Indigenous communities have made and continue to make important contributions to industrial agriculture, the pharmaceutical industry and biotechnology but there is a need to safeguard their indigenous knowledge with alternative systems, so that they, in their own terms, benefit from the commercialization of products of their own knowledge, and avoid being trapped in a system of exploitation.
This is UNDP Bureau of Policy and Programme Support Director Sarah L. Timpson’s message in the UNDP book ‘Conserving Indigenous Knowledge’ (IK) which sought appropriate strategies for preserving traditional knowledge.
“Recognition of the role of indigenous knowledge is crucial ,“ she argued, ”because IK is a result of a dynamic cooperative system that continues to work and continue to offer mankind hope for planetary survival.” she said.
The Current System of Intellectual Property Protection
Most cases of intellectual property protection are under the governing policies of the World Intellectual Property Organization (WIPO) although most countries have their own national legislation on intellectual property protection.
These include trademarks, copy rights and patents. These existing intellectual property systems are biased towards the largest enterprises with strong legal departments.
Trademarks do not meet the needs of indigenous peoples to protect works that have already been widely copied. Nor do they protect indigenous knowledge related to biological products or processes—arguably the major area where communities are likely to derive financial profit.
Patents, on the other hand, within the standard intellectual property protection mechanisms, was designed in the era of the Industrial Revloution and does not necessarily meet the needs of the indigenous peoples.
Alternative Intellectual Property Regimes
Indigenous communities could work within within the present IPR system in the following ways:
1.Deposit Rules—national or local regulations to ensure that legal inventions deposited and recorded in gene banks or cell libraries must include information on origin of material, name and community of users, uses and how used.
2. Inventors’ Certificates—indigenous communities can make muse of this Sui Generis IPR system designed for plant varieties and animal breeds which can discard financial compensation altogether in favor of non-monetary rewards and non- exclusive licensing arrangements
2. Model Law on Folklore—adopted by both WIPO and UNESCO, this affords indigenous communities three unique elements appropriate for the protection of biological products and processes. First, communities , rather than individuals can be legally registered innovators. Second, the innovations are not necessarily fixed or finalized but can be ongoing or evolutionary and still be protected by intellectual property law. And third, communities can retain exclusive monopoly control over their folklore innovations for as long as the communities continue to innovate.
This law has been interpreted to exclude scientific inventions but IPR law in most countries expressly exclude protection of plants, animals, pharmaceuticals and chemicals but many national patent offices have interpreted the law to permit the patenting of such innovation on the assumption that if legislators have known”then” what they know “now”, they would have made these exclusions.
The same argument could apply to include indigenous knowledge.
Another possible tool for the protection of indigenous intellectual property in all forms may be the enforcement of treaties and legal precedents currently on record but largely ignored by the court system.
According to Katy Riley and Mary Moran of Cultural Survival, a legal framework for the protection of indigenous knowledge, however, remains elusive since most provisions for intellectual property law evolved out of a Western view of knowledge as a commodity owned by an individual, not a community.
The most problematic aspect of any meaningful discussion of intellectual property rights is that the notion of IPR is, in itself, a Western concept being applied to non-Western societies, both said.
The development of IPR legislation is an important but often inadequate measure: alternative approaches to cultural intellectual property preservation also require evaluation. Successful alternative approaches to help establish and protect indigenous claims to intellectual property may prove as important as legislative or judicial solutions.
Mary Riley proposed models of research, community development/improvement and benefit sharing with indigenous groups. While the mere presence of an outside group with money to give to some communities and not to others can be a problem, the encompassing challenge of how to give indigenous groups a more equal footing with national governments, bioprospecting groups, and mainstream interests may have some solutions.
Perhaps the most important is that legislation is not the ultimate goal or solution to the issue of indigenous intellectual property rights. If giant, moneyed corporations fight one another every day over trademark and copyright infringement, how can we expect to be any less vigilant among smaller groups of already marginalized people?
Because indigenous groups are often unprotected under systems of property ownership by individuals, IPR frameworks built on the community-based reality of indigenous groups may be the only ones that “work” for indigenous peoples, Cultural Survival said.