Proposal on Protection of the Intellectual Property Rights

 

PREPARATIONS FOR THE 1999 MINISTERIAL CONFERENCE

 

Proposal on Protection of the Intellectual Property Rights Relating to the

Traditional Knowledge of Local and Indigenous Communities

 

Communication from Bolivia, Colombia, Ecuador, Nicaragua, and Peru

 

The following communication, dated 4 October 1999, has been received

from the Permanent Mission of Peru.

 

_______________

 

Background

 

Both the ongoing evolution of intellectual property and the introduction of

this subject into the Uruguay Round of multilateral trade negotiations in

1996 have been based on a view of economic and technological development

that recognizes intellectual property as a necessary ingredient and

essential requisite for achieving the developmental goals of global trade.

The WTO Members, including the signatories of this communication, confirmed

this recognition by adopting and undertaking to comply with the Agreement

on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

 

The system of intellectual property protection as recognized today is the

result of a continuous evolutionary process driven by the desire to achieve

accelerated commercial and technological development.  Over time, the scope

of intellectual property has been expanded by recognizing new subject

matter of protection.  This broadening has taken place by the inclusion of

special (sui generis) systems of protection or through the widening of the

traditional categories of protection so as to cover new subjects.  In

recent decades, the laws of WTO Members as well as international

instruments have recognized as new subject matter of protection, for

instance, plant varieties (in 1950 and 1960), biological material, plants

and animals (in 1970 and 1980), layout designs (topographies) of integrated

circuits (1980), computer software (in 1980 and 1990) and databases and

compilations of data (in 1980 and 1990).

 

Seen from a historical perspective, the evolution and widening of

intellectual property through the recognition of new rights and subjects of

protection was prompted by the legitimate needs of industries and producers

whose economic interests depended on recognition of their creations and

innovations as protectable subject matter.  The needs and expectations of

these sectors were in due course accepted by the governments of the Member

States concerned and eventually recognized and formalized at the

international level.

 

Nevertheless, the entire modern evolution of intellectual property has been

framed by principles and systems which have tended to leave aside a large

sector of human creativity, namely the traditional knowledge possessed by

local and indigenous communities.  In many cases, this traditional

knowledge is linked to the use and application of genetic, biological and

natural resources, or the management and conservation of such resources and

the environment, in ways that have economic, commercial as well as cultural

value.  More broadly, traditional knowledge also comprises artistic and

cultural expressions which have a fundamental value for their holders, as

they are the cement binding their individual and collective identity, as

well as the guarantee of their continued survival.

 

Traditional knowledge consists largely of innovations, creations and

cultural expressions generated or preserved by its present possessors, who

may be defined and identified as individuals or whole communities, natural

or legal persons, who are holders of rights.  The economic, commercial and

cultural value of this traditional knowledge for its possessors warrants

and justifies a legitimate interest that this knowledge be recognized as

subject matter of intellectual property.  This expectation on the part of

those concerned that their traditional knowledge should be given legal

recognition has found expression in an increasing number of national,

regional and international forums, and is quite as legitimate as the

expectations which in the past justified the recognition of the new

subjects of intellectual property that were mentioned above by way of

example.

 

On the threshold of a new round of international trade negotiations, these

needs and expectations cannot be ignored or disregarded.  They deserve full

consideration in the framework of the future development of intellectual

property at the global level.  The future development of intellectual

property must be based on mutual recognition of the creations and

intangible goods generated by the various sectors concerned in the

different WTO Members.  For many WTO Members, the cultural and economic

value of traditional knowledge is just as important as that of modern

technological innovations for other Members.

 

Traditional knowledge has been under study in some WTO Members for a number

of years with a view to establishing sui generis legislation at national

and/or regional level.  Nevertheless, international recognition of

traditional knowledge as protectable subject matter would afford its

holders the legal possibility of obtaining enforcement of their rights

outside their own countries, thus enabling them to share in the economic

benefits derived from that knowledge.  Such recognition would also lead to

a reduction in the misappropriation and unauthorized exploitation of such

knowledge, and diminish the risk of erosion or destruction of these

intangible goods and of the cultures that have generated them.

 

An international legal framework should enable the legitimate holders of

traditional knowledge to exercise effective control over access, use,

reproduction, imitation, exploitation and transmission and other commercial

activities relating to traditional knowledge or expressions and

manifestations thereof, and ensure that these rights are accompanied by

effective means of enforcement at least equal to those already provided for

in the TRIPS Agreement.

 

International recognition of traditional knowledge as protectable subject

matter would also provide additional means of dealing at international

level with, among other things, aspects related to the protection of

innovations under Article 27.3(b), of the TRIPS Agreement and the

obligation to respect, preserve and maintain knowledge, innovations and

practices of indigenous and local communities provided for in Article 8(j)

of the Convention on Biological Diversity.

 

Proposal

 

For the foregoing reasons, the above signatory Members propose that the

Seattle Ministerial Conference establish, within the framework of this

Round, a mandate with the following purposes:

 

To carry out studies, in collaboration with other relevant international

organizations, in order to make recommendations on the most appropriate

means of recognizing and protecting traditional knowledge as the subject

matter of intellectual property rights.

 

On the basis of the above-mentioned recommendations, initiate negotiations

with a view to establishing a multilateral legal framework that will grant

effective protection to the expressions and manifestations of traditional

knowledge.

 

To complete the legal framework envisaged in paragraph (b) above in time

for it to be included as part of the results of this round of trade

negotiations.

 

_________________________________________

Indigenous Peoples' Secretariat (Canada)

on the Convention on Biological Diversity

Place Vincent Massey, 9th Floor

351 St. Joseph Blvd.

Hull, PQ  K1A 0H3   Canada

Tel: 819.953.5819

Fax: 819.953.1765

tamara.dionnestout@ec.gc.ca

 

Subject: [evm] New Monitor online

Date: Fri, 12 Nov 1999 13:37:03 +0100

From: "Marrewijk, Anna van" <ikdm@nuffic.nl>

Reply-To: "EthnoVeterinary Mailing list (EVM)" <evm@lyris.nuffic.nl>

To: "EthnoVeterinary Mailing list (EVM)" <evm@lyris.nuffic.nl>

 

                                                apologies for any

cross-posting

 

This is to inform you that the July issue of the Indigenous Knowledge and

Development Monitor is now online. You ethnoveterinarians will be

particularly interested to read the review of Wolfgang Bayer and Ann

Water-Bayer's book on Forage husbandry. The review was written by Ning Wu

from the Chengdu Institute of Biology, Chinese Academy of Science who

concludes : It is a must for anyone concerned with the management or

production of forage, whether as a researcher, student, extension worker,

practitioner or policy-maker. The book shows how indigenous practices of

forage husbandry can be an important component in the sustainable

development of livestock husbandry.

http://www.nuffic.nl/ciran/ikdm/7-2/publicat.html

 

The issue also features a lively report of the international conference on

ethnoveterinary medicine in the Mediterranean region, held in Coreglia

Antelminelli (Italy) 7 to 9 May 1999. The report is by Dr Andrea Pieroni and

can be found at  http://www.nuffic.nl/ciran/ikdm/7-2/conf.html#PAST

 

        I hope you will enjoy reading these news and views and that you will

also look around a bit  on the IK website. Besides the Indingoeus Kknowledge

and Development MOnitor, Nuffic-CIRAN offers other services to the

international network of indingeous knowledge and sustainable development.

At the IK Home Page at http://www.nuffic.nl/ciran/ik.html you will find

links to

        information on indigenous knowledge which is scattered throughout

the Internet is searched, indexed and made available on the Indigenous

Knowledge Pages <http://www.nuffic.nl/ik-pages/index.html>. Resources that

offer an overview of a specific subject or that are specific for one region

or country can be browsed, but it is also possible to search resources that

we have selected and described.

        Suggestions and comments are more than welcome!

        CIRAN selected 27 best practices in the field of Indigenous

Knowledge <http://www.unesco.org/most/bpikreg.htm> for inclusion in the

UNESCO-MOST database.

        These best practices are an illustration of the use of IK in

cost-effective and sustainable strategies which may help poor people in

their daily struggle for survival. This database is a co-product of

Nuffic-CIRAN and UNESCO's MOST, Management of Social Transformations

Programme.

        The World Bank has embarked upon an initiative called Indigenous

Knowledge for Development

<http://www.worldbank.org/html/afr/ik/default.htm>. Partners in development

projects will be encouraged to collect, document and disseminate indigenous

knowledge as part of a larger effort to increase the positive impact of

development assistance. Nuffic/CIRAN is playing an active part in the

initiative.

The July issue 1999 of the Indingoeus KNowledge and Development MOnitor is

alos available in PDF format.

 

The November issue 1999 is at the printer's now. It contains four articles:

 

Walter Erdelen, Kusnaka Adimirhardja, H Moesdarsono and Sidik,

'Biodiversity, traditional medicine and the sustainable use of indigenous

medicinal plants in Indonesia'

 

Oscar Ortiz, 'Understanding interactions between indigenous knowledge and

scientific information'

 

Henry P Huntington and María E Fernánde-Giménez 'Indigenous knowledge in the

Arctic:  a review of research and applications'

 

B. Hyma and Seth Appiah-Opoku, 'Indigenous institutions and resource

management in Ghana'

It further contains a lot of news and reviews of books and conferences

again. Read Sjoerd Koopman's report of the four-day conference on Collecting

and safeguarding oral traditions which was held in Changmai (Thailand), 16

to 19 August 1999.   This issue will be sent to the subscribers in about two

weeks. If you want to subscribe please fil out the attached questionnaire

and send it by e-mail to ciran@nuffic.nl. We will make sure to effectuate

your subscription in time for the next issue!

<<Enquete .doc>>

Best regards

 

Anna van Marrewijk

Editor, Indigenous Knowledge and Development Monitor

Nuffic - the Netherlands organization for international cooperation in

higher education

CIRAN - Centre for International Research and Advisory Networks

P.O. Box 29777

2502 LT THe Hague

The Netherlands

Tel.: +31-70-4260 324.

Fax: +31-70-4260 329.

E-mail: ikdm@nuffic.nl

Please visit the Monitor online at http://www.nuffic.nl/ciran/ikdm/

 

    ---------------------------------------------------------------------

                   Name: Enquete .doc

   Enquete .doc    Type: Download File (application/msword)

               Encoding: base64

 

Subject: Collaboration

Date: Fri, 25 Feb 2000 12:00:44 -0500

From: Marie-Claire Angwa <marie-claire.angwa@undp.org>

To: krukkert@nuffic.nl, erukangira@iconnect.co.ke

 

Hi,

 

I am writing on behalf of a group of 2 persons that works with

indigenous people in Cameroon, Central Africa.  As you may know,

Cameroon is one of african countries where they find indigenous people.

They sent me a project document seeking any funding or collaboration for

their work with indigenous people. I would therefore like to know how to

join your organization or if you can help direct them find the

collaboration of funding they seek so that Cameroon indigenous people

can share their experience with the rest of the world and learn from

other groups.

 

Your collaboration is highly appreciated.  Best regards,

 

Marie-Claire Angwa

 

Subject: indigenous knowledge position paper

Date: Wed, 15 Mar 2000 10:10:00 +0300

From: Barbara Gemmill <herren@africaonline.co.ke>

To: erukangira@iconnect.co.ke

 

Hello Ernest,

 

How are you progressing with the indigenous knowledge position paper? This

might assist with some background information:

 

A WWF-IUCN document with recommendations for the First Meeting of the

Working Group on Article 8(j) of the CBD (Sevilla, Spain, 27-31 March 2000)

is available in English, French, and Spanish at :

http://iucn.org/themes/biodiversity/sbstta5/index.html

 

all best,

 

Barbara Dr. Barbara Gemmill

Honorary Senior Lecturer

Department of Botany

University of Nairobi

Nairobi, Kenya

 

Subject: COP5: Statement from Indigenous Peoples on tourism

Date: Wed, 10 May 2000 00:57:32 EDT

From: RTProject@aol.com

To: danielle@antioch-college.edu, dekiyonten@hotmail.com,

     denathorson@yahoo.com, dhamidham@yahoo.com, Diannebr@aol.com,

     dlacey@mosquitonet.com, ddunkel@richmond.edu, DMKERR9@aol.com,

     ebrown@gbgm-umc.org, ecomail@ecotourism.org,

     editor@transitionsabroad.com, EfoJRE@aol.com, efernandez@iucnus.org,

     e.henry@auckland.ac.nz, erukangira@iconnect.co.ke,

     elinks@goa1.dot.net.in, effie@himalayanhightreks.com,

     equation@giasbg01.vsnl.net.in, equation@ilban.ernet.in

 

CONFERENCE OF THE PARTIES TO THE CONVENTION ON

BIOLOGICAL DIVERSITY

Fifth Meeting, Nairobi, 15-26 May, 2000

 

STATEMENT ON TOURISM, INDIGENOUS PEOPLES, AND BIODIVERSITY

 

Tourism became a central focus of international policy within the Convention

on Biological Diversity (CBD/SBSTTA4). It's popularity is discussed within

the Commission for Sustainable Development (CSD-7), and will be promoted

during the Year of Ecotourism during 2002, an important year since it will

also be Rio+10.  Many states are focusing on creating international

activities

and national master plans and strategies for tourism. Therefore, we r

ecommend that the COP maintain tourism as a sector within the CBD,

and strongly encourage the participation of Indigenous Peoples through:

 

· the formation of an expert panel, and/or

· the formation of a working group.

 

Without one of these bodies, there will be no reasonable results on

sustainable tourism for 2002.

 

Indigenous Peoples who are working to preserve their biological diversity

are concerned that The Year of Ecotourism will result in more funding for

mega-ecotourism projects and environmental NGOs - increasing

development activities, promotion and marketing of Indigenous lands

without case studies and critical analysis (such as environmental

impact assessment, social impact assessments, etc.). We encourage

the Parties to consider the recommendations of the CSD7 and adopt the

Ecotourism Definition created at CSD8 (attached).

 

Therefore, we encourage the CBD to address the following activities and

concerns:

 

· The need for tools to ensure prior informed consent, a first step in any

    sustainable tourism activity.

· The need to undertake a collective review of prior informed consent.

· To determine the criteria for cultural diversity within the context of

    biological diversity. This need is clearly illustrated when it comes to

    tourism.

· To develop methodologies for impact assessments (for example SBSTTA

    is primarily a group of scientific experts with no cultural focus).

· To develop a process for grievances and conflict resolutions for

Indigenous

    Peoples.

· To include Indigenous Peoples within the definition of "private sector."

· To develop a deeper appreciation for Indigenous rights which is separate

    from rural communities and others.

· To direct funding to best practices, indicators, early warning systems

    and other technical points.

· To address the urgent need for community-level projects with a strong

    critical analysis of tourism over the long-term.

· To address the need for programs that bring Indigenous Peoples together

    to share case studies, resources and information, and initiatives -

    especially those organizations and communities that value the critical

    analysis of tourism.

 

In addition, Indigenous Peoples are developing plans for an Indigenous

Peoples conference on tourism, to be held in Mexico in October 2001

in Mexico. The purpose to bring positive and negative case studies

together for critical analysis; to become more proactive on tourism

policies and activities; to prepare a strong statement on Indigenous

Peoples and tourism; to build Indigenous networks and knowledge in

this area; and to prepare for 2002 activities.  The Conference of the

Parties is encouraged to work cooperatively with Indigenous Peoples

to develop mechanisms that protect Indigenous Peoples and our

communities while at the same time monitoring sustainable tourism

developments to ensure that it is simply not conventional tourism

painted green.

 

The Rethinking Tourism Project

Protecting & Preserving Indigenous Lands and Cultures

 

Ecotourism Definition

 

Prepared by the Indigenous Peoples Caucus and representatives of other NGOs,

Trade

Unions, Women, Youth, and other representatives of Civil Society at the 8th

Session

of the Commission on Sustainable Development, May 4, 2000

 

Ecotourism, or sustainable tourism, primarily focuses upon Indigenous

Peoples, lands, ecosystems, and cultures. However, ecotourism should

not only look at protecting the environment, or the biodiversity. It must

also take into account protection of the cultural diversity, and other

important views of the Indigenous and local communities, operating in

the cultural context of the community.

 

Ecotourism is sustainable tourism, which follows clear processes that

 

      * ensures prior informed participation of all stakeholders,

    * ensures equal, effective and active participation of all stakeholders,

        acknowledges Indigenous Peoples communities’ right to say "no" to

      tourism development – and to be fully informed, effective and active

      participants in the development of tourism activities within their

      communities, lands and territories, and

    * promotes processes for Indigenous Peoples and local communities to

    control and maintain their resources.

 

The need for a clear definition of Ecotourism in the CSD process is apparent

since there is a lack of Indigenous Peoples participation in the dialogue,

Multi-Stakeholder Working Group on Tourism, and on-going activities and

communications regarding future CSD activities regarding ecotourism. This

definition was created because of concern about the lack of Indigenous

participation since the CSD 7, where many activities and follow-up were

outlined, and negative implications for Indigenous Peoples due to

Proclamation of 2002 as the International Year of Ecotourism (Resolution

adopted by the General Assembly, A/Res/53/200).

 

We call upon industry and other stakeholders to regulate their activities in

accordance with Treaties and Constructive Agreements between Indigenous

Peoples and states, as well as with existing and emerging instruments

and declarations such as: UN Declaration of Human Rights; UN Convenant

on Civil and Political Rights, UN Convenant on Economic and Cultural

Rights; ILO Convention 169; the Lanzarote World Conference on

Sustainable Tourism Declaration; UN Convention on Biological Diversity;

and the current Draft of the UN Declaration on the Rights of Indigenous

Peoples. We specifically ask for a consultation with the Working Group

on Tourism to ensure that their work in developing and promoting

ecotourism adheres to these instruments and declarations.

 

To enable Indigenous Peoples and other local communities to participate

directly and meaningfully at all levels of decision making, and to accept

or reject any tourism (including ecotourism) proposal, broad and authentic

information, education and awareness-raising initiatives are needed.

These initiatives would provide thorough information on damaging forms

of tourism, and common impacts associated with each, providing

knowledge and tools for informed decision-making. Moreover,

empowerment through capacity building and technical assistance is

also a prerequisite for effective participation, as are funds to build

capacity and strengthen local control of tourism.

 

Further, as in the CSD7 recommendation to direct DESA to develop a

Multi-Stakeholder Tourism Working Group, there must be concrete

systems to 1) provide transparent and accurate information to ALL

Stakeholders, 2) to strengthen the network of Indigenous Peoples,

local communities and women’s groups, and 3) to ensure that Indigenous

Peoples are invited to become formal members of the Multi-stakeholder

Working Group on Tourism. We are concerned about the Working Group’s

focus on rapidly developing some activities of the International Year of

Ecotourism without establishing concrete systems for these important

components.

 

We are concerned about current activities taking place through the CSD

process, because they are not adequately transparent, nor do they

facilitate information to and participation of Indigenous Peoples.

Therefore,

the Working Group and Secretariat should also include a review of funds

and resources for activities related to the International Year of Ecotourism

so that these are NOT for promotion and marketing and further development

of Indigenous Peoples lands, but are specifically used for the assessments,

capacity building, information dissemination, training, and other technical

assistance specified in the CSD7. To use funds for other activities, such

as ecotourism promotion, would be irresponsible in light of the need for

recognition of the negative impacts already associated with ecotourism.

 

Signed,

Deborah McLaren, Rethinking Tourism Project, United States

Nina Roa, CSD Tourism Caucus Co-Chair, Equations, India

Wilfredo Alangui, Tebtebba Foundation, Ecumenical Team-World Council of

Churches, Philippines

Roberto Mucaro Borrero, UCTP and RAIS/E.S., USA/Caribe

Victoria Tali-Corpuz, Tebtebba Foundation and the Asia Indigenous Women’s

Network, Philippines

Carol Kalafatic, International Indian Treaty Council, United States

Simone Lovena, Sobrevivencia/FOE-Paraguay

Estela Roman, International Center for Culture and Language, Mexico

Erasto Provisor Martinez, International Center for Culture and Language,

Mexico

Juan Leon, Defensoria Maya, Guatemala

Richard Jordan, Global Education Associates, Co-Convenor Sustainable

Development and Millenium NGO Forum

Graham E. Nesbitt, Bermuda Industrial Union, Bermuda

Tomas Alarcon, CAPAJ, Peru

Manuel Vasquez, Ecumenical Team/WCC, Philippines

Tito Martinez A., Movimiento Juventud Kunda, Panama

Hakan Jonsson, Oaht-och Fiskesamerna, Sweden

Moises Gutierrez, Taypi Ceque (Ecumenical Team), Bolivia

Cristina Casado, WCC/CCI, Venezuela