Some Observations and Current Developments
on the Protection of the
Intellectual Property of Indigenous Peoples

By Prof. Dr. Erica-Irene A. Daes, UNWGIP
Papers from the WIPO Roundtable on Intellectual Property and Indigenous Peoples, Geneva, 23-24 July 1998
URL: http://www.wipo.int/eng/meetings/1998/indip/index.htm.

Opening Address by Prof. Dr. Erica-Irene A. Daes
Chairperson-Rapporteur of the United Nations Working Group on Indigenous Populations

Distinguished Chairman,
Honorable Director General of WIPO,
Distinguished Representatives of Indigenous Peoples,
Ladies and Gentlemen,

It is a great honor for me to address you today on the important subject: the protection of the intellectual property rights of the world's indigenous peoples, and it is a particular pleasure for me to have this opportunity to share my ideas and some observations with such a distinguished group of experts in the field of intellectual property.

I cannot begin without expressing my grateful thanks and warmly congratulating the World Intellectual Property Organization and in particular its leadership for convening a Roundtable to review this noteworthy topic. In this respect, I would like also to express my sincere hope that this marks the beginning of some important and substantive contributions by WIPO to the rapidly growing international discussion of indigenous peoples' rights to enjoy the fruits of their traditional knowledge and innovation.

The United Nations Commission on Human Rights, its Sub-Commission on Prevention of Discrimination and Protection of Minorities, and the Sub-Commission's Working Group on Indigenous Populations, which I have the great honor of chairing for fifteen years, have been examining the question of the rights of indigenous peoples since 1982. Our discussions have attracted may hundreds of indigenous peoples around the world, and represent the most comprehensive survey of the conditions, needs, and aspirations of these peoples. I should like to stress that from the very beginning, indigenous peoples have underscored the urgent necessity of international action to protect their intellectual property rights.

Over the past twenty years, indigenous peoples have grown acutely aware of the great medical, scientific and commercial value of their knowledge of plants, animals and ecosystems. Indigenous peoples have also attracted growing public interest in their arts and cultures, and this has greatly increased the worldwide trade in indigenous peoples' artistic works. Global trade and investment in the arts and knowledge of indigenous peoples has grown millions of dollars per year. Yet most indigenous people live in extreme poverty, and their languages and cultures continue to disappear at an alarming rate.

Also, in most parts of the world, large-scale extractive projects, industrialization, and settlements continue to destroy the ecosystems upon which indigenous peoples depend, and in which they have developed their specific forms of knowledge. Nevertheless, it should be likewise mentioned that the last two decades have witnessed many important national level initiatives to protect the lands and lives of indigenous people, in countries as diverse as Australia, Canada, Chile, Colombia, the Scandinavian Countries and the Philippines.

For indigenous peoples then, protection of their knowledge is an intrinsic part of respecting rights to land, culture and to an adequate livelihood. Without the land and the knowledge that comes mainly from use of land, indigenous peoples cannot survive. Thus, for indigenous peoples, as well as for most of the countries in which they live, in particular developing countries, indigenous knowledge is also their most valuable and sustainable asset for development.

For the world as a whole, furthermore, indigenous knowledge holds out hope of greatly accelerating the struggle to improve human health and nutrition and to protect environment. In my opinion all humanity shares an interest in guaranteeing that indigenous peoples maintain, add to, and share their distinctive forms of scientific knowledge. For their part, indigenous peoples have made it clear that they will share what they know, if they are recognized as the owners of their knowledge.

Mr. Chairman,

The intellectual property of indigenous peoples may be usefully divided into three groups: (i) folklore and crafts; (ii) biodiversity; and (iii) indigenous knowledge.

Folklore and crafts include various forms of oral literature, music, dance, artistic motifs and designs crafts such as basketry, beading, carving, weaving and painting. Indigenous peoples have expressed their concern about the commercial exploitation of their folklore and crafts as well as about the reproduction by outsiders of certain cultural manifestations and objects of religious importance.

The biodiversity of the traditional territories of indigenous peoples may also be considered as part of the intellectual property of indigenous peoples requiring protection. Biodiversity refers, inter alia, to plant varieties that have been developed through experiment and cultivation for use as food, medicine or materials for houses, boats or other kinds of construction or use.

There is concern that, as the biodiversity, especially of tropical forest regions, is destroyed through environmental mismanagement and population pressures, certain crops or products which can no longer be produced locally will be propagated under license without recognition of the original cultivators.

Indigenous knowledge refers to the knowledge held, evolved and passed on by indigenous peoples about their environment, plants and animals, and the interaction of the two. Many indigenous peoples have developed techniques and skills, which allow them to survive and flourish in fragile ecosystems without causing depletion of resources or damage to the environment. The various forms of sustainable development practiced by indigenous peoples in forests, mountain and valley areas, dry-lands, tundra and arctic regions derive from a successful application of technology in agro-foresty, terracing, resource management, animal and livestock controls, fish harvesting and in other areas. In particular, many indigenous peoples have a knowledge of plants suitable as medicines and this traditional medicine has been and continues to be in many cases a source for Western pharmacology. As noted by the World Commission on Environment and Development: "Tribal and indigenous peoples" lifestyles can offer modern society many lessons in the management of resources in complex forest, mountain and dry-land ecosystems.

Mr. Chairman,

Indigenous peoples have the right to special measures for protection, as intellectual property, of their traditional cultural manifestations, such as literature, designs, visual and performing arts, medicines and knowledge of the useful properties of fauna and flora.

The Convention on Biological Diversity was a crucial step. It recognizes the need for States to "respect, preserve and maintain" the ecological knowledge of indigenous peoples and local communities, and to ensure that the benefits of commercial applications are shared equitably. The Convention has been almost universally ratified, which enhances its importance as a legal foundation for future elaboration. In my opinion, nothing prevents States from adopting special measures to protect indigenous knowledge, which does not fall within the current definition of "industrial property." Nevertheless, there has been some dispute over potential conflicts with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).

I was very gratified to read an editorial opinion in the April 9, 1998 issue of the important international science journal "Nature," which concludes that the Agreement on Trade-Related Aspects of Intellectual Property Rights, "if left unmodified on the questions of indigenous knowledge and community rights risks enhancing social disparities and thereby fostering social conflict." I not only agree, but would like to add that there is an even greater danger of stifling the significant collaborations which have begun to develop between the world's indigenous peoples and scientific institutions.

I learned also with a sense of satisfaction that the Fourth Conference of the Parties to the convention on Biological Diversity, held in Bratislava this past May, decided to establish an ongoing Working Group to advise the Parties on matters connected with traditional and local knowledge. I am particularly pleased that the conference of the Parties decided that the representatives of indigenous peoples should have observer status and fully participate in the future meetings of the above-mentioned working Group. In this respect, I should like to state that, in my capacity as Chairperson of the United Nations Working Group on Indigenous Populations, since 1984, I have pursued a policy of fully including indigenous peoples as well as Governments and NGO's concerned in the annual sessions of this Working Group and have found that it promotes mutual respect, collegiality, flexibility and constructive cooperation. With the establishment of this new Working Group by the Fourth Conference of the Parties to the Convention on Biological diversity, there exists a high-level mechanism for building a consensus on the general approach which should be taken by States and international agencies.

What is lacking, I believe, is sufficient technical guidance for governments in the drafting of special legislation in this field. This is one of the challenges I would like to place before you at this roundtable. Permit me, first, to review briefly some important recent developments in international standard setting.

As Special Rapporteur of the United Nations Sub-Commission on the Protection of Indigenous Peoples' Heritage, I have elaborated a draft body of Principles and Guidelines that largely reflect the main suggestions of indigenous peoples themselves.

The principal issues of my draft on Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples are:

• Indigenous peoples should be recognized as the primary guardians and interpreters of their cultures, arts and sciences, whether created in the past, or developed by them in the future;

• Indigenous peoples are recognized as collective legal owners of their Knowledge, in perpetuity;

• The right to learn and use indigenous knowledge can be acquired only in accordance with the laws or customary procedures of the indigenous peoples concerned, and with their free and informed consent;

• The duty and responsibility of States, educational and scientific institutions and the United Nations system to help indigenous peoples themselves develop the technical capacity to document and, if they choose, develop and apply their own knowledge commercially.

The key principles of collective ownership in perpetuity, and of acquisition only in accordance with indigenous peoples' own laws, are among others affirmed in some articles, including articles 29 and 30 of the draft United Nations Declaration on the rights of Indigenous Peoples, which is currently under consideration by an ad hoc Working Group established by the United nations Commission on Human Rights. The United Nations General Assembly has repeatedly called for the adoption and proclamation of this draft declaration within the International Decade of the World's Indigenous Peoples.

Mr. Chairman,

There have also been very important developments in regional inter-governmental organizations. Thus, the draft American Declaration on the Rights of Indigenous Peoples, which was approved by the Inter-American Commission on Human Rights last year, affirms the right of indigenous peoples to "the recognition and full ownership control and protection" of their knowledge, and calls upon States to adopt measures to ensure this right, with the participation of indigenous peoples.

The June 1998 Ministerial Meeting of the Organization of African Unity approved Model Legislation on Community Rights and on Access to Biological Resources, in connection with the Convention on Biological Diversity. Thus, Article 5 of the above-mentioned African Model Legislation recognizes and protects the rights of local communities "to benefit collectively from their own knowledge, innovations and practices, and to continue to be in perpetuity the lawful and sole custodians of their knowledge." No knowledge may be sold or acquired without the prior informed consent and participation of the communities concerned, as well as full disclosure and approval by the appropriate State authorities, which shall ensure that the communities concerned are paid a minimum percent of revenues.

This is a particularly thorough and useful provision, which I hope will be implemented by African States, and taken into account in other regions of the world. I would like also to mention a procedural provision in the aforesaid African Model Legislation, requiring the State to "establish a national regulatory scheme to identify specific rights [and] procedures for registration and transfers of rights." in consultation with local communities. I support this approach to implementation, which recognizes, inter alia, the following crucial related facts:

• Every indigenous community has its own customary laws regarding the ownership, proper use and sharing of knowledge;

• These laws differ a great deal from, are tied to ecosystem and the entire social structure, economy and culture of people.

This is work that simply cannot be easily achieved at the global level. In involves research, consultations and agreement with a large number of indigenous peoples around the world, and will involve factors that are specific to individual countries and regions. International meetings, such as this Roundtable and the above-mentioned working Group established by the Biodiversity Convention, can only suggest a general approach, and serve as coordination and clearinghouse mechanisms.

The technical capacity to assist Governments in devising specific practical arrangements with local communities must be developed at the national level. In my humble opinion, this is a role for educational and scientific institutions run by indigenous peoples themselves. The international community should play a major role in strengthening such national-level institutions. In my view WIPO could, with its great experience and deep knowledge in protecting intellectual property in general, make important contributions of this kind.

In this context, permit me to invoke the United Nations General Assembly resolution 52/108 of 12 December 1997, reviewing the progress of the International Decade of the world's Indigenous People.

The General Assembly recommends that "centers of excellence" for indigenous peoples' capacity building be designated in each region of the world, and specifies that these should be institutions accountable directly to indigenous peoples themselves. I would like to suggest an initiative to identify capable indigenous programs and institutions in all regions, and organize them into a United Nations sponsored network to assist Governments with research, consultations, and elaboration of draft legislation in the field of indigenous peoples' intellectual property.

International standard setting must always be implemented through national institutions with the requisite expertise to adapt very broad goals and principles to the conditions of individual countries. There is growing political support for recognizing the intellectual property of indigenous peoples at intergovernmental meetings, especially within the aforesaid Biodiversity Convention, and in the American and African regions. But this in turn creates a pressing need for national level expertise in this field. What I should like to propose is that we fully embrace the principle of partnership with indigenous peoples contained in Agenda 21 of the Earth Summit held at Rio in 1992, and in the theme and mandate of the International Decade for the World's Indigenous Peoples, and focus our work on strengthening the capacity of indigenous peoples themselves to play the most important key technical role in enactment of national legislation.

Mr. Chairman,

In concluding my opening address I should like to thank you, most warmly, for your patience and kind attention.