New avenues should be explored to protect traditional knowledge from exploitation and extinction, said experts at an UNCTAD meeting this week, suggesting the strengthening of customary laws, grassroots initiatives and possible international mechanisms. The most promising avenue, they thought, would be to bridge traditional collective rights with the more modern and western concept of intellectual property rights.
Traditional knowledge (TK) refers to "the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles" as well as "indigenous and local technologies", according to the UN Convention on Biological Diversity (CBD). While the definition is controversial, most agree that TK is generally held collectively, transmitted orally from generation to generation, and dynamic, evolving over time. Access to and use of TK within communities is generally governed by a wide variety of unwritten customary laws.
This knowledge is indispensable for the poorest segments of society, including women, indigenous communities and rural inhabitants in developing countries, particularly the least developed countries (LDCs). Up to 80% of the world´s population depends on traditional medicine for its primary health care, and two thirds also depend on the foods provided through traditional knowledge of species and farming systems. In indigenous communities worldwide, TK has prevented land and soil degradation, fisheries depletion, biodiversity erosion and deforestation, said Robert Hamwey of the United Nations Environment Programme.
At the same time there has been a global upsurge over the past decade in the use of traditional medicine and complementary and alternative medicine - primarily herbal medicines and acupuncture - in both developed and developing countries, due to affordability and to changing needs and beliefs, said Xiaorui Zhang of the World Health Organization (WHO). TK-derived products, such as non-wood forest products, are traded internationally. Moreover, TK is an important input into many modern industries, including pharmaceuticals, cosmetics and agribusiness.
Nonetheless, traditional knowledge - along with cultural diversity and biodiversity - is disappearing at alarming rates. One half of all existing plant species are expected to be extinct within 3,000 years, according to the World Wildlife Fund, and 90% of all languages will be extinct within a century. The loss of language leads to loss of knowledge, the process accelerated by cultural change and globalization, said that organization´s Gonzalo Oviedo. Furthermore, the unsustainable commercialization of traditional medicines and medicinal plants is causing global biodiversity loss, according to the WHO. And much of the resulting profit fails to compensate the holders of TK.
After examining the role and protection of TK in key sectors, the UNCTAD meeting discussed possible means of harnessing it for development and trade. The challenge, experts concurred, is to ensure equitable sharing of the benefits; to protect the intellectual property rights (IPR) of both the custodians and developers of TK systems; and to prevent the loss of TK and biodiversity wherever possible.
Divergent views were expressed as to the extent to which the existing IPR regime can actually protect TK. Indigenous groups attending the meeting felt this was not possible. The current IPR system - comprising international agreements, patent and copyright protection and other legal instruments - is "inappropriate" for the recognition and protection of TK systems because of the "inherent conflicts" between the two forms of protection, they claimed. "IPRs are founded on private, economic rights, whereas indigenous peoples´ systems are values-based" and include "both rights to use, and obligations to respect, the natural world". They called for a ban on the patenting of life forms because such patenting "attacks the values and livelihoods of indigenous and traditional peoples". Too much emphasis is being placed on the commercial value of TK, they argued, and not enough on conservation and further development.
In a similar vein, UNESCO representative Douglas Nakashima contended that existing arrangements for protecting IPRs "serve to protect knowledge by setting the rules for their commercial exploitation [but] in fact deliver up local knowledge to the global marketplace". Some 95% of all world patents are held in developed countries, while the "vast majority" of plant genetic resources and other forms of biodiversity are found in, or originate from, developing countries, according to the WHO.
An example of the inequalities was given by Suman Sahai of the Gene Campaign, who said that twigs from the tetu tree are traded in India at 20 cents per kilo, but the tree´s extracts on the international market fetch $15,000 per kilo. She and other participants proposed benefit-sharing and commercialization schemes for TK in which the originating communities would receive an equitable portion of revenues derived from their knowledge and genetic resources.
Experts emphasized the need for a TK protection system that would be consistent with other forms of IPRs and said that "bridging" the collective rights applicable to TK with the IPR regime seemed to be "the most promising avenue". Many agreed that priority should be given to strengthening existing customary laws and suggested a "pluralistic legal approach" that would accommodate the interests of local and indigenous communities. In addition, IPR is a broad and dynamic concept not limited to the known and existing categories, according to Wend Wendland of the World Intellectual Property Organization. He added that the system has evolved, and can continue to evolve, to meet new needs, including several of those expressed by TK holders.
Applicability of TRIPS Agreement and national experiences debated
The WTO´s Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) sets minimum requirements for the protection of six categories of IPRs, including patents and trademarks. Its stated objective is to ensure that the protection and enforcement of IPR contributes "to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations" (Art. 7). However, it is frequently criticized as being "born out of big business interests".
TRIPS does not explicitly address the protection of TK. Some experts argued that TK should be included in the Agreement so as to prevent its misappropriation internationally. One possibility would be to require the disclosure in patent applications of genetic resources and TK used in product development (certificate of origin). Others argued that it is better to keep TK out of the WTO altogether and discuss it in such forums as the CBD.
Experts shared national experiences in developing alternative policy measures and non-legal measures, including codes of conduct for researchers and commercial entities or grassroots initiatives, such as community-controlled databases. They described national biodiversity policies aimed at avoiding overreliance on imported goods at the expense of indigenous materials and TK and at implementing the principle of "one product, one community", to avoid intra-community rivalry (Malaysia). Sri Lanka proposed a global or regional biocollecting society that would monitor access to local biodiversity and genetic resources. The rights of TK holders could also be acknowledged through upfront payments, royalties, fees for material services and the involvement of local researchers and communities in R&D.
Sui generis systems for the protection of TK could be developed at both the national and international levels, including prior informed consent from local and indigenous communities. A number of countries, as described by experts at the meeting, have already begun updating their legal systems and national patent laws to this end. Many felt that national systems of protection were not enough to protect against misappropriation and that an international mechanism was necessary.
Experts called for a "bottom-up" approach to development policies, building on the resources and strengths of local and indigenous communities. They advocated exploration of the potential of information and communication technologies for the transmission of TK, for example through virtual markets, community multi-media centres and culturally specific education activities. Capacity-building to empower communities - particularly women, who are often the TK holders and preservers - to use global and local knowledge should promote intercultural exchange of experience, awareness-raising, documentation of TK and the conversion of TK into economically viable products and services. At the same time measures are needed to avoid overexploitation and to make commercialization sustainable.
The "appropriation" of knowledge is one result of the falling barriers to the flow of information which characterizes our times, said UNCTAD Secretary-General Rubens Ricupero in an opening statement to the expert meeting, which was held in Geneva from 30 October to 1 November. The paradox is that at the same time new economic barriers are being erected to the flow of information. Of greatest importance, he said, is to put all forms of knowledge, traditional and otherwise, to the service of development as the "very essence of the process".
The meeting - the first in UNCTAD´s history to involve indigenous groups in the organization´s intergovernmental work on such a large scale - was attended by over 150 representatives of governments, non-governmental organizations, UN specialized agencies, academia and the private sector, coming from nearly 80 countries. The meeting´s views and recommendations will be submitted to UNCTAD´s Commission on Trade in Goods and Services, and Commodities, next February.
