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Indigenous Intellectual Property Rights

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:
  1. Indigenous Peoples and Local Communities' Engagement, https://www.wipo.int/tk/en/engagement.html (last visited Apr 28, 2023).
  2. Stephen B. Brush, Indigenous Knowledge of Biological Resources, and Intellectual Property Rights: The Role of Anthropology, 95 American Anthropologist 653 (1993).
  3. Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions, Intellectual Property.
  4. Id.
  5. Convention of Biological Diversity art. 2, Jun. 5, 1992, 1760 U.N.T.S 69.
  6. 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).
  7. Id.
  8. Id.
  9. Id.
  10. 404Page, https://www.lorealprofessionnel.com/int/system-pages/404-page (last visited Apr 28, 2023).
  11. 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)
  12. Id.
  13. International Covenant on Civil & Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
  14. G.A. Res. 61/295 (Oct. 2, 2007).
  15. 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.
  16. India Const. art. 29.
  17. Protection of Plant Varieties & Farmer's Rights Act, 2001.
  18. Copyright Act, 1957.
  19. Indian Patent Act, 1970.


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