Evangelia Linaki, Research Associate
In view of the International Day of the World’s Indigenous Peoples on 9 August, it is a good opportunity to reflect on the contribution of Indigenous Peoples and the major current challenges they have to face. One hotly debated issue is that of the protection of indigenous knowledge under the Intellectual Property (IP) regime. In other, words, is IP law capable of providing the holders of indigenous knowledge with the required protection and, if not, is it flexible enough to accommodate the new challenges? Within this framework, this research paper will try to deal with such question within the context of environmental protection. As a first step, there will be an effort to identify the characteristics of the term “indigenous knowledge”, whereas an overview of the contribution of Indigenous Peoples to the effort of protecting the environment will be given. Subsequently, the several tendencies as to the role of IP with regard to the protection of indigenous knowledge will be outlined and, instead of a conclusion, speculations on the possible conflict between indigenous knowledge protection and the human right to a healthy environment will be provided.
The definition of indigenous knowledge, sometimes referred to as “traditional knowledge”, is nowhere to be found and even within the context of IP can have several interpretations ((Brush, Stephen B., Indigenous Knowledge of Biological Resources and Intellectual Property Rights: The Role of Anthropology, 93 American Anthropologist 653, at 660 (1993).)). For the purposes of IP, it is important, though, to decide what kind of products of the mind would fall within this term and for this reason one should bear in mind the definition enshrined in the Draft Articles on the Protection of Traditional Knowledge, in which the 24th session of the World Intellectual Property Organisation (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) resulted. According to draft Article 1, traditional knowledge should encompass “know-how, skills, innovations, practices, teachings and learning” developed by indigenous communities ((Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, The Protection of Traditional Knowledge: Draft Articles Rev. 2, 26 April 2013, available at http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_24/wipo_grtkf_ic_24_facilitators_document_rev_2.pdf (accessed 18/8/2013).)). Indigenous knowledge is considered to be dynamic, evolving, intergenerational, in codified, oral or other forms, associated with fields such as agricultural, environmental, healthcare, indigenous and traditional medical knowledge, biodiversity, traditional lifestyles, natural and genetic resources, know-how of traditional architecture and construction technologies ((See id.)).
Indigenous knowledge and the environment
One of the features that compose the identity of Indigenous Peoples is their connection with their land to the point that the environment itself can demonstrate the kind of relationship and interaction that exist between the environment and such peoples ((Mwaura, Peter (ed.), Indigenous Knowledge in Disaster Management in Africa, at 29 (2008), available at http://www.icsu.org/icsu-africa/news-centre/news/Appendix9IndigenousBookletUNEP.pdf (accessed 18/8/2013) and Drahos, Peter, When Cosmology meets Property: Indigenous People’s Innovation and Intellectual Property, 29 Prometheus (Routledge) 233, at 236-239 (2011).)). Even one of the few legally binding instruments concerning Indigenous Peoples Rights – the International Labour Organisation Convention No. 169 on Indigenous and Tribal Peoples – obliges States-parties to respect the relationship of those peoples with their lands or territories ((International Labour Organisation (ILO), Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169), Article 13 (1989), available at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C169 (accessed 18/8/2013).)). However, the non-binding but of great importance Declaration on the Rights of Indigenous Peoples incorporates in its preamble the recognition of the urgent need to respect and promote the rights of Indigenous Peoples, especially those stemming from their lands, territories and resources ((A/61/L.67 and Add.1 (2008), Para. 7 of the Preamble, available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (accessed 18/8/2013).)).
Due to such close relationship with the environment, Indigenous Peoples have developed several practices and methods, which aim at the preservation of specific resources but have wider positive repercussions on the holistic protection of ecosystems ((See Mwaura, supra note 4, at 33-34)). The contribution of Indigenous Peoples can only be clarified through examples. A first example is that of a technique of fire management in the Arnhem Land, Australia. In short, the Indigenous Peoples of the area tend to burn several patches throughout the dry season, when the moisture of the grass has fallen, with the aim of stimulating the further growth of the grasses without posing any fire danger to people, trees or insects ((See Drahos, supra note 4, at 240.)). It has been estimated that such practice contributes to the overall preservation of the environment, such as in terms of biodiversity and rare fauna ((See id., at 240-241)).
The knowledge held by Indigenous Peoples has proved to be valuable for the isolation of specific compounds within biological resources ((An example is the identification by the Bela community of the special resistance to diseases of a specific kind of wild rice growing in Mali, which in turn helped researchers isolate and clone a gene conferring this kind of resistance to rice plants (World Intellectual Property Organisation (WIPO), Intellectual Property and Traditional Knowledge, Booklet No. 2, at 6, 9, available at http://www.wipo.int/export/sites/www/freepublications/en/tk/920/wipo_pub_920.pdf (accessed 18/8/2013).)), whereas knowledge on sustainable irrigation can be found in Oman and Yemen through the aflaj traditional water system, as well as on migration patterns of several species in the Hudson Bay region ((See id., at 5.)). Additionally, the simple tools used in cultivation and land clearing contributes to the preservation of large forests and protects against soil erosion in several parts in Africa, whereas the method of controlled grazing ensures that vegetation is not overexploited ((See Mwaura, supra note 4, at 35-36, 40.)).
What is certain is that the well-being and existence of Indigenous Peoples is dependent upon the environment in which they live and conduct their activities and, for this reason, they are highly interested in sustainable development and environmental preservation for the present and future generations ((Jones, G’Nece, The Importance of Indigenous Knowledge and Good Governance to Ensuring Effective Public Participation in Environmental Impact Assessments, International Society of Tropical Foresters, Special Report March 2012, at 6, available at http://www.istf-bethesda.org/specialreports/Jones/Indigenous_Knowledge_and_EIAs.pdf (accessed 18/8/2013).)).
Indigenous knowledge and IP
In a nutshell, what is sought from indigenous populations consist is the recognition and respect of the rights of the holders of indigenous knowledge ((See WIPO, supra note 10, at 11)), as well as the prevention of unilateral and non-consensual exploitation and appropriation of such knowledge by third parties ((Zerda-Sarmiento, A. and Forero-Pineda, C., Intellectual Property rights over ethnic communities’ knowledge, 54 International Social Science Journal 99, at 103 (2002).)). Moreover, especially within the context of environmental protection, Indigenous Peoples are concerned with the potential misinterpretation of the information they provide ((Stevenson, Marc G., Indigenous Knowledge in Environmental Assessment, 49 Arctic 278, at 283 (1996).)). The core problem was concisely articulated by an Aboriginal artist in Australia, Wandjuk Marika, in 1976, who saw his art reproduced on towels without his permission: “We are only asking that we be granted the same recognition, that our works be respected and that we be acknowledged as the rightful owners of our own works of art ((Anderson, Jane, The Making of Indigenous Knowledge in Intellectual Property Law in Australia, 12 International Journal of Cultural Property 1, at 7 (2005).)).”
Indeed, IP law does not make any reference to Indigenous Peoples and it was only in 1998-1999 that WIPO carried out fact-finding missions in several parts of the world to report on all the relevant issues on Traditional Knowledge and IP ((World Intellectual Property Organisation (WIPO), IP Needs and Expectations of Traditional Knowledge: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), at 16-17 (2001).)). Within this report, it is acknowledged that IP law is not capable of protecting several forms of traditional knowledge for the most fundamental reason that “knowledge or information is not per se protectable under IP ((See id., at 215-216.)).”
Within the same spirit, it has been suggested that IP law is not the most suitable regime to provide the required protection to indigenous knowledge, because IP rights concern commodities, whereas indigenous knowledge refers to practices and innovations that take place at the open environment, produce intangible results, such as the preservation of biodiversity and the environment, and are, thus, difficult to be measured in terms of economical revenues ((See Drahos, supra note 4, at 243.)). Moreover, this issue, in general terms, reflects, is owed to and brings to the surface the conflict between the subjective character of indigenous knowledge and the objective standards of protection that IP law aims at promoting and consolidating ((Maskus, Keith E., Reichman, Jerome H., International Public Goods and Transfer of Technology under a Globalised Intellectual Property Regime, at 541 (2005).)).
At a more practical level, as far as patents are concerned ((A patent is an exclusive right granted for an invention, being a product or process that offers a new technical solution to a problem. (See WIPO Report, supra note 18, at 35-38).)), it has been suggested that this system does not seem to benefit Indigenous Peoples in view of the fact that it does not allow co-extensive ownership over a resource ((See Drahos, supra note 4, at 244-245.))and exclusiveness over a resource might not be feasible within an indigenous community, where everything is usually shared or, for example under the method of shifting cultivation, farmers move from one part of land to another. Furthermore, from an income perspective, the patentees receive only minor revenues ((See id.)). In addition, it has been pointed out that the patent system fails to provide indigenous knowledge with the long-term protection it requires due to the fact that such system, on the one hand, was not created to protect forms of intellectual products whose value cannot be measured in terms of money and, on the other, because the protection lasts for a certain time ((Marinova, Dora, Raven, Margaret, Indigenous Knowledge and Intellectual Property: A Sustainability Agenda, 20 Journal of Economic Surveys 587, at 592 (2006).)). Lastly, patents can even pose a danger to indigenous knowledge in the case in which such knowledge has been used and made public, disguised in scientific or other terms, since patent protection cannot be provided once knowledge is found in the public domain ((See id., at 594.)).
As far as copyright system is concerned ((Copyright provides the author of literary, musical, architectural, artistic, audiovisual works and maps drawings with the right not to allow reproduction, adaptation, translation, broadcasting or performance of his work. The rights are vested in the author automatically and subsist for a period of 50 years after the death of the author. (See WIPO Report, supra note 18, at 34-35).)), it should be mentioned that it was India who proposed at the 1967 Stockholm Diplomatic Conference for the revision of the Berne Convention for the Protection of Literary and Artistic Works the inclusion of folkloric works within the list of items to be protected by the Convention, but due to the inability of agreement on the definition of the term “folklore” this idea was abandoned ((Zografos, Daphne, Intellectual Property and Traditional Cultural Expressions, at 12-14 (2010).)). It has been pointed out that, just as with patents, copyright cannot provide protection for intellectual works that have already been published and can be found in the public domain ((Ricketson, Sam, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986, at 315 (1987).)), whereas the Berne Convention itself does not provide the chance to Indigenous Peoples to exercise their rights directly ((See Zografos, supra note 28, at 14.)).
However, there have been suggestions regarding the possible adjustment of IP laws or the use of existing IP frameworks. As for copyright, it has been suggested that the copyright duration should be adapted, as well as the notion of ownership, in order to recognise collective ownership – which could become possible through the abatement of the requirements for joint authorship ((Carpenter, Megan M., Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community, 7 Yale Hum. Rts. & Dev. L.J. 51, at 63, 67-68, 70-71 (2004).)). Additionally, trademarks seem to provide a good solution, as their acquisition costs less, does not require scientific expertise and there is no exclusive use of a resource or a spot ((See Drahos, supra note 18, at 246.)). Lastly, another alternative could be that of voluntary accreditation or certification of indigenous knowledge ((See id., at 247.)), with the tangible example of the multinational cosmetics company Aveda Corporation and the exporter of Australian sandalwood oil Mt. Romance, who agreed to grant $50.000 each to the Kutkabubba Aboriginal community for sharing their knowledge and land ((See Marinova & Raven, supra note 25, at 599-600.)).
Any analysis on this issue would remain incomplete without reference to the works of the WIPO IGC. After the conduct of fact-finding missions in 1998-1999, the IGC was created in 2000 with the aim of hosting and promoting negotiations, which will culminate in the adoption of one or more legal instruments on the protection of Traditional Knowledge ((WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), available at http://www.wipo.int/tk/en/igc/ (accessed 18/8/2013).)). Since 2000, negotiations are still ongoing with regard to the the Draft Articles on the Protection of Traditional Knowledge. In a nutshell, the direction embraced so far is that of positive and defensive protection, where the former refers to the recognition and right of the holders of traditional knowledge to exercise rights with regard to action or remedies against misuse of such knowledge and the latter to the prevention of illegitimate IP rights on traditional knowledge ((See WIPO Handbook, supra note 10, at 12.)). Criticism, though, has come from the indigenous representatives, who requested further enhancement of their participation in the procedures; the definition of traditional knowledge has been criticised for lack of clarity, whereas ownership by Indigenous Peoples is thought to create implications with regard to the notion of public domain and the right to knowledge ((Janke, Terri, Iacovino, Livia, Keeping Cultures Alive: Archives and Indigenous Cultural and Intellectual Property Rights, 12 Arch Sci 151, at 157 (2012).)).
Final Remarks: A Human Rights Perspective
One of the aims of IP law is to balance the authors’ rights and the rights of the public ((See WIPO Report, supra note 18, at 32.)). Within the given context, does the protection of indigenous knowledge interfere with the right of every individual to a healthy environment?
It should be mentioned that such human right cannot be found in any of the legally binding international human rights instruments, such as the International Covenant on Civil and Political Rights ((UN A/HRC/22/43 (2012), at 6.)). However, this should not mean that such a right does not exist, since it was first formulated on an international level with Principle 1 of the 1972 Stockholm Declaration on Human Environment and it is established under many regional instruments, such as the African Charter and the Additional Protocol to the American Convention on Human Rights ((See id. For more information on the right to a healthy environment see also UN A/HRC/19/34 (2011), Giorgetta, Sueli, The Right to a Healthy Environment, Human Rights and Sustainable Development, 2 International Environmental Agreements: Politics, Law and Economics 173 (2002), Boyd, David R., The Implicit Constitutional Right to Live in a Healthy Environment, 20 RECIEL 171 (2011) and Postiglione, Amedeo, Human Rights and the Environment, 14 The International Journal of Human Rights 524 (2010).)).
With regard to the abovementioned question, it is suggested that such conflict cannot be presumed, as the Indigenous Peoples are highly interested in preserving an environment upon which their survival and everyday life is dependent. Since such peoples already conduct their activities with due caution to environmental preservation, they simultaneously contribute to the enjoyment of the human right to a healthy environment by every individual. As it was mentioned, this happens exactly because their practices have a holistic impact on the environment. In conclusion, from this perspective, there does not seem to be a real need for balancing between authors’ rights and public interests, since indigenous knowledge, even when accredited to an indigenous population, has immediate impact on environmental preservation.
The issue encompasses a number of complex questions and the solution to indigenous knowledge protection should not only be sought in IP regimes but under other branches of international law, such as International Human Rights Law.