Indigenous Knowledge

Subject: [IKD] Indigenous Knowledge

Date: Wed, 22 Apr 1998 03:33:12 +0200

From: "Wilbert Z. Sadomba" <wsadomba@africaonline.co.zw>

Reply-To: ikd@jazz.worldbank.org

To: <ikd@jazz.worldbank.org>

 

Colleagues,

 

I am Wilbert Z. Sadomba of Zimbabwe Resource Centre for Indigenous

Knowledge Networks (ZIRCIK-NET).  I am also the Director of Grassroots

Consultants Company (GCC).

 

Duval Olivieri's raises pertinent philosophical issues about IK.

Olivieri begins by arguing that there was "no knowledge that was not once

indigenous".  True indeed.  So why the fuss about IK?  Olivieri sees no

importance in IK as long as there are no businessmen "who appropriate ...

the diffuse common knowledge".

 

Firstly if we follow geography, it is true that all knowledge is

indigenous.  Since it originates from a certain geographical location it

is indigenous there.  But we are not dealing with phenomena geographical

origins.  IK is about socio-cultural and political issues.  This brings

in issues of power. Hence IK is not just the uniqueness of values,

practices and innovations within a given geographical setting.  The

coining of knowledge as indigenous is significant and of substance only

if that knowledge is juxtaposed with one noticeably foreign and or

alien.  Furthermore, another necessary condition  required for

classification of knowledges is that the two cultures in contact need

to be sufficiently antagonistic, expressing power dichotomies that

reflect the struggles between them.  Short of this, I do not see any need

or reason for classifying knowledges as such, bearing in mind that

knowledges all over the world have a history of exchange.

 

The intensity and extent of influence of one culture (Western) over all the

other cultures of the world gives a qualitative difference significant

enough for classification of knowldges.  Western (European) culture, as

well known, spread across the globe by violence and subjugation (slavery,

colonisation and current globalisation).

 

Under such violent cultural conflicts knowledges can not be left intact

as they are part of and indeed a shadow of these conflicts.  In so far as

one culture dominates another, in as much as one knowledge dominates the

other.

 

But why is it important to realise this?  It is, for both theoretical and

practical purposes.  Firstly, when one knowledge system is dominated by

another, the sum total of knowledge of human society loses some

potential.  This is clear when western science disregards

technologies of other cultures e.g. the Chinese acupuncture. But there is

another more complex level which calls for unearthing history of cultural

conflicts.  By denigrating "native" knowledges western knowledge resists

alternative perceptions and philosophies of life.  I think this is where

the major point of departure is.

 

If there is a genuine attempt to consider other knowledge systems we need

to go beyond discussing exchanges of  technologies which are uprooted

from their cultural settings unless we  want to join further exploitation

and subjugation of these other  knowledges by the western systems.

Science has "discovered" its untapped raw material for exploitation in

IK (see contributor of mine prospector???).  This raw material is the IK

which it denigrated since its emergence during the Renaissance.  I expect

proponents of IK to begin from understanding different world outlooks of

other regions then change the western philosophical thought and practice

as the starting point.  The  world outlook of the west need to be

changed.  For example, the  philosophy of many African societies guiding

technological inventions is based on accepting ignorance as part of the

knowledge system. An innovation or invention is sanctioned if it is seen

to be tempering  with so much of the unknown that the community cannot

predict the consequences.

 

The sanctions are not in the form of formal rules but in taboos,

folklore, customs and religious values.  Many of these invoke fear in the

people so that Nature is perceived as sacred hiding unending secrets and

it is therefore regarded with respect.   If such a philosophy would be

considered seriously enough to affect western knowledge systems or

science, most of what we understand as great "inventions" would fail to

meet the simple tests for them to be accepted in the realm of our

knowledge system.  Pesticide companies would close down.  Superpowers

would stop sending people to the moon.  The motor car would have taken

many more centuries to be accepted to come into the industrial fold.

Dolly's project should have been nipped in the bud.  Western science is a

knowledge system that does not accept ignorance as a reality and a form of

knowledge.

 

(...)

 

I end here for now.

 

Wilbert Z. Sadomba

No. 2 Langtree Lane

Chadcombe, Hatfield

HARARE. ZIMBABWE.

wsadomba@africaonline.co.zw

Tel:  263 4 570087 (Home)

 

78 Kaguvi Street,

HARARE, Zimbabwe.

 

Tel: 263 4 781770/1

Fax: 263 4 751202 (Work)

 

Subject: WIPO Roundtable on Intellectual Property & Indigenous Peoples

Date: Mon, 28 Sep 1998 11:00:52 -0700 (PDT)

From: Department of Zoology <pdh@u.washington.edu>

To: indknow@u.washington.edu

 

X-Listprocessor-Version: 8.1 beta -- ListProcessor(tm) by CREN

 

---------- Forwarded message ----------

Date: Mon, 28 Sep 1998 12:15:31 -0400

From: BIONET information services <bionet2@igc.org>

To: BIODIV-CONV List-Server <biodiv-conv@igc.apc.org>

Subject: WIPO Roundtable on Intellectual Property & Indigenous Peoples

 

The papers of a Roundtable on Intellectual Property and Indigenous

Peoples sponsored by the World Intellectual Property Organization (WIPO)

are now available on their web site at

http://www.wipo.int/eng/meetings/1998/indip/index.htm

 

Below is a list of the materials, along with a copy of the opening

address by Prof. Dr. Erica-Irene A. Daes, Chairperson-Rapporteur of the

United Nations Working Group on Indigenous Populations (received from

the BIO-IPR list-server)

 

ROUNDTABLE ON INTELLECTUAL PROPERTY AND INDIGENOUS PEOPLES

              Geneva, July 23 and 24, 1998

 

* PROGRAM

* INTRODUCTION TO COPYRIGHT AND NEIGHBORING RIGHTS

* BASIC NOTIONS OF COPYRIGHT AND NEIGHBORING RIGHTS

* RULES OF PROCEDURE

* INTRODUCTION TO PATENTS, UTILITY MODELS, INDUSTRIAL DESIGNS,

GEOGRAPHICAL INDICATIONS AND TRADEMARKS

* MAIN ASPECTS OF INDUSTRIAL PROPERTY

* INITIATIVES FOR PROTECTION OF RIGHTS OF HOLDERS OF TRADITIONAL

KNOWLEDGE, INDIGENOUS PEOPLES AND LOCAL COMMUNITIES (Lars Anders Baer,

Vice President, SAAMI Council, Sweden)

* INITIATIVES FOR THE PROTECTION OF HOLDERS OF TRADITIONAL KNOWLEDGE,

INDIGENOUS PEOPLES AND LOCAL COMMUNITIES (Atencio López, President of

the Napguana Association, Panama)

* INITIATIVES FOR PROTECTION OF RIGHTS OF HOLDERS OF TRADITIONAL

KNOWLEDGE, INDIGENOUS PEOPLES AND LOCAL COMMUNITIES (Mongane Wally

Serote (M.P.), Chairman, Parliamentary Committee on Arts, Culture,

Languages, Science & Technology, South Africa)

* INITIATIVES FOR PROTECTION OF RIGHTS OF HOLDERS OF TRADITIONAL

KNOWLEDGE, INDIGENOUS PEOPLES AND LOCAL COMMUNITIES (Aroha Mead,

Manager, Heritage and Indigenous Issues Unit, Te Puni Kõkiri, Ministry

of Mãori Development, New Zealand)

* INITIATIVES FOR PROTECTION OF RIGHTS OF HOLDERS OF TRADITIONAL

KNOWLEDGE, INDIGENOUS PEOPLES AND LOCAL COMMUNITIES (Antonio

Jacanimijoy, Coordinating Body for the Indigenous Peoples' Organizations

of the Amazon Basin (COICA), Ecuador)

* LIST OF PARTICIPANTS

 

<<>> 

 

Subject: Protection of intellectual property of indigenous peoples

(Daes)

Date: Mon, 28 Sep 1998 20:14:08 +0800

From: GRAIN Los Banos <grain@baylink.mozcom.com>

To: bio-ipr@cuenet.com

 

BIO-IPR docserver

____________________________________________________

 

TITLE: Some observations and current developments on the protection of

the intellectual property of indigenous peoples

AUTHOR: Prof Dr Erica-Irene A Daes, UNWGIP

PUBLICATION: papers from the WIPO Roundtable on Intellectual Property

and Indigenous Peoples

DATE: Geneva, 23-24 July 1998

SOURCE: World Intellectual Property Organization

FORMAT: PDF or MSWord2.0

URL: see under http://www.wipo.int/eng/meetings/1998/indip/index.htm

____________________________________________________

 

WIPO Roundtable on Intellectual Property and Indigenous Peoples

Geneva, July 23 and 24, 1998

 

Opening Address by Prof. Dr. Erica-Irene A. Daes

 

Chairperson-Rapporteur of the United Nations Working Group on Indigenous

Populations

 

SOME OBSERVATIONS AND CURRENT DEVELOPMENTS ON THE PROTECTION OF

THE INTELLECTUAL PROPERTY OF INDIGENOUS PEOPLES

 

Distinguished Chairman,

 

Honorable Director General of WIPO,

 

Distinguished Representatives of Indigenous Peoples,

 

Ladies and Gentlemen,

 

It is a great honor for me to address you today on the important

subject:

the protection of the intellectual property rights of the world's

indigenous peoples, and it is a particular pleasure for me to have this

opportunity to share my ideas and some observations with such a

distinguished group of experts in the field of intellectual property.

 

I cannot begin without expressing my grateful thanks and warmly

congratulating the World Intellectual Property Organization and in

particular its leadership for convening a Roundtable to review this

noteworthy topic. In this respect, I would like also to express my

sincere hope that this marks the beginning of some important and

substantive contributions by WIPO to the rapidly-growing international

discussion of indigenous peoples' rights to enjoy the fruits of their

traditional knowledge and innovation.

 

The United Nations Commission on Human Rights, its Sub-Commission on

Prevention of Discrimination and Protection of Minorities, and the

Sub-Commission's Working Group on Indigenous Populations, which I have

the great honor of chairing for fifteen years, have been examining the

question of the rights of indigenous peoples since 1982. Our discussions

have attracted may hundreds of indigenous peoples around the world, and

represent the most comprehensive survey of the conditions, needs, and

aspirations of these peoples. I should like to stress that from the very

beginning, indigenous peoples have underscored the urgent necessity of

international action to protect their intellectual property rights.

 

Over the past twenty years, indigenous peoples have grown acutely aware

of the great medical, scientific and commercial value of their knowledge

of plants, animals and ecosystems. Indigenous peoples have also

attracted growing public interest in their arts and cultures, and this

has greatly increased the worldwide trade in indigenous peoples'

artistic works. Global trade and investment in the arts and knowledge of

indigenous peoples has grown millions of dollars per year. Yet most

indigenous people live in extreme poverty., and their languages and

cultures continue to disappear at an alarming rate.

 

Also, in most parts of the world, large-scale extractive projects,

industrialization, and settlements continue to destroy the ecosystems

upon which indigenous peoples depend, and in which they have developed

their specific forms of knowledge. Nevertheless, it should be likewise

mentioned that the last two decades have witnessed many important

national level initiatives to protect the lands and lives of indigenous

people, in countries as diverse as Australia, Canada, Chile, Colombia,

the Scandinavian Countries and the Philippines.

 

For indigenous peoples then, protection of their knowledge is an

intrinsic part of respecting rights to land, culture and to an adequate

livelihood. Without the land and the knowledge that comes mainly from

use of land, indigenous peoples cannot survive. Thus, for indigenous

peoples, as well as for most of the countries in which they live, in

particular developing countries, indigenous knowledge is also their most

valuable and sustainable asset for development.

 

For the world as a whole, furthermore, indigenous knowledge holds out

hope of greatly accelerating the struggle to improve human health and

nutrition and to protect environment. In my opinion all humanity shares

an interest in guaranteeing that indigenous peoples maintain, add to,

and share their distinctive forms of scientific knowledge. For their

part, indigenous peoples have made it clear that they will share what

they know, if they are recognized as the owners of their knowledge.

 

Mr. Chairman,

 

The intellectual property of indigenous peoples may be usefully divided

into three groups: (i) folklore and crafts; (ii) biodiversity; and (iii)

indigenous knowledge.

 

Folklore and crafts include various forms of oral literature, music,

dance, artistic motifs and designs crafts such as basketry, beading,

carving, weaving and painting. Indigenous peoples have expressed their

concern about the commercial exploitation of their folklore and crafts

as well as about the reproduction by outsiders of certain cultural

manifestations and objects of religious importance.

 

The biodiversity of the traditional territories of indigenous peoples

may also be considered as part of the intellectual property of

indigenous peoples requiring protection. Biodiversity refers, inter

alia, to plant varieties which have been developed through experiment

and cultivation for use as food, medicine or materials for houses, boats

or other kinds of construction or use.

 

There is concern that, as the biodiversity, especially of tropical

forest regions, is destroyed through environmental mismanagement and

population pressures, certain crops or products which can no longer be

produced locally will be propagated under license without recognition of

the original cultivators.

 

Indigenous knowledge refers to the knowledge held, evolved and passed on

by indigenous peoples about their environment, plants and animals, and

the interaction of the two. Many indigenous peoples have developed

techniques and skills which allow them to survive and flourish in

fragile ecosystems without causing depletion of resources or damage to

the environment. The various forms of sustainable development practiced

by indigenous peoples in forests, mountain and valley areas, dry-lands,

tundra and arctic regions derive from a successful application of

technology in agro-foresty, terracing, resource management, animal and

livestock controls, fish harvesting and in other areas. In particular,

many indigenous peoples have a knowledge of plants suitable as medicines

and this traditional medicine has been and continues to be in many cases

a source for Western pharmacology. As noted by the World Commission on

Environment and Development: "Tribal and indigenous peoples" lifestyles

can offer modern society many lessons in the management of resources in

complex forest, mountain and dry-land ecosystems.

 

Mr. Chairman,

 

Indigenous peoples have the right to special measures for protection, as

intellectual property, of their traditional cultural manifestations,

such as literature, designs, visual and performing arts, medicines and

knowledge of the useful properties of fauna and flora.

 

The Convention on Biological Diversity was a crucial step. It recognizes

the need for States to "respect, preserve and maintain" the ecological

knowledge of indigenous peoples and local communities, and to ensure

that the benefits of commercial applications are shared equitably. The

Convention has been almost universally ratified, which enhances its

importance as a legal foundation for future elaboration. In my opinion,

nothing prevents States from adopting special measures to protect

indigenous knowledge which does not fall within the current definition

of "industrial property". Nevertheless, there has been some dispute over

potential conflicts with the Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPs).

 

I was very gratified to read an editorial opinion in the April 9, 1998,

issue of the important international science journal "Nature", which

concludes that the Agreement on Trade-Related Aspects of Intellectual

Property Rights, "if left unmodified on the questions of indigenous

knowledge and community rights risks enhancing social disparities and

thereby fostering social conflict". I not only agree but would like to

add that there is an even greater danger of stifling the significant

collaborations which have begun to develop between the world's

indigenous peoples and scientific institutions.

 

I learned also with a sense of satisfaction that the Fourth Conference

of the Parties to the convention on Biological Diversity, held in

Bratislava this past May, decided to establish an ongoing Working Group

to advise the Parties on matters connected with traditional and local

knowledge. I am particularly pleased that the conference of the Parties

decided that the representatives of indigenous peoples should have

observer status and fully participate in the future meetings of the

above-mentioned working Group. In this respect, I should like to state

that, in my capacity as Chairperson of the United Nations Working Group

on Indigenous Populations, since 1984, I have pursued a policy of fully

including indigenous peoples as well as Governments and NGO's concerned

in the annual sessions of this Working Group and have found that it

promotes mutual respect, collegiality, flexibility and constructive

cooperation. With the establishment of this new Working Group by the

Fourth Conference of the Parties to the Convention on Biological

diversity, there exists a high-level mechanism for building a

consensus on the general approach which should be taken by States and

international agencies.

 

What is lacking, I believe, is sufficient technical guidance for

governments in the drafting of special legislation in this field. This

is one of the challenges I would like to place before you at this

roundtable. Permit me, first, to review briefly some important recent

developments in international standard-setting.

 

As Special Rapporteur of the United Nations Sub-Commission on the

Protection of Indigenous Peoples' Heritage, I have elaborated a draft

body of Principles and Guidelines that largely reflect the main

suggestions of indigenous peoples themselves.

 

The principal issues of my draft on Principles and Guidelines for the

Protection of the Heritage of Indigenous Peoples are:

 

-Indigenous peoples should be recognized as the primary guardians and

interpreters of their cultures, arts and sciences, whether created in

the past, or developed by them in the future;

 

-Indigenous peoples are recognized as collective legal owners of their

Knowledge, in perpetuity;

 

-The right to learn and use indigenous knowledge can be acquired only in

accordance with the laws or customary procedures of the indigenous

peoples concerned, and with their free and informed consent;

 

-The duty and responsibility of States, educational and scientific

institutions and the United Nations system to help indigenous peoples

themselves develop the technical capacity to document and, if they

choose, develop and apply their own knowledge commercially.

 

The key principles of collective ownership in perpetuity, and of

acquisition only in accordance with indigenous peoples' own laws, are

among others affirmed in some articles, including articles 29 and 30 of

the draft United Nations Declaration on the rights of Indigenous

Peoples, which is currently under consideration by an ad hoc Working

Group established by the United nations Commission on Human Rights. The

United Nations General Assembly has repeatedly called for the adoption

and proclamation of this draft declaration within the International

Decade of the World's Indigenous Peoples.

 

Mr. Chairman,

 

There have also been very important developments in regional

inter-governmental organizations. Thus, the draft American Declaration

on the Rights of Indigenous Peoples, which was approved by the

Inter-American Commission on Human Rights last year, affirms the right

of indigenous peoples to "the recognition and full ownership control and

protection" of their knowledge, and calls upon States to adopt measures

to ensure this right, with the participation of indigenous peoples.

 

The June 1998 Ministerial Meeting of the Organization of African Unity

approved Model Legislation on Community Rights and on Access to

Biological Resources, in connection with the Convention on Biological

Diversity. Thus, Article 5 of the above-mentioned African Model

Legislation recognizes and protects the rights of local communities "to

benefit collectively from their own knowledge, innovations and

practices, and to continue to be in perpetuity the lawful and sole

custodians of their knowledge". No knowledge may be sold or acquired

without the prior informed consent and participation of the communities

concerned, as well as full disclosure and approval by the appropriate

State authorities, which shall ensure that the communities concerned are

paid a minimum percent of revenues.

 

This is a particularly thorough and useful provision, which I hope will

be implemented by African States, and taken into account in other

regions of the world. I would like also to mention a procedural

provision in the aforesaid African Model Legislation, requiring the

State to "establish a national regulatory scheme to identify specific

rights [and] procedures for registration and transfers of rights", in

consultation with local communities. I support this approach to

implementation, which recognizes, inter alia, the following crucial

related facts:

 

-Every indigenous community has its own customary laws regarding the

ownership, proper use and sharing of knowledge;

 

-These laws differ a great deal from, are tied to ecosystem and the

entire social structure, economy and culture of people;

 

This is work which simply cannot be easily achieved at the global level.

In involves research, consultations and agreement with a large number of

indigenous peoples around the world, and will involve factors which are

specific to individual countries and regions. International meetings

such as this Roundtable, and the above-mentioned working Group

established by the Biodiversity Convention, can only suggest a general

approach, and serve as coordination and clearinghouse mechanisms.

 

The technical capacity to assist Governments in devising specific

practical arrangements with local communities must be developed at the

national level. In my humble opinion, this is a role for educational and

scientific institutions run by indigenous peoples themselves. The

international community should play a major role in strengthening such

national-level institutions. In my view WIPO could, with its great

experience and deep knowledge in protecting intellectual property in

general, make important contributions of this kind.

 

In this context, permit me to invoke the United Nations General Assembly

resolution 52/108 of 12 December 1997, reviewing the progress of the

International Decade of the world's Indigenous People.

 

The General Assembly recommends that "centers of excellence" for

indigenous peoples' capacity-building be designated in each region of

the world, and specifies that these should be institutions accountable

directly to indigenous peoples themselves. I would like to suggest an

initiative to identify capable indigenous programs and institutions in

all regions, and organize them into a United Nations sponsored network

to assist Governments with research, consultations, and elaboration of

draft legislation in the field of indigenous peoples' intellectual

property.

 

International standard-setting must always be implemented through

national institutions with the requisite expertise to adapt very broad

goals and principles to the conditions of individual countries. There is

growing political support for recognizing the intellectual property of

indigenous peoples at intergovernmental meetings, especially within the

aforesaid Biodiversity Convention, and in the American and African

regions. But this in turn creates a pressing need for national level

expertise in this field. What I should like to propose is that we fully

embrace the principle of partnership with indigenous peoples contained

in Agenda 21 of the Earth Summit held at Rio in 1992, and in the theme

and mandate of the International Decade for the World's Indigenous

Peoples, and focus our work on strengthening the capacity of indigenous

peoples themselves to play the most important key technical role in

enactment of national legislation.

 

Mr. Chairman,

 

In concluding my opening address I should like to thank you, most

warmly, for your patience and kind attention.

 

_________________________________________________________

BIO-IPR is an irregular listserver put out by Genetic Resources Action

International (GRAIN). Its purpose is to circulate information about

recent developments in the field of intellectual property

rights related to biodiversity & associated knowledge. BIO-IPR is a

strictly non-commercial and educational service for nonprofit

organisations and individuals active in the struggle against IPRs on

life.

HOW TO PARTICIPATE -- To get on the mailing list, send the word

"subscribe" (no quotes) as the subject of an email message to

<bio-ipr-request@cuenet.com>. To get off the list, send the word

"unsubscribe" instead. To submit material to the list, address your

message to <bio-ipr@cuenet.com>. A note with further details about

BIO-IPR is sent to all subscribers.

ABOUT GRAIN -- For general information about GRAIN, you may visit our

wwwsite http://www.grain.org or send an email to

<grain@bcn.servicom.es>.

 

Subject:

Resent-Date: Sun, 4 Oct 1998 23:51:26 -0700

Date: Mon, 05 Oct 1998 14:52:20 +0800

From: GRAIN Los Banos <grain@baylink.mozcom.com>

To: bio-ipr@cuenet.com

 

Resent-Message-ID: <"x381hC.A.v9G.uxGG2"@oolaa>

Resent-From: bio-ipr@cuenet.com

X-Mailing-List: <bio-ipr@cuenet.com> archive/latest/12

X-Loop: bio-ipr@cuenet.com

Precedence: list

Resent-Sender: bio-ipr-request@cuenet.com

Subject: [BIO-IPR] Biodiversity Convention & IPR: Conflict or Harmony?

Resent-Bcc:

 

BIO-IPR docserver

________________________________________________________

 

TITLE: The Biodiversity Convention and Intellectual Property Rights:

Conflict or Harmony?

AUTHOR: Gerald J Mossinghoff

PUBLICATION: Patent World, #106

DATE: October 1998

SOURCE: IP World Online

URL: http://www.ipworldonline.com

________________________________________________________

 

THE BIODIVERSITY CONVENTION AND INTELLECTUAL PROPERTY

RIGHTS: CONFLICT OR HARMONY?

 

by Gerald J Mossinghoff

 

As a former United States Commissioner of Patents and Trademarks, and as a

former Chairman of the General Assembly of the World Intellectual Property

Organisation (WIPO), I am keenly aware of the indispensable contribution

intellectual property protection has made throughout modern history to

social progress. In a recent article that Ralph Oman, a former Register of

Copyrights, and I published in the journal World Affairs(1) we documented

that WIPO - by fostering effective intellectual property protection

worldwide both in developed as well as developing countries - has done more

for human progress than perhaps any other specialised agency of the United

Nations.

 

In 1776 - the year of our Declaration of Independence - the

philosopher/economist Adam Smith taught us that the wealth of nations rested

on three pillars: labour, capital and natural resources.(2) Our generation

has added a fourth pillar: intellectual property in all of its forms.

Patents protect new technology. Copyrights protect literary and artistic

works as well as computer software. Trademarks assure orderly commercial

development and consumer protection. Each is indispensable in our

information-based society.

 

As Commissioner of Patents, I participated personally in the decision of the

Reagan Administration to include intellectual property rights in the Uruguay

Round of the General Agreement on Tariffs and Trade (GATT). That decision

led to the landmark agreement adopted at Marrakesh in April 1994, the

agreement on Trade-Related Aspects of Intellectual Property Rights - the

so-called TRIPs accord. TRIPs recognised the dual need to 'promote effective

and adequate protection of intellectual property rights' and to 'ensure that

measures and procedures to enforce intellectual property rights do not

themselves become barriers to legitimate trade'.(3)

 

By requiring all parties to the agreement to eventually meet high standards

for protecting intellectual property, TRIPs has as an overriding goal to

stimulate and foster human creativity for social progress.

At the end of 1996 I retired as President of the United States

Pharmaceutical Manufacturer's Association, now known as the Pharmaceutical

Research and Manufacturers of America or PhRMA, a scientific and educational

trade association that represents the United States research-based

pharmaceutical industry worldwide. In that role, I came to appreciate the

overriding importance of the three principal objectives of the Convention on

Biological Diversity (the Biodiversity Convention) opened for signature at

the Earth Summit in Rio de Janeiro, in June 1992. Those objectives are quite

straightforward and, in my view, universally accepted:

 

- to conserve the earth's biological diversity for future generations;

- to exploit this biodiversity in a sustainable way; and

- to share its benefits in a fair and equitable manner.(4)

 

Those goals recognise that human beings have an undeniable ethical

responsibility to protect other species and a clear duty to manage and

preserve the earth's precious resources not only for the present generation

but for future generations as well. Conserving biodiversity is of particular

interest to the research-based pharmaceutical industry. Despite the advent

of what is called rational drug discovery - typified by the work that earned

Sir James Black a Nobel Prize in Medicine - and despite modern-day genetic

engineering, pharmaceutical industry scientists continue to rely on what's

referred to as Natural Products Drug Discovery or NPDD.(5) NPDD involves the

search for bioactive compounds contained in natural sources such as plants,

fungi, insects, microbes, and marine organisms - most of which are found in

the tropical areas of the world. It is estimated, for example, that about

one quarter of all modern medicines sold in the United States are derived

>from NPDD.

 

During the negotiations leading to the Biodiversity Convention, intellectual

property rights did become a contentious issue. The debate centered on the

transfer of technology, with several developing countries contending that

existing intellectual property systems of law hinder the transfer of

technology to the developing world. Developed countries argued exactly the

opposite: that transfer of technology requires effective intellectual

property protection.

 

At that same time, there was a concerted effort in Europe - which ultimately

proved to be successful, at least initially - to defeat the European

Community's Biotechnology Patent Directive that would have clarified the

rights of inventors to acquire patents on their biotechnology inventions

throughout Europe. The debate on intellectual property during the drafting

of the Biodiversity Convention was stimulated, in part, by a desire by some

to use the Convention as a way to curtail patent protection on living

organisms, whether in Europe, Japan, the United States, or elsewhere. But

those efforts did not succeed. A thriving biotechnology industry in the

United States is based literally on tens of thousands of U.S. biotechnology

patents. That experience is being repeated in Japan and Europe - although on

a somewhat smaller scale. The approval on May 12, 1998 by the European

Parliament of an amended version of the European Biotechnology Patent

Direction is just one more indication of the recognition that biotechnology

patents are here to stay.

 

Although the actual wording of the Biodiversity Convention is diplomatically

vague - 'impressively opaque' in the words of the Economist(6)- it did

contain potentially troublesome provisions regarding biotechnology

regulation and intellectual property rights that prompted the Bush

Administration's decision not to sign it at the Earth Summit.

 

In December 1992, then President-elect Clinton undertook consultations with

industry and environmental groups to find ways to reconcile what some viewed

as competing interests to allow the United States to become a party to the

Convention. The result was a consensus - fully supported by the

pharmaceutical and biotechnology industry - on how the United States would

interpret the Convention's key but somewhat vague provisions.

 

President Clinton signed the Convention on June 5, 1993 and sent it and the

Administration's interpretive statement to the Senate on November 16,

1993.(7).

 

The Clinton interpretative statement paid particular attention to

intellectual property rights. With respect to Article 15 of the Convention

regarding the sharing of genetic resources 'on a fair and equitable basis',

the Clinton Administration asserted that such sharing of the results of

research and benefits 'must take fully into account exclusive rights to

technology that a party may possess, and that transfers of proprietary

technology will occur only at the discretion of the owner of the

technology'.(8) In order to allay fears of retroactive application of the

Convention, the interpretative statement declared that 'resources obtained

by public or private entities before the Convention enters into force (for

the United States) or obtained outside (of its scope) are not governed by

the Convention'.(9)

 

Because the Convention is not self-implementing in an international judicial

sense, these interpretative statements are key to a reasonable - and I would

submit, effective - implementation of the technology transfer provisions of

the Convention. Importantly, they are also consistent with the

later-negotiated and agreed-upon TRIPs accord that I have mentioned. It is

significant that more than 125 of the 167 nations that have signed the

Biodiversity Convention are now members of the World Trade Organisation and

thus have fully agreed to enforce the specific intellectual property

standards of TRIPs.

 

Given the Clinton Administration's interpretation of the Convention as it

regards intellectual property - and the fact that the Convention must be

read in the light of the TRIPs agreement - the United States pharmaceutical

and biotechnology industry is urging the Senate to ratify the Convention.

Among other things, this will give the United States an important voice in

the follow-up meetings or 'Conferences of the Parties' (COP).(10)

 

With this background, let me turn to the question suggested by the title of

this article: Are the Biodiversity Convention and intellectual property

protection - as best exemplified by TRIPs - in conflict or in harmony? In my

mind, the answer is clear: appropriately implemented they are clearly in

harmony.

 

Years of study and debate in the United States that resulted in the

Stevenson-Wydler and Bayh-Dole acts lead to an inescapable conclusion:

technology transfer requires effective intellectual property protection.

Without it, there really is nothing to transfer. Let's hypothesise that Drug

Company A discovers a complex chemical compound having pharmacologically

 

interesting characteristics in a rainforest. Such a discovery would be

potentially beneficial to all concerned, but unless the essential follow-up

work of purifying the compound, reproducing it either synthetically or

otherwise, and clinically proving its safety and efficacy for human

medicinal use - is protected by intellectual property there would be no

incentive to undertake the efforts. The compound would remain what it was

when it was discovered: an interesting scientific curiosity of no value to

anyone.

 

Perhaps the most widely publicised arrangement between a leading

research-based pharmaceutical company and a developing country providing

access to its biological resources is the agreement between Merck and a

non-profit research and conservation organisation in Costa Rica - the

Instituto Nacional de Biodiversidad or more simply INBio. As summarised by

one author:

 

Merck made an advance payment to INBio of $1 million for the right to

develop drugs from Costa Rican plants, insects, or microbes supplied by

INBio. Such an advance payment, which will provide resources at the outset

of the lengthy period of drug development, is a novel feature of the

Merck-INBio deal. INBio and the Costa Rican Ministry of Natural Resources

will also divide a share of the royalties on any drugs developed, a share

reportedly between one and three percent of the total. Ten percent of the

initial payment and fifty percent of any royalties, will directly fund

conservation.

 

In addition to the monetary arrangement, the agreement provides for

technology transfer that will contribute to the development of Costa Rican

science. Merck donated chemical extraction equipment worth $135,000, sent

two natural product chemists to train Costa Rican scientists, and arranged

for Costa Rican scientists to spend time at Merck's labs. When asked why

Merck has undertaken a venture which is admittedly a gamble, P Roy Vagelos,

then Merck's chairman and chief executive officer, replied "We're doing this

because it's good business and it's good for the rain forests".(11)

 

This pattern is repeated elsewhere:

 

In December 1993, the United States National Institutes of Health (NIH),

Conservation International, Bristol-Myers Squibb, Virginia Polytechnic

Institute and State University, and the Missouri Botanical Garden contracted

with the country of Surinam to study medicinal plants. Under the contract,

Bristol-Myers pays royalties to the indigenous people of Surinam for drugs

derived from local plants. Other initiatives sponsored by the NIH include:

an agreement between Monsanto and the Cayetano Peruvian University to study

medicinal plants from Andean rain forests; one among Walter Reed Army

Institute of Research, the University of Yaounde in Cameroon, and several

US-based conservation groups and pharmaceutical companies to search for

parasitic drugs in the African rainforest; and another involving American

Cyanamid and various universities of Argentina, Chile, Mexico, and the

United States to study medicinal properties of plans from arid regions. One

US-based company, Shaman Pharmaceuticals, uses ethnobotanical science as a

 

drug discovery technique. It has several patent claims already pending and

has pledged to return a portion of its sales from drugs derived from

community-based knowledge to the communities involved through its non-profit

arm, the Healing Forest Conservancy.(12)

 

In my view, these joint projects are exactly the kinds of beneficial efforts

envisioned by the Biodiversity Convention. And they have one quintessential

unifying characteristic: each relies on effective patent protection of any

resulting drug discoveries. Without such protection, the agreements would

not be worth much to anyone.

 

Thus, not only is effective intellectual property protection in harmony with

the goals of the Biodiversity Conventions; in a very real sense it is

indispensable to achieving those goals.

 

Brazil provides a clear example of how the goals of the Biodivesity

Convention can be achieved through effective intellectual property

protection. After hosting the Earth Summit in 1992 that lead to the

Biodiversity Convention, Brazil has become a world leader in its

implementation. That could have been predicted, since Brazil contains the

largest remaining area of tropical forest in the world. It has also become a

leader among developing countries in recognising the benefits of effective

intellectual property protection. In a major development, Brazil amended its

patent law effective in May 1997 - well ahead of the schedule required by

TRIPs - to protect pharmaceutical products. That decision - and the other

actions taken by Brazil to attract outside investment - prompted the

worldwide research-based pharmaceutical industry to commit to $1.7 to $2.3

billion in direct investments in Brazil. That investment, in turn, will

permit Brazil to assume its place as one of the leading contributors to

pharmaceutical and biotechnology research and development. That's good news

for the citizens of Brazil - and for people everywhere who are looking for

new medicines to prevent, treat and cure diseases.

 

© 1998 Gerald J Mossinghoff. The author is senior counsel for Oblon, Spivak,

McClelland Maier & Neustadt PC, Arlington, Virginia, USA. He was a former

Assistant Secretary of Commerce and Commissioner of Patents and Trademarks.

Mr Mossinghoff teaches Intellectual Property Law at George Washington

University Law School and at George Mason University School of Law.

 

Notes

(1) Mossinghoff and Oman, 'The World Intellectual Property Organisation: A

United Nations Success Story', 160 World Affairs 104 (1977), republished in

79 JPTOS 691 (1997).

(2) Adam Smith, 'The Wealth of Nations: An Inquiry into the Nature and

Causes' (1776).

(3) TRIPs Preamble, paragraph 1.

(4) Convention in Biological Diversity, Article 1.

(5) Bosselmann, 'Plants and Politics: The International Legal Regime

concerning Biotechnology and Biodiversity', 7 Colorado Journal of

International Environmental Law and Policy 111 (Winter 1996).

(6) 'The Earth Conference: Biodivisive', Economist, June 13, 1992, at 93.

(7) 'Convention on Biological Diversity: Message from the President of the

United States', 103 Cong. Treaty Doc. 103-20, November 1993.

 

(8) Id. at xi.

(9) Id. at xii.

(10)See, eg 'Report of the Conference of the Parties (COP) to the Convention

on Biological Diversity: the Biodiversity Convention and TRIPs:

Relationships and Synergies', UNEP/CBD/COP/3/23, October 5, 1996.

(11) Goldman, 'Biological Diversity: Compatibility of Conservation Measures

and Competitiveness of the Biotechnology Industry', 25 Law and Policy in

International Business 695, 720 (Winter 1994).

(12) Namoi Roht-Arriaza, 'Of Seeds and Shamans: The Appropriation of the

Scientific and Technical Knowledge of Indigenous and Local Communities', 17

Michigan Journal of International Law 919, 959 (Summer 1996). The author

makes an appealing case for expanding intellectual property-like protection

to indigenous genetic resources - an intriguing idea well beyond the scope

of this article. See also, 'Report of the Workshops on Traditional Knowledge

and Biological Diversity', Madrid, November 24-28, 1997, UNEP/CBD/TKBD/1/3

(15 December 1997); Jacoby and Weiss, 'Recognising Property Rights in

Traditional Biocultural Contribution', 16 Stanford Environmental Law Journal

74 (January 1977); and Kadidal, 'Plants, Poverty, and Pharmaceutical

Patents', 103 Yale Law Journal 223 (October 1993).

 

This article originally appeared in Patent World Issue #106, October 1998

 

_________________________________________________________

ABOUT THIS LISTSERVER -- BIO-IPR is an irregular listserver put out by

Genetic Resources Action International (GRAIN). Its purpose is to circulate

information about recent developments in the field of intellectual property

rights related to biodiversity & associated knowledge. BIO-IPR is a strictly

non-commercial and educational service for nonprofit organisations and

individuals active in the struggle against IPRs on life.

HOW TO PARTICIPATE -- To get on the mailing list, send the word "subscribe"

(no quotes) as the subject of an email message to

<bio-ipr-request@cuenet.com>. To get off the list, send the word

"unsubscribe" instead. To submit material to the list, address your message

to <bio-ipr@cuenet.com>. A note with further details about BIO-IPR is sent

to all subscribers.

ABOUT GRAIN -- For general information about GRAIN, you may visit our

wwwsite http://www.grain.org or send an email to <grain@bcn.servicom.es>.

 

Subject:

Resent-Date: Sun, 4 Oct 1998 23:51:35 -0700

Date: Mon, 05 Oct 1998 14:52:27 +0800

From: GRAIN Los Banos <grain@baylink.mozcom.com>

To: bio-ipr@cuenet.com

 

Resent-Message-ID: <"mLORD.A.V-G.3xGG2"@oolaa>

Resent-From: bio-ipr@cuenet.com

X-Mailing-List: <bio-ipr@cuenet.com> archive/latest/13

X-Loop: bio-ipr@cuenet.com

Precedence: list

Resent-Sender: bio-ipr-request@cuenet.com

Subject: [BIO-IPR] India joins Paris Convention, ratifies PCT: so what?

Resent-Bcc:

 

BIO-IPR docserver

________________________________________________________

 

TITLE: India Decides to Join the Paris Convention and Ratify the Patent

Cooperation Treaty. So What?

AUTHOR: Sudhir Ahuja

PUBLICATION: Patent World, #106

DATE: October 1998

SOURCE: IP World Online

URL: http://www.ipworldonline.com

________________________________________________________

 

INDIA DECIDES TO JOIN THE PARIS CONVENTION AND RATIFY THE

PATENT COOPERATION TREATY. SO WHAT?

 

By Sudhir Ahuja, D P Ahuja & Co, Calcutta, India

 

The Indian government has taken a decision to join the Paris Convention. It

has also decided to ratify the Patent Cooperation Treaty. It is, however,

not clear as yet whether India is proposing to amend its Patent, Trademark

and Designs Laws.

 

It is therefore not certain whether there will be any change in the

patentability criteria or availability of service marks in the near future.

The only thing which appears to be emerging clearly, is the fact that

priority will now be able to be claimed from all Paris Convention countries,

for patents and designs.

 

It will also now be possible to claim priority from European patent

applications (EPC); this had previouly not been possible.

 

On the basis of the Indian Government's notification dated 3 January 1995

priority claims have been allowed for patents from 72 designated countries

(which does not include Switzerland) along with the six earlier designated

convention countries (United Kingdom, New Zealand, Ireland, Sri Lanka,

Canada and Australia).

 

The new provisions will probably come into effect from 25 November 1998.

 

Unless the Trademark Law is amended priority cannot be claimed and service

mark applications will not be possible.

 

So what has been the objective of India joining the Paris Convention and the

Patent Cooperation Treaty (PCT) now? It is still not clear.

 

The Indian Government's press release on this subject has listed the

following as advantages to be derived from the Convention:

 

(1) improved industrial climate;

(2) improved information flow;

(3) better and more extensive protection for Indian inventors abroad;

(4) the benefit of national treatment for Indian inventors;

(5) support for India's export efforts;

(6) encouragement of scientific research and technological development; and

(7) membership of the PCT and other treaties.

 

It goes on to say that India does not have to make any changes at all to the

Patents Act 1970 in order to accede to the Convention. If we look at all the

laws on industrial property, the only change required is a minor amendment

to Section 78A of the Designs Act 1911 to extend reciprocal priority

arrangements to all countries party to the Paris Convention. Presently, this

is restricted to some commonwealth countries.

 

The most important benefit for India from membership of the Paris Convention

is access to the PCT.

 

The only practical benefit appears to be that Indian applicants will be able

to file applications in all the member countries claiming priority and also

file PCT applications.

 

India will also now have the tag of being a Paris Convention country and a

PCT signatory.

 

It may be recalled that a set of patent laws in accordance with the

guideline prescribed under GATT was drafted a few years ago. However, change

of governments in quick succession and political considerations have failed

to get these legislated.

 

Furthermore, an ordinance was also enacted, but this too lapsed as the

government was unable to draft relevant laws in time.

 

Foreign drug companies are continuing to file product patent applications in

India with the hope that these will be provided with the promised patent/EMR

protection in the near future. Incidentally, this is the country's

obligation under TRIPs.

 

Any amount of pleas by the government that Black Box protection will be

provided is legally hollow in the absence of amendments to the Act in any

manner whatsoever.

 

However, there is no indication whatsoever, that the government proposes to

grant pipeline protection to pharmaceutical and agrochemical products.

The present Patents Act of 1970 suffers from certain shortcomings vis-à-vis

TRIPs. These are:

 

(1) 'process' and not 'product' patents are only granted in respect of food,

pharmaceutical and chemical sectors;

(2) the duration of a patent is seven years in the case of food and

pharmaceuticals and fourteen years in the case of all other sectors;

(3) automatic compulsory licensing in the case of food, pharmaceuticals and

chemical sectors without the patent holder being heard, even if the latter

worked his patent in India;

(4) no patent protection for life forms, such as microrganisms;

(5) importation does not amount to working of the patent in India; and

(6) the burden of proof, in case of infringement is on the plaintiff.

 

It is time the government avoided offering knee-jerk reactions to these

vexed issues and instead took the opportunity to redraft and compose a

modern Patent Act which would take India into the twenty-first century.

 

 

This article originally appeared in Patent World Issue #106, October 1998

 

_________________________________________________________

ABOUT THIS LISTSERVER -- BIO-IPR is an irregular listserver put out by

Genetic Resources Action International (GRAIN). Its purpose is to circulate

information about recent developments in the field of intellectual property

rights related to biodiversity & associated knowledge. BIO-IPR is a strictly

non-commercial and educational service for nonprofit organisations and

individuals active in the struggle against IPRs on life.

HOW TO PARTICIPATE -- To get on the mailing list, send the word "subscribe"

(no quotes) as the subject of an email message to

<bio-ipr-request@cuenet.com>. To get off the list, send the word

"unsubscribe" instead. To submit material to the list, address your message

to <bio-ipr@cuenet.com>. A note with further details about BIO-IPR is sent

to all subscribers.

ABOUT GRAIN -- For general information about GRAIN, you may visit our

wwwsite http://www.grain.org or send an email to <grain@bcn.servicom.es>.

 

Subject: [BIO-IPR] Republic of Moldova joins UPOV

Resent-Date: Sun, 4 Oct 1998 23:51:39 -0700

Resent-From: bio-ipr@cuenet.com

Date: Mon, 05 Oct 1998 14:52:34 +0800

From: GRAIN Los Banos <grain@baylink.mozcom.com>

To: bio-ipr@cuenet.com

 

BIO-IPR docserver

________________________________________________________

 

TITLE: Accession of the Republic of Moldova to the International Convention

for the Protection of New Varieties of Plants

PUBLICATION: UPOV Press Release, No. 32

DATE: 28 September 1998

SOURCE: Union for the Protection of New Varieties of Plants (UPOV), Geneva

URL: http://www.upov.int/eng/prssrlss/32.htm

________________________________________________________

 

UPOV Press Release No. 32

 

Geneva, September 28, 1998