World Libraries: Protection of Rights of Holders of Traditional Knowledge, Indigenous Peoples and Local Communities

Protection of Rights of Holders of Traditional Knowledge, Indigenous Peoples and Local Communities

Lars Anders Baer

Prologue

According to the "State of the World" report for 1993 from Worldwatch Institute, there are some 4000-5000 indigenous cultures in the world, with some 190-635 million individuals belonging to these cultures. The UN General Secretary Mr Boutros Boutros-Ghali stated during the inauguration of 1993 as the International Year for the World Indigenous Peoples that indigenous peoples comprise over three hundred million individuals across the globe.

The international community is now slowly acknowledging that indigenous peoples have been discriminated against and deprived of their rights and freedoms for far too long a time.

These millions of indigenous peoples live in more than 70 countries worldwide. Indigenous peoples are the inheritors and practitioners of unique cultures and ways of relating to other people and to the environment. Indigenous peoples have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live. Despite their cultural differences, the various groups of indigenous peoples around the world share common problems related to the protection of their rights as distinct peoples. Indigenous peoples around the world have sought recognition of their identities, their ways of life and their right to traditional lands and resources; yet, throughout history their rights have been violated. Indigenous people are arguably among the most disadvantaged and vulnerable groups of people in the world today. The international community now recognizes that special measures are required to protect the rights of the world's indigenous peoples.

Indigenous peoples in UN

The Working Group on Indigenous Populations (WGIP) of the Sub-Commission on the Population and Protection of Human Rights was established in 1982 by a decision of the United Nations Economic and Social Council (ECOSOC). The Working Group has been the catalyst for many initiatives related to indigenous peoples. Most importantly, it began drafting a declaration on the rights of indigenous peoples in 1985. The draft was completed in 1993, and the Commission on Human Rights set up its own working group to review the draft adopted by the human rights experts of the Working Group and Sub-Commission in 1995. More than 100 indigenous organizations participate in that working group. The declaration is still under discussion.

When adopted, it will likely be the most comprehensive statement of the rights of indigenous peoples ever developed: the draft declaration foresees collective rights to a degree unprecedented in international human rights law. Adoption of this instrument will give the clearest indication yet that the international community is committing itself to the protection of the individual and collective rights of indigenous peoples. While this Declaration would not be legally binding on States, and would not, therefore, impose legal obligations on governments, the declaration would carry considerable moral force.

In addition to participating in large numbers in the Working Group on Indigenous Populations and other meetings, indigenous people are also becoming more prominent as individual players on the world stage. Since then, increasing numbers of indigenous persons have held office at meetings related to indigenous matters. Hundreds of indigenous people attended, and some addressed, the second World Conference on Human Rights in Vienna in June 1993. That year was also the International Year of the World's Indigenous People. The Conference recognized the responsibility of all UN member States to respect the human rights and fundamental freedoms of indigenous peoples and recommended consideration of a permanent forum for indigenous peoples at the UN.

The United Nations General Assembly launched the International Decade of the World's Indigenous Peoples (1995-2004) in 1994 to increase the United Nations' commitment to promoting and protecting the rights of indigenous peoples worldwide. As part of the Decade, several UN specialized agencies are working with indigenous peoples to design and implement projects on health, education, housing, employment, development and the environment that promote the protection of indigenous peoples and their traditional customs, values and practices.

Indigenous peoples have also participated in major world conferences, such as the UN Conference on Environment and Development (Earth Summit), held in Rio de Janeiro in 1992 and Johannesburg 2003, the World Conference on Women, held in Beijing in 1995, and the 1996 Social Summit. Indigenous peoples were also prominent in the 2001 World Conference against Racism that was held in Durban, South Africa.

Permanent Forum on Indigenous Issues

By ECOSOC resolution 2000/22, the Permanent Forum (PF) was created with a broad mandate to deal with six main areas: economic and social development, culture, the environment, education, health and human rights. At the First Session of the Permanent Forum on Indigenous Issues in May 2002 at the United Nations Headquarters in New York, Secretary-General Kofi Annan, characterized the first session of the Forum as "historic," and proclaimed to the world's indigenous peoples: "You have a home at the United Nations." The first session of the Forum was held at the United Nations Headquarters from 12 to 24 May 2002. It was attended by Members of the Permanent Forum, representatives of Governments, United Nations bodies and intergovernmental organizations, as well as a significant number of non-governmental organizations, indigenous organizations and academic institutions.

Indigenous peoples have not previously been able to represent their own interests directly to any major body of the UN. This new entity will break new ground, as the Forum—including eight indigenous experts—will advise and report directly to the Economic and Social Council. However, the 16 members who make up the Forum are not representatives, as such; rather, they are operating in their own capacities as independent experts. As set out in the resolution establishing the Forum, eight indigenous members are to be appointed by the President of the Council, following consultation with regional groups and indigenous organizations; the other eight members are nominated by governments and elected by the Council. All members will serve for three years, with the possibility of re-election for one additional term.

In its capacity as a subsidiary organ of the Economic and Social Council, the new Forum will report and make recommendations to the Council on economic and social development, culture, the environment, education, health and human rights. In addition to advising the Council, the Forum has been asked to raise awareness, promote the integration and coordination of activities relating to indigenous issues within the UN system, and prepare and disseminate information on indigenous issues. It will meet once each year for ten working days. States, UN bodies and organs, intergovernmental and non-governmental organizations, and organizations of indigenous people may participate as observers.

The Permanent Forum made recommendations to relevant UN agencies working with tangible and intangible heritage and related questions at both its 1st and 2nd sessions.

Intellectual property rights

I often hear people advocate that questions concerning intellectual property rights are technical in nature, and that therefore we should not politicize these questions. In my work as an indigenous activist for the last thirty years, and as a legal researcher, I have been confronted with this type of argument in many cases of indigenous rights. I agree that to a certain extent they are technical legal matters; however, they are not legal technicalities only. When talking about the needs and rights of indigenous peoples, we are talking about the rights of at least 300 million indigenous people around the world, often among the poorest and most disadvantaged in their countries. Therefore, it would not be correct to say that we —indigenous peoples—are opposing changes and new developments for the sake of opposing. I believe that most of us welcome changes and development, but on the clear condition that it take place in harmony with our needs and desires, and is not imposed upon us. Nor are we against business and trade per se, because we also see trade as an important element in an interdependent world. Trade links between countries and nations are crucial components in the maintenance of peace and security in the world. Unfortunately, traditional indigenous legal concepts, including in the field of intellectual property, are often seen as threats to business interests, development and national prosperity.

One can observe an increasingly common trend that sees national governments working in the interests of global multinational corporations, against their own people, in particular indigenous peoples. On the other hand, globalization of the world economy is a reality which can hardly be reversed towards more closed national economies. Therefore, in my view, the future challenge is to conceptualize ways of organizing and managing the globalized economy and its mechanisms.

It is clear that a world economy which does not take into account important social, civil, cultural and economic aspects is not sustainable. In other words, governments and international institutions have to include new components, e.g. social components, in their economic policies. They also have to take into account the rights of all sectors of the society, because it cannot be justified that policy is developed and implemented without the full and effective participation of all major groups, including indigenous peoples.

The last quarter of the twentieth century witnessed an unprecedented pace of activities in the area of legal protection of folklore. Developing countries considered folklore an important component of their cultural heritage and perceived the threats posed by its improper exploitation as a matter of grave concern. Realizing the magnitude of the problem, efforts have been made by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the World Intellectual Property Organization (WIPO) to arrive at a long-lasting solution through a mechanism for protection and preservation of folklore. This resulted in the formulation of a set of guidelines for national laws relating to legal protection of folklore. Some national governments attempted legislations based partially on Model Provisions adopted by UNESCO and WIPO, namely the Model Provision for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982 ("the Model Provisions").

Technological developments have always had their impact on the intellectual property regime. Newer forms of exploitation facilitated by modern technologies, especially in the fields of information technology and biotechnology, pose new challenges for the protection of folklore. Realizing the biennium (1998-1999) for exploration of the issues relating to intellectual property rights of holders of indigenous sentiments of the member countries, WIPO launched certain new initiatives as reflected in its Program and Budget for current knowledge.

The objectives of the study were to examine how effective protection of folklore is being achieved in these countries in order to derive direction for future work in this field, and also to assess the relevance of the Model Provisions already drawn up for framing legislation in these countries.

The methodology adopted for the study included legal research methods and field visits to the selected countries. The following issues were identified for research: legal standards, the heritage of indigenous peoples, development and indigenous cultural and intellectual property.

I am not suggesting that national governments and inter-governmental organizations, such as WIPO, can by themselves solve the problems faced by indigenous peoples. However, governments and inter-governmental organizations have a key role to play due to their formal authority and mandate. National and international legal standards pass through their offices and corridors on their way towards adoption, follow-up and enforcement.

Legal standards

The present legal situation is the result of a grim, unlawful past. It is hard to see how to find a lasting settlement without resolving core problems, one of which is the lack of protection for fundamental indigenous rights, including intellectual property rights. Commercial interests very often violate indigenous intellectual property rights. Although such violations often do not formally constitute a breach of written legal standards, as neither national legislation nor international standards recognize the rights of indigenous peoples, these enterprises are still accountable to indigenous customary law. This fact can no longer be ignored by governments, the UN-system or business entities. ILO Convention No. 169 concerning indigenous peoples contains important international legal standards for indigenous rights; however, it does not give the desired protection for indigenous intellectual property rights.

The draft United Nations declaration on the rights of indigenous peoples is an important achievement for indigenous peoples. The Draft Declaration represents an international recognition of the rights and aspirations of indigenous peoples from around the world, also in the field of intellectual property rights. However, the Declaration, when adopted, will only be a non-binding document that will not be legally enforceable. From time to time, I am told that indigenous legal concepts and claims do not fit into existing legal systems. The fact that indigenous legal concepts, in particular the notion of collective rights, can be a challenge for existing legal regimes does not justify non-involvement from government or inter-governmental organizations, such as WIPO.

There is therefore an urgent need to develop binding legal instruments on indigenous intellectual property rights, and WIPO has an important role to play in this regard. Many indigenous peoples and organizations have urged WIPO to initiate a standard-setting process in the field of indigenous intellectual property rights. WIPO have responded in a constructive way.

WIPO is responsible for the promotion of the protection of intellectual property rights throughout the world through cooperation among States, and for the administration of various multilateral treaties dealing with the legal and administrative aspects of intellectual property. However, none of the international treaties which are developed within WIPO's system specifically addresses indigenous intellectual property.

Heritage of indigenous peoples

The United Nations has undertaken a special study of the protection of the heritage of indigenous peoples, carried out by the Rapporteur of the UN Working Group on Indigenous Populations, Professor Erica-Irene Daes. Through her excellent legal research and analysis, Prof. Daes has produced an excellent assessment of the situation with regard to indigenous cultural and intellectual rights. Prof. Daes has also submitted draft principles and guidelines for the protection of the heritage of indigenous peoples to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. These draft principles and guidelines establish a good foundation for any national or international discourse on this issue. This pioneering work of Prof. Daes should be taken into account in future processes on indigenous intellectual property rights.

The principal issues of Prof. Daes' draft on Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples include the following:

Indigenous peoples should be recognized as the primary guardians and interpreters of their own cultures, arts and sciences, whether created in the past or developed by them in the future;
Indigenous peoples are recognized as collective legal owners of their Knowledge, in perpetuity;
The right to learn and use indigenous knowledge can be acquired only in accordance with the laws or customary procedures of the indigenous peoples concerned, and with their free and informed consent;
States, educational and scientific institutions, and the United Nations system have a duty and responsibility to help indigenous peoples themselves to develop the technical capacity to document and, if they choose, develop and apply their own knowledge commercially.

It is hard to see how indigenous intellectual property rights can be promoted and protected within existing mechanisms, without first collecting data from around the world and analyzing the material. I believe that a global study on indigenous intellectual property rights would be an extremely important device for future work in this field. It is crucial that the main United Nations agency in the field of intellectual property ensures that it has sufficient institutional knowledge and understanding of indigenous intellectual property rights.

This study would be crucial for any standard setting development in this field. Largely beyond the control of any national government, the global economy is an extremely powerful factor in the development of our future. Today, Transnational Corporations (TNC) control two-thirds of world trade. Many TNCs are today among the largest economies in the world; 50 of the world's 100 largest economies are TNCs. Many TNCs are much richer and more powerful than national governments. Their activities are the root of very many of the problems faced by indigenous peoples in the field of cultural and intellectual property rights, land and resource rights. The effects of continually expanding requirements from urban societies are speeding up global economic activities. Without changes in ways of thinking and practice, there will be an ever-increasing effect on indigenous peoples. It is therefore time for all parties to concentrate on making serious and constructive attempts to solve those problems. Therefore, we hope that a dialogue between indigenous peoples and the business community can be established as soon as possible. Relevant UN agencies, such as PF, ILO, WIPO, IMF, WTO and the World Bank should see their responsibility and try to facilitate such a process of dialogue. We cannot continue to shout at each other from our respective mountain tops.

Development

Indigenous peoples have welcomed the initiative of UNESCO, WIPO and others in the field of protection of indigenous cultures and indigenous knowledge the last decades. Since 1982 considerable progress has been made in formulating the principled rights of indigenous peoples to self-determination. This concept covers, among other things, the right of us as indigenous peoples to enjoy the same kind of protection of our cultures that governments take for granted for their cultures. We need to participate in the work of setting national and international standards in all fields of human life. And when the principles are formulated and agreed upon, we need institutions that can carry on the work. In most parts of the world, our peoples are denied recognition as peoples and institutions to support and develop their cultures.

Indigenous people view the world we live in as an integrated whole. Our beliefs, knowledge, arts and crafts and other forms of cultural expression have been handed down through the generations. The many myths, stories, songs, dances, paintings and other forms of expression are therefore important aspects of Indigenous cultural knowledge, power and identity.

Characteristics of our Cultural Heritage and Indigenous Intellectual Property are:

A Living Tradition
Holistic nature
Communal ownership
Responsibility and custodianship
Collective Consent to use Indigenous Cultural and Intellectual
Inter-generational transfer

Our common colonial past has created many obstacles. Indigenous traditional cultural expressions have been colonized in more or less the same manner as indigenous land. In the same way as with land rights, indigenous peoples have not been regarded as having any right to their cultures that could outweigh the interest of the western way of life. Our traditional cultural expressions, previously referred to as folklore, such as handicrafts, songs and dances, have until now been viewed as primitive, and not comparable to the masterpieces of western artists and composers. Indigenous traditional knowledge has been disregarded as having no scientific or cultural value, at least not in comparison to western scientific knowledge.

Indigenous cultural and intellectual property

For indigenous peoples, then, protection of our knowledge is an intrinsic part of respecting rights to land, culture and to an adequate livelihood. Without the land and the knowledge that comes mainly from use of the land, we as indigenous peoples cannot survive. Thus, for indigenous peoples, as well as for most of the countries in which we live, particularly developing countries, indigenous knowledge is also our most valuable and sustainable asset for development. For the world as a whole, furthermore, indigenous knowledge holds out the hope of greatly accelerating the struggle to improve human health and nutrition and to protect the environment. In my opinion, all humanity shares an interest in guaranteeing that indigenous peoples maintain, add to, and share our distinctive forms of scientific knowledge. For our part, indigenous peoples have made it clear that we will share what we know, if we are recognized as the owners of that knowledge.

The intellectual property of indigenous peoples has often lately been divided into three groups: (i) folklore and crafts; (ii) biodiversity; and (iii) indigenous knowledge. Folklore and crafts include various forms of oral literature, music, dance, artistic motifs and designs crafts such as basketry, beading, carving, weaving and painting. Indigenous peoples have expressed concern about the commercial exploitation of our folklore and crafts as well as about the reproduction by outsiders of certain cultural manifestations and objects of religious importance.

The biodiversity of the traditional territories of indigenous peoples may also be considered as part of the intellectual property of indigenous peoples requiring protection. Biodiversity refers, inter alia, to plant varieties which have been developed through experiment and cultivation for use as food, medicine or materials for houses, boats or other kinds of construction or use. There is concern that, as the biodiversity, especially of tropical forest regions, is destroyed through environmental mismanagement and population pressures, certain crops or products which can no longer be produced locally will be propagated under license without recognition of their original cultivators.

Indigenous knowledge refers to the knowledge held, evolved and passed on by indigenous peoples about their environment, plants and animals, and the interaction of the two. Many indigenous peoples have developed techniques and skills which allow them to survive and flourish in fragile ecosystems without causing the depletion of resources or damage to the environment. The various forms of sustainable development practiced by indigenous peoples in forests, mountain and valley areas, dry-lands, tundra and arctic regions derive from a successful application of technology in agro-forestry, terracing, resource management, animal and livestock controls, fish harvesting and in other areas. In particular, many indigenous peoples have knowledge of plants suitable as medicines, and this traditional medicine has been and continues to be in many cases a source for Western pharmacology.

The chairman of the Permanent Forum of Indigenous Issues, Mr Ole Henrik Magga, has also elaborated on what indigenous heritage may include in a paper presented at a UNESCO conference in Norway 2003. He emphasized that heritage consists of the tangible and intangible aspects of the whole body of cultural practices, resources and knowledge systems developed, nurtured and refined by Indigenous peoples, and passed on by us as part of expressing our cultural identity. As he outlines it, the Indigenous heritage may include:

Literary, performance and artistic works (including music, dance, song, ceremonies, symbols and designs)
Languages
Scientific, agricultural, technical and ecological knowledge (including cultigens, medicines and sustainable use of flora and fauna)
All items of movable cultural property (including burial artifacts)
Indigenous ancestral remains
Indigenous human genetic material (including DNA and tissues)
Cultural environmental resources (including minerals and species)
Immovable cultural property (including Indigenous sites of significance, including landscape and waters and waterways, sacred sites and burials)
Documentation of Indigenous peoples' heritage in all forms of media (including scientific, ethnographic research reports, papers and books, films, and sound recordings).

In this context, Mr Magga underlined that any definition of Indigenous Cultural and Intellectual Property should be flexible, so as to reflect the notions of the particular Indigenous group and the fact that this may differ from group to group and may change over time.

WIPO

WIPO established an Intergovernmental Committee in the year 2000 to investigate the relationship between intellectual property rights, genetic resources, traditional knowledge and folklore, or "traditional cultural expressions," a concept that does not have the kind of derogatory undertone that "folklore" has. The Committee shall further investigate the possibilities of finding common ground for international cooperation with regard to these issues, if possible through legally binding international norms. Most industrialized countries have been reluctant to commence such work, holding that traditional knowledge etc. can be adequately protected through existing intellectual property legislation. The background documents prepared by the Secretariat and many interventions have been full of references to indigenous peoples as major stakeholders with regard to the mandate for the Committee. The WIPO Secretariat has also repeatedly acknowledged the important role indigenous customary laws can play in the protection of genetic resources, traditional knowledge and "traditional cultural expressions." On the other hand, a growing tension seems to have been built up within the Committee over the last sessions, i.e. the conflict between the interests of the State and indigenous peoples within States, where many developing countries have indicated that, in their opinion, all such knowledge and resources belong to the State. There are thus many difficulties yet to overcome. WIPO's decision to renew the mandate of the Committee is therefore very positive.

Indigenous peoples have the right to special measures for protection, as intellectual property, of their traditional cultural manifestations, such as literature, designs, visual and performing arts, medicines and knowledge of the useful properties of fauna and flora. The Convention on Biological Diversity was a crucial step. It recognizes the need for States to "respect, preserve and maintain" the ecological knowledge of indigenous peoples and local communities, and to ensure that the benefits of commercial applications are shared equitably. The Convention has been almost universally ratified, which enhances its importance as a legal foundation for future elaboration. In my opinion, nothing prevents States from adopting special measures to protect indigenous knowledge which does not fall within the current definition of "industrial property."

With the establishment of this new Working Group by the Fourth Conference of the Parties to the Convention on Biological diversity, there exists a high-level mechanism for building a consensus on the general approach which should be taken by States and international agencies.

What is lacking, I believe, is sufficient technical guidance for governments in the drafting of special legislation in this field.

Concluding remarks

In winding up, I must conclude that very different objectives lie behind why indigenous peoples normally want to protect their cultural heritage, and the motives for protection offered by the prevailing Intellectual Property System. As consequence of this, the Intellectual Property Rights system to a large extent fails to protect Traditional Knowledge and Traditional Cultural Expressions well enough (sometimes they do, it is true), since the current system aspires to create a monopoly. It is this collective aspect that governments seem to have difficulty in grasping. Protection of traditional knowledge can therefore not have as starting point, at least not as the only starting point, the intellectual property rights perspective. Intellectual property rights legislation creates individual monopolies over knowledge, processes and products that without government intervention could not be monopolized. Application of patents, copyright, trade marks, trade secrets etc. and cultural heritage is often inappropriate.

Governments may even grant legal monopolies over indigenous cultures to corporations, and they may deny indigenous peoples the right to their own traditional knowledge. More specifically Intellectual Property Rights legislation fails to protect traditional knowledge because:

Traditional knowledge often does not meet the criteria of novelty and originality generally required for intellectual property protection.
It is normally impossible to identify the individual creators behind traditional knowledge.
There is a time limitation. The fact that most existing intellectual property mechanisms are limited in time implies that, even if protected for a while, the cultural expressions will eventually end up in the public domain. A protection for a culture cannot be limited for a time period.

It has been said in this debate that subjecting indigenous peoples to existing intellectual property laws would have the same effect on their identities as the individualisation of land ownership in many countries has had on their territories—that is, fragmentation into pieces, and the sale of the pieces, until nothing remains.

As I have already mentioned, the work aiming at establishing internationally legal binding standards and instruments must take into account many aspects, including a human rights and sustainable development perspective. In order to cater for a more holistic approach towards these issues, UN system organizations dealing with cultural heritage and genetic resources from other perspectives than intellectual property, such as the UN Food and Agricultural Organization (FAO), the High Commissioner on Human Rights the Convention on Biological Diversity (CBD) and not least, the Permanent Forum on Indigenous Issues, should be involved when elaborating upon legally binding norms for the protection of such knowledge and resources.

In closing, I must point out that a people's culture heritage cannot be protected by a set of disparate intellectual property rights mechanisms. Many indigenous peoples and NGOs have concluded that we need a sui generis system that respects indigenous peoples' right to determine what they want protected, and how they want it protected. It must acknowledge customary laws and practices of the indigenous peoples. Cultural expressions of indigenous peoples must also be protected in terms of cultural rights rather than only intellectual property rights. A holistic approach is required. And it is crucial that indigenous peoples and the Permanent Forum are intimately involved in this drafting process together with UNESCO, other relevant UN agencies and friendly states.

About the Author

Lars Anders Baer is XXXX
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