The traditional concept of knowledge in many local and indigenous communities is based on a belief that knowledge is inherently communal, in the public domain, and can be constantly modified from within in order to sustain the community and culture, and to maintain biological resources necessary for survival. Industry in developed countries, familiar and comfortable with the legal definitions of intellectual property rights (IPRs), is exploiting the wealth of traditional knowledge by claiming exclusive proprietary rights over it. These rights are sought for the goal of generating corporate financial gains, and are acquired without the prior informed consent of traditional knowledge holders.
The dangers of allowing the intellectual property regime to continue its current path are clear. When governments of developing countries—legally bound by international intellectual property (IP) agreements and treaties—recognize foreign proprietary rights over traditional knowledge, the local cultural systems associated with the traditional knowledge are directly affected. In the context of the international globalization of markets, trade is central to the economic development of developing countries. The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) was mandatory for all World Trade Organization members supported primarily by industry in developed countries. When developing countries were faced with the option of accepting TRIPS standards, or of losing their right to participate on equal footing in the multilateral trading system, most developing countries chose the former. Yet upholding these IP standards can prevent local and indigenous communities from using their knowledge for medical care, agricultural production, or sacred purposes, thus undermining their social, economic, and cultural rights.
One issue perpetuating the incompatibility between IPRs and human rights is the lack of formal documentation of knowledge in local and indigenous communities, which makes it virtually impossible to disprove an outsider’s proprietary intellectual property claim over traditional knowledge. If there is no existing documentation of traditional knowledge in a printed publication, patent offices often consider claims based on traditional knowledge as “novel.” For example, due to the lack of formal documentation, a U.S. citizen owns the rights to the ayahuasca plant, a sacred plant that has been used in the Amazonian region of Ecuador. Another example is the Mexican yellow bean, which has been cultivated and bred for centuries by Mexican farmers and has become a common staple in Mexican cuisine. Mexican farmers have exported these beans to the United States for decades. In 1994, a U.S. citizen brought yellow beans to the United States and self-pollinated them. Due to a lack of documentation suggesting that the bean was a product of traditional Mexican farmers, he was able to acquire a patent on the yellow bean in the United States. The owner of this patent then sued Mexican exporters of the yellow bean, claiming that they were infringing upon his patent. This case of biopiracy has caused Mexican farmers to lose the rights to their bean-breeding knowledge in the United States. If the patent is extended to other countries, the rights of the farmers will be even further curtailed.
Human rights organizations are taking action to level the playing field for local and indigenous communities faced with the globalization of an IP regime. Since an international registry for traditional-knowledge holders has yet to be created, some NGOs have created databases with the specific purpose of documenting public domain traditional knowledge for patent offices. Patent offices can then check applicants’ claims against existing traditional knowledge to determine whether inventions are truly “novel.” The American Association for the Advancement of Science’s Science and Human Rights Program has created a database for this purpose. This database, Traditional Ecological Knowledge Prior Art Database (T.E.K.*P.A.D.), currently archives over 30,000 records of traditional knowledge and is accessible via the Internet for patent examiner use. By disclosing information in this database, traditional-knowledge holders are able to protect the moral interests related to the knowledge. The database is used by patent offices when performing prior art searches on patent applications. Prior art refers to all of the information currently existing in a given field or subject area in the public domain. In order for a patent to be approved, the patent application must contain a novel invention or discovery not currently disclosed in the public domain’s prior art database. If traditional knowledge is documented in this database, patent applications claiming this knowledge as “novel” can potentially be denied. Additionally, placing knowledge in the public domain enhances the public’s right to access the benefits of scientific advancement.
T.E.K.*P.A.D. is publicly available on the Internet and recognized by the U.S. Patent and Trademark Office and other international government-based patent authorities as an official database for prior art searches. The database is the end result of data contributions from several grassroots organizations as well as herbal companies interested in giving proper credit to innovations based on traditional knowledge. Anil Gupta, coordinator of the Society for Research and Initiatives for Sustainable Technologies and Institutions (SRISTI) states: “SRISTI has been campaigning for an international registry for over a decade so that grassroots innovators and TK holders can get short term protection.”
Some NGOs have used a traditional human rights approach to confront the intellectual property regime. The Action Group on Erosion, Technology and Concentration, a Canadian NGO, publishes periodic press releases when acts of biopiracy occur. This retroactive “name-and-blame” approach complements the proactive approach used in the T.E.K.*P.A.D. project. By drawing the public’s attention to the issue of biopiracy, several patent claims on traditional knowledge have been voluntarily withdrawn or challenged in patent offices.
The United Nations has several initiatives to examine the issue of human rights and intellectual property, one of which is the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC-GRTKF). In 2000, the WIPO General Assembly established the IGC-GRTKF to explore issues related to the protection of traditional knowledge. Although it is not a legislative authority, the IGC-GRTKF can make suggestions and recommendations to other WIPO bodies. The IGC-GRTKF will hold its final meeting in June 2003 and will later submit conclusions to the WIPO General Assembly. According to the American Folklore Society, “WIPO should take the necessary steps to ensure that conclusions of the IGC-GRTKF and similar bodies incorporate the identified needs of indigenous peoples and traditional knowledge communities who are the primary guardians and interpreters of their cultures.”
The challenge for human rights advocates is to identify an effective long-term strategy for dealing with intellectual property issues. An effective approach must examine the responsibilities of developed state actors, developing state actors, and international organizations. Developed states have an obligation to promote agreements that respect internationally recognized human rights standards. Developing states have a duty to engage in international agreements that do not potentially violate the human rights of their own citizens. Furthermore, current international treaties relating to intellectual property must be revised so that they do not compete with human rights standards.
Structuring the intellectual property system to promote rather than undermine human rights is a difficult task. The first step in addressing this is to create an awareness and consensus among human rights advocates that the intellectual property system has the potential to jeopardize the right to food, health, culture, and access to the benefits of science—rights that are at the core of the Universal Declaration of Human Rights.