculture, food additives, industrial enzymes, biopesticides,
and personal care.
c) Conservation
and sustainable use of biodiversity: In addition to
traditional knowledge relating to specific components of biodiversity, indigenous
peoples’ knowledge of ecosystem functions is relevant for the conservation and
sustainable use of biodiversity.
d) Protection
against misappropriation: A major reason for the protection of
traditional knowledge is the issue of its misappropriation, also referred to as
biopiracy. This term has not been clearly defined yet and has a heavy political
aspect. Usually, biopiracy means the ;
·
unauthorized appropriation of
traditional knowledge or biological resources,
·
appropriation of the same without
equitably sharing the benefits arising from its use or
·
the illegitimate granting of patents
over traditional knowledge.
e) Promotion
of use: As
discussed above, traditional knowledge is not only of crucial value to an
indigenous peoples identity and integrity, but also benefits human kind as
such. Traditional knowledge should therefore be promoted “through its widest
possible dissemination and use for the benefit of human kind”.
[3] Article 27
a) Everyone has the right to freely participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its
benefits.
b) Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which he is the author
a) The States Parties to the present Covenant recognize the right of
everyone:
1. To take part in cultural life;
2. To enjoy the benefits of scientific progress and its applications;
3. To benefit from the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he is the author.
b) The steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary for
the conservation, the development and the diffusion of science and culture.
c) The States Parties to the present Covenant undertake to respect the
freedom indispensable for scientific research and creative activity.
[5] In the case of unpublished works where the identity
of the author is unknown, but where there is every ground to presume that he is
a national of a country of the Union, it shall be a matter for legislation in
that country to designate the competent authority which shall represent the
author and shall be entitled to protect and enforce his rights in the countries
of the Union.
[6] Article4(1): Special
measures shall be adopted as appropriate for safeguarding the persons,
institutions, property, labour, cultures and environment of the peoples
concerned.
