Intellectual Property, Traditional Knowledge and Genetic Resources

Including the Non-Governmental Stakeholders

Where do the rights of heritage groups meet the world of commerce?

Despite our discussion of tourism and its importance, the principal engagement of heritage and commerce lies in the realm of intellectual property.

Intellectual property is the term that covers copyright, patents, industrial design protection, and so forth. It offers strong protection to creations that are original, novel, and attributable to an individual creator/owner (person or corporation).

What is copyright?

Copyright is the legal protection extended to the owner of the rights in an original work that he or she has created. It comprises two main sets of rights: the economic rights and the moral rights.

The economic rights are the rights of reproduction, broadcasting, public performance, adaptation, translation, public recitation, public display, distribution, and so on. The moral rights include the author's right to object to any distortion, mutilation or other modification of his work that might be prejudicial to his or her honor or reputation.

The general principle is that copyright protected works cannot be used without the authorization of the owner of rights. Limited exceptions to this rule, however, are contained in national copyright laws. In principle, the term of protection is the creator's lifetime and a minimum of 50 years after his death.

International Protection

At the international level, the economic and moral rights are conferred by the Berne Convention for the Protection of Literary and Artistic Works, commonly known as the "Berne Convention".

This Convention, which was adopted in 1886, has been revised several times to take into account the impact of new technology on the level of protection that it provides. It is administered by the World Intellectual Property Organization (WIPO), one of the specialized international agencies of the United Nations system.

What is a Patent?A patent is an exclusive right granted for an invention, which is a

product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.

An invention must, in general, fulfill the following conditions to be protected by a patent.

It must be of practical use; it must show an element of novelty, that is, some new characteristic

which is not known in the body of existing knowledge in its technical field. This body of existing knowledge is called " prior art".

The invention must show an inventive step which could not be deduced by a person with average knowledge of the technical field.

Finally, its subject matter must be accepted as "patentable" under law. In many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, or methods for medical treatment (as opposed to medical products) are generally not patentable.

Heritage: Traditional KnowledgeConcepts of intellectual property systematically exclude products of the

creativity of a large part of humankind-creations that may be considered traditional knowledge.

The imbalance between the strongly protected rights of individuals and lack of protections for cultural properties of “traditional knowledge holders” has led to a series of meetings by the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (shortened often to ICG) at the Geneva headquarters of the World Intellectual Property Organization (shortened to WIPO).

Differences of opinion between participants focus on whether current copyright laws offer sufficient protection. Would the problem disappear if the third-world countries adopted first-world copyright laws? Would the problem be solved by greater enforcement of copyright laws and treaties?Third-world countries and non-governmental groups (NGOs) insist that specially tailored (sui generis) international procedures must be promulgated.

Who composes a folksong, creates a folk remedy?

If one holds that folklore is an individual act within a community, then the communal rights are not sustainable. However, if one emphasizes that individuals recreate from the learned traditions, then communities do have a right of ownership and new laws are necessary.

Vladimar Hafstein terms this “communal origination through individual re-creation” (this is the reading for this class on the reserve page)

If a Kwakiutl artist designs a pattern or symbol, drawing on his or her native tradition, it is not unlikely that I may run across that very design a few weeks later in a tourist store in downtown Vancouver, stamped onto an ashtray. The artist is not consulted, nor does he or she receive any royalties. Why? Because the design is traditional! It is, in other words, a node in a network of relations: not an isolated original, but a reproduction, a copy. The unstated assumption here is, of course, that a white Canadian artist is not working within a tradition, that his or her art is original (the adjective appears to be an antonym of “aboriginal”). According to this logic, a design by a member of the majority population is an individual achievement, a thing unto itself. It is a “work”: a production, not a reproduction.

Koskimo house-post, ca 1910

Bioprospecting.Endemic to the isle of Madagascar, the rosy periwinkle (Catharanthus roseus) is a

leafy plant with pink flowers that has long been part of the native population’s traditional pharmacopoeia. In the 1950s, researchers from Eli Lilly Pharmaceuticals were led to the rosy periwinkle by local medicine men. In subsequent laboratory testing, the plant was found to have properties valuable in the treatment of various cancers. The pharmaceutical company developed the drugs vinblastine and vincristine from the rosy periwinkle; the former has brought remission rates for Hodgkin’s disease to 80 percent, and the latter has increased remission rates for childhood leukemia from 20 percent to 90 percent. In the 1990s, these two drugs combined produced sales of $100 million annually; however, even though both the plant and the knowledge of its medicinal properties were obtained from the inhabitants of Madagascar, they do not share in the revenue generated by these drugs. Needless to say, purchasing the drugs produced by Eli Lilly is beyond the means of the citizens of Madagascar (also, ironically, as a result of the patent system). In fact, as a result of poor health care and limited access to clean drinking water, an average child in Madagascar stands poorer chances of surviving beyond the age of five than a Western child diagnosed with leukemia stands of remission.

Is this really a problem?

An NGO delegate at WIPO representing the Indigenous Peoples’ Biodiversity Network illustrated this charge with a striking contrast. According to him, drugs made from plants that come from indigenous peoples grossed $485 million in sales in 2001 alone. “Meanwhile,” this delegate said, “indigenous people are dying every day in destitute poverty from diseases curable with a few aspirins.”

World Music

One strand of World Music in particular brought attention to this dilemma-so-called ethno-techno, popular in dance clubs in Europe and America in the 1990s. In a public relations stunt in 1992, Sony successfully promoted musical exploitation of this variety into a major media event. Using ethno-musicological recordings, Michel Sanchez and Eriq Mouquet fused “digital samples of music from Ghana, the Solomon Islands and African pygmies with ‘techno-house’ dance rhythms”, producing the album Deep Forest (1992). In addition to selling two million copies of this album, Sony Music and the producers also licensed tracks from “Deep Forest” to Coca-Cola, Porsche, Neutrogena, and the Body Shop for advertisements, reaping a generous profit-none of which benefited musicians in Ghana, the Solomon Islands, or among African pygmies. Sanchez and Mouquet have since released several albums based on the same formula, sampling traditional music from various parts of the world, including Boheme (1995) on which they fused music from Mongolia, Eastern Europe, East Asia, and Native Americans.

What is the issue?

The case of “Deep Forest” also bears witness to the global nature of the problem at hand. Whereas the “primary circulation” of ethno-musicological recordings may be acceptable to traditional communities whose music circulates through them, or at least less objectionable than the “secondary circulation” of commercial records without benefit sharing, neither is tied to national borders, least of all to the borders of those countries where the music is traditional. This is an important part of the rationale for putting folklore on the agenda of international organizations such as UNESCO and WIPO. At the fourth meeting of WIPO’s Intergovernmental Committee in December 2002, the Ghanaian delegation, in fact, cited “Deep Forest” as an example of “inappropriate and unauthorized exploitation of Ghanaian cultural heritage by the music industry.”

Hafstein concludesIt seems we are faced here with a categorical distinction-originality versus

traditionality-that runs very much counter to the interests of those less privileged.

This classification is manifest in our common conceptual apparatus as well as in legislation that systematically and a priori rules out the knowledge and resources of local communities, indigenous populations, and the inhabitants of poorer states.

It places value only on knowledge and resources that persons (natural or corporate) in richer countries can privatize. The importance granted to this distinction attests to the persistence of colonialism in a postcolonial era.

Alternatively, as businesses have become more complex they have increasingly recognized creativity as a social process. Large laboratories create new knowledge through teams of researchers, not an individual. As the processes of innovation have become more systemic, the products appear to be generated more like tradition-based recreation.

Who ever heard of the American Folklore Society?The American Folklore Society believes that the issues in front of the

IGC are deserving of international assessment, and we applaud the work of the IGC in addressing issues of considerable concern to communities and peoples throughout the world. In order that the IGC best achieve its objectives in a process that provides input from all relevant stakeholders, the AFS recommends the following:The impacts of intellectual property regimes on traditional knowledge and folklore, and especially on those individuals and groups who actively maintain the dynamic traditions and lore that contribute to the world’s knowledge and diversity. This knowledge has been, and continues to be, a significant source of social, cultural, economic, and political power.

The AFS believes that the IGC-GRTKF must consistently strive to be sensitive to the needs of diverse knowledge systems and communities, as well as to issues of social and political justice bound up in diverse forms of expressive culture.

Formal intellectual property systems are becoming more dominant in today’s society and have important and widespread implications for the social, cultural, and economic well-being of individuals and groups.

WIPO should recognize that traditional knowledge and folklore are part of the culture of both indigenous peoples and non-indigenous peoples. The latter includes groups who have developed significant traditional knowledge and folklore over the course of generations in locations different from their historical places of origin.

WIPO must recognize the tangible and intangible values of traditional knowledge and folklore. Any mechanisms recommended and developed that attempt to place a “value” on traditional knowledge and folklore must include provisions that recognize tangible and intangible values, and that recognize that commodification and privatization of these values may run counter to the rights and desires of holders of traditional knowledge and folklore.

WIPO should recognize that compensation issues (e.g., benefit sharing) should reflect procedures and criteria acceptable to and required by indigenous people and traditional knowledge communities. Support should be given to develop systems and standards that allow indigenous peoples and traditional knowledge communities to directly negotiate commercial use of their traditional knowledge and folklore.

WIPO doctrines covering “informed prior consent” should recognize the core right of relevant indigenous peoples and traditional knowledge communities to grant or not grant free, prior, and informed consent.

Scholarly research of all kinds-by native and outside scholars and leading to the creation and communication of artistic, cultural, humanistic, and/or scientific insight-is essential to the increase of human knowledge and to the informed pursuit of the WIPO enterprise.

WIPO should clearly advocate for responsible scholarship-carried out in the spirit of partnership with indigenous people and traditional knowledge communities and in terms of personal standards and institutional codes of ethics and professional practice-and the consonance of scholarship carried out in this manner with the needs of indigenous people and traditional knowledge communities.

Who should have a right to participate?

Nation-states are by their construction heterogeneous societies.Should the majority or power-controlling polity have a right to control, sell, or appropriate the traditional knowledge of social and heritage communities within their boundaries?

What should be the rights of non-governmental organizations to speak in world discourse on intellectual property? These would include socially, culturally, religiously based communities within a nation state.

What about the communities of heritage or culture whose members live within multiple nation states?

The goal of international organizations who seek to improve the welfare of all peoples cannot solely operate through the lens of national governments.