Effecting International Change
CURRENTLY, NO INTERNATIONAL convention is discussing the question of intellectual property rights (IPR) for indigenous people. Some progress is being made toward that goal, however. Many UN agencies and governmental and nongovernmental organizations realize the significance of indigenous knowledge and IPR in science, agriculture, and drug development.
INTERNATIONAL LABOR ORGANIZATION
The United Nations International Labor Organization (ILO) became involved in indigenous issues as early as 1926. The ILO established a Committee of Experts on Native Labor to elaborate international standards to protect native workers. Since then, the ILO has been the most active of the UN bodies in indigenous issues. However, its involvement has always been heavily slanted toward "integrating" Indians into the national work force. For this reason, indigenous people have always regarded the ILO and its conventions and declarations with some suspicion. Nonetheless, the ILO remains the principal UN forum for Indian issues.
The ILO is not addressing indigenous intellectual property rights, although ILO Convention 107 uses language that could be easily amended to include the concept of IPR. The Convention was adopted in 1957, and major changes were recommended in 1987 to remove the "integrationist" language of the original document, which is contrary to native cultural sovereignty.
Article 2 of the original Convention states:
1. Governments shall have the primary responsibility for developing co-ordinated and systematic action for the protection of the populations concerned and their progressive integration into the life of their respective countries.
2. Such action shall include measures for -
a. enabling the said populations to benefit on an equal footing from the rights and opportunities which national laws or regulations grant to the other elements of the population;
b. promoting the social, economic and cultural development of these populations and raising their standard of living.
3. The primary objective of all such action shall be the fostering of individual dignity, and the advancement of individual usefulness and initiative.
Although this Article has been specifically attacked by indigenous populations for its goal of "progressive integration," it could be modified by removing such language and adding to Item 2a reference to the legal protection of IPR as a specific subitem. Item 3 could specifically refer to development of economic independence through the exercise of IPR and subsequent compensation for knowledge. A separate item could call for a legal basis to prosecute individuals or institutions (governmental or private) that do not respect IPR through "just compensation" of knowledge.
Article 18 of ILO Convention 107 states:
1. Handicrafts and rural industries shall be encouraged as factors in the economic development of the populations concerned in a manner which will enable these populations to raise their standard of living and adjust themselves to modern methods of production and marketing.
2. Handicrafts and rural industries shall be developed in a manner which preserves the cultural heritage of these populations and improves their artistic values and particular modes of cultural expression.
Although the language of this article sounds somewhat archaic, it can be read to include and protect industries based upon traditional knowledge. Currently, most goods and products based upon indigenous knowledge are produced by non-natives. Conceivably, many native communities may want to develop their own products, as is currently the case with handicrafts. States could provide initial financing and the development of markets and infrastructures for such industries. Given the export potential for "natural products," this is especially in the interest of debt-ridden developing countries.
Even if ILO Convention 107 were revised with "ideal" language, it would still be just another UN document. Only 27 nations have signed the Convention; the United States, for example, is noticeably absent from the pact.
Such conventions have no real legal basis nor mechanisms for enforcement, although they do serve as a basis to argue legal and ethical positions. The International Court of Justice, for example, could be a forum to attempt protection of indigenous peoples in IPR cases. (Whether this will ever occur is debatable.) The UN General Assembly or member states have to initiate any action. Given the current apathy toward indigenous issues and the vested interests of influential national and international economic forces, such action is difficult to imagine.
THE GENERAL ASSEMBLY
The ILO is not the only UN organization concerned with indigenous issues. Within the General Assembly itself, the Third Committee deals with social and humanitarian issues and the Fourth Committee considers decolonization issues. both have the capacity to deal with IPR questions. However, "owing to the existing inadequacy of international legislation and the political constraints of intergovernmental debates, little effort has hitherto been made regarding indigenous issues in the UN General Assembly" (Aga Kahn and Talal 1987:121).
In 1972, the United Nations Economic and Social Council (ECOSOC) authorized the Commission on Human Rights to form a special subcommission "to conduct a broad study of the problem of discrimination against indigenous peoples" (Aga Kahn and Talal 1987:121). After a lengthy delay, a voluminous report announced that present international instruments are not "wholly adequate for the recognition and promotion of the specific rights of indigenous populations as such within the overall societies of the countries in which they now live."
In 1982 ECOSOC created a Working Group on Indigenous Populations, which has worked to prepare a Declaration of Principles on Indigenous Rights for proclamation at the General Assembly. While the Working Group is the most open international forum for Indians and advocates of Indian rights, unfortunately it meets only five days per year. While the group is sensitive to IPR questions, it has little time to resolve the urgent and enormous tasks entrusted to it.
THE WORLD BANK
Few international institutions have as much impact on the planet as the World Bank. Its huge budgets feed some of the most environmentally and socially destructive projects ever conceived. Under headings such as "agroforestry," "watershed," and "industrial plantations," human and ecological concerns are discarded in favor of "returns on investment logic" (Shiva 1989:23). Despite "progressive" development guidelines that claim to protect indigenous peoples and biodiversity, the World Bank relentlessly continues to fund massive dams, roads, monocultural agriculture, and forestry, defying clear scientific evidence of the environmental and human devastation wrought by such projects.
Recent reorganizations within the Bank and a new barrage of rhetoric claiming more environmentally and socially sound policies offer some hope. Increasing pressure from member countries has forced some changes, too. But even the Bank's own official admits it is very difficult to turn around such a huge, rich, and mismanaged organization (Irwin 1990). The World Bank's momentum is so strong that even with dramatic changes one wonders if the world can survive the World Bank.
Nonetheless, the Bank should be encouraged to put IPR clauses into all of its projects affecting indigenous peoples. Under such clauses, gaining permission and providing just compensation would be prerequisites for project approval.
Developing countries claim that their massive international debt forces them to sell natural resources in order to reduce their debt burdens. However, this argument cuts sharply back to the undervalued tropical forest. If the true value of the living forest were utilized, the countries would generate more income, justifying maintenance of the forest and its peoples. But the World Bank makes very little investment in basic ethnobiological research, and even less in studies on the transfer of traditional knowledge to larger-scale resource management systems. This is true not only for the World Bank, but for all international, multinational, and multilateral banks, as well as national development agencies.
The United Nations Educational, Scientific, and Cultural Organization (UNESCO) is perhaps the most logical place to deal with IPR as a fundamental right of indigenous peoples. Although UNESCO hears "petitions" of complaints by indigenous peoples in the fields of education, science, culture, and information, indigenous questions are still only marginal to the agenda of UNESCO's executive board. UNESCO representatives have at least some tacit interest in IPR, however, and some action might follow if member states apply sufficient pressure.
WORLD INTELLECTUAL PROPERTY ORGANIZATION
Of the UN agencies, the United Nations World Intellectual Property Organization (WIPO) in Geneva is best situated to develop an international convention recognizing and protecting IPR of indigenous peoples. Its 123 member states have already reached broad agreements on "industrial property" and "copyright" (WIPO 1989a).
Industrial property deals chiefly with inventions, trademarks, industrial designs, and appellations of origin. Copyright deals chiefly in literary, musical, artistic, photographic, and cinematographic works (WIPO 1989a).
Industrial property agreements have never been applied to indigenous knowledge or handicrafts. Copyright laws have proven ineffective because they depend upon identifying specific individuals who have produced the "work" to be copyrighted. Folklore represents traditions that transcend the lifespan of individuals.
In 1984, WIPO developed "Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions" (WIPO 1985). The impetus for the Model Provisions came out of the "multiple abuses," "distortions," and "mutilation" of folklore traditions being provoked by the "spectacular development of technology" in audio-visual productions, phonograms, broadcasting, cable television, and so on. The Model Provisions recognize that "no share of the returns from ... exploitation is conceded to the communities who have developed and maintained [folklore]."
WIPO's International Board, which prepared the sui generis Model Provisions, sought to maintain a "proper balance between protection against abuses of expressions of folklore, on the one hand, and ... encouragement of their further development, dissemination and also adaptation ... on the other." The board emphasized that "a major part of the expressions of folklore form a living body of human culture which should not be stifled by too rigid a protection. It should also be kept in mind that protection should be practicable and effective, rather than remaining a system of imaginative requirements unworkable in reality" (WIPO 1989b:4).
The Model Provisions recognize both individual and collective folklore traditions. The words expressions and productions are used instead of work to protect folk traditions. Also, folklore need not be "reduced to material form" (i.e., written down) to be protected.
The Model Provisions avoid dealing with the concept of "ownership," since the legal "owner" of folkloric traditions, in some countries, is the state. The "competent authority" or "community concerned" must authorize any use and can fix and collect fees. Compensation for "authorized use" is to be negotiated during the authorization process.
Unauthorized use or willful distortion of folklore "prejudicial to the cultural interests of the community concerned" is a punishable offense. Fines, seizure, and imprisonment are foreseen as enforcement measures.
Unfortunately, the Model Provisions are nothing more than proposals for member states; no country to date has adopted them. Furthermore, members of WIPOs' and UNESCO's Group of Experts, which reviewed the Model Provisions in 1984, recognized the urgent need for international protection of expressions of folklore but concluded that an international protection of expressions of folklore but concluded that an international treaty would be premature. Their reasons were (1) the appropriate sources for identifying such expressions of folklore were lacking, and (2) no workable mechanisms for settling disputes could be found. This is supported by Item 58 of the Model Provisions: "It is quite obvious that no State could enter into an obligation under an international convention for the protection of foreign expressions of folklore if it did now know what expressions of folklore of other member States should really be protected."
Of course, this situation could be remedied by putting the burden on states and individuals to investigate whether a song, dance, or story is "protected folklore." Acquiescence to the Group of Experts' arguments is akin to allowing people to steal property whenever the owner has failed to announce his or her possession. With just such statements, the WIPO Model Provisions began to stagnate. No further developments have occurred since 1984, although the original document has made some contribution. Recognition of collective and individual "expressions" and "productions" removed folk expressions from the necessity of having the "personality" of a creator of artist as required by copyright law. And establishing the principle that unwritten or oral expressions are protected and that fees for such expressions should be paid (with criminal penalties for unauthorized use) was - in the bureaucratic mire of international politics - something of a triumph.
Perhaps the only concrete development the Model Provisions generated was the application of "neighboring rights" to protect indigenous performers. Using this principle, folkloric expressions are considered the same as the "performance of a work" and, therefore, are protected under international copyright agreements as set out in the 1961 Rome Convention for the Protection of Performers.
Pointedly, the Model Provisions do not refer to the "scientific views" of indigenous peoples. In part this is due to the bureaucratic functioning of WIPO and other UN organizations, which were not specifically instructed to provide Model Provisions for this area and felt obliged not to do so. The General Assembly and/or member countries would need to make specific requests to WIPO in order to effect similar Model Provisions for scientific IPR issues.
UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS
The Union for the Protection of New Varieties of Plants (UPOV) is an independent, intergovernmental organization with a legal personality. It is linked to WIPO in that its secretariat is located in the same building and its secretary-general doubles as WIPO's director general. UPOV established a Convention in 1961 (amended in 1972 and 1978; see WIPO 1989a: 38) for the protection of breeders of new plant varieties. Under the international convention, natural or legal persons residing in member states can acquire protection for plant varieties that they have developed that are "clearly distinguishable," "sufficiently homogeneous," and "stable in essential characteristics" (WIPO 1989a:40). Breeder's authorization is not required, however, when the protected variety is used to create other varieties. The Convention calls for the breeder to be compensated for use of the protected variety. However, UPOV has not heard any cases in which native peoples are cited as plant "breeders," although ethnobiologists, geneticists, and botanists can now show that the origins of hundreds of domesticated varieties lie with indigenous selection for and improvement of genetic traits. Even "wild" varieties may show extensive selection for millennia with resultant genetic improvements, although these varieties were never brought into a "domesticated" status (Posey 1983). The time is ripe for the UPOV Convention to be used in favor of indigenous plant breeders.
FOOD AND AGRICULTURE ORGANIZATION
In a series of conferences, the United Nations Food and Agriculture Organization (FAO) tackled the questions of "farmers' rights" and "breeders' rights," looking for ways that developing countries and "Third World farmers" could get a share in the US$15 billion per year seed market.
Basic food crops, such as rice, maize, and wheat, were originally acquired from native peoples. Genetic material from "wild stock" is still needed to breed into existing varieties the resistance necessary to sustain economic production (Kloppenburg and Kleinman 1987). Third World countries are in an enviable position since they "possess the greatest genetic wealth of edible plants at a time when plant genes are in greatest demand in the flourishing biotechnology industry" (Hurtado). Yet developing countries continue to be reluctant to demand IPR protection for their genetic resources (Farrington 1989).
In 1987 the FAO established a plant genetic resources fund. Linking contributions to the volume of total seed sales, it aimed to produce a fund for projects for the unsustainable use of plant genetic resources in the Third World. Unfortunately, contributions are voluntary and the fund wholly inadequate.
Major seed producers such as the United States oppose mandatory contributions to the fund; in fact, the United States has refused even to participate in FAO discussions in this area. Instead, the United States has pushed for patent rights for all laboratory improved varieties. Opponents warn that if the United States gets its way "the only forms of human innovation that will not be patentable will be those of informal innovators in the Third World" (Hurtado).
The question of "rights" to plant genetic material is at the cutting edge of the IPR issue. Much of the FAO's and WIPO's activity is in the battle for the "new order" between the First and Third Worlds. Existing international conventions are simply inadequate to handle biotechnological questions. Since it is so against their interest, technologically advanced countries such as the United States will continue to oppose any move toward just compensation of native peoples. After all, the success of First World countries still relies on the acquisition of cheap (or free, in the case of most plant genetic stock) raw materials and cheap labor to do the basic processing. If the industrialized world paid fair market values for essential raw materials, the West's consumer bubble would burst overnight.
OTHER UN AGENCIES
Other UN organizations, such as the United Nations Environment Programme (UNEP), the United Nations Conference on Trade and Development (UNCTAD), the United Nations Industrial Development Organization (UNIDO), and the World Health Organization (WHO), could advance political and legal procedures to guarantee indigenous peoples their intellectual rights as well as protection of their homelands from ecologically unsound exploitation. They also could encourage the application of traditional medicine, the transfer of agricultural and forestry management technologies, and the development of alternative products from the living forest. But they need to work together. Only a call from the General Assembly could spark such a coordinated interest.
INTERNATIONAL UNION FOR THE CONSERVATIVE OF NATURE
The International Union for the Conservation of Nature (IUCN), an international body of member states, government agencies, and NGOs, is actively alerting the conservation community to the importance of indigenous peoples in conserving biological diversity. The IUCN Commission on Ecology, the Task Force on Traditional Knowledge, the Plant Programme, the Species Survival Commission, and the Commission on National Parks and Protected Areas are all working together to improve the relationships between indigenous peoples and protected areas. Together with the World Bank and the FAO, the Tropical Forest Action Plan (TFAP) encourages the application of and respect for traditional knowledge in establishing international forest policy.
According to Shiva (1987), however, the TFAP is anything but favorable toward indigenous peoples and is "biased against the poor, both in form and content." Shiva (1987:13-14) further claims that the plan is nothing more than an extension and expansion of ongoing World Bank forestry projects that have had "serious negative social and ecological impacts." Claiming the plan "totally neglects the rights of indigenous peoples who have lived in tropical forests since time immemorial," she calls for a total boycott of the TFAP and denounces its intentionally misleading language - language which gives no value to either biological or cultural diversity.
The IUCN was also a key player in developing the World Conservation Strategy (WCS), which calls for the preservation of cultural diversity represented in indigenous societies that provide "the human intellectual `gene pool,' the basic raw material for adapting to the local environment" (McNeely 1989:3). The IUCN stresses that to conserve cultural diversity it is necessary to "give appropriate value to traditional rights, knowledge, and skills." It also suggests that financial and technical resources be made available to indigenous peoples to allow them to conduct their own research and design their own projects in the "application of traditional wisdom to modern resource management." The IUCN also calls for major funding of projects utilizing traditional knowledge in the development of sustainably produced systems of resource management (McNeely 1989:11-13).
The IUCN is working with UN agencies to develop a convention on the conservation of biological diversity (IUCN 1989). Although the UN is far from agreeing upon such a convention, fruitful interchanges are occurring on the complicated issues of human beings and the conservation of biodiversity. IPR issues could easily become part of this discussion, and ultimately the convention.
Since the IUCN works in the international community and is in UN offices in Geneva - but is not part of the UN bureaucracy - it could prove to be crucial to the development of an international convention on IPR for native peoples. Its breadth of interests - from agroforestry to plant genetic resource conservation - also puts it in an enviable position to bridge gaps among the academic community, government protocol, business, and indigenous concerns.
The Organization of American States (OAS) has long had an Inter-American Commission on Human Rights; but the commission has never considered IPR in its discussions. The Inter-American Indian Institute (IAII) was chartered by the OAS to promote indigenous issues, including fostering an appreciation for indigenous knowledge. Although IPR has not figured into the IAII's actions in the past, its director was one of the signers of the Declaration of Belemé. Futu discussions may include the implications of "just compensation" for indigenous peoples of the Americas. The IAII is an ideal place for such a dialogue, offering many indigenous leaders a chance to express themselves in public forums and symposia.
African, Asian, and European regional organizations, such as the Africa-Asia Legal Consultative Committee, the Organization of Islamic Conference, and the Organization of African Unity, have human rights committees but give little attention to indigenous issues (Aga Kahn and Talal 1987:127).
None of the major indigenous legal institutions, such as the International Indian Treaty Council and the Indian Law Resource Center, have dealt with IPR to date. Their legal expertise could help flesh out the language necessary to protect and encourage traditional knowledge. They would also bring such issues before the courts by filing complaints in state legal systems.
The International Society of Ethnobioligy (ISE) has a Working Group on Ethical Issues. IPR is the focus of the group's concerns; it held a major symposium at the Second International Congress of Ethnobiology in Kunming, China, last October. The Working Group would like to give the ISE at its 1992 Congress practical guidelines for an international convention that, with help from UN agencies and member states - and outside pressure - will be adopted by the General Assembly.
The IUCN, under the auspices of the European Environmental Bureau of the European Economic Community, established a European Working Group on Amazonia. Based in Brussels, the Working Group is increasingly interested in indigenous affairs and IPR.
The Society for Applied Anthropology in its 1990 annual meeting in York, England, sponsored a special symposium on indigenous rights that included discussion of IPR. The society decided to dedicate its efforts in 1990-1991 to fostering research and debate on IPR, culminating with a key symposium at its 1991 annual meeting.
The Gaia Foundation of London sponsored its first specific meeting on IPR hoping to develop a world strategy to protect and compensate traditional knowledge. It also established a Forest People's Fund offering financial support to indigenous peoples to develop their own projects for preserving the forest and traditional knowledge.
Indigenous IPR is particularly relevant to Cultural Survival, since it is leading the way in developing markets for sustainably produced, natural products produced by indigenous peoples.
The World Wildlife Fund for Nature - International is funding a literature research project on the complex issues of IPR and just compensation. The project is being carried out by members of the International Society for Ethnobiology. IWGIA (International Work Group for Indigenous Affairs), based on Denmark, is also carrying out a special research project on IPR funded by WWF-UK.
The current devastation of native peoples and the ecological systems that they have conserved, managed, and intimately known for millennia require new and drastic steps to reorient world priorities. All channels and organizations - governmental, nongovernmental, professional, business - must work together to reverse the current momentum in the loss of cultural, ecological, and biological diversity of this planet.
REFERENCES Aga Kahn, S. and H. Talal
1987 Indigenous Peoples: A Global Quest for Justice. London: Zed Books. (Available from Cultural Survival.)
1989 Agricultural Biotechnology: Prospects for the Third World. London: Overseas Development Institute.
1990 Why I've Had It With The World Bank. The Wall Street Journal. 30 March.
1989 Draft Articles Prepared by IUCN for Inclusion in a Proposed Convention on the Conservation of Biological Diversity and for the Establishment of a Fund for that Purpose. Gland, Switzerland: IUCN.
Kloppenburg, J., Jr. and D.L. Kleinman
1987 Seed Wars: Common Heritage, Private Property, and Political Strategy. Socialist Review 95 (September/October):7-41.
1989 Conserving Cultural Diversity: How the Variety of Human Experience Can Help Promote Sustainable Forms of Using Natural Resources. Gland, Switzerland: IUCN
1983 Indigenous Knowledge and Development in the Amazon. In E. Moran, ed. The Dilemma of Amazonian Development. pp. 225-227. Boulder, CO: West-view Press.
1987 Forestry Crisis and Forest Myths: A Critical Review of Tropical Forests. Penang, Malaysia: World Rain Forest Movement.
1985 Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions. Geneva, Switzerland: World Intellectual Property Organization/United Nations Educational, Scientific and Cultural Organization/United Nations.
1989a World Intellectual Property Organization General Information. Geneva, Switzerland: WIPO/UN.
1989b General Introductory Course on Copyright and Neighboring Rights: Protection of Expressions of Folklore. Geneva, Switzerland: WIPO/UN.
Article copyright Cultural Survival, Inc.