ITK

PRB 03-38E

Indigenous Traditional Knowledge

and Intellectual Property Rights

Prepared by:

Tonina Simeone

Political and Social Affairs Division

17 March 2004

(210.78 Kb, 11 pages)

Table of Contents

Introduction

Traditional knowledge encompasses the beliefs, knowledge, practices,

innovations, arts, spirituality, and other forms of cultural experience and

expression that belong to indigenous communities worldwide. Since the adoption

of the Universal Declaration of Human Rights in 1948,( ) intellectual property has

been considered a fundamental human right of all peoples. Only recently,

however, has the need to protect, preserve and provide for the fair use of

indigenous intellectual property – traditional knowledge – entered the domestic

and international debate on intellectual property rights. Of particular concern to

indigenous peoples has been the unlicensed use by non-indigenous groups, such

as corporations, of traditional knowledge that has been developed over centuries.

How Does Indigenous Traditional Knowledge

Differ from Western Science?

Unlike the western custom of disseminating knowledge through publication,

traditional knowledge systems exist principally in the form of songs, proverbs,

stories, folklore, community laws, common or collective property and inventions,

practices and rituals. The knowledge is transmitted through specific cultural

mechanisms such as those just listed, and often through designated community

knowledge holders, such as elders. The knowledge is considered collective to

the community, not private to one individual or small group.

Differences Between Western Science and Traditional

Knowledge( )

Factor

Western

Science

Traditional

Knowledge

Approach Compartmental Holistic

How

communicated

Written Oral

How taught Lectures,

theories

Observations,

experience

PDF

Disclaimer

Introduction

How Does Indigenous Traditional Knowledge Differ from Western Science?

Why Protect Traditional Knowledge?

How to Protect Traditional Knowledge

Limitations of the Intellectual Property Rights Regime in Protecting Traditional

Knowledge

International Initiatives to Protect Traditional Knowledge

Selected References

Endnotes

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free”

Spiritual,

social values

Often, indigenous traditional knowledge systems contain a rich understanding of

plant, crop and tree species, medicines, animal breeds, and local ecological and

biological resources. They may also include useful technologies and adaptations

to local environments. Traditional knowledge is not static, nor trapped in amber; it

is often in current use. Sophisticated and adaptive, it evolves and responds to

changes in the physical and social environment.

Why Protect Traditional Knowledge?

For indigenous peoples such as Aboriginal Canadians, the rationale for protecting

traditional knowledge centres on questions of fundamental justice and the ability

to protect, preserve and control one’s cultural heritage.( ) There is also the

concomitant right to receive a fair return on what these communities have

developed: many areas of traditional knowledge have potentially lucrative

applications.

Non-indigenous people also have a strong incentive to ensure the fair use of

traditional knowledge, because such knowledge has much to offer modern

society. It is being used increasingly to assist policy-making in many areas:

food and agriculture; culture; human rights; resource management, sustainable

development and the conservation of biological diversity; health; trade and

economic development. In some parts of Canada, for example, traditional

ecological knowledge is being married to western scientific practices to improve

environmental impact assessment processes and resource management, as well

as genetic and medical research.( )

However, as the awareness and use of traditional knowledge continue to grow in

mainstream policy and economic sectors, so do the incidences of its misuse and

misappropriation. Image rights are violated when Aboriginal designs are

reproduced for sale without authorization or recompense. Some research and

pharmaceutical companies have applied and profited from traditional knowledge of

natural resources, such as medicinal plants, without offering any compensation to

the Aboriginal communities that are custodians of such knowledge.( )

How to Protect Traditional Knowledge

Aboriginal groups have highlighted five principal areas of concern with regard to

the protection of traditional knowledge and practices:( )

Unauthorized copying of works by Aboriginal groups and communities

Infringement of copyright of individual artists

Appropriation of Aboriginal themes and images

Culturally inappropriate use of Aboriginal images and styles by non-

Aboriginal creators

Expropriation of traditional knowledge without compensation

Protection of traditional knowledge has taken two approaches. Some countries

have enacted specific legislation establishing minimum standards for the

recognition and protection of traditional knowledge. In most jurisdictions,

however, traditional communities have employed existing legal tools (e.g.,

contracts, licensing agreements) and intellectual property rights law to try to

protect their traditional knowledge – albeit with mixed success.

Establishing databases as a tool for the defensive( ) protection of traditional

knowledge has received increasing attention. In June 2002, the World Intellectual

Property Organization examined the usefulness of TK databases as a means to

defeat claims to patent traditional knowledge by parties other than the holders

themselves.( ) While there appears to be considerable support for this option,

there is also considerable concern regarding “costs, access and use of the

database, and the protection of the contents of it.”( ) The advantages and

difficulties of using such databases require further discussion and debate. The

Tokyo-based United Nations University has been strongly critical of TK databases

and has recommended that, unless these databases are confidential repositories

of TK, they will do little to prevent the piracy of that knowledge.( )

In Canada, effective domestic legislation that clearly protects indigenous

traditional knowledge has not yet been adopted. It falls directly upon Aboriginal

communities, therefore, to ensure necessary measures are taken to protect their

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traditional knowledge.( ) While Aboriginal communities have historically made

limited use of Canadian intellectual property law( ) to protect their tradition-

based creations, there are a number of cases where it has been used

successfully.( )

Limitations of the Intellectual Property Rights Regime

in Protecting Traditional Knowledge

The difficulty experienced by indigenous peoples in trying to protect their

traditional knowledge under intellectual property (IP) rights law stems mainly from

its failure to satisfy the requirements for protection under existing IP law. For

example, intellectual property must be new, original, innovative or distinctive to

qualify for protection. These requirements make it difficult for traditional

knowledge – generally handed down from generation to generation – to obtain IP

protection.

Moreover, from an Aboriginal perspective, the emphasis of the existing western

intellectual property rights regime on individual proprietary rights does not address

the collective nature of traditional knowledge. Because western IP law is based

on individual property ownership, its aims are often incompatible with, if not

detrimental to, those of traditional communities. For many traditional

communities, intellectual property is a means of developing and maintaining group

identity and survival, rather than promoting individual economic gain.

Another key concern shared by indigenous peoples worldwide is that the present

intellectual property rights regime favours multinationals and other non-indigenous

interests. Where IP protection may apply, the prohibitive costs of registering and

defending a patent or other intellectual property right effectively limit its availability

to the vast majority of indigenous communities, primarily in developing countries.

In this way, the existing intellectual property rights regime is seen to help

corporate interests and entrepreneurs lay claim to indigenous knowledge without

appropriate acknowledgement or compensation for the communities who have

developed that knowledge.

International Initiatives to Protect Traditional Knowledge

The importance of protecting and preserving indigenous traditional knowledge has

been recognized in several international instruments, including the Universal

Declaration of Human Rights, the Convention on Biological Diversity,( ) the draft

United Nations Declaration on the Rights of Indigenous Peoples,( ) the

International Labour Organization Convention No. 168( ) and the International

Covenant on Economic, Social and Cultural Rights.( )

The Rio Declaration (known as Agenda 21) and the Convention on Biological

Diversity adopted at the 1992 Earth Summit in Rio de Janeiro, Brazil, emphasize

the need for governments to “respect, preserve and maintain knowledge,

innovations and practices of indigenous and local communities” and encourage

the right of traditional communities to share in the economic and social benefits

“arising from the utilization of such knowledge, innovations and practices.”

A number of United Nations agencies are also involved in addressing the

protection of traditional knowledge under the existing intellectual property rights

system. The World Intellectual Property Organization (WIPO) is responsible for

various activities promoting the protection of indigenous intellectual property

worldwide. Specifically, WIPO has conducted a number of studies on the role of

the intellectual property system in protecting traditional knowledge.( )

In October 2000, member states of WIPO (including Canada) established an

Intergovernmental Committee on Intellectual Property and Genetic Resources,

Traditional Knowledge and Folklore (IGC). The IGC acts as an international forum

for debate and dialogue concerning the interplay between intellectual property and

traditional knowledge, genetic resources and traditional cultural expressions

(folklore).

Selected References

Hansen, Stephen A., and Justin W. VanFleet, for the American Association for

the Advancement of Science (AAAS). Traditional Knowledge and Intellectual

Property. AAAS, Washington, D.C., 2003.

Indian and Northern Affairs Canada. A Community Guide to Protecting

Indigenous Knowledge. Ottawa, 2001.

Indian and Northern Affairs Canada. Intellectual Property and Aboriginal People:

A Working Paper. Ottawa, 1999.

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Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

Fifth Session. Geneva, 7 15 July 2003.

World Intellectual Property Organization. Roundtable on Intellectual Property and

Traditional Knowledge. Geneva, 1-2 November 1999.

Endnotes

1. Everyone has the right freely to participate in

the cultural life of the community, to enjoy the

arts and to share in scientific advancement and

its benefits.

2. Everyone has the right to the protection of the

moral and material interests resulting from any

scientific, literary or artistic production of which

he is the author.

1. Article 27 of the Declaration provides that:

2. Indian and Northern Affairs Canada, A Community Guide to Protecting

Indigenous Knowledge, Ottawa, 2001, p. 4.

3. The Assembly of First Nations position on traditional knowledge is

contained in its .

4. In Nunavut, traditional ecological knowledge is given equal weight to

western science by the Nunavut Impact Review Board when making

decisions about development, ecosystems and traditional culture. In

addition, in 1997, the Government of the Northwest Territories adopted a

policy incorporating traditional knowledge into government decisions and

actions where appropriate. The policy applies to all departments and

agencies of the Northwest Territories.

5. Until very recently, for instance, an American citizen, Loren Miller, held the

patent for the Amazonian plant ayahuasca, intending to explore its

medicinal value in cancer treatment and psychotherapy. The plant plays

an important medicinal and religious role in the history and tradition of the

peoples of the Amazon. Because local Amazon communities did not

previously document the plant according to western intellectual property

standards, it met the novelty criteria to be patented in the United States.

6. World Intellectual Property Organization, Roundtable on Intellectual

Property and Traditional Knowledge, WIPO/IPTK/RT/99/3, paper prepared

by Michael Blakeney, October 1999, p. 4.

7. The term “defensive protection” refers to measures aimed at preventing the

acquisition of intellectual property rights over traditional knowledge by

parties other than the traditional knowledge holders. In contrast, positive

protection refers to the use of intellectual property rights or the

development of new types of rights providing for the affirmative protection of

traditional knowledge.

8. World Intellectual Property Organization,

,

document prepared for the Third Session of the Intergovernmental

Committee on Intellectual Property and Genetic Resources, Traditional

Knowledge and Folklore (Geneva, 13-21 June 2002), 10 May 2002.

9. Ibid., p. 3.

10. Ottawa Citizen, “Researchers Blast ‘Biopiracy’ of Natives’ Medicinal

Knowledge,” 19 February 2004.

11. In 1999, the federal government produced an

of most relevance to Aboriginal peoples.

12. The (CIPO) administers the

intellectual property system in Canada and disseminates intellectual

property information.

13. In 1999, for example, the Snuneymuxw First Nation used the Trademarks

Act to prevent the unauthorized reproduction of ancient rock-painting

images (petroglyphs) of great religious significance to the community. The

Copyright Act has also been used by Aboriginal artists to protect their

artistic and literary creations, including the sculptures of Inuit artists, Haida

jewellery, and wood carvings of Pacific Coast artists.

14. Article 8(j) of the Convention on Biological Diversity provides that:

Resolution No. 27/2003

Inventory of Existing Online

Databases Containing Traditional Knowledge Documentation Data

overview of Canadian

intellectual property law

Canadian Intellectual Property Office

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www2.parl.gc.ca/…/prb0338-e.htm 4/5Each Contracting Party shall, as far as

possible and as appropriate: 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 of biological

diversity and promote their 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.

Indigenous peoples are entitled to the

recognition of the full ownership, control and

protection of their cultural and intellectual

property. They have the right to special

measures to control, develop and protect their

sciences, technologies and cultural

manifestations, including human and other

genetic resources, seeds, medicines,

knowledge of the properties of fauna and flora,

oral traditions, literatures, designs and visual

and performing arts.

The rights of the peoples concerned to the

natural resources pertaining to their lands shall

be specially safeguarded. These rights include

the right of these peoples to participate in the

use, management and conservation of these

resources.

The States Parties to the present Covenant

recognize the right of everyone:

a. To take part in cultural life

b. To enjoy the benefits of scientific

progress and its applications;

c. To benefit from the protection of the

moral and material interests

resulting from scientific, literary or

artistic production of which he is

the author.

15. Article 29 of the Draft Declaration on the Rights of Indigenous Peoples

provides that:

16. Article 15(1) of the International Labour Organization Convention No. 168

provides that:

17. Article 15 of the International Covenant on Economic, Social and Cultural

Rights states that:

18. These can be accessed on-line. reports

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