Intellectual Property Responsibilities
In the Fulani village of Bainjong in Cameroon, a calf afflicted by an infectious disease is treated with a preparation that begins with the harvesting of certain mistletoe leaves; ethnoveterinarian Ardo Umaruis completes this task early in the morning before speaking to anyone. He pounds the leaves into a dry powder and washes a verse from the Koran, written in Arabic ink on a Koranic board, into the powder. When sprinkled onto the calf for seven days, this mixture provides immunity for one year. Alternatively, the inner fibers of the bark of a particular legume are tied into seven knots. Umarius then makes a recitation in Fulfulde, his native language, and fixes the rope around the neck of the afflicted animal, ensuring recovery. (Nuwanyakpa et al., 2000)
There are two approaches to harnessing such indigenous medicinal knowledge: one invalidates cultural practice or destroys the arena from whence a unique prescription has emerged and the other builds or promotes relationships between collectives and is an avenue for financial reward (an empowerment model). In an empowerment model, indigenous peoples alone -- whether or not they hold legal title -- have the right to authorize technological and scientific research conducted within their territories; they control the manipulation of their knowledge. Management techniques, often governed by strict rules and regulations as well as age and sex taboos are generally poorly understood and unappreciated by the world at large. The onus is on indigenous peoples to define their own cultural property and decide what is to be made known to the world and what must remain private or personal.
Inheritors of indigenous intellectual property worldwide have experienced the illegal exploitation of their cultural and intellectual knowledge, whether this be the misappropriation of sacred clan symbols for display on T-shirts, or the unethical patenting of age-old tribal remedies. But the overriding message of recently signed international declarations -- Kari-Oca in 1992 or Mataatua in 1993 (Posey, 1999) -- is that while indigenous peoples will continue to oppose and resist such theft, they are willing to share their traditional intellectual heritage as an avenue toward nation-building provided that they are the first beneficiaries of any subsequent bankrolling of an indigenous remedy, practice or creation.
There is growing momentum at the UN level for the establishment of an international and indigenous-run authority to facilitate a model of indigenous knowledge transfer that promotes biodiversity conservation and cultural survival. The Julayinbul Statement on Indigenous Intellectual Property Rights, the Declaration of Principles of the World Council of Indigenous Peoples, the Indigenous Peoples' Earth Charter, etc., set a benchmark for the protection and promotion of indigenous knowledge or intellectual property. These declarations recognize indigenous peoples as the guardians of their customary knowledge and cultural objects, and of flora and fauna inextricably bound to indigenous territories. They provide evidence of the sustained and devastating abuse suffered by indigenous peoples at the hands of colonizers, but also signal a desire to see this exploitative trend reversed as part of a transformation of North-South economic and political relations.
A close examination of these and other declarations, however, highlights a number of serious omissions and unrealistic expectations:
1. The attitude that indigenous knowledge is a potential boon for developers and first peoples if it can be scientifically validated, proven to be widely applicable, and made public treats indigenous knowledge not as integral to living dynamic traditional societies but as a commodity to be sold to the highest bidder on the international market, without consideration for the cultural context of its origins.
2. The argument that indigenous knowledge is a strategic tool in the quest by indigenous people to reclaim their right to self-determination and autonomy perpetuates a view of the world as interested in indigenous people only insofar as they have the capacity to offer up something of themselves for the material gain of others.
3. Some declarations include a non-commercialist, almost spiritual, plea emphasizing the need to learn from the idealized existence of pre-contact populations. The 1994 Bolivia Declaration of Elders and Wise Persons of Diverse Indigenous Traditions, for instance, calls for the popularization of the reverent use of indigenous goods and knowledge on every parcel of land available and in every home -- and links this with the salvation of humankind and the planet.(1)
4. The perilous situation of indigenous peoples and their traditional knowledge is insufficiently highlighted. The wide-scale destruction of forests, pollution of water resources, massive resettlement programs, and the flight of indigenous people away from home territories poses a major threat to the continued existence of this treasured wisdom.
Indigenous peoples make up 70 to 80 percent of the world's cultural diversity, and there is a marked correlation between cultural diversity and biological diversity (Gray, 1999). Indigenous peoples believe that the careful management of indigenous knowledge can be a mechanism for the protection, reconstitution, and development of indigenous lifeways, but it is an uphill battle.
Patents, copyrights, and trademarks are mechanisms designed to protect an inventor, creator, or designer's individual creations or novel company investments. Inventions, defined by the World Intellectual Property Organization as new ideas that solve a particular problem in a technical field, are covered by patents, which protect the owner of the patent from having his product copied by competitors. Copyrights protect literary, scientific, and artistic works, as well as computer software. Copyrights do not protect ideas as such; rather they protect the specific way in which the author has chosen to express the idea. Trademarks, another form of intellectual property protection, distinguish the products of one firm from those of other firms in a related field. According to Greaves (1996) such legal measures fall far short of protecting the intellectual property rights and biological resources of indigenous peoples. Indigenous or local knowledge is unique to a given culture or society, and it contrasts with knowledge generated, say, within universities or other research institutions; it is a communal inheritance, often specific to a particular locality or way of life. The use of traditional knowledge is governed by community regulation. It has no identifiable author and is already in the public domain, and therefore cannot be protected under current copyright and patent laws.
According to Nakashima et al. (2000), UNESCO is best placed to address the issue of indigenous rights protection and promotion. Since the 1970s, UNESCO has been investigating ways to protect traditional knowledge and management systems, and has recently embarked on a preliminary study to investigate the legal and technical implications of the establishment of an international normative instrument.(2) Only a UN monitoring agency can secure the cooperation of the 70 nations worldwide with indigenous populations. Directed by indigenous peoples, such an agency would provide legal and political advice, develop mechanisms for knowledge protection and compensation, and also monitor unethical activities. Its underlying mission will be not only to protect indigenous peoples' intellectual property rights, but also to emphasize to all utilizers of this knowledge their collective responsibility to honor indigenous peoples' sovereign rights of inheritance and to compensate them adequately for the privilege of sharing in such a bounty.
References & further reading
Gray, A. (1999). Indigenous Peoples, their Environments and Territories. In Cultural and Spiritual Values of Biodiversity. London: Intermediate Technology Publications (United Nations Environment Program), pp 61-118.
Greaves, T. (1996). Tribal Rights. In Brush, S.B. & Stabinsky, D., eds. Valuing Local Knowledge: Indigenous Peoples and Intellectual Property Rights. Washington D.C.: Island Press, pp 25-40.
UNESCO Sources (2000, No. 125 July-August 11-12). Tapping into the World's Wisdom. Washington, D.C.: Nakashima, D., Prott, L., & Bridgewater, P.
Nuwanyakpa, M., Toyang, N.G., Django, S., Ndi, C., & Wirmum, C. (2000). Ethnoveterinary healing practices of Fulani pastoralists in Cameroon: combining the natural and the supernatural. Indigenous Knowledge and Development Monitor 8:2, pp 3-6.
Posey, D.A. (1999). Introduction: Culture and Nature -- The Inextricable Link, Cultural and Spiritual Values of Biodiversity. London: Intermediate Technology Publications (United Nations Environment Program), pp 3-18.
Soyinka, W. (1999). The Burden of Memory, the Muse of Forgiveness. Oxford: Oxford University Press.
1. This is akin to African writer Leopold Senghor's controversial view that it was Africa's destiny -- via the devastating institution of slavery -- "to be leaven for the exhausted dough of European humanity." (Soyinka 1999)
2. The need to recognize novel indigenous inventions is documented in the 1992 Rio Declaration and the Convention on Biodiversity. It was also discussed at the 1999 Budapest World Conference on Science.
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