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IPAN issue brief - no. 8
genetic resources and
traditional knowledge - the key IP issues
(page
last amended: 24 Sep 2008)
Intellectual property law is largely a creature of the
industrial west. Patents and trade secrets can protect new inventions; trade
marks protect the reputation of traders; copyright protects the creative output
of authors, artists and musicians (and their publishers). But not all valuable
intellectual creations can be protected. One class of creation which is (in
general) not capable of such protection is the indigenous knowledge of
traditional societies, frequently referred to as "traditional knowledge" ("TK").
Western science tends to be disdainful of such knowledge: as at
best unsystematic and unproven, at worst mere superstition ("old wives' tales").
Nevertheless such knowledge has formed the basis of numerous advances that have
been of value to the world as a whole. Many drugs are based on TK - starting
with aspirin (originally a derivative of the willow tree): and more recently the
new antimalarial, artemisinin, is based on a traditional Chinese medicinal herb.
There is no general system for recognising the contribution of
TK to modern developments, or rewarding the communities who have preserved and
handed on such the knowledge on which they are based. Similarly, artistic works
based on traditional folk-tunes, or stories, or traditional styles of
ornamentation, are exploited without reward or even reference to the originating
communities: and sometimes in ways which scandalise them (example: misuse for
commercial purposes of sacred emblems of Australian aborigines) . This is seen
as unjust, particularly where those communities are poor, and those who exploit
the developments make substantial profits from them. The exploiters, however,
see the knowledge they have used as part of "the public domain" (like a large
proportion of published Western science and technology). For them, public
knowledge not specifically protected is (and should remain) free for all to use.
A special grievance for indigenous peoples is the patenting of
indigenous knowledge. This is termed "biopiracy", and a number of examples are
notorious: neem, turmeric, Basmati rice: as well as the widespread practice of
patenting genes found in indigenous and other natural resources. Indigenous
people say that these patents are an unconscionable attempt to monopolise
knowledge freely provided by them. The patents enrich the patentees at the
expense of the indigenous people: who are at the same time deprived of the right
to continue age-old practices.
In reply, patentees defend the principles of patenting, even if
the practice is sometimes deficient. The patents on neem and turmeric were both
revoked after being challenged by the Indian government (after much time and
expense). Neither patent claimed the indigenous material as such: in both cases
particular uses were claimed (which were eventually shown not to be new, and
hence unpatentable). Similarly, the Basmati rice case, upon challenge, was
reduced to claiming three specific new varieties of rice of the Basmati type:
but it never claimed traditional Basmati rice as such, only an allegedly new
form of it. Patentees say that in principle public traditional knowledge is not
patentable. No patent can legally take out of the public domain what is already
known. Whatever has been done traditionally cannot be impeded by a subsequent
patent. Patents such as those cited arise only because searches carried out by
Patent Offices are inherently fallible. They say, however, that inventive
improvements to traditional knowledge are and must remain patentable, to
encourage further development for the benefit of all (e.g. artemisinin could be
crucially important in combating malaria, especially in poor countries).
Two proposals arise out of these concerns:
Both of these are under discussion in Geneva at the World
Intellectual Property Organisation (WIPO). The Intergovernmental Committee on
Traditional Knowledge, Genetic Resources and Folklore was set up in 2000, and
has held its 10th session in December 2006. Progress is slow, as fundamental
questions are not agreed. The specific proposal is also discussed in WTO; and
both are debated in the Convention on Biodiversity (CBD).
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The general scheme
Developing countries seek an international treaty to control access and use
of traditional knowledge. Their objectives are: to eliminate biopiracy; to
control use of TK and to obtain a fair return for its use. Developed
countries see no need for a treaty, and are concerned about extending
exclusive rights to cover subject-matter (TK) which is very difficult to
define, and may mean paying royalties on, or ceasing to use, materials and
methods which are well-known (in the 'public domain'). Matters are
complicated by the presence at the negotiations of numerous observer
representatives of indigenous peoples. They also seek control over their TK,
but not necessarily in order to recover royalties from its use: some reject
the idea of an IP right on TK as inconsistent with their worldview. Also
they have many issues with their own governments over ownership of their TK,
human rights, access to tribal lands, etc.
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The specific proposal
This is put forward for two reasons: to inhibit biopiracy and to promote
observance of the CBD. This international treaty (with over 180 country
members, but excluding USA) has three objectives: to conserve biodiversity;
to promote its sustainable use; and to share equitably the benefits of such
use. To promote the third objective, Article 15 provides that each party may
access genetic resources from others, but only with the prior informed
consent (PIC) of the party providing the resources. To conform to Article
15, it is proposed that any mention of genetic (or perhaps biological)
resources in patent applications should require disclosure of the origin of
the resource, and (in some versions) to provide evidence of PIC. Similar
requirements are suggested for TK (which is mentioned in Article 8j of the
CBD).
Proponents say that such proposals would discourage illegal access to
genetic resources, and inhibit the grant of patents improperly claiming TK
already known. Patent applicants say that genetic resources are widely
distributed, and in large part legally accessible without formality. The
proposed requirements are unclear, burdensome and disproportionate. They
would discourage use of genetic resources, and do little to promote sharing
of benefits from such use. However an increasing number of countries are
putting such requirements into their laws (India, Philippines, South Africa,
the Andean Pact and Norway have such requirements: Brazil, China and
Switzerland are introducing them: the European Union is open to discuss the
question). If the WTO "Doha round" succeeds, it might introduce a provision
of this type.
last revised: July 08
suggested links for further
reading:
General background to TRIPs and the CBD:
Disclosure of origin or source in patent specifications
Traditional knowledge and disclosure of origin:
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Biodiversity and ownership of research results:
booklet from the IPR Helpdesk summarising the basic points clearly
[note the
IPR-Helpdesk is a Project funded by the European Commission, DG
Enterprise and Industry, under the 6th RTD Framework Programme of the
European Union - the guide is made available free of charge]
page updated:24 Sep 2008
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