Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part II

2014 ◽  
Vol 16 (1) ◽  
pp. 3-37
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Convention On Biological Diversity ◽  
Nagoya Protocol ◽  
Trade Law ◽  
International Trade Law ◽  
Traditional Cultural Expressions

Abstract In Part I of this two-part article, we explained why western assumptions built into intellectual property law make this area of law a problematic tool, as a way of protecting traditional knowledge (tk) and expressions of folklore (EoF) or traditional cultural expressions (tce) of indigenous peoples. Part II of this article aims to: 1) provide a brief review of the Convention on Biological Diversity (cbd) and the Nagoya Protocol, and examine the evolution of the intellectual property rights of indigenous peoples from the Agreement on Trade Related Aspects of Intellectual Property (trips Agreement) to the cbd to the Nagoya Protocol; and 2) examine possible core principles, inducted (rather than deduced) from actual practices already in place in the areas of patents, copyrights, and trademarks in relation to protecting tk and EoF. These explorations could allow for discussions regarding indigenous peoples, human rights and international trade law to become less adversarial.

Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part I

2013 ◽  
Vol 15 (3) ◽  
pp. 319-339 ◽  
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Property Rights ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Indigenous Peoples ◽  
Property Law ◽  
Cultural Expression ◽  
Intellectual Property Law ◽  
Traditional Cultural Expressions

Abstract This article is the first part of a two-part piece, which considers the intellectual property rights of indigenous peoples. After establishing pragmatic working definitions of who “indigenous peoples” are and what folklore (or “traditional cultural expression”) is, as compared with, but dialectically related to, “traditional knowledge,” this article does the following: 1) explains why western assumptions built into intellectual property law make this area of law a problematic tool for protecting traditional knowledge (TK) and expressions of folklore (EoF) or traditional cultural expressions (TCE) of indigenous peoples; and 2) creates a general sketch of human rights related legal instruments that could be and have been harnessed, with varying degrees of success, in the protection of the intellectual property of indigenous peoples.

scholarly journals The Rooibos Benefit Sharing Agreement–Breaking New Ground with Respect, Honesty, Fairness, and Care

2019 ◽  
Vol 29 (2) ◽  
pp. 285-301
Author(s):  
DORIS SCHROEDER ◽  
ROGER CHENNELLS ◽  
COLLIN LOUW ◽  
LEANA SNYDERS ◽  
TIMOTHY HODGES
Keyword(s):  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Global Policy ◽  
Nagoya Protocol ◽  
Major Benefit ◽  
Government Leadership

AbstractThe 1992 Convention on Biological Diversity (CBD) and its 2010 Nagoya Protocol brought about a breakthrough in global policy making. They combined a concern for the environment with a commitment to resolving longstanding human injustices regarding access to, and use of biological resources. In particular, the traditional knowledge of indigenous communities was no longer going to be exploited without fair benefit sharing. Yet, for 25 years after the adoption of the CBD, there were no major benefit sharing agreements that led to significant funding streams for indigenous communities. This changed with the signing of the Rooibos Benefit Sharing Agreement in South Africa, described in this paper. As the authors report, the Rooibos Agreement is a superlative in two respects. It is the biggest benefit sharing agreement between industry and indigenous peoples to date. It is also the first industry-wide agreement to be formed in accordance with biodiversity legislation. This article is a co-production between traditional knowledge holders, the lawyer who represented their interests, the Co-Chair of the Nagoya Protocol negotiations, and an ethicist who analyzed the major challenges of this historic agreement. With no precedent in the benefit sharing world, the agreement stands as a concrete example of the ‘art of the possible.’ Although the rooibos case is unique in a number of aspects, the experience offers many transferable insights, including: patience; incrementalism; honesty; trust; genuine dialogue; strong legal support; a shared recognition that a fair, win-win deal is possible; government leadership; and unity amongst indigenous peoples. Such ingredients of success can apply well beyond southern Africa.

Asian Borderlands and the Legal Protection of Traditional Knowledge and Traditional Cultural Expressions

2013 ◽  
Vol 47 (4) ◽  
pp. 1403-1433 ◽  
Author(s):  
CHRISTOPH ANTONS
Keyword(s):  
Intellectual Property ◽  
United Nations ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Legal Protection ◽  
Indigenous Communities ◽  
Cultural Property ◽  
World Intellectual Property Organization ◽  
Convention On Biological Diversity ◽  
Nuanced Understanding

AbstractTraditional knowledge related to biodiversity, agriculture, medicine and artistic expressions has recently attracted much interest amongst policy makers, legal academics and social scientists. Several United Nations organizations, such as the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity under the United Nations Environmental Programme (UNEP), have been working on international models for the protection of such knowledge held by local and indigenous communities. Relevant national, regional or provincial level legislation comes in the form of intellectual property laws and laws related to health, heritage or environmental protection. In practice, however, it has proven difficult to agree on definitions of the subject matter, to delineate local communities and territories holding the knowledge, and to clearly identify the subjects and beneficiaries of the protection. In fact, claims to ‘cultural property’ and heritage have led to conflicts and tensions between communities, regions and nations. This paper will use Southeast Asian examples and case studies to show the importance of concepts such as Zomia, ‘regions of refuge’ and mandala as well as ‘borderlands’ studies to avoid essentialized notions of communities and cultures in order to develop a nuanced understanding of the difficulties for national and international lawmaking in this field. It will also develop a few suggestions on how conflicts and tensions could be avoided or ameliorated.

Protecting Traditional Knowledge Holders' Interests and Preventing Misappropriation—Traditional Knowledge Commons and Biocultural Protocols: Necessary but Not Sufficient?

2012 ◽  
Vol 19 (3) ◽  
pp. 401-422 ◽  
Author(s):  
Krishna Ravi Srinivas
Keyword(s):  
Informed Consent ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Access And Benefit Sharing ◽  
Nagoya Protocol ◽  
Prior Informed Consent ◽  
Knowledge Commons

AbstractThe experience of the indigenous communities regarding access and benefit sharing under the national regimes based on provisions of Convention on Biological Diversity and Bonn Guidelines has not been satisfactory. The communities expect that noncommercial values should be respected and misappropriation should be prevented. Some academics and civil society groups have suggested that traditional knowledge commons and biocultural protocols will be useful in ensuring that while noncommercial values are respected, access and benefit sharing takes place on conditions that are acceptable to the communities. This proposal is examined in this context in the larger context of access and benefit sharing under the Convention on Biological Diversity and implementing prior informed consent principles in access and benefit sharing. This article examines knowledge commons, provides examples from constructed commons in different sectors and situates traditional knowledge commons in the context of debates on commons and public domain. The major shortcomings of traditional commons and bicultural protocol are pointed out, and it is suggested that these are significant initiatives that can be combined with the Nagoya Protocol to fulfill the expectations of indigenous communities.

Overcoming epistemic injustices in the biomedical study of ayahuasca: Towards ethical and sustainable regulation

2022 ◽  
pp. 136346152110629
Author(s):  
Eduardo Ekman Schenberg ◽  
Konstantin Gerber
Keyword(s):  
Traditional Medicine ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Therapeutic Potential ◽  
Indigenous Rights ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
Epistemic Authority ◽  
Double Blind

After decades of biomedical research on ayahuasca's molecular compounds and their physiological effects, recent clinical trials show evidence of therapeutic potential for depression. However, indigenous peoples have been using ayahuasca therapeutically for a very long time, and thus we question the epistemic authority attributed to scientific studies, proposing that epistemic injustices were committed with practical, cultural, social, and legal consequences. We question epistemic authority based on the double-blind design, the molecularization discourse, and contextual issues about safety. We propose a new approach to foster epistemically fair research, outlining how to enforce indigenous rights, considering the Brazilian, Peruvian, and Colombian cases. Indigenous peoples have the right to maintain, control, protect, and develop their biocultural heritage, traditional knowledge, and cultural expressions, including traditional medicine practices. New regulations about ayahuasca must respect the free, prior, and informed consent of indigenous peoples according to the International Labor Organization Indigenous and Tribal Peoples Convention no. 169. The declaration of the ayahuasca complex as a national cultural heritage may prevent patenting from third parties, fostering the development of traditional medicine. When involving isolated compounds derived from traditional knowledge, benefit-sharing agreements are mandatory according to the United Nations’ Convention on Biological Diversity. Considering the extremely high demand to treat millions of depressed patients, the medicalization of ayahuasca without adequate regulation respectful of indigenous rights can be detrimental to indigenous peoples and their management of local environments, potentially harming the sustainability of the plants and of the Amazon itself, which is approaching its dieback tipping point.

Part III Rights to Culture, Ch.11 Intellectual Property and Technologies: Article 31

2018 ◽  
Author(s):  
Stoll Tobias
Keyword(s):  
Intellectual Property ◽  
Cultural Heritage ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
State Action ◽  
Technology And Culture ◽  
Science Technology ◽  
Cultural Expressions ◽  
Traditional Cultural Expressions

This chapter looks at the specific right to intellectual property and technologies in Article 31. Article 31 sets out a number of rights of indigenous peoples relating to their science, technology, and culture, and calls for State action in this regard, which is to be taken with the involvement of those peoples. The provision relates to three different subject matters, between which there obviously exists quite some overlap. It refers, first, to ‘cultural heritage, traditional knowledge and traditional cultural expressions’. Second, it refers to ‘intellectual property’ over such heritage, knowledge, and expressions, and third, to ‘manifestations of…sciences, technologies and cultures’ — representative examples of which find themselves included in an illustrative list. According to Article 31, with a view to each of these subject matters, indigenous peoples have a right to ‘maintain, control, protect and develop’.

Power Relations in the Traditional Knowledge Debate: A Critical Analysis of Forums

2011 ◽  
Vol 18 (2) ◽  
pp. 143-178 ◽  
Author(s):  
Charles Kamau Maina
Keyword(s):  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Indigenous Communities ◽  
World Intellectual Property Organization ◽  
Convention On Biological Diversity ◽  
Policy Outcomes ◽  
United Nations General ◽  
The World ◽  
International Decade

AbstractAn ongoing debate on the protection of traditional knowledge was prompted by the United Nations General Assembly declaration of the International Decade of the World's Indigenous Peoples in 1995 and the declaration of the Second International Decade in 2004. These two declarations challenged governments and the international community to address, nationally and internationally, issues that affect indigenous communities. One such issue is the protection of traditional knowledge. The three key international multilateral forums that are debating traditional knowledge issues are the World Intellectual Property Organization, the World Trade Organization, and the Convention on Biological Diversity. Using a political economy framework, this study analyzes the policymaking processes and mandates of the three multilateral forums in order to highlight stakeholders' levels of involvement in these processes. The study found that the multilateral forums' power structures, mandates, and decision-making processes disadvantage indigenous peoples and hinder their full participation in the forums' processes. The study recommends establishing a forum that would take into account indigenous peoples' worldviews; otherwise policy outcomes from these discussions will probably disadvantage indigenous peoples.

scholarly journals Positive Protection: Protecting Genetic Resources Related to Traditional Knowledge in Indonesia

FIAT JUSTISIA ◽  
2018 ◽  
Vol 11 (2) ◽  
pp. 122
Author(s):  
Rohaini Rohaini ◽  
Nenny Dwi Ariani
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Genetic Resources ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Patent Law ◽  
Intellectual Property Right ◽  
Benefit Sharing ◽  
Convention On Biological Diversity ◽  
International Pressure

Genetic Resources is a foundation of human life, as a source of food, industrial raw materials, pharmaceuticals, and medicines. From its utilization may provide a financial benefit to the provider and the user of it. Unfortunately, most of it obtained from developing countries through biopiracy, including Indonesia. Furthermore, in the early 1980s, access and benefit sharing (ABS) to genetic resources became an international issue. It leads to the adoption of the Convention on Biological Diversity (CBD) in 1992. However, since it was approved, the whole ideas of excellence of it could not be implemented, a problem on it still arises. Intellectual property right laws, in certain aspects, are possible for using to protect traditional knowledge from their utilization. However, at the same time, intellectual property regime also becomes “a tool” to legitimate of biopiracy practices. Due to massive international pressure, mostly in developing countries, it proposes two kinds of protections, which are positive protection and defensive protection. This paper will examine one of it, which is positive protection. By using the normative method and qualitative approach, this paper identified at least two kinds of positive protections that we can develop to protect genetic resources related to traditional knowledge, which are optimizing the patent law and developing the sui generis law. Furthermore, it can be done by some revision by adding new substances, an improvement on the articles, or even by doing the deletion on certain articles. Moreover, in order to develop the sui generis law, it identified several minimum elements that shall be contained on it, inter alia: the purposes of protection; scope of protection; criteria of protection; the beneficiaries of protection: the holder of traditional knowledge; the kind of rights to be granted; how the rights acquired; how to enforce it; how the rights lost or expired; and dispute resolution.  Keywords: Positive Protection, Genetic Resources, Traditional Knowledge.

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