Traditional Knowledge: Recognition and Protection

DR. MWANANYANDA MBIKUSITA LEWANIKA 30jul01

Eastern and Southern Africa Multi-Stakeholders Dialogue on Trade, Intellectual Property Rights and Genetic Resources

Organised by the
International Centre for Trade and Sustainable Development (ICSTD) and the
African Centre for Technology Studies (ACTS) in collaboration with the
Quaker United Nations Office (QUNO)

Nairobi, Kenya 30 – 31 July 2001

1. Introduction

A number of intergovernmental organisations and agencies are now taking steps to address issues relating to the recognition and the protection of the knowledge and innovations derived from traditional knowledge systems and traditional knowledge. The United Nations Food and Agriculture Organisation (FAO) is addressing this issue through Commission on Genetic Resources for Food and Agriculture which is negotiating the Revision of the International Undertaking on Plant Genetic Resources. The Convention on Biological Diversity (CBD) is addressing the issue through the Open-ended Ad Hoc Intersessional Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity. The World Intellectual Property Organisation (WIPO) is addressing this through the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The World Trade Organisation (WTO) could address this issue through the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs).

There are gaps in existing legal and non-legal techniques and mechanisms with regard to the recognition and the protection of the knowledge and innovations derived from traditional knowledge systems and traditional knowledge. Now considerable effort is now focused on evaluating the potential of existing Intellectual Property Rights (IPR) regimes to provide protection for traditional knowledge systems, traditional knowledge and indigenous innovations.

2 Traditional Knowledge

The people of Southern and East Africa are endowed with an abundant heritage of a diversity of cultures, languages and biological diversity. This great heritage is expressed through traditional knowledge systems, traditional knowledge and indigenous innovations.

Traditional knowledge systems are functional entities and institutions that serve as custodians of specialised areas of traditional knowledge and indigenous innovations. These include traditional administration authorities, traditional natural resource managers, traditional health providers, storytellers, singers, dancers, etc.

Traditional knowledge is body of knowledge vital to the day to day life of Indigenous and Local Communities derived through generations of living in close contact with nature.

Indigenous innovation is any generation of a new or improvement methods of using traditional knowledge.

Traditional knowledge systems, traditional knowledge and indigenous innovations have contributed significantly to the present body of knowledge possessed by scientists, such as ethnobotanists, ethnopharmacologists, and by agriculturists, foresters, and food technologists. There has been token acknowledgement, however, the acknowledgement is not tied to legal recognition and protection. The lack of legal recognition and protection has lead to a situation where custodians of knowledge and innovations derived from traditional knowledge systems and traditional knowledge are not rewarded for contributions rendered.

3. Erosion of Traditional Knowledge Systems, Traditional Knowledge and Indigenous Innovations.

To address the protection and recognition of the knowledge and innovations derived from traditional knowledge systems and traditional knowledge there is need to acknowledge factors which have contributed to the erosion of traditional knowledge systems and traditional knowledge.

The mistaken assumption that African cultural values are an obstacle to the advancement has contributed greatly to the erosion traditional knowledge systems, traditional knowledge and indigenous innovations. It is widely assumed and wrongly accepted that the pursuit of development requires "Westernising" Africans, with no room for non-Westernised Africans. This means eclipsing cultural Africans in the wastelands national and international society, politics and markets. Another factor, which contributed to the demise of traditional knowledge systems and traditional knowledge, is the introduction of foreign values, foreign religions, changing lifestyles and the legacy of colonialism. These have contributed to the lowering of the status of traditional knowledge systems, traditional knowledge and indigenous innovations in Africa.

4. Recognition and Protection of Traditional Knowledge Systems, Traditional Knowledge and Indigenous Innovations

The first in step in developing mechanisms for protecting knowledge and innovations derived from traditional knowledge systems and traditional knowledge is to address the status of traditional knowledge systems and traditional knowledge in the quest of national development. The relationship between traditional knowledge and western knowledge should neither be hierarchical nor a relationship of subordination. Western innovation systems should in fact complement traditional knowledge systems, traditional knowledge and indigenous innovations for national development to take place.

The mechanisms for recognising and protecting knowledge and innovations derived from traditional knowledge systems and traditional knowledge must be established at national, regional and global levels. While developing these mechanisms it is necessary to acknowledge the existence of unique lifestyles and social structures in Southern and East Africa. Indigenous and local communities look at themselves as custodians of traditional knowledge systems, traditional knowledge and indigenous innovations and not the owners. They do not see traditional knowledge and indigenous innovations as commodities. It is in the same manner they do not look at biological diversity and genetic resources as commodities to be exploited at the expense of the community.

Knowledge and innovations derived from traditional knowledge systems and traditional knowledge can not be credited to a single inventor. These are community-based and accrete over time and generations. The traditional knowledge systems, traditional knowledge and innovations are part and parcel of the day to day life of the people. The motivation of innovations derived from traditional knowledge systems and traditional knowledge is not profit or individual gain but the welfare and common good of the entire community and future generations.

5. The Trade Related Aspect of Intellectual Property Rights

The Trade Related Aspect of Intellectual Property Rights (TRIPs) is a General Agreement on Tariffs and Trade (GATT) agreement, now administered by the World Trade Organisation (WTO), stipulating that all signatories must conform to industrial country standards of patents, copyrights, trademarks, industrial designs, geographical indications, integrated circuits and trade secrets. These supplement their obligations of the Paris, Berne, Rome and Washington conventions in their respective fields.

Countries of Southern and East Africa are bound to amend their legislation in order to introduce higher standards of intellectual property protection since they are party to the WTO. The TRIPs Agreement is of concern to these countries since it requires them as signatories to introduce patent coverage life forms such as microorganisms and plants. This is irreconcilable with their cultural beliefs and way of life.

The odds of successfully implementing the TRIPs Agreement were stacked against countries of Southern and East Africa right from inception because it was negotiated in the most non-transparent manner. The result is that contracting parties now lack the back-ground information necessary for interpreting the proposed rules or for understanding better the background, premises and intent of the adopted text.

Negotiations of TRIPs Agreement took place in a so called "five plus first drafting group composed of five developed and five developing countries. The agreements reached in this group were later on referred to a broadened "ten plus ten" group convened in accordance with the presiding officers direction. With the exception of the members of these drafting groups, remaining countries had little opportunity to influence the out come of the drafting groups' work.

6. The UNESCO - WIIPO Model Provisions

In 1985, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and World Intellectual Property Organisation (WIPO) produced a Model Provision for National Laws on Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions. The intention was to go beyond conventional copyright by protecting intangible expressions as well as fixed works.

According to the model provisions, certain uses of expressions of folklore are subject to prior authorisation by a competent authority or the community itself if they are made both with gainful intent and outside their traditional or customary context would, therefore, constitute "illicit exploitation" if used without this authorisation. In addition, it gives four types of prejudicial action could be subject to criminal sanctions.

The model provisions gives the meaning of traditional as the proper artistic framework based on continuous usage by the community. It also explains the term Customary in that, it means in accordance with the practices of every day life in the community.

7. The Convention on Biological Diversity

The Convention on Biological Diversity (CBD) is a legally binding international agreement, which was adopted in 1992 at the United Nations Conference on Environment and Development (UNCED or Earth Summit) in Rio de Janeiro, Brazil. The CBD has to be implemented through the application of protocols and through the enactment of national legislation that is in harmony with the objectives of the CBD and in line with decisions of the Conference of the Parties.

Under the CBD, knowledge, innovations and practices of indigenous and local communities are considered key to the conservation, and sustainable use of biodiversity. Parties are required to respect, preserve and maintain these elements [Art 8(j)], to protect customary use of bio-resources [Art 10(d)], to act according to national law to develop and use traditional and indigenous technologies [Art 18(4)], and to adopt economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biological diversity [Art 11]. Member countries of the CBD are bound to ensure that patents and other intellectual property rights (IPRs) are supportive of the objectives of the Convention and do not undermine them [Art 16(5)].

Article 8(j) of the CBD requires parties to address the issue at national level. It states that; "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 f biological diversity and promote their wider application with the approval and involvement f the holders f such knowledge, innovations and practices and encourage the equitable sharing f the benefits arising from the utilization f such knowledge, innovations and practices"

The Open-ended Ad Hoc Intersessional Working Group on Article 8(j) and Related Provisions f the Convention on Biological Diversity is addressing the recognition and protection f knowledge and innovations derived from traditional knowledge systems and traditional knowledge at the global level. Among the terms f reference f this working group is; to provide advice as a priority on the application and development f legal and other appropriate forms f protection for the knowledge, innovations and practices f indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use f biological diversity.

8. African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources

The Organisation f African Unity (OAU) Head f States Summit which was held in Ouagadougou in June 1998, endorsed the report on Community Rights and the Control f Access to Biological Resources (DOC. CM/2075 (LXVIII)) ADD. 1. This paved the way for the development f the African Model Legislation for the Protection f the Rights f Local Communities, Farmers and Breeders and for the Regulation f Access to Biological Resources.

The objectives f the Model Legislation is to ensure the conservation, evaluation and sustainable use f biological resources, including agricultural genetic resources, and knowledge and technologies in order to maintain and improve their diversity as a means f sustaining all life support systems.

9. Recommendations

9.1 Governments should enact legislation that recognises, protects and rewards knowledge and innovations derived from traditional knowledge systems and traditional knowledge. In developing these policies and legislation effort must be made to integrate the customary laws, values and view f the concerned communities. The policies and legislation must set minimum standards for Material Transfer Agreements. This will protect communities from being taken advantage of.

9.2 The International community (governments, intergovernmental organisations and agencies) should develop a legally binding international instrument that will recognise, protect and reward knowledge and innovations derived from traditional knowledge systems and traditional knowledge. The international instrument is important because the manifestation f traditional knowledge systems, traditional knowledge and indigenous innovations in many instances cuts across present day artificial political boundaries. In addition, this will protect countries being pitted against each other and being taken advantage of.

9.3 The UNESCO and WIPO Model Provision for National Laws on Protection f Expressions f Folklore against Illicit Exploitation and Other Prejudicial Actions should be used as the starting point in the development f a legally binding international instrument that will recognise, protect and reward knowledge and innovations derived from traditional knowledge systems and traditional knowledge.

9.4 WIPO should play a leading role in promoting synergy and harmony with other intergovernmental organisations and agencies that are addressing some aspects f recognising, protecting and rewarding knowledge and innovations derived from traditional knowledge systems and traditional knowledge. This will ensure that unnecessary duplication f effort is avoided and it will also promote synergy and harmony among ongoing processes.

9.5 TRIPS must be revised to make it compatible with the CBD by the infusion f relevant provisions f the CBD. Article 8 f TRIPS is the basis f this revision. This Article allows for measure to be taken to protect public health and nutrition as well as to promote the public interest in sectors f vital importance for their socio-economic and technological development.

Chaves, Juanita, 1998. "Toward a Proposal for the Traditional Knowledge f the Indigenous, Afro-American and Local Farming Communities: Perspectives from the Colombian Legal systems" in Beyond the Law Vol. 6, Issues 18&19: Biological and Cultural Diversity: Challenges and Proposals from Latin America..

Convention on Biological Diversity, 1994. Convention on Biological Diversity: Text and Annexes. UNEP/CBD/94/1.

Convention on Biological Diversity, 2000. Legal and other Appropriate Forms f Protection for the Knowledge, Innovations and Practices f Indigenous and Local Communities Embodying Traditional Lifestyles Relevant for the Conservation and Sustainable Use f Biological Diversity (UNEP/CBD/WG8J/1/2)

Das, Las Bhagrirath, 1998. An Introduction to the WTO Agreements. Third World Network.

Das, Las Bhagrirath, 1998. The WTO Agreements: Deficiencies, Imbalances and Required Changes. Third World Network.

Flo'rez, Matgarita, 1998. "Treatment f Biological and Cultural Diversity: Regulations, Domains, Actors and Dilemmas " in Beyond the Law Vol. 6 , Issues 18&19: Biological and Cultural Diversity: Challenges and Proposals from Latin America..

RAFI, 1997. "Enclosures f the Mind : Intellectual Monopolies (A Resource Kit on Community Knowledge, Biodiversity and Intellectual Property). The Rural Advancement Foundation International.

RAFI,. "Conserving Indigenous Knowledge: Integrating Two System f Innovations, The Rural Advancement Foundation International.

Shand, Hope, 1997. Human Nature: Agricultural Biodiversity and Farm Bases Food security. The Rural Advancement Foundation international.

The TRIPs Agreement: A Guide for the South, 1997:; The Uruguay Round Agreement on Trade-Related Intellectual Property Rights. South Centre.

Nijar, G. S., 1996. TRIPs and Biodiversity, The Threat and Responses: A Third World View.

Organisation f African Unity, 2000. the African Model Legislation for the Protection f the Rights f Local Communities, Farmers and Breeders and for the Regulation f Access to Biological Resources.

Posey, Darrell and G. Dutfield, 1996. Beyond Intellectual Property Right: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities. IDRC.