Indigenous intellectual property rights are legal safeguards for Indigenous
peoples' creative works. It "includes the information, practices, beliefs and
philosophy that are unique to each indigenous community".[1] The rights seek to
protect traditional knowledge and cultural heritage of these communities. This
knowledge is such that it is sacred to these communities because they have
evolved over years and generations.
The ethical issue that comes up is that when
other communities use the same information because the knowledge that is freely
given in their culture is commoditized for profit in another. Knowledge about
plant cultivars, medicinal herbs or their art is usually stolen from the
community it originated from.[2]
Indigenous people have the right to protect
their knowledge because once the knowledge goes out of the community they lose
control over it, that is why they seek protection of their community culture and
knowledge from commercial exploitation and inappropriate use. The question is
what are the certain unjust instances of indigenous knowledge being
inappropriately used and what are the existing frameworks for their protection?
Genetic Resources, Traditional Knowledge & Traditional Cultural Expression
These are the main elements of intellectual property of indigenous peoples.
Traditional Knowledge is the evolving knowledge which was developed and passed
on from one generation to another amongst the community which becomes a part of
their identity. It is their inventions and practices that form a part of their
lifestyle which can range from medicinal knowledge to animal migration patterns
to hunting/fishing techniques.[3]
Traditional cultural expressions are different
forms in which they express their culture and is a part of their social
identities. It includes ceremonies, tales, art forms etc.[4] In Article 2 of the
Convention on Biological Diversity, "genetic material of actual value" is
defined as genetic resources.[5] and capable of reproduction. Some examples are
plants, animal breeds, microorganisms etc.
Artemisia Judaica is a plant which has been used in Libya and other neighbouring
regions like North Africa and Middle East as a traditional medicine for the
treatment of diabetes. A process patent was granted in the US to a UK based
company on the 'Artemisia Judaica fractionation method'.[6]
The chromatographic
fractions obtained from the extraction process were in fact found to have 'non �
mutagenic' properties. It was found that the traditional healers which used the
same plant were unaware that they were using it with mutagens which makes it
unsafe for treatment. This patent passes the tests of novelty and
non-obviousness because of the useful end product which would not have been
possible without the techniques of the company.
Traditional knowledge led the
scientist to research about this plant and they made it safe to use with their
modern scientific techniques. This is an example of equal contribution by people
of different communities. It shall be ethically right if the company is deriving
commercial benefit and giving the communities their due credit for their partial
contribution.[7]
An example of a bad patent is the patent on the Thai Vine
'White Kwao Krua'[8] which has been granted to US & Japan. This vine has been
used in Northern Thailand and evidence suggests that the prior art of usage has
been since 1931. It has been used for treatments of skin and reducing wrinkles.
The broad patents granted to these companies was because they claimed that it
reduced eye irritation and their dosages were altered than the usual dose.
Criticisms are rising on the basis of the fact that it does not pass the test of
novelty and non-obviousness because the end product was not possible without the
help of traditional healers.[9] A great example of a 'mutually beneficial
agreement' is the use of Moroccan Argan oil by the company L'Or�al because they
launched their "L'Or�al's Fair Trade Argan Oil Program" for the cultivation of
argan oil in Morocco.[10]
Cultural Appropriation
It means the adoption of certain elements of one culture by another culture
without understanding the significance of it. It is not just ornaments or their
designs it is a part of their identity, and it becomes problematic when it is
used for profits without their consent or recognition of the cultural
significance especially when they are not even compensated. Nike in 2013
launched their women's leggings with the design of the traditional male Samoan
Tattoo called pe'a.[11]
It received a backlash because it was considered
offensive, so they withdrew it with an apology. Then in 2019, again the launch
of "Air Force 1 Puerto Rico" edition were launched and received a fierce
opposition because of which they cancelled the launch. They used mola patterns
on the shoes which originated from Panama, but they wrongly attributed it to
Puerto Rico.[12]
Conclusion
The existing frameworks for the protection of indigenous rights are the WIPO,
ICCPR[13], ILO and the UN Declaration on the Rights of Indigenous People[14]
which are on an international level. The TRIPS agreement[15] adopted by the
World Trade Organization also establishes minimum standards for their
protection. In India Article 29[16] of the Constitution makes an obligation to
conserve and preserve the identities of Indigenous communities.
The Protection
of Plant Varieties & Farmer's Rights Act, 2001[17] protects their rights with
respect to genetic resources through seeds and plant varieties. One might ask
why the communities don't seek protection under the Indian Copyright Act[18] or
the Indian Patent Act[19] (or other similar laws from around the world)?
This is
because in indigenous communities it is hard to determine who the author is
because it is cultural knowledge passed on from generations and they are mostly
not in a fixed form due to the similar reasons. The protection from these laws
is only for a limited amount of time but the traditional knowledge should have
perpetual protection because of the nature of their usage since ages.
Moreover,
indigenous people lack the financial assets and the knowledge to deal with the
law. For India, even though there are international obligations and regulations,
but some sort of formal protection is missing. The gap in the law should be
addressed and filled because it would lead to the exploitation and damage of the
culture and traditions of Indigenous communities.
End-Notes:
- Indigenous Peoples and Local Communities' Engagement, https://www.wipo.int/tk/en/engagement.html (last visited Apr 28, 2023).
- Stephen B. Brush, Indigenous Knowledge of Biological Resources, and Intellectual Property Rights: The Role of Anthropology, 95 American Anthropologist 653 (1993).
- Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions, Intellectual Property.
- Id.
- Convention of Biological Diversity art. 2, Jun. 5, 1992, 1760 U.N.T.S 69.
- Biopiracy and the Innovations of Indigenous Peoples and Local Communities from Indigenous Peoples' Innovation: Intellectual Property Pathways to Development on JSTOR, https://www.jstor.org/stable/j.ctt24hfgx.10 (last visited Apr 28, 2023).
- Id.
- Id.
- Id.
- 404Page, https://www.lorealprofessionnel.com/int/system-pages/404-page (last visited Apr 28, 2023).
- Curbing cultural appropriation in the fashion industry with intellectual property, https://www.wipo.int/wipo_magazine/en/2019/04/article_0002.html
(last visited Apr 28, 2023)
- Id.
- International Covenant on Civil & Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
- G.A. Res. 61/295 (Oct. 2, 2007).
- Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organisation, Apr. 15, 1994, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197.
- India Const. art. 29.
- Protection of Plant Varieties & Farmer's Rights Act, 2001.
- Copyright Act, 1957.
- Indian Patent Act, 1970.
Award Winning Article Is Written By: Ms.Gunvi Rattra
Authentication No: AG358540271237-7-0823
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