Document(s) 9 of 16

To the surprise of many, national and international concerns related to the knowledge that resides with ‘indigenous peoples’ and farming communities — perennially emotive but invariably ‘soft’-policy issues enjoying fickle public popularity — have demonstrated a staying power and political energy that could not have been anticipated even five years ago. The dimensions of any discussion involving indigenous peoples or the role of farming communities is guaranteed to be wide-ranging, complex, and highly charged. The Crucible Group acknowledges the importance and scope of these broader issues but has sought to address them within the framework of plant genetic resources. Its discussions have focused on the task of conserving and enhancing knowledge about biological diversity through both national policy and international treaties. The obvious central fora are the CBD, the FAO Commission (CGRFA) and the UN Human Rights Commission. Because much of the debate over ‘knowledge’ has been associated with intellectual property, the WTO and WIPO (World Intellectual Property Organization) are also discussed. 

Regardless of the fora, there are important differences of opinion in several key areas that could impact on human rights, property, and trade. Some argue, for example, that indigenous peoples and farming communities are the creators and custodians of biological knowledge (particularly in medicine, agriculture and ecosystems). From this perspective, they argue, nation states and private enterprise should not file intellectual property claims that pre-empt or capture indigenous contributions. Some others, although appreciative of the primary and pivotal contribution of indigenous and other rural communities, believe that intellectual property systems properly acknowledge debts to past innovations and only claim new contributions. They also insist that sovereign states must be responsible for biological diversity. Others, still, identify a clear difference between the historic contributions of indigenous and farming communities and modern science. The debate has stimulated some governments, civil society organizations and intergovernmental agencies (such as WIPO) to review current intellectual property regimes to see if the knowledge of indigenous and farming peoples could be protected.

Much of the ‘knowledge’ debate connects with perspectives on human rights. Indigenous peoples often argue that their rights are being violated when their access to land and to benefits from their scientific contributions are ignored. Some have also insisted that Farmers’ Rights (as discussed in FAO and the CBD) are Human Rights. This is especially contentious since FAO’s negotiations appear to be moving to acknowledge Farmers’ Rights solely (or at least primarily) within national laws. Some believe that elements of Farmers’ Rights involve the Right to Food and must be seen as standing above national laws. The slow pace of negotiations at the CBD and FAO with respect to these issues has led some observers to conclude that many developing countries are only using farmers and indigenous peoples as bargaining chips that can be quickly discarded if the North is prepared to offer sufficient financial or technological support. 

There is no agreement — anywhere — on whether or not it is right or useful to incorporate indigenous knowledge into a formal intellectual property system. Advocates on all sides of this debate cite both practical concerns and issues of principle. Certainly, the Crucible Group was not able to reach agreement here.

Paradigm shift
Some advocates of ‘informal innovation’ believe that recent years have witnessed a paradigm shift in the recognition of and appreciation for the role of indigenous knowledge. There is new awareness among (‘conventional’, ‘laboratory’, ‘Western’, or ‘institutional’) scientists (no term is generally acceptable) that farmers and indigenous peoples not only have knowledge but often actively engage in research. Rather like the rediscovery of Mendel’s Laws at the beginning of the 20th century, the end of the century saw a rediscovery of the creativity and innovation of rural societies. For some time, conventional science believed that indigenous knowledge was a hit-or-miss affair through which communities built up a storehouse of useful experiences passed from generation to generation. Conventional wisdom argued that this building-up of knowledge was erratic and imperfect. The scientific process championed by Isaac Newton and others was said to differ from traditional knowledge accumulation in its emphasis on experimentation and documentation. 

Yet, scientific researchers (and Crucible members) such as Bo Bengtsson, Joachim Voss, Bernard Le Buanec and Louise Sperling — among others — have studied and assessed the contribution of farmers in Africa to the management of their genetic resources for food security and productivity. For example, they found that Ethiopian women would tabulate the yield results of their sorghum harvests on doorposts every year. They observed that women selected the highest-yielding, hardiest or otherwise most useful seeds from the field before men were allowed to harvest, and that these seeds would be ‘tested’ in kitchen plots and even exchanged with neighbors for trials in differing soils. This is experimentation and documentation. The energetic exchange of seed between farming communities, common around the world, was an effort to access diverse research material to improve food security. Whereas short decades ago, conventional science sometimes described farmers’ varieties as ‘Stone Age’ or ‘primitive’, the last few years have seen a shift in thinking and a much more realistic analysis of these varieties as ever-evolving and displaying differences from the seeds of the previous season. 

As conventional science has adapted its language and approach to appreciate the experimental research of farming communities, it has also had to reconsider its understanding of what is ‘known’ and ‘unknown’, ‘wild’ and ‘domesticated’. The discovery that a ‘jungle’ in West Africa was, in fact, an intentionally-developed agro-forestry system spurred the reappraisal of long-held assumptions. Many indigenous and farming communities eschew the term ‘wild’, for example, arguing that the term testifies to the limitations in the information available to conventional science. A so-called wild plant may be protected and nurtured if not actively bred. It is very often used and planted. Given the limitations of conventional understanding, they insist, the term ‘wild’ should only apply to species where scientists can prove there has been no prior protection or use. In the absence of this proof, the world should assume that it has been influenced by human intervention. 

Some rural advocates are also sceptical of the quality of conventional claims of discovery and innovation. For many years it was thought, for example, that rubber had very limited use among indigenous peoples in the Americas because they had never developed a vulcanization process that would prevent it from becoming brittle. In fact, Charles Goodyear won a US patent in 1844 for his accidental discovery that a mixture of latex and sulphur wouldn’t burn when placed on a stove and get improved elasticity.181  Yet, recent investigations by scientists at Massachusetts Institute of Technology prove that Mayans had developed a latex vulcanization process of their own 3500 years before Goodyear’s patent when they mixed the latex with juices from the morning glory vine.182 

Knowledge accumulation today
So-called ‘conventional’ science has mixed views on this perspective. Many acknowledge the information and innovative capacities of rural communities with enthusiasm and are eager to engage in participatory plant breeding and other research initiatives with communities. (Some of these cases are identified in Part One of this volume. Readers should also note the related discussion in the second volume.) 

Some institutional plant breeders point out that collaboration with farmers is really nothing new, it is precisely what institutional breeders have been doing for many years all over the world. After all, commercial breeders depend on farmers as their clients and customers. 

Others regard the assertions of ‘traditional’ science as owing much more to political correctness and romantic idealism than reality. The rediscovery of Mendel’s Laws, they suggest, led to advances in plant breeding that in 70 years have multiplied by several times the crop yields achieved over the previous nine millennia.183  Others, while seeing the potential for collaboration between ‘community innovation systems’ and ‘institutional innovation systems’, describe the relationship differently. Communities, for some reason, often produce macro-system innovations that are most likely to be useful in specific micro-ecosystems (such as the farm or the community). These innovations often involve a complex of genetic and management improvements that rely, for their effectiveness, on the entire environment around them. Such improvements can be intentional and can have high value but they may not have wide application. Conversely, institutional innovators often create micro-innovations that have macro-applications — genetic manipulations that could find use in many ecosystems. Between these positions lie a multitude of variations.

Intellectual integrity
Some argue that present-day intellectual property claims on plant varieties or genetic traits and medicinal compounds are a usurpation of indigenous knowledge and an insult to the intellectual contribution of rural peoples. The extraction of a disease resistance gene from a farmers’ variety that is known by the farmers to be disease-resistant, amounts to piracy even if the farmers had no scientific understanding of genes. Others strongly disagree, pointing out that the practical implications of such a position could be to curtail research and that the principal implication is that we should all still be paying royalties to the inventor of the wheel. Some farming and indigenous peoples’ organizations counter by pointing out that they are not seeking recognition for past achievements but only for the evolutionary innovation in the field at the time that it was collected.

Despite the intensity of these differences, there is general agreement that traditional knowledge and knowledge systems need to be conserved and their further development encouraged. There is also general agreement that indigenous peoples and rural communities must take an active part, nationally and internationally, in policy formulation related to knowledge issues. Few, too, would deny that the creative collaboration possible among millions of researchers working in millions of test plots (i.e. farmers) in alliance with thousands of breeders in experimental stations, and many other kinds of researchers working in hundreds of laboratories (i.e. conventional scientists), would not be a boon to knowledge and diversity.

The Crucible Group examines three outstanding issues related to knowledge in the following pages:

1. Human rights and indigenous knowledge;

2. Participation of indigenous and local communities in knowledge policy-making;

3. Intellectual property and indigenous/local communities.

Human rights and indigenous knowledge: potential role for the UN Human Rights Commission

The Universal Declaration of Human Rights adopted by the UN General Assembly in 1948 recognizes both the right to innovate and the right to imitate. While the Declaration is almost universally admired as a landmark contribution to democracy and development, it has nevertheless been criticized as a somewhat Western-centric perspective that stresses individual rights and freedoms and does not adequately address cultural and collective rights, especially those of indigenous communities. The long succession of protocols and deliberations since 1948 could be seen, to some degree, to acknowledge this limitation. The Crucible Group reviewed two issues that involve the work of the UN Human Rights Commission.

Policy primer: The UN Human Rights Commission

Indigenous rights
Although there is no agreement within the Group on this point, some members consider the issue of indigenous knowledge protection to be a human rights matter that should be resolved by the UN Human Rights Commission — not by WIPO, WTO or the CBD. Those holding this opinion suggest that other parties and treaties should defer their conclusions until the Commission can provide guidance.

Farmers’ Rights / the Right to Food
Second, as already noted under the Farmers‘ Rights discussion earlier in Part Two, some negotiators believe that there are elements of the debate in the FAO International Undertaking with respect to Farmers’ Rights that could be more substantially addressed within the framework of the Right to Food if considered by the Human Rights Commission. A June 1999 study by the Economic and Social Council (ECOSOC) on the Right to Food submitted to the Commission on Human Rights urges that Farmers‘ Rights should be promoted as part of the Right to Food, especially since ‘our future food supply and its sustainability may depend on such rights being established on a firm footing’.184 

The participation of indigenous and local societies in knowledge policy-making
The importance of ensuring the participation of indigenous and local people in negotiations that will lead to national or international policies affecting their knowledge is obvious. The difficulty arises in the relations between indigenous peoples and national governments. Some indigenous peoples understand themselves to be a nation within a nation or a nation whose peoples cross the borders of two or more nations. Some governments consider themselves to be the sole and entirely sufficient voice of all the peoples within their sovereign territory. In a world of inherited colonial (or victor-dictated) boundaries and disinherited societies, it is easy to sympathize with all points of view. For this reason, many national and international organizations have adopted flexible and often ambiguous procedures intended to encourage inclusive policy formulation. Nowhere is this flexibility more appropriate than when addressing the knowledge related to biological resources that have themselves experienced a kind of diaspora. 

For guidance on this issue, it is important to consider the Draft UN Declaration on the Rights of Indigenous Peoples. This is a comprehensive articulation of indigenous peoples’ rights, which was developed over the past decade by the Working Group on Indigenous Populations. In addition to rights to political and legal autonomy, the Draft Declaration gives important recognition to the rights of indigenous peoples over cultural and genetic resources. Some governments, like that of the Philippines, with its recently passed Indigenous Peoples‘ Rights Act, have attempted to create national laws that give effect to the spirit of Article 29 of the Draft Declaration.

Although the declaration is still in draft form, it includes provisions that are internationally recognized as minimum standards in the field of indigenous rights. Article 29 states:

Indigenous peoples are entitled to the recognition of full ownership, control and protection of their cultural and intellectual rights.… They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.

If and when it is adopted, the Draft Declaration on the Rights of Indigenous Peoples will not be legally binding but will give the world a powerful moral lead. 

International attention has, logically, focused on the involvement of indigenous peoples in the Biodiversity Convention. It could also be argued that their participation is as important wherever there are proposals to commercialize knowledge — including the World Intellectual Property Organization and the WTO.

Crucible Recommendation 13 The rights of indigenous peoples with respect to genetic resources The Crucible Group recommends that national governments should adopt, within their own laws, the spirit and the literal text of Article 29 of the Draft Declaration on the Rights of Indigenous Peoples. As means of further implementing the spirit of Article 29 into national law, the Crucible Group recommends that national governments should: give legal recognition to the collective rights of indigenous peoples and local communities and to their knowledge in relation to genetic resources;  recognize customary and traditional practices that indigenous peoples and local communities have developed regarding genetic resources; and require by law that third parties should not be able to assert rights or make claims with respect to plant varieties and uses of medicinal plants developed by indigenous and local communities without their prior informed consent.

Participation in the CBD
The CBD gives international recognition to the central role that indigenous and local communities play in biodiversity conservation, through their traditional and sustainable practices and knowledge systems. The CBD encourages signatory states to protect and promote the rights of communities, farmers and indigenous peoples vis-à-vis their biological resources and knowledge systems. It also encourages the equitable sharing of benefits arising from the commercial use of communities’ biological resources and local knowledge:

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.

The CBD has become a strong and significant forum for indigenous peoples and local communities, whose representatives have participated actively in negotiations and debate. Indigenous peoples have lobbied forcefully at meetings of the Conference of the Parties (COP) to ensure that they would have a more prominent place within the CBD. In November 1997 the COP held an open-ended inter-sessional working group discussion on traditional knowledge and biological diversity in Madrid. The workshop produced recommendations concerning, inter alia, a program of work related to the implementation of Article 8(j). In May 1998, COP IV established an open-ended working group to address the implementation of Article 8(j) and related provisions.

There are different viewpoints on the nature of indigenous peoples’ participation at the CBD, and whether or not it is a useful forum for advancing their rights. Some indigenous peoples’ organizations question whether multilateral agreements negotiated among nation states, emphasizing national sovereignty over genetic resources, will adequately consider or protect the rights of indigenous peoples. Many view the adoption of the Draft Declaration on the Rights of Indigenous Peoples by the UN General Assembly as a far more important priority in the intergovernmental arena. Some view the CBD as a treaty that promotes the commercial exploitation of biological resources under the guise of an environmental treaty, and are skeptical about its role in protecting the rights of indigenous peoples.

Viewpoint: Is the CBD a useful forum for advancing the rights of indigenous peoples?

Viewpoint: What should be indigenous peoples’ representation at the CBD?

Intellectual property and indigenous / local communities

Thorniest of all issues in the knowledge debate is whether or not legal mechanisms can or should be created to ensure protection of the knowledge of indigenous and local people. Some believe that this knowledge should be protected under intellectual property regimes modified, if necessary, for the purpose. Others assert that the inclusion of indigenous innovations in ‘Western-style’ IP regimes would not only not create new benefits but would actually camouflage biopiracy and amount to a slippery slope toward greater corporate monopolies and the end of opposition to the patenting of life. Some who share this opinion are campaigning for an alternative rights regime that is distinctly not intellectual property. They reason that a system could be devised that is compatible with traditional practices in each community and allows the community to govern access to its knowledge. Still others believe that alternative rights regimes are just a more naïve form of slippery slope leading inevitably to patent models and transactions. They suggest that efforts to legislate indigenous knowledge run against customary practices and threaten the survival of cooperative innovation systems. The World Intellectual Property Organization is in the middle of this debate.

For a more detailed discussion of this issue, readers should refer to the viewpoint box on suitability of IP for indigenous knowledge in Volume 2.

The potential role of WIPO in protecting indigenous knowledge
A new initiative at the World Intellectual Property Organization (WIPO) acknowledges that the needs of informal innovators have not been addressed by current IP regimes and seeks to address this situation. Over the past five years, representatives of indigenous peoples’ organizations have participated actively in debates relating to IP and genetic resources at regional and international fora. In 1997 WIPO created the ‘Global Intellectual Property Issues Division (GIPID)’. For the 1998–99 biennium, the GIPID focused on: 1) the intellectual property needs of new beneficiaries; 2) biodiversity and biotechnology; 3) expressions and folklore; and 4) IP beyond territoriality. WIPO is in the process of exploring both current approaches to the protection of IP and indigenous knowledge, as well as options for new or adapted forms of protection.

Policy primer: The World Intellectual Property Organization

In 1998–99 WIPO conducted a series of regional fact-finding missions to North America, South and Central America, the South Pacific, West and Southern Africa and South Asia, with the aim of identifying and exploring ‘the intellectual property needs and expectations of new beneficiaries, including the holders of indigenous knowledge and innovations, in order to promote the contribution of the intellectual property system to their social, cultural and economic development.’ WIPO will release a full report on its fact-finding mission in early 2000. WIPO also invited indigenous peoples to participate at two Roundtables on Intellectual Property and Traditional Knowledge. The first was held in July 1998, the second in November 1999.

Some indigenous peoples’ organizations question WIPO’s objectives and the assumption that holders of traditional knowledge have something to gain from existing IP regimes. Some indigenous leaders fear that predominantly Western-style IP regimes could undermine local knowledge systems, rather than promote or protect them. Others believe that there might be a role for WIPO to play in helping to establish alternative forms of IP. There is considerable difference of opinion on whether or not IP regimes can or should be used to protect traditional knowledge, but there is general agreement that the issue of traditional knowledge should be addressed by WIPO and other elements of the international community as a step toward implementing Article 8(j) of the CBD. 

Other IP-based efforts outside WIPO
Many national governments and peoples’ organizations are working to develop IP-based protections for indigenous and local knowledge. Many of these efforts predate the WIPO initiative.

Some CSOs and policy-makers are working to develop community and collective rights regimes for farmers and indigenous peoples that are distinct and separate from monopoly-based, intellectual property regimes. For example, CSOs from 19 countries met in Thailand in late 1997 to explore the development of sui generis rights that aim to recognize and to protect community innovation, and also nurture sustainable food and health systems.185  ‘The Thammasat Resolution’ that emerged from that meeting asserts that sui generis rights are community and collective rights that are fundamentally different from the intellectual property-based sui generis systems promoted by the TRIPs Agreement. Participants rejected IPRs on all forms of life. 

One of the earliest comprehensive efforts to develop model sui generis national legislation that would give communities property-style rights of control over their collective knowledge was the Third World Network’s Community Intellectual Rights Act (CIRA), published in 1994. The Act addresses many of the issues that continue to challenge current efforts to develop laws to protect indigenous and local knowledge. It asks, for example: what subsets of knowledge can be protected by such laws? In whom should the rights of protection be vested? Can more than one community have rights in the same knowledge? What kinds of rights of control should be created in association with that knowledge? How long should those rights last? Certainly not everyone agrees with the way in which the CIRA addresses all of these issues. The Act is not long or detailed enough to deal comprehensively with all of the questions it raises. However, it represents an early and influential attempt to begin framing, in legal and legislative terms, ways in which indigenous and local knowledge could be treated in national sui generis intellectual property laws. (Please refer to Volume 2, Topic two, Section 2 — ‘Options for sui generis intellectual property laws for indigenous and local knowledge’ — for more detailed discussion of sui generis laws that seek to protect local and indigenous knowledge.)

At WTO, a number of developing countries are raising the issue of protection of indigenous and local peoples‘ rights over their collective knowledge. Kenya, on behalf of the African Group at WTO, submitted proposals relating to the TRIPs Agreement in preparation for the 1999 Ministerial Conference.186  Among them was a proposal that any sui generis law for plant variety protection may provide for the protection of the innovations of indigenous and local farming communities in developing countries, consistent with the Convention on Biological Diversity and the International Undertaking on Plant Genetic Resources. A joint proposal by the governments of Peru, Bolivia, Colombia, Ecuador and Nicaragua in October 1999 calls upon the WTO to study and make recommendations on the most appropriate means of recognizing and protecting traditional knowledge as the subject matter of IP.187  It also calls upon the WTO to establish in upcoming negotiations a multilateral legal framework ‘that will grant effective protection to the expressions and manifestations of traditional knowledge’. 

Much of the work regarding indigenous and local knowledge overlaps with ongoing work on sui generis forms of IP protection for plant varieties. One possibility discussed in the context of sui generis plant variety protection regarding indigenous and local knowledge is that some form of IPRs could be extended to plant varieties developed and grown by indigenous and local farmers. For further discussion, refer to the section entitled ‘Options for the implementation of Article 27.3(b)’.

What unites most of the efforts of groups outside of the WIPO initiative (it is still too early to know what WIPO will recommend or observe) is the desire simultaneously to recognise the collective aspect of indigenous and local community stewardship and to provide those communities with different forms of control (ranging from restrictive to exclusive) over their knowledge.

There is disagreement over the characterization of some of these efforts. Some critics talk about models of protection that vest exclusive or restrictive rights of control over knowledge in a community as being systems that are outside of, or distinct from, intellectual property law. Others claim that any legally sanctioned rights of control that can be asserted against third parties, independent of whether they are vested in individuals or communities, are forms of intellectual property (albeit sui generis ones), and that political correctness is preventing some critics from acknowledging this.

If formal intellectual property procedures were modified, would it adequately safeguard the interests of indigenous and other local communities? If indigenous knowledge were properly considered at intellectual property offices, some people believe that disputed claims related to medicinal plants and plant varieties (i.e. ayahuasca, neem, basmati) might be much reduced or even disappear.

In November 1999 the US Patent and Trademark Office (PTO) cancelled a US patent issued to a US citizen for a plant species native to the Amazon rainforest, Banisteriopsis caapi. Popularly known as the ayahuasca vine, the plant is used in sacred indigenous ceremonies throughout the Amazon. The PTO’s decision came in response to a request for re-examination of the patent in March 1999 by the Washington DC-based Centre for International Environmental Law (CIEL), the Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA) and the Amazon Coalition. The groups requested that the patent be cancelled ‘because the claimed patent lacks novelty and distinctiveness, is found in an uncultivated state, and as a sacred element of many indigenous cultures of the Amazon should not be subject to private appropriation’.¹⁸⁸

Viewpoint: Is intellectual property protection for indigenous knowledge and rights appropriate?

In response to the PTO’s cancellation of the ayahuasca patent, CIEL attorney David Downes observed that the PTO had still not dealt with the flaws in its policies that made it possible for someone to patent this plant in the first place. He called for the PTO to change its rules to prevent future patent claims based on the traditional knowledge and use of a plant by indigenous peoples.¹⁸⁹

In separate proceedings at the PTO, the three groups have called for changes that would require that PTO patent applicants identify all biological resources and traditional knowledge that they used in developing the claimed invention, disclose the geographical origin of the claimed biological resources and provide evidence that the source country and indigenous community consented to its use.

Crucible Recommendation 14 An intellectual property ‘ombudsman’ The Crucible Group recommends, as a partial contribution to issues relating to indigenous and local people, that: WIPO and UPOV establish an ombudsman‘s office, accessible to indigenous and rural communities to address their queries and concerns regarding issues that arise within the competence of those organizations. The ombudsman should be empowered to achieve resolution of any issues that the office regards as pertinent to pursue; in further recognition of the importance attached to the participation of indigenous and local communities by the CBD and the support expressed for Farmers’ Rights in FAO, a permanent ombudsman’s office be created in the United Nations (possibly as part of a permanent Forum for Indigenous Peoples) to address a broader range of knowledge-related concerns than can properly be addressed under WIPO or UPOV; such offices should receive adequate financial resources and technical support to ensure that they are effective and functional.

Document(s) 9 of 16