TRADE: Traditional Knowledge Seeks Int’l Legal Protection

By Gustavo Capdevila Reprint | | Print |

Gustavo Capdevila

GENEVA, Oct 8 1999 (IPS) - Latin American and Asian countries are pushing the World Trade Organisation (WTO) to establish regulations for protecting the intellectual property rights of local and indigenous communities.

Cuba, Honduras, Paraguay and Venezuela submitted the proposal for defending traditional knowledge, backed by Peru, Ecuador, Bolivia, Colombia, Indonesia, Malaysia, the Philippines, and New Zealand, among others.

The initiative is a response to the current system of intellectual property right protection that, in practice, ignores traditional forms of knowledge and systems of ownership in the developing world.

The exclusion of such knowledge occurs because the current international system is based on United States patents legislation, which provides a limited definition of knowledge within the public domain, observed Deepak Nayyar, an expert from the Jawaharlal Nehru Universtiy of New Delhi.

As a result of this legal situation, the knowledge accumulated by villages and communities over centuries in the developing world is currently subject to “silent theft,” giving legal rights to businesses or individuals living in far-off lands, declared Nayyar.

The United States granted a patent for the use of curcuma – a type of saffron – in healing wounds, even though it has been a widespread practice and common knowledge in India for centuries.

In his presentation to the World Intellectual Property Organisation (WIPO) in Geneva, Nayyar stated that the patent was later revoked as a result of a lawsuit.

Another case involves a periwinkle species from Madagascar that an international pharmaceutical company uses to produce a cancer- fighting medication. The company earns annual profits of 100 million dollars from the medication, while the country that provided the plant gets practically nothing, Nayyar pointed out.

WIPO representatives observed that, in addition to providing practical solutions, traditional knowledge frequently carries with it a community’s history, beliefs, aesthetics, ethics and culture. Plants used for medical purposes often hold symbolic meaning for the community as well.

The proposal by the Latin American and Asian delegates attributes the lack of protection for traditional knowledge to the simple fact that it represents the collective rights of a village or community and there is no known author or creator.

Traditional knowledge is generally not produced in a systematic way, but is developed through the responses and interactions of individuals or groups with their surroundings.

According to WIPO, it may be that existing intellectual property mechanisms, which were designed to function in a trade-related context, may be inadequate for handling the essentially cultural nature of traditional knowledge.

At times, what appears as an isolated literary work, such as a poem, or a new technique, like using a plant to heal wounds, is one element of complex system that is coherent with the fundamental beliefs and knowledge of a community.

WIPO recognises that protection of traditional knowledge is important for developing countries because it promotes cohesion and a sense of cultural and national identity.

The delegates from developing countries are interested in the application of two multilateral agreements: the Convention on Biological Diversity and the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Developing countries are particularly concerned that these agreements could affect the way knowledge of genetic resources is protected and distributed, even if it is not traditional knowledge.

The WTO proposal calls for a detailed study on protecting the rights of intellectual property with moral and economic content, like traditional knowledge, medicine and cultural expressions coming from local and indigenous communities.

The countries calling for the study say it must be completed within two years, with oversight by the TRIPS council. The final report is to be presented at the WTO’s Fourth Ministerial Conference in 2001.

The proposal’s objective is to initiate negotiations on establishing multilateral norms for granting effective rights on intellectual property that has moral and economic content.

The document explicitly states that such norms must take into account the collective and social nature of these rights.

The Latin American and Asian delegates’ proposal was well received by the 134 members of the WTO, though Canada made its opposition known regarding moving the issue from WIPO to the TRIPS council.

The Canadian delegation stated that the traditional knowledge issue would benefit at WIPO from input by non-governmental organisations (NGOs), but that such organisations have only limited access to the WTO and its TRIPS council.

Moving the issue to the WTO at this point in the debate may be premature as well as counter-productive, maintained the Canadian representatives.