Knowledge can be defined as the accumulation of facts, figures, descriptions and information regarding a particular event, precedent, item or person and as such can be considered a practical understanding of a given subject matter. Yet what must be understood is that there are inherent variances in the types of knowledge available. For example, the thousand-year-old cultural traditions and practices that are prevalent throughout Asia are a form of knowledge yet they differ greatly from knowledge involving scientific principles or knowledge garnered through the development of a particular process or item (Catley & Kessell-Haak, 2007: 155-156).
It is based on the concept of protecting such developed knowledge from unauthorized usage that the concept of intellectual property rights was developed (Sahni, 2006: 164-165). Intellectual property rights are broadly defined as “exclusive rights pertaining to distinct intangible creations of the mind which range from music, designs and various artistic works to broad categories such as inventions, literature and even phrases” (Mashelkar, 2002: 37). The basis for intellectual property rights is to protect the creators of unique inventions, concepts or ideas from having their work arbitrarily utilized without their permission for the profit of other individuals/ companies (Cunningham, 2002: 34).
Without IPRs (Intellectual Property Rights) various artists, writers and inventors would be reluctant to release any of their work to the general public due to the possibility of their ideas being subsequently stolen and claimed by others as their own work (Patently problematic, 2002: 75). Companies apply IPR law as a method of protecting their patented and copyrighted products from being subsequently copied and sold by other companies (Jameson, 2011: 210 – 215).
It is through this method of business law implementation that various corporations have been able to maintain their positions in the global market place due to their protection and control of their patented processes, products and designs. Yet, while the protection of IPRs of businesses is clearly defined and regulated by law, aspects related to the IPRs of indigenous people and local communities which takes the form of traditional knowledge (a form of inherited knowledge consisting of cultural processes, traditions, artistry, environmental knowledge etc. which has been passed from generation to generation for hundreds if not thousands of years) has as of late not received the same level of equanimity in regard to proper protection and regulation as seen in the case of business law applied to IPRs (Finetti, 2011: 58-66).
It is in this regard that before this paper explores aspects related to the protection of traditional knowledge and intellectual property it is deemed important to first clarify certain fundamental pieces of knowledge related to this particular subject matter and current attempts in protecting it before proceeding on how individual international organizations implement their own means of protecting traditional knowledge.
Traditional knowledge can be comparable to the inherited traditions and long standing practices inherent within a particular culture, society, or community (Sunder, 2007: 97-124). One of the most succinct explanations defining traditional knowledge came from the Director General of the United Nations Educational, Scientific and Cultural Organization in 1994 in which he regarded traditional knowledge as the “immense accumulated body of knowledge that indigenous people within a particular environment developed in regard to the complexities of their local ecosystem, the special properties of particular plants and animals, and the unique techniques each indigenous community utilized in order to coexist with nature” (Baer, 2002: 15-26).
Another way of looking at traditional knowledge is from the concept of “adaptively acquired knowledge” wherein the various processes and techniques inherent to a particular indigenous community were developed as a response to the unique environmental and topographical situation they found themselves in (Traditional knowledge and the international context for protection, 2005: 142). This can be seen in the different weaves and means of producing traditional clothing that is unique to particular regions such as the “sarong” in the Philippines, the Kimono of Japan and the thickset clothing developed by the indigenous people of Tibet.
In a way traditional knowledge can be defined as a form of claimed ancestral heritage wherein cultural traditions, societal norms and customs, methods of preparing food and clothing as well as aspects related to medicine, agriculture and fishing are all a result of hundreds if not thousands of years of shared oral and written traditions which are inextricably bound to the people that inherited them and can be considered their “property” so to speak since for them it is a form of cultural inheritance (Baer, 2002: 15-26). For example, while countries such as the U.S. may accumulate a variety of different types of food, words and cultural nuances from its multitude of immigrants it cannot claim ownership of these traditions no more than the countries that these traditions originated from can claim ownership over the fourth of July independence celebration which is a uniquely American tradition.
Yet over the years the process of globalization and cultural assimilation has increasingly placed a strain on the concept of “ownership” of traditional knowledge. Aspects related to traditional symbols, designs, distinctive cultural crafts, artwork, songs, stories and even knowledge related to traditional medicine have been misappropriated by corporations, schools and opportunitistic individuals in order to market an aspect related to another society’s traditional knowledge with no regard to the concept of “intellectual ownership” of the “product” that they are distributing (Traditional knowledge and the international context for protection, 2005: 142).
Of particular interest is the patenting of traditional knowledge and its by-products under the ownership of a particular brand. This comes in the form of various clothing styles, medicinal techniques, songs, symbols and artwork being unilaterally claimed by various parties (whether part of a corporate infrastructure or sole proprietorship) as either being a result of their own uniquely crafted design or a by-product of research accomplished (Protection for African folklore, 2010: 24). In response to these actions various indigenous communities have attempted to protect traditional knowledge where they have not given express permission for usage or do not derive some form of equitable compensation (Ssenyonjo, 2007: 283-285). The origin of this particular problem lies under the issue of the public domain which is defined as information whose intellectual property rights are inapplicable or have subsequently been forfeited as a direct result of the passage of time (Lotz, 2002: 71).
Since various forms of traditional knowledge have been around for hundreds if not thousands of years they, by definition, fall under the realm of the public domain especially in cases where traditional knowledge has been sufficiently “repackaged” to be represented in the modern day era (ex: the Disney films Pocahontas, Mulan and Tarzan). What must be understood though is that the local communities who “own” their unique form of traditional knowledge don’t acknowledge it as being part of the public domain. They state that the open sharing of traditional knowledge does not necessarily give others the right to use it for their own means.
Not only that, they go on to argue that despite the fact that various forms of traditional knowledge exist within the public domain they are not there as a direct result of a failure of local communities to sufficiently protect such knowledge under some form intellectual property right (since such aspects related to the culture of an indigenous population often don’t require registration in order to confer a degree of ownership) but rather the misuse of such knowledge by others for profit is a direct result of the failure of governments to rightfully acknowledge traditional knowledge as being an inherent part of a particular culture and as such are under customary laws which should (but often don’t) regulate their use by the general public (Barraclough, 2008: 58-61).
Intellectual Property Rights
One of the inherent problems in protecting traditional knowledge under the context of intellectual property rights within international law is the fact that Intellectual Property Laws (IPL) vary from country to country in the nature and scope in which they acknowledge IPRs (Intellectual Property Rights). It is due to these inherent differences and their subsequent protection under IPLs that is at the center of the current debate regarding the rights of indigenous people and cultures over their inherited traditional knowledge (Baer, 2002: 15-26).
When examining the current debate over the proper application of IPLs on IPRs it seen that the absence of a sufficient consensus to properly apply IPR protection on traditional knowledge is actually due to differences in conceptual treatment and the subsequent lack of clarity between the concepts of traditional knowledge and intellectual property and how one should be applied under the other on the basis of “ownership”. Contributing to this problem are the rather scant laws and regulations, whether local and international, which directly impact the proper regulation and protection of traditional knowledge under the context of IPRs (Frankel, 2011: 253-267).
Since international law is at times an externalized implementation of local laws yet within a globalized perspective it is thus not surprising that there is an insufficient means of IPR protection for traditional knowledge in the realm of international relations when the local laws of countries themselves are severely lacking in sufficient context and history in actually upholding the rights of indigenous people and cultures over traditional knowledge (Brahy, 2006: 259-282).
World Intellectual Property Organization
“The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations that deals specifically in promoting creative activity through the promotion of intellectual property rights throughout the world.” (2006: 435-445)
When examining the WIPO in the context of its protection of traditional knowledge, it can actually be seen that the mandate of the organization in its implementation of intellectual property rights regimes as the only viable path to protecting traditional knowledge is actually inappropriate and even inadequate in protecting the inherited knowledge of indigenous people and local communities (2008: 97-113) (International Environmental Law and Human Rights: Towards the Explicit Recognition of Traditional Knowledge, 2001: 37). What must be understood is that the World Intellectual Property Organization advocates the use of IPR regimes and patents as generalized way of addressing all issues regarding intellectual property rights infringement yet many within the indigenous community of nations around the world have stated that alternative means of protection must be implemented that take into consideration both indigenous practices and customary laws since the current mandates and provisions created by the WIPO are incompatible with the concept of traditional knowledge (Kapp, 2001: 1510) (Hrbata, 2010: 1-47).
For example article 27.3(b) of the TRIPS agreement (The Agreement on Trade Related Aspects of Intellectual Property Rights) in effect legitimizes the usage of intellectual property rights over life and the processes utilized in modifying life forms yet such rights are more for corporations, states and private researchers and do not actually encompass indigenous people and local communities (Nair, 2011: 35-37) (Woodward, 2012: 33-61). In fact the article itself possess a significant degree of “danger” so to speak over the rights of local communities (particularly farmers) over the indigenous innovations and traditional farming techniques which are all aspects related to traditional knowledge (Nair, 2011: 35-37).
The cause for concern regarding the current methods of the WIPO and the TRIPs agreement is not without merit since over the past century there have been numerous cases where medicinal plants, genetic resources, an assortment of seeds, processes and techniques have all been subsequently stolen by a variety of individuals and corporations and subsequently rebranded or repurposed for their own ends (Finetti, 2011: 58-66) (Garcia, 2007: 5-28). The fact that article 27.3 (b) allows the patenting of such processes and biological resource and that the TRIPS agreements prevents indigenous and local communities from actually applying for the patenting of various aspects related to traditional knowledge since it doesn’t fulfill the requirements in the provisions of TRIPS (to be discussed in the next section) shows how one sided the current system is wherein it obviously favors private over community interests (Hrbatá, 2010 1 – 47) (International Environmental Law and Human Rights: Towards the Explicit Recognition of Traditional Knowledge, 2001: 37).
On the other hand there are treaties such as the CBD (Convention on Biological Diversity) which emphasize the ownership of traditional knowledge by indigenous populations and local communities as well as the necessity of protecting such rights by the state through the creation of local laws and policies which emphasize on IPR protection for traditional knowledge (Kariyawasam, 2008: 73-89). It is based on these two conflicting treaties as well as the other agreements which will be examined within this study that attempt to encompass or exploit traditional knowledge that governments and international organizations find themselves mired in what can be described as a “bog” of conflicting ideas and statements regarding what can and cannot be applied in regards to traditional knowledge (WIPO learns from tradition, 2000: 7) (Wendland, 2004: 97-107).
It is expected that as this study continues to progress the conflicting ideas and ideologies will make themselves more apparent and will show the necessity of an all encompassing agreement that can be considered equitable and fair for the parties involved, whether such an agreement is possible within this lifetime is yet to be seen however based on the various facts and accounts that will be presented an apparent method of resolving the issue may present itself.
United Nations Educational, Scientific and Cultural Organization (UNESCO)
“The United Nations Educational, Scientific and Cultural Organization (UNESCO) is a specialized agency belonging to the United Nations with the purpose of contributing to worldwide peace and security through the promotion of various means of international collaboration such as through science, education and culture in order to promote aspects related to the rule of law, human rights and the freedoms inherent to all people as indicated within the U.N. charter.” (United Nations Educational, Scientific and Cultural Organization, 1955: 280-285)
In regards to the mandate of UNESCO, what must be understood is that there is a currently a state of affairs within the global community that actually holds back various kinds of scientific, educational and cultural activity in relation to traditional knowledge (Hartmann, 2010: 307-318). First and foremost what must be understood is that while TRIPS imparts a sense of obligation for those that ratified it to respect within their borders the IPRs (Intellectual Property Rights) granted by other countries such an obligation doesn’t exist for countries to recognize the knowledge within another country’s public domain (Desai, 2007: 185-197).
This means that various types of public domain knowledge (of which traditional knowledge is a part of) that may have existed within a particular country for hundreds if not thousands of years has the potential to be privatized and then subsequently placed under the IPR of another country (Venkatararnan & Latha, 2008: 326-335). The end result is that the country where the knowledge originally came from will not benefit at all from any developments that come about as a direct result of such knowledge and in a rather cruel twist of fate are obliged under the TRIPS agreement to actually acknowledge and honor the resulting IPR despite the fact that the processes, items or methods of production originally came from them.
This has lead to a particularly volatile situation where not only do countries at times refuse to share data on particular plants and animal specimens but it has also greatly diminished the sharing of educational and cultural knowledge (Kongolo, 2001: 349).
Technically, the appropriation of traditional knowledge that exists in the public domain of another country for self-serving purposes isn’t necessarily illegal (biological samples and resources that were collected prior to the establishment of the CBD are actually not bound to its rules since it was before the process of ratification and as a result various collectors do not have to acknowledge the sovereignty of the country where the resource came from nor give any form of benefit whether financial or otherwise to the indigenous population/local community that had initially experimented with it) however from a moral and ethical standpoint it is highly immoral and speaks of self-serving motivations which would cause considerable strife within the international community (it has already) (Patent protection and traditional knowledge associated with biodiversity, 2007: 524) (Swaminathan, 2001: 40).
When taking into consideration the fact that there are few guidelines present that effectively curtails such behavior it isn’t surprising that this particular state of affairs is a troubling yet ongoing problem which has limited many scientific, educational and cultural activities since various states and local researchers are hesitant to share what knowledge they have due to it possibly being “stolen”. Another troubling fact that should be taken into consideration is that no country can ensure with absolute certainty that another country will respect the internal regulations within their public domain (Robinson, 2010: 38-56).
As such due to the mandates of UNESCO which promotes scientific, educational and cultural activities it falls upon this organization, the WIPO and possibly the WTO to create a sufficiently capable international agreement that allows for the sharing of public knowledge (this encompasses traditional knowledge) with provisions that specifically stipulate that such information, whether processes or specimens, cannot and will not be privatized in other countries and that should there be a commercial or private initiative involving such knowledge the indigenous people or local community that it came from would derive some form of adequate compensation or benefit from such an endeavor (Gómez-Baggethun et al.,2010: 721-729).
World Trade Organization: The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
“The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is a set international agreement created by the World Trade Organization that encompasses a wide variety of agreements and laws pertaining to copyrights, designs, patents, trademarks and undisclosed types of information and specifies methods of enforcement and dispute resolution.” (Cardwell & Ghazalian, 2012: 19-36)
TRIPS is widely considered to be one of the most comprehensive agreements on intellectual property to this day yet unfortunately is rather lacking in sufficient ability and capacity when it comes to the protection of traditional knowledge. While it may be true that article 1 of the TRIPSS agreement doesn’t expressly mention the term “Traditional Knowledge” it still actually allows member states that have ratified it to implement their own means of traditional knowledge protection as evidenced by first paragraph in the article: “members may, but shall not be obliged to, implement in their domestic law more extensive protection than is required by the Agreement, provided that such protection does not contravene the provisions of the Agreement”.
The inherent problem though is that the TRIPSS agreement doesn’t specifically enforce this “more extensive protection” (which refers to traditional knowledge) and as such results in most states neglecting, whether intentionally or not, the protection of the traditional knowledge base of their local indigenous people and communities. Another factor that should be taken into consideration when it comes to the patenting of traditional knowledge is that the TRIPSS agreement specifically states that member states that have ratified the treaty must provide patent protection for “any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application” (Dent, 2011: 73-78).
The inherent problem with this particular provision is that the terms utilized namely “inventive step” and “industrial application” are actually more in line with concepts related to being “non-obvious” and “useful” which traditional knowledge often times doesn’t encompass. Furthermore, traditional knowledge cannot be placed under the same category as the term “new” since in most cases it has been around for hundreds if not thousands of years.
Basically, as seen in the terms utilized in the provisions of TRIPS which encompass the necessity for countries to implement means of intellectual rights protection, traditional knowledge doesn’t encompass any of the requirements and as such is not applicable under the terms of TRIPS to be able to apply for intellectual property right protection. Furthermore under article 29.1 of TRIPS it is expressly stated that a patent application needs to disclose a sufficient degree of information regarding a particular product or invention so as to let another individual or organization that is “sufficiently skilled in the process” to be able to reproduce it completely (Dent, 2011: 73-78).
The inherent problem with this particular article provision is that given the financial and organizational inadequacies of local communities and indigenous people the disclosure of information regarding a particular process could be utilized without them realizing it or without the community obtaining sufficient compensation for a process that they own (Wendland, 2004: 97-107).. The problem lies in the fact that the disclosure of particular processes which are an inherent part of traditional knowledge actually makes it easier for commercial entities to unscrupulously utilize the process for their own ends.
This was seen in the case of China wherein the processes utilized to create many traditional Chinese and Asian antiquities were in effect copied and mass produced resulting in a literal bonanza of fake Asian “antiques” flooding various global markets. It must also be noted that the reproduction of traditional knowledge isn’t limited to mere antiques but it can also encompass aspects related to traditional stories, symbols, artwork and even clothing (Garcia, 2007: 5-28).
Clothing outlets and fashion brands around the world have appropriated signs, symbols and various designs from various cultures and utilized them in their brands. It is only once they have incorporated such processes and “reinvented” them to suit modern tastes that these companies often apply for patent protection for these “new” products which actually becomes enforceable since they comply with the provisions indicated by the TRIPS agreement (Ssenyonjo, 2007: 283-285)..
Unfortunately, it is also the case that the local community from which this particular process originated from often doesn’t know their designs have been misappropriated and don’t even benefit at all due to their inherent limitations in being able to observe various new products and processes that have been created in the present day globalized economy (Kariyawasam, 2008: 73-89).. It is based on this that the inherent problem with article 29.1 of the TRIPS agreement becomes obvious since that it opens the doors to potentially anyone reproducing aspects of a process under traditional knowledge with little possible repercussions.
Article 27.3 (B) of the TRIPS Agreement
Of particular interest to the topic of traditional knowledge is article 27.3 (b) of the TRIPS agreement which has actually generated quite a bit of controversy given the nature of its provisions. It states the following:
“Members may also exclude from patentability… plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by a combination thereof. The provisions of this sub-paragraph shall be reviewed four years after the entry into force of the WTO Agreement.” (Muriu, 2009: 409-429)
When examining this particular agreement readers are immediately drawn to the thought of “what is an effective sui generis system?” It is not clearly defined and as such is left to the member states to define it on their own terms which results in a wide variety of possible policy choices which at times may not necessarily lead to correct policies (Protecting traditional knowledge-is a sui generis system an answer?, 2005: 64). For example, under article 27.3 (B) it can be assumed that a variety of multinational companies and developed countries (i.e. the U.S., France, Germany etc.) may most likely promote the rights of plant breeders as the chosen sui generis system required by the article (since article 27.3 b was in effect a response to concessions from multinational agricultural corporations) (Protecting traditional knowledge-is a sui generis system an answer?, 2005: 64).
The problem with this is that by utilizing plant breeders rights (patents for the development of specific methods of agriculture or creation of plant species) under the TRIPS agreement this in effect actually limits the ability of developing countries (i.e. the Philippines, Indonesia, and various South American countries) to effectively develop a system that properly reflects their inherent social and economic needs. Various studies state that as a direct result of the ambiguity inherent in article 27.3 (b) and the possibility of various developed countries pushing for plant breeders rights as the sui generis system could possibly result in these countries pushing developing countries to adopt the UPOV arrangement (International Convention for the Protection of New Varieties of Plants (Brush, 2007: 1499-1514)).
As a result this could severely undermine the rights of farmers within local communities as well as subsequently limit or altogether remove the benefits that could possibly be derived from the sharing of plant genetic resources in a fair manner (i.e. grains that have greater yields, disease resistant strains of rice etc.) (Brush, 2007: 1499-1514). Going even further in examining the article and its possible implications it can be see that it does not at all cover the potential inventions and contributions that have come about as a direct result of traditional knowledge (i.e. local medicines and cures based on century’s old medicinal practices) (Kimmerer, 2002: 432).
As a direct result, the traditional knowledge of local communities and indigenous people is not even considered as intellectual property as seen in the previous part of this section which detailed the problems inherent in the TRIPS agreement regarding traditional knowledge as not being able to apply for patentability since it fails to meet the criteria established by the provisions of TRIPS (Hrbatá, 2010 1 – 47) (Van Overwalle, 2005: 585-607). What must be understood is that article 27.3 (b) actually blurs the distinction between what can be considered an invention and what can’t resulting in the possibility of any corporation misappropriating traditional knowledge and patenting it as an internal development.
Not only that, when taking into account article 27.3 (b) and article 29.1 it can be seen that if a local community or indigenous population did attempt any form of patent for an agricultural or medicinal practice based on traditional knowledge not only would it be rejected on the grounds of its incompatibility with the provisions of TRIPS but it could possibly result in such knowledge being utilized by foreign companies for their own gain (He, 2011: 827-863). Such a situation has actually been seen in countries such as the Philippines, Kenya, China, Malaysia etc. where traditional knowledge on the properties of local plants and organisms has been subsequently utilized in order to develop a variety of medicines without due credit or benefit being given to the cultures where the knowledge came from (Van Overwalle, 2005: 585-607) (Protection of traditional knowledge by geographical indications, 2010: 93).
Convention on Biological Diversity (CBD)
“The Convention on Biological Diversity (CBD) is a legally binding international treaty with the goals of: conserving biological diversity, ensuring sustainable use of bio-resources, and promoting fairness and equitability in terms of the benefits derived from such resources.” (Schroeder & Pogge, 2009: 267-280)
In terms of its impact on protecting traditional knowledge the CBD can be considered an important instrument for various indigenous people and local communities since it aims to not only promote fair and equitable use but promotes a certain degree of protection and benefit for advances derived from traditional knowledge. For example, the preamble (introductory statement of the CBD provisions) of the agreement explicitly states that the CBD recognizes “the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources” (Chandra & Idrisova, 2011: 3295-3316).
The words “traditional” and “dependence” in the context of this statement shows that the agreement expressly agrees with the viewpoint of various indigenous tribes and local communities over the value of the traditional knowledge they inherited by emphasizing that there is a certain degree of indivisibility between traditional knowledge and the people that it originates from. The treaty goes on to state the need to share “the benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components” (Heink, Bartz, & Kowarik, 2012: 3-17).
Based on this statement it can be seen that unlike TRIPS the CBD expressly states the phrase “traditional knowledge” and adds further emphasis on the need to share the benefits attained from the use of traditional knowledge. In the context of the CBD (which focuses on benefits derived from biological processes and specimens) this can come in the form of possible financial compensation from various pharmaceutical companies (or other companies in general) towards indigenous tribes and local communities from which they have derived certain aspects of traditional knowledge that they have utilized in their products and services (Myburgh, 2011: 844-849).
Article 8 (J)
Of particular interest to the topic of protecting traditional knowledge is article 8 (j) of the CBD which states the following:
“for each contracting party shall, as far as possible and as appropriate subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.” (Muzaffar et al., 2010: 1587-1601)
Based on this particular provision it can be seen that article 8 (j) affirms the rights that indigenous and local populations have over traditional knowledge which consists of practices and innovations which have some merit in medicinal, industrial or creative fields even if such practices are not necessarily under a form of IPR protection. Taking this into consideration, article 8 (j) emphasizes the necessity for foreign governments to safeguard the knowledge/entitlements of the owners of traditional knowledge through some form of new IPR law or through other legislative and policy measures designed to accord a certain degree of ownership and entitlement towards the inherited knowledge and practices of the indigenous and local communities within their borders (Mirandah, 2007: 76-78).
Even though the CBD was created a few months before TRIPS it can be seen that it addresses several of the concerns that have been brought up regarding the provisions within the TRIPS agreement. For one thing the CBD emphasizes a greater degree of concern for community control of genetic and biological resources unlike TRIPS which focuses more on private monopoly rights, patents and industry innovations. From a certain perspective it can be seen that the CBD asserts the necessity of national sovereignty when it comes to protecting traditional knowledge while on the other hand TRIPS seems more like a threat to indigenous populations and local communities due to the way in which its provisions effectively prevent proper patenting of traditional knowledge and the fact that the vagueness of article 27.3 (b) in effect has the potential to promote the rights of corporations over that of indigenous populations which it was apparently designed to do (Renner et al., 2012: 81-98).
United Nations Conference on Trade and Development (UNCTAD)
In its position as a steward for fair trade practices the UNCTAD has on occasion been asked to provide statistical and background support in order to help developing countries in their negotiations involving anti-dumping measures and various methods of protection of traditional knowledge (Gardner, 1968: 99). What is interesting to note regarding the assistance that UNCTAD could potentially provide to developing countries in regard to the aforementioned activities is that it was summarily blocked by the U.S. (Taylor, 2003: 409 – 18) The U.S. refused to agree to the UNCTAD providing any form of assistance in arbitration and intervention regarding cases involving traditional knowledge rather it advocated that the UNCTAD should merely work towards helping developing countries improve their understanding of the variety of rules and procedures already in place (Taylor, 2003: 409 – 18).
The obvious problem in regard to this action is that this in effect prevents developing countries from having the much needed assistance they require in order to protect their traditional knowledge. In examining why such actions were taken by the U.S. various studies have implied that corporate influences within the governing body of the country had a vested interest in ensuring that developing countries lacked the support needed in order to summarily prevent the continued “piracy” of their traditional knowledge (World Investment Report 2005: Transnational Corporations and the Internationalization of R&D, United Nations Conference on Trade and Development United Nations, 2007: 1288).
This comes in the form of pharmaceutical companies and other such industries that have thrived over the past few decades from knowledge gained and patented from traditional knowledge sources. When examining the impact of the decision of the U.S. to summarily block the ability of developing countries to attain outside assistance in regards to protecting their traditional knowledge this is indicative of what can potentially be construed as the “western” world summarily wishing to protect its own interests in terms of its continued exploitation of the traditional knowledge of the developing world.
Food and Agriculture Organization (FAO)
What must be understood is that the FAO unlike other organizations specifically outlines the necessity for the protection of traditional knowledge by entailing the following:
- the “protection of traditional knowledge relevant to plant genetic resources for food and agriculture (Cooper, 2002: 1)
- “the right to equitably participate in sharing benefits arising from the utilization” of such resources (Cooper, 2002: 1)
- “the right to participate in making decisions on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.” (Cooper, 2002:
When examining the outlined contents of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) it shows a definite and defined effort towards the effective protection of farmer’s rights which is in contrast to the relatively vague nature of the TRIPS agreement. It is based on this that in terms of future agreements developing proper means of protecting traditional knowledge they should refer to the ITPGRFA as an example of what to do and how to properly voice the necessary provisions to ensure the proper protection of farmer’s rights.
Commission on Human Rights
Under the commission of human rights it is expressly implied that all indigenous people or local communities have an inherent right to “possession” over the various pieces of cultural traditions, knowledge and development that are classified as originating from traditional knowledge (Seligman, 2011: 520 – 541). What must be understood though is that despite the fact that such statements have been indicated by the commission on human rights it is often times subverted by both countries and private corporations and as such calls into question the ability of the commission to actually enforce its mandates.
When examining the various factors presented by this paper so far two pressing concerns become immediately evident: the first is the necessity of creating a system that differentiates between a global IPR system and the various local regimes of traditional knowledge in order to create a system that is fair and equitable to all the parties involved. The second concern is a question of how to integrate in such a system the ability to both distribute public domain knowledge while at the same time ensure that such a method of distribution doesn’t result in the knowledge being utilized for self-serving purposes that doesn’t have the permission of the local community or indigenous tribe where it came from nor benefits them in any way.
While the CBD does present itself as an effective stepping stone towards such a goal the fact remains that it is insufficient in its ability to address the issue of scientific, educational and cultural stagnation that would come about if overly protectionist behaviors were to be implemented. On the other hand treaties such as TRIPS are obviously far too one-sided in terms of the ability of local communities or indigenous tribes from being able to derive sufficient benefit from it due to inherent limitations in the applicability of traditional knowledge under its requirements for patentability.
While it was not specifically elaborated on within the various parts researched it must also be noted that special interest groups (such as pharmaceutical companies and bio-research firms) obviously had a hand in influencing the creation of the TRIPS agreement and as such is indicative of the potential such self-serving provisions finding themselves into future agreements. Not only that, particular attention should be paid to how the generalized approach towards IPRs done by the WIPO and WTO at the present are inapplicable to case of traditional knowledge since they neglect to take into account indigenous practices and customary laws when applying provisions that can apply to traditional knowledge.
It is based on the factors presented that what is necessary is the creation of standardized body of rules and regulations that embody all aspects regarding the regulation and distribution of traditional knowledge and have such an agreement encompass aspects related to the fair use and equitable compensation for the origin of the knowledge in question. Such a body of knowledge must indicate an appropriate separation between traditional knowledge and IPRs as they are known today and emphasize the necessity of respecting the public domain knowledge of other states and implement sufficient means of control and resolution in order to prevent the situation of continued mistrust that pervades international relations when it come to matters such as these. It is only by doing so that the current problems surrounding the protection of traditional knowledge be tackled and effectively resolved within this lifetime.
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