Ethnic Heritage and Intellectual Property Rights

Kotaro NAWA (Visiting Professor, GLOCOM)

There is a movement among indigenous peoples, living in industrialized countries as well as in the third world, to claim rights on their intellectual properties. This originally began as a response to business firms in developed countries making large profits by commercializing the knowledge and works of art obtained from native people without their consent.

For example, there is a plant called "neem" in India. Local residents have been using the essence extracted from the plant as insecticide and toothpaste for generations. Since about 20 years ago business firms from the US, Japan, and Germany have recognized the pharmacological characteristics of neem and began to apply for patents on them, of which over 40 have already been registered in the US alone. The community-based wisdom that guides the use of resources such as neem by locals is called "traditional knowledge." Traditional knowledge is often attached to genetic resources such as plants and microbes.

Following is another example. Native people in Australia are called Aborigines. A western businessperson produced and sold carpets with a woven in design that Aborigines were using for sacred rituals, and as a result Aborigines felt that carpet with the holy pattern was to be stomped on by infidels. The Aborigines had to sue the businessperson for not obtaining permission to use the design. Such artistic expressions unique to native people are recognized as "folklore."

From the perspectives of business firms in industrialized countries there is nothing wrong with this sort of behavior. Whether it may be traditional knowledge or folklore, it has been commonly known and shared among society members for generations. Accordingly, protected periods for patents and copyrights are considered to have long since passed, so anyone can use it. But from the native people's point of view this is absurd. When a firm in an industrialized country acquires a patent or copyright, native people would be prohibited from using it and profits made by the firm would not recycle to the native people.

Perception gap between developed and developing countries

Toward the end of 2001, native people living in Brazil got together and drafted a document titled "Declaration of Shaman on Intellectual Property and Protection of Traditional Knowledge and Genetic Resources". In it is a clear proclamation that "... This (our) knowledge is collective and is not a commodity that may be commercialized as any good in the market. Our knowledge on biodiversity is not separate from our identities, our laws, our institutions, our system of values and our cosmological view as indigenous peoples."

A number of developing countries, induced by such movements, began to formulate domestic laws and arrange regional conventions to protect traditional knowledge and folklore. From these efforts, results--albeit minute--began to emerge. Some of the patents on "neem" were determined invalid, and an Aborigine design pattern was copyrighted.

Developed countries began to recognize the issue. The "Convention on Biological Diversity", adopted at the 1992 Earth Summit in Rio de Janeiro, carried provisions to protect the rights and benefits of indigenous peoples. The convention recognized the "desirability of sharing equitably benefits arising from the use of traditional knowledge", and stipulated that measures should be taken for developing countries to access results and benefits arising from genetic resources provided by them.

As to the protection of folklore, WIPO (World Intellectual Property Organization), in conjunction with UNESCO, proposed a draft agreement titled "Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions," but have been ignored since it was proposed 20 years ago.

In 2001, WIPO established a forum to discuss the issue, dubbed "Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore", but developed countries, including Japan, have had no active participation.

Different systems of knowledge

There is a fundamental issue as to whether traditional knowledge can be treated in parallel with contemporary science and technology. In 1999, UNESCO, with the International Council of Scientific Union, conducted a study along this question. The conclusion of the study stated that systems of knowledge are different between the two.

Procedures adopted by developed countries to protect intellectual property rights have similar characteristics with modern science itself, but that knowledge must be properly expressed and laid out. For example, in applying for a patent the application must make reference to preceding technical documents as prior art.

On the other hand, traditional knowledge is not something recorded orderly on documents. As such, it is not recognized in developed countries as something worth citing. It may include, in an unstructured manner, such knowledge as local agronomy and folk medicine, and from this fragmentary information businesses could collect and extract specific knowledge worthwhile to be patented.

With regard to folklore, because much of it carries religious or mythical implications it is difficult for developed countries to make much use of it. It does not fit well with the ideology common in industrialized countries, which requires neutral approach to such values.

There is serious difficulty in having traditional knowledge and folklore conform to the system of controlling intellectual properties in developed countries. It may be that to expect the procedure of controlling intellectual property conceived in contemporary Western civilization to be effective also in handling cultures of indigenous peoples may just be an arrogant notion.

(This article originally appeared in the evening edition of Asahi Shimbun dated September 4, 2003. Do not quote without the author's permission.)