The CBD is the first international agreement acknowledging the
role and contribution of indigenous and local communities in the
conservation and sustainable use of biodiversity. It has been
signed by 169 nations including Australia, UK and US.
The main reasons that led to the Convention include;
the need to introduce standards and measures to encourage countries
to conserve their biological diversity through conservation and
sustainable use;
to restrain the unregulated and out-of-control international
trade in genetic materials and species
to provide a firm international basis for balancing competing
concerns arising from bioprospecting
The Convention imposes general obligations relevant to the conservation,
sustainable use, sharing of information on, and equitable sharing
of benefits derived from biodiversity. Each party has an obligation
(subject to their particular national circumstances) to develop
national legislation 'as far as possible and as appropriate' in
order to:
respect, preserve and maintain knowledge, innovations
and practices of indigenous and local communities embodying traditional
lifestyles relevant for the conservation and sustainable use of
biological diversity and
promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and
practices and
encourage the equitable sharing of the benefits arising
from the utilization of such knowledge, innovations and practices
(Article 8(j))
Parties to the CBD are also obliged and encouraged to:
protect and encourage customary use of biological resources
in accordance with traditional cultural practices that are compatible
with conservation or sustainable use requirements (Article 10(c))
develop and use indigenous and traditional technologies,
in pursuance of the objectives of this Convention (Article 18(4))
Under the FAO International Undertaking on Plant Genetic Resources
in 1983, genetic resources were regarded as the common heritage
of mankind. However, under the CBD, States are recognised as the
owners of the natural biological resources in their territories
including their genetic resources and thus have a sovereign right
to exploit their natural resources and determine access. Access
to genetic resources (Articles 15, 16, 19) must be consistent to
the partiesí obligation to respect, preserve and maintain traditional
knowledge, innovation and practices (Article 8(j)). States have
a responsibility under the CBD to facilitate access to, and benefit
sharing arising from the use of biological resources and to subject
all access to prior informed consent according to mutually agreed
terms (Articles 15(2)(4)(5).
In 1983, the international undertaking on Plant Genetic Resources
for Food and Agriculture was the first comprehensive international
agreement dealing with plant genetic resources for food and agriculture.
The International Treaty on Plant Genetic Resources for Food and
Agriculture was adopted by the FAO Conference on 3 November 2001.
Australia is a signatory to this non-binding agreement.
The objectives of the treaty are:
conservation and sustainable use of plant genetic resources
for food and agriculture
fair and equitable sharing of the benefits arising out
of their use in
harmony with the CBD for sustainable agriculture and
food security.
The treaty obliges States to ìpromote or support, as appropriate,
farmers and local communitiesí efforts to manage and conserve on-farm
their plant genetic resources for food and agriculture.î Part III
of the treaty recognises the enormous contribution of local and
indigenous communities and farmers of all regions of the world,
to the
conservation and development of plant genetic resources.
Contracting parties are obliged to take measures to protect and
promote farmersí rights including
protection of traditional knowledge
relevant to plant genetic resources for food and agriculture as
well as the right to share in the benefits and participate in decision
making (Article 9,2). The treaty sets up a multilateral system of
access and benefit sharing.
1.3.WTO Agreement
on Trade-Related Aspects of IPRs (1994)
The Trade Related Aspects of Intellectual Property Rights Agreement
requires as a general rule that patents be granted in all areas
of technology without discrimination (Article 27).
Article 27.3(b) provides a limited exception to the general
rule on scope of patentable subject matter
- WTO members do not have to, but may, provide protection for
plant and animal inventions and for biological processes for
producing plants and animals
- Members must provide patent protection for micro-organisms
and non biological and microbiological processes
- Members must also provide some form of protection for new
plant varieties (patents, a sui generis system such as plant
breederís rights or a combination of both)
The WTO Council for TRIPS is currently revising Article 27.3 (b)
of the TRIPS Agreement, which deals with the patentability of traditional
knowledge. The 2001
Doha
Declaration of the Fourth WTO Ministerial Conference says that
work in the TRIPS Council on these reviews should examine the relationship
between the TRIPS agreement and the UN Convention on Biodiversity;
the protection of traditional knowledge and folklore; and other
relevant new developments.
1.4.Convention 169 of ILO Indigenous and Tribal
Peoples Convention (1989)
Convention 169 of the International Labour Organization recognises
and protects the social, cultural, religious and spiritual values
and practices of indigenous and tribal peoples. Article 4 provides
for special measures to be adopted as appropriate for
safeguarding
the persons, institutions,
property, labour, cultures and
environment of the peoples concerned. Article 8 states the need
for the recognition of customary law systems. The Convention has
not been ratified by Australia
1.5.Draft Declaration on
the Rights of Indigenous Peoples
This declaration has been developed by the UN Working Group
on Indigenous Populations.
Article 24 of the Draft Declaration
provides for indigenous peoplesí rights to their traditional
medicinesand health practices, including the right to the
protection of vital medicinal plants, animals and minerals. The
right of indigenous peoples to own and control their
intellectual and cultural property is recognised in article
29, and indigenous sciences, technologies, genetic seeds, medicines
flora and fauna, languages, literature, designs and visual and
performing arts are all listed as included within this intellectual
property. Article 19 and 20 recognise the right of indigenous
peoples to participate in decisions affecting them,
using their own procedures and institutions in policy or lawmaking.
At the World Intellectual Property Organization's (WIPO) General
Assembly, 2000, Member States decided to establish a special body
to discuss intellectual property issues related to genetic resources,
traditional knowledge and folklore. This body, the
Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore, held its first session in Geneva, from
April 30 to May 3, 2001. The work of the Intergovernmental Committee
focuses on three primary themes based on intellectual property issues
that arise in the context of:
access to genetic resources and benefit-sharing;
protection of traditional knowledge, innovations and creativity,
whether or not associated with those resources; and
the protection of expressions of folklore, including handicrafts.
WIPO have hosted a Roundtable
on Intellectual Property and Traditional Knowledge in Geneva,
in November 1999 and another Roundtable
on Intellectual Property and Indigenous Peoples in Geneva,
in July 1998.
2. Traditional knowledge: Regional Measures
At the regional level, several intergovernmental organizations
and associations have enacted laws or model laws to protect traditional
knowledge and deal with access to genetic resources and benefit-sharing.
2.1 Working Group
for Legal Experts on the Protection of Traditional Knowledge and
Expressions of Culture (2002)
The Working Group for Legal Experts on the Protection of Traditional
Knowledge and Expressions of Culture met in Noumea, New Caledonia
from 26-28 June 2002. The Working Group was convened by
the Secretariat of the Pacific Community (SPC), which is the premier
regional technical and development organisation of the Pacific.
The SPC is currently running a Legal Protection Project, in partnership
with the Forum Secretariat and UNESCO, which is aimed at promoting
legislation in the Pacific Islands for the protection of traditional
knowledge and expressions of culture. Participating in the meeting
were delegates from Fiji, New Caledonia, New Zealand, Palau, Papua
New Guinea, Tonga, Vanuatu and Australia, as well as delegates
from the SPC, the Pacific Islands Forum Secretariat and WIPO.
The Working Group has produced a Draft Model Law for the Protection
of Traditional Knowledge and Expressions of Culture, which
establishes a new range of statutory rights for traditional owners
of traditional knowledge and expressions of culture. The approach
taken in the Draft Model Law is to protect the rights of traditional
owners in their traditional knowledge and expressions of culture
and permit tradition-based creativity and innovation, including
commercialisation thereof, subject to prior informed consent and
benefit-sharing. The Draft Model Law also reflects the policy
that it should complement and not undermine intellectual property
rights.
The Draft Model Law will be circulated to member countries of
the SPC for their information and action as considered appropriate
by individual countries. The purpose of the Model law is to provide
a starting point for Pacific Island countries wishing to enact
legislation for the protection of traditional knowledge and expressions
of culture. As such, countries are free to adopt or adapt the
Draft Model Law as they see fit in accordance with national needs,
the wishes of their traditional communities and their legal drafting
traditions.
The Association of South East Asian countries agreement respects
the sovereignty of each Member State over their biological
and genetic resources and recognises the urgent need to protect
these interests from biopiracy. The Asean framework agreement
was developed to set minimum standards for determining access
to genetic resources.
Member States shall:
recognize, respect, preserve and maintain the knowledge,
innovations and practices of indigenous peoples and local
communities embodying traditional lifestyles to their natural
resources, including genetic resources;
accord recognition and protection to traditional knowledge
of indigenous peoples and local communities
;
ensure fair and equitable sharing of benefits arising
from the utilization of biological and genetic resources at the
community, national and regional levels
not allow the patenting of plants, animals, microorganisms
or any parts thereof, and traditional and indigenous knowledge;
designate a competent national authority to be responsible
for formulating and implementing national legislation on access
and establishing procedures for the granting of prior informed
consent which respect and comply with the customary laws,
practices and protocols of indigenous peoples and local communities
establish legal processes to ensure fair and equitable sharing
of benefits arising from the use of such knowledge and resources
The Organisation of African Unity passed the African Model
Law for the Protection of the Rights of Local Communities, Farmers
and Breeders, and for the Regulation of Access to Biological Resources.
The Model Law:
Aims to prevent loss of traditional medicinal plants (the basis
of health care), seed and natural fibres and colours (basis of
arts and crafts of local communities)
Ensures that local communities, farmers and plant breeders
can contribute to and benefit from the sustainable development
of the region
Provides the basis to enable Member States to enact national
law in accordance with their national interest, economic development
objective and political orientation.
Prioritizes the need for regulating access to biological
resources, community knowledge and technologies and the implications
of intellectual property rights as entrenched in the TRIPS agreement.
The Model Law does not affect traditional systems of access,
use or exchange of biodiversity. Access to knowledge and technologies
by and between local communities is also safeguarded. Prior
informed consent is a cornerstone of access: the consent of
the State and local communities is required for access to biological
resources.
Benefit-sharing arising out of the use of ìbiological
resources, community knowledge, technologies, innovations or practicesî
is recognised as a ërightí of local communities.
State must guarantee that a specific percentage (minimum
50%) of any financial benefits returns to the local
community.
Non financial benefits may include:
- participation in research and development in order to develop
capacity
- repatriation of information on the biological resources accessed
- access to the technologies used to study and develop the biological
resource.
This Model law needs to be applied at a national level. The preamble
establishes that ìit is the duty of the State and its people to
regulate access to biological resources, and to community knowledge
and technologies.î The preamble also acknowledges the need to implement
the provisions of the CBD concerning traditional knowledge.
The Inter-Regional
Workshop on Intellectual Property Rights in the Context of Traditional
Medicine was held in Bangkok by the World Health Organisation
in December 2000. The participants at this meeting made the following
recommendations.
Countries should have a national policy on traditional medicine
as part of the national health policy
Ways and means need to be devised and customary laws strengthened
for the protection of traditional medicine knowledge of the community
from biopiracy.
Traditional knowledge which is in the public domain needs to
be documented in the form of traditional knowledge digital libraries
in the respective countries
WHO, in cooperation with other agencies including UNCTAD, needs
to support the initiatives taken by governments of Member States
for capacity building, implementation and enforcing the legislation
to protect and promote traditional medicine knowledge through
training, seminars and workshops.
Governments should develop and use all possible systems including
the sui generis model for traditional medicine protection
and equitable benefit sharing.
Traditional knowledge should be recognized in the form and
concepts of the traditional medicine system of a particular country,
and not necessarily on a western model.
Promote easy access to traditional medicine for the health
care needs of developing countries under the TRIPS Agreement.
In 1996, the Andean Community Member Countries (Bolivia, Colombia,
Ecuador, Peru and Venezuela) adopted Decision 391: Common System
on Access to Genetic Resources which is the first sub-regional
access and benefit sharing legislative measure in response to
Article 15 of the CBD. The agreement was developed to ensure that
national access regulations are uniform and consistent with the
identified minimum standards.
The Andean Pact Common System on
Access requires applicants seeking access to obtain the prior
informed consent of, and share benefits with, both the Competent
National Authority and indigenous, Afro-American and local communities.
The Pact provides a common framework to all Member Countries
for regulating access to genetic resources.
- Must apply for access to genetic resources to the Competent
National Authority in the country where the resources are
located and enter into a contractual arrangement.
- Where access to genetic resources or their derivatives,
includes access to traditional knowledge, prior informed
consent of these communities is required.
- Recognises the rights and decision making capacities
of indigenous, afro-americans and local communities with
regard to their traditional knowledge, practices and innovations
connected with genetic resources.
In September 2000, the Andean Community adopted a new intellectual
property rights system: Decision 486 to bring the Andean countries
in line with the WTO Agreement
on Trade-Related Aspects of IPRs. Decision 486 provides that
patent applications for a product or process obtained from traditional
knowledge of indigenous, Afro-American or local communities of any
of the Member States shall include a copy of the document licensing
or authorising its use from the community (in accordance with
Decision 391). Non compliance with access regulations gives rise
to a possible cancellation of any intellectual property (Article
75).
Several countries have carried out domestic actions to establish
control over access to their genetic resources in order to implement
the equitable sharing of the benefits of their use
The objective of the Act include:
recognition of the role of indigenous people in the
conservation and ecologically sustainable use of Australia's biodiversity
promotion of the use of indigenous peoples' knowledge
of biodiversity with the involvement of, and in co-operation with,
the owners of the knowledge
The Act provides for indigenous representation on the statutory
Scientific and Biodiversity Committees and establishes a statutory
Indigenous Environment Advisory Committee. Under the EPBC Act, actions
that are likely to have a significant impact on a matter of national
environmental significance, are subject to a rigorous assessment
and approval process.
Under the EPBC Act, Australia has a responsibility to:
promote a cooperative approach to the protection and management
of the environment involving governments, the community (s3(1)(d))
assist in the cooperative implementation of Australiaís international
environmental responsibilities (s3(1)(e))
Section 301 establishes the legislative authority for regulations
to control access to biological resources in Commonwealth areas.
Under s301, the regulations may contain provisions about:
Equitable sharing of benefits arising from the use of biological
resources in Commonwealth areas
Facilitation of access to such resources
Right to deny access to such resources
Granting of access to such resources and the terms and conditions
of such access
The Environment Protection and Biodiversity Conservation Amendment
Regulations was a result of a recommendation of the Commonwealth
Public Inquiry into Access to Biological Resources in Commonwealth
Areas. The regulations cover the equitable sharing of benefits arising
from the use of biological resources and establish an access regime.
The party who is seeking access to biological resources in Commonwealth
areas must apply for an access permit (to be issued by Minister).
The applicant must negotiate a benefit-sharing contract with indigenous
owners, that covers commercial and other aspects with provider of
biological resources. The decision of Indigenous owners of biological
resources to deny access to their resources is not reviewable. The
Minister will issue a permit if he or she is satisfied that:
An environmental assessment was undertaken
Access would be ecologically sustainable
Benefit sharing contract addressing prior informed consent
of any Indigenous owners of biological resources, mutually agreed
terms, adequate benefit sharing arrangements including protection
for and valuing of Indigenous knowledge
Australiaís domestic obligations to facilitate access and benefit
sharing of biological resources involves a commitment to implement
the National Strategy
Objective 1.8: ìRecognise and ensure the continuity of
the contribution of the ethnobiological knowledge of Australiaís
indigenous peoples to the conservation of Australiaís biological
diversity
Objective 2.8: ìEnsure that the social and economic
benefits of the use of genetic material and products derived from
Australiaís biological diversity accrue to Australiaî
Queensland Biodiscovery Policy
As part of its efforts to position Queensland as the Smart State,
the Queensland Government is developing the Queensland
Biodiscovery Policy to regulate access to, and the utilisation
of, the State's native biological resources. The Policy aims to
encourage the development of a world-class biodiscovery industry
in Queensland while ensuring access to biological samples is based
on principles of ecological sustainability and ethical practice.
Proposed features of the Policy include:
a legal requirement that biodiscovery organisations seeking
access to native biological resources on State lands and waters
enter into a Benefit Sharing Agreement with the State to ensure
appropriate returns to Queensland
a new comprehensive, clear and efficient permitting regime
for biodiscovery based on a single Biodiscovery Collection Permit
and ecologically sustainable collection protocols; and
appropriate recognition of traditional knowledge of native biological
resources (e.g. knowledge of bush medicines, and other naturally
derived products).
The Biodiscovery Policy Discussion Paper has been prepared for
public consultation, and the closing date for submissions was
Friday 21 June, 2002. Organisations likely to have an interest
in the Discussion Paper include biotechnology organisations, pharmaceutical
companies, other producers of naturally derived bioproducts, biological
and taxonomic research organisations, patent law firms, venture
capital and investment funds, conservation and environment groups,
Aboriginal and Torres Strait Island communities and public interest
groups.
May 1995: Presidential Executive
Order No. 247 entitled ìPrescribing
Guidelines and Establishing a Regulatory Framework for the Prospecting
of Biological and Genetic Resources, their By-Products and Derivatives,
for Scientific and Commercial Purposes and for other Purposesî
ìIt is in the interest of the State's conservation efforts to
ensure that the research, collection, and use of species, genes
and their products be regulated, and to identify and recognize
the rights of indigenous cultural communities and other Philippine
communities to their traditional knowledge and practices
when this information is directly and indirectly put to commercial
use
June 1996: ì
Implementing
Rules and Regulations on the Prospecting of Biological and Genetic
Resourcesî details the process by which agencies will administer
Order no. 247 in order to regulate the research, collection, and
use of biological and genetic resources.
Prospecting of biological and genetic resources within areas
of local communities is only allowed with the prior informed
consent of the communities
Consent must be obtained in accordance with the customary laws
of the concerned community All benefits resulting directly or
indirectly from bioprospecting, shall be shared equitably and
upon mutual consent among the Philippine government, communities
concerned and the principal;
All biological and genetic resources is owned by the state
The Philippines Traditional
and Alternative Medicine Act (1997) provides that it shall
be State policy to seek a legally workable basis by which indigenous
societies would own their knowledge of traditional medicine.
When such knowledge is used by outsiders, the indigenous societies
can require the permitted users to acknowledge its source and
can demand a share of any financial returnthat may come
from its authorized commercial use. The Indigenous Peoples Rights
Act (1997) recognises the rights of indigenous people to control,
develop and protect their sciences, technologies and other cultural
manifestations including genetic resources and traditional knowledge.
Any access to biological and genetic resources and traditional
knowledge is only allowed with the free and informed consent of
the communities, obtained in accordance with customary law.
3.4 Thailand: Medical Intellectual Protection and
Promotion Bill
The Thai Medical Intellectual Protection and Promotion Bill is
aimed at protecting traditional healers and existing knowledge
of Thai herbs and traditional medicine. The law covers all types
of plant species used for healing and allows Thai healers to register
traditional medicines. Companies and researchers who want to make
use of Thai traditional knowledge must ask for permission from
the owners of the knowledge. Traditional knowledge will be registered
and verified by the State. As a consequence, the rights holders
will have the rights to earn benefits over their knowledge only
for commercial aspects. For the public use, the resources may
be utilised without charge.
The legislation was effected before Thailand ratified the Convention
Biological Diversity, in order to allow Thai healers to claim
benefits before ratification and prevent the herbal knowledge
used for research and development being licensed by foreigners.
The U.S Department of State challenged the bill on the basis that
"such a registration system could hamper medical research
into these compounds." The law is only effective within Thailand,
therefore it is possible to use Thai plant varieties abroad without
complying with Thai plant variety protection or patent law. In
this case, the Thai government cannot force a person or organization
to pay for the compensation. In principle, the use of Thai genetic
resources outside of the country could be regulated by the access
regime and benefit sharing mechanisms that are stated by the Convention
on Biological Diversity, which Thailand signed in 1992 but did
not ratify.
The Biodiversity and Community Knowledge Protection Act of Bangladesh
establishes the
sovereign rights of the people of Bangladesh
over the biological and genetic resources and related intellectual
and cultural knowledge.
Ensures access to all citizens of Bangladesh to biological
and genetic resources and the related knowledge, intellectual
practice and culture if within cultural, traditional, customary
practices and/or and not to make economic profit.
Prohibits patenting of biological and genetic resources
and related knowledges, practices and culture because they are
commonly owned and used
Requires prior informed consent and effective participation
of communities before such resources are sold, assigned, transferred
or dealt with
Ensures benefit-sharing of at least 50% of net monetary
gain for any direct/indirect commercial use of biological and
genetic resources of resources owned by the communities
Bioprospecting is a means to conserve and share endangered indigenous
knowledge while making sure that any resulting commercial benefits
are shared with indigenous people. Others contend that in the
absence of effective community, national and international mechanisms,
bioprospecting equates to biopiracy. A US government initiative
ìDrug Discovery and Biodiversity among the Maya of Mexicoî sought
to identify, patent and commercialise Mayan knowledge and pharmalocially
important biological materials through private biopharmaceutical
enterprise and the University of Georgia. This project formed
part of the International Cooperative Biodiversity Groups (ICBG)
Program, which aims to address the interdependent issues of drug
discovery, biodiversity conservation, and sustainable economic
growth. It was a 5 year project that aimed to collect and evaluate
thousands of plants and microorganisms used in traditional medicine
by Mayan communities in order to promote drug discovery. The project
proposed to patent and privatize resources and knowledge.
Many indigenous communities opposed the commercial exploitation
of their genetic resources and traditional knowledge, even though
the project was designed foster benefit sharing so that local
communities could derive benefits from their biological resources.
After two years of local opposition from indigenous peoplesí organizations
in Chiapas, the bioprospecting project was definitively cancelled,
by the Chiapas based partner ECOSUR due to the contentious political
climate.
Traditional knowledge is a broad term encompassing many forms of
cultural practices, productions, medicinal knowledge and genetic
resources. The term ìfolkloreî has been used for many years in the
international context, to denote verbal, musical and artistic expressions
of a cultural community. There is a widespread belief that the term
ìfolkloreî has a pejorative meaning, so the term ìexpressions of
traditional knowledgeî has been widely adopted as an alternative.
However, WIPO has retained the term ìfolklore,î citing the long
history of the termís use.
4.1 WIPO Performances and
Phonograms Treaty (1996)
WIPO Performances and Phonograms Treaty provides for the inclusion
of performers of expressions of folklore in article 2:
For the purposes of this Treaty: (a) ìperformersî are actors,
singers, musicians, dancers, and other persons who act, sing,
deliver, declaim, play in, interpret, or otherwise perform literary
or artistic works or ìexpressions of folkloreî
Both WIPO and UNESCO have collaborated to determine the international
legal protection for expressions of folklore. In 1976, UNESCO and
WIPO developed the Tunis Model Law on Copyright for Developing Countries.
The Tunis Model Law provides for the creation of both economic and
moral rights in folklore and states that national folklore need
not be fixed in material form to attract copyright protection. Protection
is afforded to national folklore in developing countries where it
is claimed to be susceptible to economic exploitation. However,
the Tunis model law was not widely adopted due to the over-broad
nature of the availability and scope of protection.
In 1982, UNESCO and WIPO developed
the Model provisions for National Laws on the Protection of Expressions
of Folklore against Illicit Exploitation and other Prejudicial
Actions. ìExpressions of folkloreî are understood as productions
consisting of characteristic elements of traditional artistic
heritagedeveloped and maintained by a community in the country
or by individuals reflecting the traditional artistic expectations
of such a community (Section 2). Expressions are divided into
verbal expressions by words (verbal), expressions by musical sounds
(musical) expressions by action (of the human body) and expressions
incorporated in a material object (tangible expressions). The
Model Provisions protect expressions of folklore against illicit
exploitation and other prejudicial actions. Illicit exploitation
is understood as any utilization made both with gainful intent
and outside the traditional or customary context of folklore,
without authorization by a competent authority or the community
concerned. The Model provisions state that sanctions should be
provided for each type of offense in accordance to the penal law
of the country. The provisions aim to achieve balance between
protection against abuses of expressions of folklore on one hand
and the freedom and encouragement of folklore on the other. The
Model Provisions were not extensively implemented by Member States
because the provisions:
Did not provide for ownership-type rights over folklore
Did not have adequate international protection of folklore
Seemed outdated due to technological, legal, social and cultural
developments
WIPO-UNESCO World Forum on the Protection of Folklore in April 1997
in Thailand organised four regional consultations and made resolutions
which recommended updating of the model provisions by taking into
account technological, social, legal, cultural and commercial developments
since 1982. The Forum also emphasised the need for establishment
of an effective national, regional and international regime for
protection of folklore.
The WIPO Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore raised issues
regarding the difficulties and limitations in existing copyright
systems with respect to protecting expressions of folklore; the
identification of authors of folklore or community held folklore
or held by more than one community and the possibility of a
sui
generis system of protection.
