Graham Dutfield

One of the great ironies for indigenous peoples and local communities is that while scientific and commercial interest in their ecological knowledge and resource management practices have never been greater, human cultural diversity is eroding at an accelerating rate as the world steadily becomes more biologically and culturally uniform.

According to the IUCN Inter-Commission Task Force on Indigenous Peoples,¹ "cultures are dying out faster than the peoples associated with them. It has been estimated that half the world’s languages--the storehouses of peoples’ intellectual heritages and the framework for their unique understandings of life--will disappear within a century". According to the Task Force, the main threats include genocide, uncontrolled frontier aggression, military intimidation, extension of government control, unjust land policies, cultural modification policies, and inappropriate conservation management.

Although scientific and commercial investigation and collection of traditional knowledge and biological resources have been going on for centuries, ‘bioprospecting’ has intensified in recent years,² while multilateral and bilateral donor agencies, United Nations agencies, and international environmental law have embraced the principle that traditional knowledge has a vital role in sustainable development and therefore needs protection.

Indigenous peoples and local communities often welcome interest in their knowledge as long as their rights as holders of this knowledge are respected. But they condemn the ‘mining’ or ‘salvaging’ of their knowledge by commercial concerns and scientists that feel they have no responsibility to ensure that benefits flow back to their communities, or to help stem the erosion of their cultures. Intellectual property rights, especially patents, have been criticized by many indigenous peoples, other grassroots organizations and pro-Third World advocacy groups because they are considered to encourage and legitimize ‘biopiracy’ (the unauthorized commercial exploitation of their knowledge and biological resources).³

This paper starts by explaining how interest in and respect for traditional knowledge has increased considerably in recent years. The study of traditional knowledge is now popular among academics and development professionals while conservation and development agencies (at least publicly) accept the view that traditional knowledge has an important role to play in sustainable development. The Convention on Biological Diversity is the first international treaty to acknowledge the vital role of traditional knowledge, innovations and practices in biodiversity conservation and sustainable development as well as the need to guarantee their protection, whether through IPR protection or other means. The paper then discusses the protection of traditional knowledge as an IPR issue and analyses the commonly expressed proposition that IPRs, especially patents, are inimical to the interests of indigenous peoples and local communities.

Traditional ecological knowledge (sometimes referred to as ‘traditional environmental knowledge’ or ‘indigenous knowledge’) is defined by Johnson⁴ as "a body of knowledge built by a group of people through generations living in close contact with nature. It includes a system of classification, a set of empirical observations about the local environment, and a system of self-management that governs resource use". It is important to avoid the common assumption that ‘traditional’ necessarily implies ‘outdated’. According to a report submitted to the Secretariat of the Convention on Biological Diversity by a Canadian indigenous peoples organization, the Four Directions Council⁵:

what is ‘traditional’ about traditional knowledge is not its antiquity, but the way it is acquired and used. In other words, the social process of learning and sharing knowledge, which is unique to each Indigenous culture, lies at the very heart of its ‘traditionality’. Much of this knowledge is actually quite new, but it has a social meaning, and legal character, entirely unlike the knowledge indigenous people acquire from settlers and industrialized societies. (Original emphasis)

Traditional knowledge systems are increasingly accepted as an important source of useful information in the achievement of sustainable development. Until the 1970s, development planning and conservation policies were usually based on very negative assumptions about traditional rural societies. Poor rural dwellers were generally assumed to be backward and inimical to change, and their livelihood practices, such as shifting cultivation, were thought to be at best inefficient and unproductive and at worst environmentally destructive. More enlightened attitudes towards the knowledge, skills and subsistence practices of rural communities in developing countries emerged in the 1970s, according to Adams,⁶ "as part of a liberal and populist reaction against the unsuccessful technological triumphalism of rural development practice". These attitudes have become increasingly mainstream in academia and among international development and conservation agencies. Many multilateral and bilateral donor agencies including the World Bank, United Nations agencies such as FAO, UNESCO and UNEP, and several of the International Agricultural Research Centres now recognize the role of traditional knowledge in sustainable development.⁷ Such recognition is often accompanied by acknowledgement of the need for bottom-up participatory development policies in place of the now discredited paternalistic and top-down strategies of the recent past.

With respect to nature conservation, international organizations like the IUCN-World Conservation Union and the World Wide Fund for Nature are far more willing than before to respect traditional knowledge and to understand that such respect must include support for the rights of the holders. At the first World Conservation Congress in 1996, IUCN acknowledged that "the knowledge, innovations and practices of indigenous peoples and local communities embodying traditional lifestyles are: (i) important elements of biological diversity; (ii) responsible for the conservation, selection and improvement of biodiversity elements and should therefore be valued, respected and protected; but (iii) are often used without fair compensation." WWF’s "Statement of Principles on Indigenous Peoples and Conservation"⁸ expressed appreciation of "the enormous contribution indigenous peoples have made to the maintenance of many of the earth’s most fragile ecosystems" with regret that "the goals of conserving biodiversity and protecting and securing indigenous cultures and livelihoods have sometimes been perceived as contradictory rather than mutually reinforcing."

Awareness of the destruction of traditional knowledge systems is increasing, and many concerned scientists are calling for the documentation of such systems before they are lost forever. However, there is a tendency among some of those academics and development workers who advocate documenting traditional knowledge to emphasize ex situ rather than in situ conservation.⁹ While recording traditional knowledge before it falls out of use may often be the only way to prevent it from being lost completely there are potential dangers with archiving traditional knowledge in national and international databases to the exclusion of locally-based initiatives. First, it must be understood that traditional knowledge is not static but evolves. Storing it in ex situ collections fixes it temporally. Therefore, its relevance will diminish over time unless it is constantly updated. As Agrawal argues,¹⁰ "divorced in archives from their cultural context, no knowledge can maintain its vitality or vigour". Second, such an approach may deflect attention from the far more important priority of protecting traditional knowledge in situ which requires that attention be given to the cultural, spiritual and physical well-being of the knowledge holders and their communities. Such a ‘solution’ hardly seems an adequate way to deal with the main problem, which is that such knowledge is falling out of use in the very communities that generate it. This is even more true if the archives are inaccessible to the communities providing the knowledge to the archives. Third, documenting traditional knowledge is unethical and counter-productive if the intellectual property rights of the generators and holders of such knowledge are ignored by those doing the recording. It seems paradoxical but it is often the case that traditional knowledge is respected more than the people who generate and share it. According to Akhil Gupta,¹¹ "'natives’ serve as informants and sometimes collaborate in eliciting data; [but ...] they are rarely the ‘experts’ who compile, systematize, and store the data in retrievable form".

It is perhaps out of such concerns that representatives of indigenous peoples attending the Workshop on Traditional Knowledge and Biological Diversity organized by the Secretariat of the Convention on Biological Diversity in November 1997 went so far as to call for "a moratorium on the registering of [traditional] knowledge". Fortunately, some scientific organizations are sensitive to the concerns of indigenous peoples. The International Society for Ethnobiology recently drafted a set of Guidelines for Research, Collections, Databases and Publications. According to these Guidelines no research, collection, database or publication shall be undertaken without the prior informed consent of "all potentially affected communities of indigenous peoples or traditional societies". Moreover, "no member of the International Society of Ethnobiology (ISE) or affiliated organizations of ISE shall undertake any research, collection, database or publication derived or obtained from information or materials from any community that has requested a moratorium on any relevant research, collection, database or publication."/P>

The Convention on Biological Diversity

Article 8 (j) of the CBD requires the State Parties to "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 the 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."

Use of the terms ‘knowledge’, ‘innovations’ and ‘practices’ in addition to ‘traditional’ is very significant. As suggested earlier, there is a tendency to assume that ‘traditional’ implies any or all of such notions as ‘time-honoured’, ‘historical’, ‘inflexible’ and ‘static’. On the contrary, ‘traditional innovations’ is not an oxymoron. Perhaps the most significant word of all, though, is ‘holders’, which may not imply ownership but minimally suggests the existence of legal entitlements.¹² The Article seems to affirm, then, that the holders ("subject to national legislation") have rights over their knowledge, innovations and practices, whether or not they are capable of being protected by IPRs. If they are not capable of being protected by the existing IPR system, there is at the very least a moral obligation for governments to safeguard these entitlements either through a new IPR law or by other legal means. These moral obligations should also extend to users of traditional knowledge, innovations and practices. Minimally giving effect to these obligations should be through prior informed consent and observation of codes of conduct, such as those developed by some scientific organisations.¹³

The Indigenous Peoples Biodiversity Network¹⁴ believes that it would be mistaken to construe Article 8(j) only in terms of its support for the intellectual property rights of traditional communities. For Article 8(j) to have constructive value to indigenous peoples, governments must go much further than this to: "(i) accept the right to self-determination of indigenous peoples; (ii) observe indigenous peoples’ human rights and fundamental freedoms; (iii) facilitate capacity-building of indigenous and local communities; (iv) promote the validation of indigenous knowledge; (v) acknowledge that indigenous knowledge is an intellectual property in the broadest sense but is inadequately protected by existing IPR regimes; and (vi) develop national legislation to protect indigenous knowledge including the establishment of sui generis systems."

However, Article 10 (c) may constitute a more powerful assertion of rights than Article 8(j). It requires parties to "protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements". This is an acknowledgement that accommodating customary laws and practices relating to genetic resources use and environmental management within national laws can enhance biodiversity conservation. According to the Four Directions Council,¹⁵ "[i]ndigenous peoples possess their own locally-specific systems of jurisprudence with respect to the classification of different types of knowledge, proper procedures for acquiring and sharing knowledge, and the rights and responsibilities which attach to possessing knowledge, all of which are embedded uniquely in each culture and its language." Rather than attempting to devise uniform IPR guidelines for protection of traditional knowledge, the Four Directions Council urges governments to "agree that traditional knowledge must be acquired and used in conformity with the customary laws of the peoples concerned".

It is sometimes asserted that intellectual property rights--in terms of their characteristics or their effects--are inequitable or even exploitative of indigenous peoples. Is this true? Two questions must be considered when discussing the relationship between IPRs and the rights of the holders of traditional knowledge, innovations and practices. First, do IPRs have characteristics that are inherently unjust or which lead to injustices vis-à-vis traditional knowledge holders? Second, to what extent can IPRs be used to protect their rights? I will start by presenting the arguments of defenders of strong patent systems based upon those of the industrialized countries and then consider some of the more critical views. It should be noted that this section considers mainly patents. Trademarks and geographical indications are IPRs that may be of use in some situations but are not considered here.

Defenders of strong patent systems are likely to argue that companies holding patents derived from knowledge acquired from local communities cannot prevent members of these communities from continuing to use their knowledge, and moreover such companies have never attempted to do so. For example, just because a United States company holds a patent for, say, a stable storage form of neem pesticide, this does not prevent Indian farmers from continuing to use neem as a pesticide as they have done for generations. Defenders may also assert that as long as the patent requirements of usefulness, novelty and inventive step are strictly upheld by patent offices there is no reason for local communities to feel exploited since if their knowledge were simply copied there would be no invention to patent. Both of these arguments are essentially correct, although the turmeric patent case referred to below shows how the theory and practice of patenting may sometimes differ.

A recent study by two political philosophers, Anthony Stenson and Tim Gray,¹⁶ took the controversial position that moral entitlement theories do not justify indigenous peoples’¹⁷ IPRs over their knowledge. The problem with their analysis is that they based it on a simplistic conception of traditional knowledge, assuming that it is by definition collectively held and generated and part of the public domain.¹⁸ This makes their argument appear more plausible than it should. To argue that traditional knowledge when defined this way should enjoy a privileged legal status vis-à-vis other public domain knowledge originating from non-traditional sources such as public or private sector research programmes does indeed prima facie seem problematic from a moral entitlement-based perspective.

However, what should not be overlooked is the question of how traditional knowledge usually falls into the public domain. Indigenous peoples have for centuries endured abuses of their basic human rights, and they still tend to be politically, economically and socially marginalized. It would therefore be naïve to suppose that it has ever been normal practice for their knowledge to be placed in the public domain and disseminated, with their prior informed consent and with respect for their customary laws and regulations concerning access, use and distribution of knowledge. It can plausibly be argued, then, that unconsented placement of knowledge into the public domain does not in itself extinguish the legitimate entitlements of the holders and may in fact violate them.

Second, while Stenson and Gray’s argument is relevant to cases of widely-distributed and long-documented traditional knowledge such as that which is related to neem, a great deal of knowledge is more localized in its distribution and may be held only by small numbers of people or even an individual (see below).

Third, it is unreasonable to suggest that indigenous peoples have no reason to complain as long as their knowledge is not directly copied in a patented invention. The outrage felt by many indigenous peoples in South America about the US plant patent on a sacred plant, ayahuasca,¹⁹ is legitimate, and makes clear that resorting to the arguments of Western thinkers who justify IPRs, like Hegel and Locke,²⁰ is not always fruitful or even relevant.²¹

Nevertheless, Stenson and Gray usefully demonstrate that advocates of indigenous peoples and local communities’ rights need to be consistent in their argumentation.²² For example, let us assume that the traditional knowledge about neem had been forgotten by most Indians so that only a few farmers still held the knowledge. Would the use of their knowledge by a company as a lead for a patented invention make these people victims of intellectual piracy? If the farmers were identifiable one could possibly build a strong case that the company’s act was economically exploitative by using some of the arguments provided earlier. But--unlike the turmeric case--it is more difficult to argue that it is intellectual piracy. This is because to be consistent one would also have to argue that a temporary monopoly right to an incremental improvement (which is what a patent essentially is) is inherently exploitative of all people past and present that had contributed to the state of the art (or more accurately all the states of the arts) relevant to the patent. Such a position is difficult to sustain and is highly inappropriate in this case.²³ The state of the art includes not only the knowledge that neem seed extracts are an effective pesticide, but also the industrial techniques that can be applied to produce neem derivatives that are in one way or another more useful than the natural product.²⁴

Following a more critical perspective, it is tempting to draw an analogy between the taking of indigenous peoples’²⁵ knowledge without permission and patenting inventions based upon this knowledge, and seizing their territories and displacing them from their homelands. In each case, it seems that territories, ecosystems, plant varieties (whether domesticated or not) and traditional knowledge, are treated as if they are res nullius (the property of nobody) before their ‘discovery’ by explorers, scientists, governments, corporations, and conservation organisations.²⁶ During the Colonial period, sparsely populated ‘wildernesses’ were regarded as being to all legal intents and purposes vacant prior to colonization. Settler societies, such as in Australia, built up legal systems based upon the terra nullius (the land of nobody) doctrine.²⁷ According to such a view, open access is the rule for land, traditional knowledge and resources, whereas enclosure is the rule as soon as these are proved to have economic value.

The analogy is powerful and persuasive even if it is conceded that whereas lands and territories are finite, new knowledge is constantly being generated and is, at least in theory, inexhaustible. Nevertheless, the analogy does seem to reflect indigenous peoples’ views--based as they are upon bitter historical experience--more accurately than the conventional (and Western) arguments favouring intellectual property rights for holders of useful knowledge. Also, it accurately reflects the sentiments of indigenous peoples who see Western law as an imposition which seems to cancel out their own custom based regulations. After all, if indigenous peoples in WTO member states are required to accept the existence of patents that they are economically prevented from availing themselves of, why shouldn’t their own knowledge-related regimes be respected by others? It is perhaps this point, that one type of IPR system is being universalized and prioritized to the exclusion of all others, that causes the most legitimate disquiet among those peoples and communities that are least able to benefit from what to them is an imposed system.

Comparing so-called ‘biopiracy’ cases such as the recently-revoked turmeric patent (US Patent No. 5,401,504: "Use of Turmeric in Wound Healing"), the neem patents (of which over 150 exist in the world) and the (lapsed) quinoa patent exemplify some of the various ways that inventions may be derived from traditional knowledge and how the just entitlements of traditional knowledge holders may vary as a result. In the turmeric case, the ‘invention’ was the traditional use of the plant, and it is because this traditional use had been documented that the invention was ultimately deemed to lack novelty. At least some (and possibly most) of the neem-related inventions embody uses identical to those of Indian farmers but the products and/or methods of extraction are different. In such cases it can safely be assumed that the existence of relevant traditional knowledge was a (but not the) sine qua non for the inventions. In the case of the quinoa patent (US Patent No. 5304718: "Cytoplasmic Male Sterile Quinoa"), traditional knowledge was not a sine qua non for the invention except in the sense that the development and continued existence of quinoa varieties can be attributed to the efforts of past and present Andean peoples. The main problem with this patent is that it seems to appropriate part of the public domain by dint of the excessive breadth of what it claims rather than that it ‘pirates’ traditional knowledge. Even so, it is understandable that local communities should object when patent claims include names of their own folk varieties (as did the quinoa patent) especially when these communities depend on exporting these varieties to countries where such a patent is held. A strong case can still be made for compensating the Andean farmers when their knowledge and resources are used in such patent applications, but patent law is unlikely to be the best possible mechanism for benefit sharing given that most patented inventions are not commercially viable while many natural products may not even be IPR-protected.²⁸

Even if it is still debatable whether strong patent systems modelled on those of Europe or the United States are inherently harmful to indigenous peoples and local communities, arguments that such systems reinforce existing injustices are convincing. The question to be asked, then, is whether perverse characteristics of the system are integral to IPRs or whether they could be mitigated by rigorous patent examinations or by careful drafting or interpretations of IPR laws. It is my belief that IPR systems should be available to protect holders of all useful knowledge whose dissemination is beneficial to the wider public. To the extent that they cannot do this, they are inherently flawed. But on the other hand, some defects can be addressed without having to make radical changes. To take one example, the novelty requirement in patent law is sometimes defined in a way that could legalize the misappropriation of traditional knowledge. According to United States patent law,

A person shall be entitled to a patent unless:

1. the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
2. the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States ...²⁹

This means that unpublished traditional (or any other) knowledge acquired from abroad but not known in the United States can be the subject of a patent application by a company that simply discovers this knowledge. In Europe, on the other hand, the novelty requirement is in this sense more demanding. According to Article 54(2) of the European Patent Convention,

An invention shall be considered to be new if it does not form part of the state of the art. The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application.

Thus, there is no distinction made as to the geographical source of prior knowledge relevant to the invention. This seems to be much fairer.

One last but very important point to make is that farmers in most developing countries (and in some industrialized countries as well) still tend either to save their own seeds or acquire them from other farmers. In countries where neither the public or private sectors play a dominant role in seed production or distribution, such as in many African countries, seed saving and sharing will probably continue to be prevalent means of seed acquisition for several years to come. To attempt to eradicate these practices through expansive IPRs would very likely cause serious economic and social impacts for farming communities. It should be noted in this context that according to the IPR systems of the developed countries, the private property rights afforded by patents and plant variety rights to a varying extent restrict or even eliminate the right to continue such customary practices of seed saving and exchange, and the trend is very much towards further restriction of the former and complete elimination of the latter.

IPR law does not enable all creative or inventive expressions to be protected by IPRs. With respect to patents, only inventions that can be dated and attributed to an individual or small group of people can be protected. In traditional societies, the sources of traditional knowledge may be attributable to individuals, kinship or gender-based groups,³⁰ or to single communities. In theory such knowledge may be patentable. However, a great deal of traditional knowledge is not traceable to a specific community or geographical area and is ineligible for patent protection. Whether widely known or not, once traditional knowledge is recorded and publicly disseminated, its use and application is beyond the control of the original knowledge providers. As we saw earlier, if a researcher investigates a piece of published traditional knowledge and then improves upon it in a practical way, the result may well become a patentable ‘invention’ that this researcher can own.

Patents are essentially blunt instruments that cannot be expected to accommodate the subtleties and complexities of many non-western proprietary systems. These systems are sometimes assumed to be collective or communally-based, but in fact any assumption that there exists a generic form of non-western, traditional collective intellectual rights ignores the intricacies and sheer diversity of indigenous and traditional proprietary systems.³¹ Implicit in some criticisms of patents is an assumption that collective and individual ownership and property rights, including intellectual property rights, are necessarily alien concepts in all traditional societies³² which are characterized by a strong sharing ethos. In fact, reviews of anthropological literature reveal that such concepts (or at least close equivalents to them) are quite common.³³ Any laws that aim to protect property rights, including IPRs, should not therefore be dismissed out of hand. Even so, the strong tendency among many traditional communities is to exchange seeds freely rather than to treat them as commodities to be bought and sold.

At the practical level, critics of patents are certainly correct in asserting that the lack of economic self-sufficiency of many traditional communities, the unequal power relations between them and the corporate world, and the high cost of litigation, would make it very difficult for them to protect their IPRs through the patent system.³⁴ In the United States, for example, it costs about $US 20,000 to prepare a patent application.³⁵ This is clearly beyond the financial means of local communities (as well as many independent inventors and small companies) in most parts of the world, especially when we take into account the fact that most patents do not result in the development of a profitable product anyway. How could this situation be justified? First, one could argue that the high expenses of acquiring and enforcing patents do not make the system inherently unfair just because patent examinations and legal challenges are unavoidably expensive. Second, it might be asserted that the patent system cannot be blamed because many potential users either lack sufficient financial resources or are unwilling to take the risks of applying for patents in exchange for future gains that may never materialize. Besides, many countries have low-cost petty patent systems that are more accessible to less wealthy rights claimants, and TRIPS does not prohibit these systems.³⁶ For these reasons, a case could be made for arguing that it is not the fault of the patent system per se that the main beneficiaries from the trade in products derived from genetic resources appear to be corporations located mainly in the technologically advanced countries. In the absence of a patent system, corporations would most probably still dominate this trade.

If we accept that the purpose of an IPR system is to protect the rights of knowledge holders for the public good, arguably it should be possible for all those who create useful knowledge with economic value to secure its protection. To the extent that present-day IPR systems cannot protect traditional knowledge whose dissemination is beneficial to the wider community³⁷ and that has industrial application, these systems are failing to operate optimally in terms of their public function. It is fully understandable that the disproportionate legal treatment of commercially useful knowledge held by companies and similarly useful knowledge held by indigenous peoples, seems unjust to the latter. When large industrial concerns in new technological fields find the IPR system cannot protect their innovations, it seems that new forms of IPRs are created in response. Traditional knowledge holders, on the other hand, do not have the political influence to change the system.³⁸ Moreover, they are rarely successful in ensuring that their own custom-based intellectual property rights systems are observed by others. Nevertheless, holders of traditional knowledge have rights over this knowledge which governments and potential users of it are required to respect. It is up to each government to decide whether this should be done through their intellectual property laws or by other means such as support for local capacity building or some form of community rights system.

It might be argued that trying to use IPRs to protect traditional knowledge, innovations and practices is a futile exercise. Certainly, IPRs should not be considered the only means of protecting traditional knowledge,³⁹ especially when so much of it has limited if any commercial application. However, one should not be completely dismissive about IPRs for two reasons. Firstly, trademarks and geographical indications may be appropriate forms of protection for some products based on traditional knowledge even if they cannot protect the knowledge per se. Second, policy makers schooled in the Western legal system are apt to suppose that the only IPRs which exist are the ones referred to in TRIPS and the WIPO-administered conventions. In fact, local and indigenous communities often have very complex custom-based intellectual property systems. Just as local communities can benefit from learning about the western IPR tradition, it behoves lawyers and policy makers also to learn about how traditional communities generate, use, manage and control their own knowledge.

It is very important also to point out that respect, preservation and maintenance of traditional knowledge not be justified solely by its instrumental value. In other words, traditional knowledge should not be respected, preserved and maintained merely because it is relevant to biodiversity conservation and sustainability; even less because some of it has industrial application. A great deal of traditional knowledge has no commercial potential whatsoever, but this does not make it any less worthy of respect or protection. The disappearance of traditional knowledge may be a tragedy for the world, but above all, it is a tragedy for those peoples and communities of the world that depend upon the integrity of their knowledge systems for their cultural and even physical survival.

I would like to conclude by explaining why it is essential to think radically about IPRs. Nobody could convincingly argue that a perfect IPR system exists anywhere and we all know how fast the world is changing. This is why these evolve over time. But IPRs can and do evolve in both good and bad directions. In some areas of creative endeavour, they have become overly generous. In others legal rights are inadequate or even absent so that claimants have limited legal recourse, at least within the IPR system. Such is the case for many local communities. All the more reason, I would argue, for governments implementing TRIPS to think imaginatively rather than just to think they must imitate other countries’ flawed intellectual property systems.

1 IUCN, 1997, p. 60.

2 Balick, Elisabetsky and Laird, 1996; Chadwick and Marsh, 1994; Joyce, 1994; Juma, 1989; Posey, 1995; Reid, Laird, Meyer, Gámez, Sittenfeld, Janzen, Gollin & Juma, 1993.

3 For example, Rural Advancement Foundation International (Canada & USA), Genetic Resources Action International (Spain and Philippines), Research Foundation for Science, Technology and Ecology (India), and Kalpavriksh (India).

4 Johnson, 1992.

5 Four Directions Council, 1996.

6 Adams, 1990.

7 Warren, 1995.

8 World Wide Fund for Nature International, 1996.

9 For example, see Ulluwishewa, 1993.

10 Agrawal, 1995.

11 Gupta, 1998.

12 "[W]hen the Convention discusses knowledge, innovations and practices and entitles local and indigenous communities to be their holders, it links these concepts with the vocabulary for the definition of the proprietor of an intellectual property right". Costa e Silva E., 1995 [emphasis in original].

13 A good example is the International Society for Ethnobiology’s "Code of Ethics and Standards of Practices", and the Biodiversity and Ethics Working Group of Pew Conservation Fellows’ "Proposed Guidelines for Researchers and Local Communities Interested in Accessing, Exploring and Studying Biodiversity".

14 Indigenous Peoples’ Biodiversity Network, 1996.

15 Four Directions Council op cit.

16 Stenson & Gray, 1997.

17 Referred to by the authors as "cultural communities".

18 Although they accept that individuals in communities can be innovative, their basic understanding is that "the ‘traditionality’ of traditional knowledge--the fact that it is common knowledge, the product of collective experience without a single act of creation--precludes its being seen, from the point of view of an entitlement theory, as intellectual property" (ibid.).

19 See COICA, 1996.

20 See Hettinger, 1989.

21 It is in fact very difficult to avoid ethnocentricity in discussing the application of IPRs to non-Western systems of knowledge. According to Thurow, 1998: "[t]he idea that people should be paid to be creative is a point of view that stems from the Judeo-Christian and Muslim belief in a God who created humankind in his own image. It has no analogue in Hindu, Buddhist, or Confucian societies."

22 Indeed, their paper can be read as a critique of the writings of advocates that resort to excessive use of rhetoric to state their case and tend to have romantic views about ‘communities’.

23 See Menon, 1993.

24 Having made this point, it should still be noted that two of the most controversial neem patents--US patents 4,556,562 ("Stable anti-pest neem seed extract") and 5,124,349 ("Storage stable azadirachtin formulation")--both describe fairly basic chemical processes that could conceivably render the invention "obvious" to one who is skilled in the art see Kadidal, 1997.

25 Use of the term ‘indigenous peoples’ here means those populations that conform to the definition of ‘indigenous and tribal peoples’ in the International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169). The analogy does not apply so well to other traditional rural populations who may of course be equally oppressed.

26 Dutfield, in press.

27 Even today, traditional forest communities in some countries (e.g. Latin America) can more easily acquire legal title to their lands if they ‘improve’ them by removing the trees so that they are no longer "virgin forests". The same rules may also apply to colonists.

28 According to Leskien and Flitner, 1997: "the principle of benefit sharing certainly requires more than being integrated into IPR legislation, simply because not all applications of plant genetic resources end up being protected by an IPR. Since in many countries plant varieties and other products need to undergo an authorisation or certification procedure before they are allowed to be released, the application for such marketing authorisation could also be used as a trigger for benefit sharing".

29 35 United States Code § 102.

30 E. Reichel (pers. comm.), 1997.

31 Four Directions Council op cit.

32 See Biothai & Genetic Resources Action International, 1998.

33 Cleveland & Murray, 1997; Griffiths, 1993.

34 Posey op cit.

35 Lesser, 1998.

36 According to Kadidal, op cit. in reference to plant breeding within traditional farming communities: "[i]t has been suggested that [such] a cooperative and incremental inventive culture does not make a snug fit with the utility patent system and its paradigm of large inventive leaps by individual inventors. Instead it is more appropriate to a system allowing petty patents, which are suited to lesser inventive steps". It should be clarified, though, that most patented inventions also cover incremental improvements on the state of the art rather than breakthroughs

37 As acknowledged in the CBD, at least that knowledge which is relevant to biodiversity and sustainable use of biological resources.

38 According to Drahos, 1997: "[w]hile new forms of intellectual property in the form of protection for semiconductors or plant varieties have readily been minted for transnational industrial elites both nationally and internationally, the recognition of indigenous intellectual property forms has proceeded slowly or not at all. This selective approach to solving freeriding problems comes into sharp focus when one compares the evolution of protection for the semiconductor chip and protection of folklore. Prior to 1984 manufacturers of computer chips in the US had complained that existing intellectual property regimes often failed to protect their products. Their chips often failed to clear the patent hurdles of novelty and inventiveness ... In 1984 the Semiconductor Chip Protection Act was passed ... In contrast, the issue of protection for indigenous knowledge has largely remained just that, an issue".

39 The Government of Australia, in a submission to the Conference of the Parties to the CBD, 1996, listed the various mechanisms that had been suggested in various international forums to protect traditional knowledge. These were: (a) operating within existing intellectual property regimes; (b) the creation, through legislation or other means, of new forms of intellectual property rights; (c) funding mechanisms; (d) an equitable sharing of the benefits arising from the contributions, including elements of using traditional knowledge made by indigenous and local communities; (e) contractual agreements such as material transfer agreements; (f) codes of conduct; (g) rights in relation to cultural products and expressions, including cultural property; (h) greater reliance on unconscionable behaviour and unjust enrichment.