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<P class=title><A
href="http://www.grain.org/seedling/seed-04-01-3-en.cfm">http://www.grain.org/seedling/seed-04-01-3-en.cfm</A></P>
<P class=title>The great protection racket: imposing IPRs on traditional
knowledge</P>
<P><STRONG>GRAIN</STRONG></P>
<P align=justify>Over the past three years, the World Intellectual Property
Organisation (WIPO) has unexpectedly become a major arena for the international
discussion about traditional knowledge and its protection. Several years ago,
developing country members started to raise questions at WIPO about the
increasing use of intellectual property rights (IPRs) to appropriate both
genetic resources (biopiracy) and related traditional knowledge – just like they
had already done in other international organisations such as the Convention on
Biological diversity (CBD), the UN Food and Agriculture Organisation (FAO) and
the World Trade Organisation (WTO). These questions became so disturbing to
other WIPO negotiations that eventually a separate committee was set up to deal
with them, no doubt in the hope of isolating and neutralising these problematic
issues in a dark corner of the organisation.</P>
<P>Another unresolved matter, folklore, was thrown into the mix, and the result
was baptised the Intergovernmental Committee on Genetic Resources, Traditional
Knowledge and Folklore, usually referred to as the IGC. Contrary to
expectations, the IGC rapidly developed into a very lively forum with the
highest participation of any WIPO body, regularly exceeding the capacity of the
main plenary hall. The cross-cutting nature of the issues attracted an
unprecedented collection of government experts from environment, agriculture,
development and culture ministries, in addition to the usual crowd of patent
bureaucrats. And the observer benches, usually populated by a narrow selection
of industry bodies and patent trade associations, started to fill up with
environment and development-oriented NGOs and a colourful contingent of
indigenous peoples’ organisations.</P>
<P><STRONG>Traditional knowledge the core issue</STRONG></P>
<P>Between 2001 and 2003, the IGC has held five meetings. Early on, traditional
knowledge (TK) emerged as the core issue. The discovery that TK systems are in
fact a complete alternative paradigm for the development and management of
knowledge seems to have been both a fascinating and disturbing one for the
intellectual property community. In its short existence, the committee has
produced an impressive number of documents detailing the characteristics of TK
systems and in particular their interface with intellectual property right
systems.<BR>Work on the genetic resources and folklore agendas has been largely
coloured by the TK perspective. Folklore has been on the WIPO agenda for decades
without tangible results, because industrial countries would not agree that
folklore should be protection. But the association with TK in a wider sense
seems to have created a much better understanding of folklore as an aspect of
TK, which is reflected in the change of terminology from folklore to
“traditional cultural expressions”. The specific work on genetic resources has
been limited to some quite technical matters, but genetic resources have figured
prominently as an important example of a resource often intimately related to
TK. (See box on p 17 for a selective overview of documents.)</P>
<P>Inevitably, the work of the IGC suffers from an IPR bias, because that is
WIPO’s perspective on the world. But discounting for that bias, the documents
produced give a thorough and quite inclusive overview of the issues on the
table. The IGC has a very able and hardworking secretariat with
cross-disciplinary backgrounds and their output is very high quality compared to
corresponding documents from, for example, the CBD. The WIPO documents
contribute to a deeper understanding of some difficult matters, such as the
risks of putting TK into computerised databases, or the technical and legal
aspects of a disclosure of origin requirement for biodiversity or TK in patent
law.</P>
<P>So both for governments and for WIPO itself, the IGC has brought greatly
increased awareness and understanding of TK. For governments, an additional
benefit has been that a number of different ministries have been forced to talk
to each other about the matter. In many cases, this has meant the first ever
contact between for example environment or agriculture ministries and patent
offices.</P>
<P>For WIPO as an institution, the process has also been a long overdue
introduction to the political conflicts of the real world. Until very recently,
WIPO led the life of a closed gentlemen’s club, much like the WTO before
Seattle, with only one kind of people at the table and developed countries
firmly in control of the agenda. The IGC has introduced very different dynamics,
with developing countries taking up the proactive role and indigenous peoples’
organisations, rather than industry bodies, increasingly providing the
expertise.</P>
<P><STRONG>From exploration to politics</STRONG></P>
<P>For its first couple of years, IGC work has been of a mainly exploratory
nature with compilation of information and wide-ranging discussions. But at the
fifth meeting in July 2003, which was also the last under its original two-year
mandate, the committee clearly crossed the line into political mode and latent
conflicts came into full play.</P>
<P>Developing countries took the offensive, arguing that a prolonged mandate for
the IGC would only be meaningful if it included a clear commitment to
“norm-setting”, in particular on new measures for better protection of TK.
Developed countries, predictably, wanted no such commitment, only continued
analysis and discussion. The outcome was a compromise which left the question
open, explicitly stating that “no outcome of its work is excluded”. This simply
means that the fight will continue at the next meeting in March 2004, which is
expected to spend most of its time debating the IGC’s work plan for the next
couple of years. </P>
<P>While there could be no doubt about the political commitment from developing
countries to create stronger protection for TK, they had no common message about
how this should be done. There were references to the idea of creating a sui
generis (special, unique) IPR system for TK, but most countries remained vague.
The African Group alone made a specific formal demand, asking for the immediate
start of negotiations on “a legally binding international instrument on genetic
resources, traditional knowledge and folklore”. But when asked to expand on
this, the Africans were not able to answer any questions on what such an
agreement should contain.</P>
<P><STRONG>Protection or protection?</STRONG></P>
<P>A major problem which became evident during the discussion was the confusion
about the concept of ‘protection’, which means very different things in
intellectual property law and in ordinary usage. ‘Protection’ in the
intellectual property sense means that the owner of a patent, a copyright, a
trademark or some other piece of intellectual property has a legal right to
exclude others from using or reproducing it. It is that specific piece of
property which is protected, no more, no less.</P>
<P>In ordinary usage, ‘protection’ of course has a much broader sense. When
developing countries speak about the need to protect TK, it is quite obvious
that they mean ‘protection’ in the sense of safeguarding the continued existence
and development of TK. As repeatedly pointed out by indigenous peoples’
organisations, this necessarily implies protecting the whole social, economic,
cultural and spiritual context of that knowledge, something which simply is not
possible to achieve with IPRs.</P>
<P>This conceptual confusion has been explicitly addressed in IGC documents (at
least those in English), and the WIPO secretariat now systematically uses
‘protection’ only in the IPR sense and refers to the broader concept as
‘safeguarding’ or ‘preservation’. But this has not helped much, as almost
everybody else continues to use ‘protection’ interchangeably in both senses. In
the discussion about a sui generis IPR system for TK, the confusion has led to a
complete mix-up between the two. Even though it is clear from WIPO’s own
documents that creating IPRs over TK always requires that a limited piece of
knowledge must be cut out from the community context and made into private
property, the discussion in the IGC continues to be conducted as if IPRs could
equally well be used to protect TK together with its context.<BR><BR>A similar
conf-usion, with a similar outcome, has arisen over the terms “defensive” versus
“positive” mechanisms for the protection of TK. Most people would think that you
defend TK from IPRs. But through reams of paper and clever language, WIPO has
managed to implant the idea that IPR is a form of defensive protection – against
the wrong IPR holders!</P>
<P><STRONG>Analysis overkill</STRONG></P>
<P>A strongly contributing cause of this confusion is that the volume and
complexity of the IGC documentation has grown to the point that it is now
hindering the political discussion rather than facilitating it. At the most
recent meeting, several countries noted that they had not been able to even read
the many hundred pages of documents properly, much less assess them. The
representative of UNCTAD concurred and added that under the rules of procedure
that they live by, a secretariat would not even be allowed to present such large
amounts of documentation without providing shorter summaries of the main
issues.</P>
<P>Off the record, there were even suggestions that this analysis overkill could
well be intentional from WIPO’s side. By producing these huge documents which
somehow include or relate every possible angle on the subject matter, WIPO can
insure itself against any criticism for bias. Of course there is a pro-IPR bias.
Nothing else should be expected from an institution whose mandate is promoting
IPRs. But much of the counter-arguments are also there, but buried or scattered
in different locations all over the documents, so it becomes exceedingly
difficult for the average reader to see them.</P>
<P><STRONG>Indigenous perspectives</STRONG></P>
<P>In order for governments to realise how slanted a picture they are getting,
the voice of the TK holders needs to be stronger and clearer. So far, although a
number of indigenous peoples’ organisations have been following the process in
Geneva, they do not have much in the way of teeth in the discussions, partly
because WIPO’s membership is composed of governments and the organisation has
not been willing to provide financing for indigenous peoples’ to participate,
but partly also because it is a daunting task to decipher and challenge WIPO
doublespeak. As for other TK holders such as traditional farmers, healers or
fisherfolk, they have barely been represented. Then again, not all TK holders
would feel it is worthwhile to get involved in processes in Geneva..</P>
<P>There are now signs that this is changing. At least among indigenous peoples,
there is a growing capacity to tackle the WIPO process. A number of the
indigenous groups looking at what WIPO is doing are arriving at more clearly
articulated views on key points, including:</P>
<P>Indivisible heritage. Traditional knowledge is part of the indigenous
heritage which cannot be divided into its component parts. Protection of this
heritage cannot be achieved by separating out aspects or elements such as songs
or science.</P>
<P>Rights. Heritage in turn is linked to territorial and resource rights, which
are essentially human rights, not property rights, in terms of Western legal
systems (both concepts are really foreign to indigenous customary law). Both TK
and biodiversity are best defended by asserting the right to self-determination,
land and culture.</P>
<P>IPRs and TK incompatible. IPRs are private monopoly rights and therefore
incompatible with the protection of TK. TK is held as part of a community
heritage passed down from generation to generation, and not allowed either to be
privatised or to slip into the “public domain” (a concept, and current legal
reality, that indigenous peoples strongly contest).<BR>Customary law. Any
legitimate work on protection of TK should start from an indigenous framework
grounded in customary law. If there is a need for sui generis legislation, this
should be its basis, not IPRs</P>
<P>The overall conclusion is that the IPR system is the problem – and that it is
dangerous and wrong to dress the problem as the solution. If WIPO wants to do
something useful, it should concentrate on preventing the IPR system from
trampling on indigenous peoples’ rights in the first place. </P>
<P><STRONG>What future for the IGC?</STRONG></P>
<P>The IGC must now extract the obvious conclusions from the huge body of
analysis it has produced. Governments should not allow WIPO to continue to bury
the issues in overly detailed documents, but demand the key findings up front –
even if these are uncomfortable to some member states or to WIPO itself. On the
basis of the work done so far, including the strong messages heard from
indigenous peoples, at least the following conclusions can be drawn.</P>
<P><STRONG>Acknowledge the irrelevance of IPRs</STRONG></P>
<P>It clearly follows from the analysis already done by the IGC that protection
of TK as such cannot be achieved through intellectual property systems. This
goes for existing IPR systems as well as for any sui generis IPRs that could be
created. By their very nature, IPRs are only useful for protecting private
property, not heritage. To be protected as intellectual property, a piece of TK
must first be made into a commodity, something which can be bought and sold,
which heritage as such can never be. The fact that IPRs are already used in this
way, not only by external actors but also by members of indigenous communities
themselves, is not proof that this is a way to protect TK.</P>
<P><STRONG>Bury the idea of sui generis IPRs for TK</STRONG></P>
<P>As a consequence, the idea of creating an additional IPR system specifically
for TK should be buried for good. No matter how sui generis, this would still be
an IPR system and for this reason unfit to protect TK as such. Instead, it would
most certainly accelerate the commodification, disintegration and destruction of
TK.</P>
<P><STRONG>Focus on damage control</STRONG></P>
<P>The IGC should instead focus on stopping the damage caused by existing IPR
systems. The main reason that the Committee was originally created was to
address the increasing use of IPRs for biopiracy and for appropriation of TK,
and it should now return to this agenda. In particular, it should review current
national IPR systems and international IPR treaties and identify what changes to
IPR law and practice are necessary to eliminate these problems. It should also
address the repatriation of already appropriated resources, and consider how IPR
systems could be amended to stop interfering with customary law systems and
farmers’ inherent rights.</P>
<P><STRONG>Leave the broader agenda to more suitable fora</STRONG></P>
<P>The broader agenda of protection for indigenous rights over all aspects of
their heritage, including traditional knowledge and genetic resources, falls
entirely outside WIPO’s mandate and competence. But it urgently needs to be
addressed. The IGC should explicitly recognise this and issue a call for more
suitable fora within the UN system to take over. Some indigenous groups feel
that the UN’s Permanent Forum on Indigenous Issues should take the lead to
convene all relevant UN bodies to produce one coherent set of rules on heritage
rights. What is clear is that protection of TK is a cross-cutting issue which
cannot be addressed by environment, trade, agriculture or IPR bodies alone.</P>
<P><STRONG>Fighting in the trenches comes first</STRONG></P>
<P>As usual, it is a mistake to believe that the real fight takes place in the
air conditioned halls of Geneva or other government meeting spots. In order to
protect traditional knowledge the first requirement is that communities have the
right and the power to make the crucial decisions over their livelihood
resources and management systems. This holds true whether we speak of pe asant
farmers, other rural communities, or indigenous peoples. Rights to livelihood
systems have to be secured and constantly defended in the local context.</P>
<P>But while international agreements will never in and of themselves solve
problems for communities, they can be either a help or a hindrance. They can put
some limits to greed and economic exploitation, or they can promote them. They
can create some public pressure on governments, or they can reduce it. Which way
they go depends, again, mostly on what happens on local and national levels. If
governments feel that they are being watched, if there are visible popular
movements which formulate clear political demands regarding international
negotiations so such as those taking place at WIPO, they will find it more
difficult to go in the wrong direction. This is why farmers’ groups and
indigenous peoples must carefully consider whether or not to get involved with
processes like the IGC and push for conclusions that recognise their fundamental
livelihood and heritage rights. There are risks either way. Good ideas can turn
bad in the wrong hands, as has happened with the CBD. But a complete hands-off
approach means that bad ideas can go really far. Either way, the most important
thing is that farmers’ groups and indigenous peoples succeed in asserting their
approaches and systems that protect TK and genetic resources where it counts
most: at the grassroots level.</P>
<P class=title>Further reading</P>
<P>+ A good general introduction to the issues about protection of TK was
written by Carlos Correa for the Quaker UN Office in Geneva in 2001. It also
gives an overview of the different international organisations which had been
involved prior to WIPO’s IGC. Traditional Knowledge and Intellectual Property.
Issues and options surrounding the protection of traditional knowledge at <A
href="http://www.geneva.quno.info/pdf/tkmono1.pdf">www.geneva.quno.info/pdf/tkmono1.pdf</A></P>
<P>+ WIPO’s IGC has produced a wealth of documents, but they suffer from a bias
and many are heavy reading. All are accessible on the web from <A
href="http://www.wipo.int/tk">www.wipo.int/tk</A>and most come in all six UN
languages.</P>
<P>• A good starting point is WIPO’s own evaluation of the IGC process so far,
contained in the Overview of activities and outcomes of the intergovernmental
committee (WIPO/GRTKF/IC/5/12).</P>
<P>• The main summary document about TK and IPRs is the Composite study on the
protection of traditional knowledge (WIPO/GRTKF/IC/5/8).</P>
<P>• The main document on genetic resources is the Technical study on disclosure
requirements related to genetic resources and traditional knowledge
(WIPO/GRTKF/IC/5/10). This will be one of the main inputs when the CBD starts to
negotiate more specific rules on access and benefit-sharing in 2004.</P>
<P>+ Indigenous peoples’ organisations have published a few statements in
English on the WIPO process:</P>
<P>• Call of the Earth, a new indigenous network dealing specifically with TK
and IPRs, has posted a copy of the joint statement of the indigenous
participants at the last WIPO IGC in July 2003. See <A
href="http://www.earthcall.org/">www.earthcall.org</A></P>
<P>• A statement on TK and IPRs made by a representative of the Tebtebba
Foundation at the UN Working Group on Indigenous Peoples in July 2003 is
available at <A
href="http://www.tebtebba.org/tebtebba_files/ipr/wgipagenda5.rtf">www.tebtebba.org/tebtebba_files/ipr/wgipagenda5.rtf</A></P>
<P>+ The UN Conference on Trade and Development, organised a seminal conference
on protection of TK in 2000 and has a webpage with a number of documents from
that process. See <A
href="http://r0.unctad.org/trade_env/traditionalknowledge.htm">http://r0.unctad.org/trade_env/traditionalknowledge.htm</A></P>
<P>+ Geneva’s International Centre on Trade and Sustainable Development (ICTSD)
runs a resource page with regularly updated listings of mate-rials on TK and
IPRs at <A
href="http://www.ictsd.org/dlogue/2003-07-11/11-07-03-desc.htm">www.iprsonline.org/resources/tk.htm</A></P>
<P>+ ICTSD has produced a document exploring ways of taking the TK discussion
away from IPRs to look at its protection in the wider sense:<A
href="http://www.ictsd.org/dlogue/2003-07-11/11-07-03-desc.htm">www.ictsd.org/dlogue/2003-07-11/11-07-03-desc.htm</A></P>
<P>+ The South Centre and the Centre for International Environmental Law have
just produced A Review of the Intergovernmental Committee on Genetic Resources,
Traditional Knowledge and Folklore at WIPO at <A
href="http://www.south.centre.org/">www.south.centre.org</A></P>
<P class=title>Boxes</P>
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<TD>
<P><STRONG>Box: Use or misuse?</STRONG></P>
<P>The piracy of traditional knowledge and genetic resources by way of
IPRs is often referred to as misappropriation, and as a misuse of the IPR
system. We are concerned that this language misrepresents the facts.</P>
<P>In many traditional communities, both traditional knowledge and genetic
resources are typically managed as an integral part of a community
heritage, not as private property in the Western sense. Using the term
misappropriation implies a change of property ownership and in an improper
manner (by theft, to be exact). In reality, what takes place is that
something which never was private property at all is made into private
property, ie an appropriation. The damage persists also after the term of
IPR protection expires, as whatever was appropriated does not revert to
community management but passes into a public domain status, something
which is equally foreign to traditional communities as is private property
(in fact, a public domain can hardly be conceived of in a culture where
there is not private property). Whether as private property or as public
domain, whatever was appropriated is irreversibly lost to the community
concerned, as its heritage status can never be restored. Up to now, much
of this has happened without explicit, free and prior informed consent of
the communities involved – be they indigenous peoples or peasant
farmers.</P>
<P>For the same reasons, this process can not be described as a misuse of
the IPR system. Making property out of non-property is exactly what IPRs
were created for; this is its main use.<BR>Consequently, we have chosen to
avoid these mis-nomers in this and future writings on the
matter.<BR><BR></P></TD></TR></TBODY></TABLE><BR><BR>
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<DIV><FONT face="Comic Sans MS"
size=2>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~<BR>"Wir brauchen keine
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