Benefit-Sharing of Genetic Resources: A Critical Analysis of Traditional Knowledge Protection vis-a-vis IPRs.
It would perhaps not be an exaggeration were one to say that the ever-increasing urgency to strike that elusive balance between promoting global economic development on the one hand, and simultaneously preserve the fast eroding biological and cultural diversity of the planet on the other, is probably one of the trickiest questions of our times.
Originally brought about in order to provide legal protection for all creations of the human mind, and while always an instrument of considerable importance, intellectual property rights (IPRs) were perhaps never more lucrative, both economically and politically than they are in today’s world, where knowledge may well be called the rightful currency.
While the purpose of IPRs has been conventionally described by their proponents in a rather simplistic fashion, as a means of serving as an incentive for further improvements, innovations and creations enriching the society as a whole, the reality today is neither as perfectly balanced between the opposing market forces, nor quite as unidimensional, as one may have been led to believe. IP has, for quite sometime now, been used as “an instrument for achieving specific objectives, which have historically evolved and varied across countries”1 and nowhere is this incredible metamorphosis of the very rationale of the law more apparent than in the case of the patent regime in the developed nations, which have come a very long way indeed from the first couple of decades of the 20th century that witnessed the patenting of Adrenaline2 and Insulin3, little knowing what were to follow in its wake.
For the present purposes, however, one need not begin any earlier than the milestone year 1994, which saw the birth of the Trade Related Aspects of IPRs (TRIPS) as one of the chief outcomes of the Uruguay Round of the WTO-GATT. For better or for worse, IP law would never be quite the same again, as the TRIPS Agreement established mandatorily enforceable “global minimum standards of protection and enforcement” across the board. While the anxieties of the developing and least developed nations were temporarily assuaged by allowing them a transitory period, it was only too clear that an international legal document of such singular importance to one and all had been tabled and passed without a semblance of equal bargaining power or a level playing field, in that most of the delegates present were not even equipped to fully comprehend how truly momentous this was, let alone making their voices heard. As expected therefore, TRIPS attracted controversy from the very beginning, not only due to concerns about its unprecedented impact on development of national economies, but also about the way it had been negotiated4.
With the passage of time, these concerns mounted manifold and IPRs began to be viewed with suspicion by growing numbers of critics who argued that IPRs being contoured the way they were, spelt nothing but disaster for the common man in the faraway little country in Asia or Africa who would no longer have access to vital drugs, affordable education or even to their age-old therapeutic and farming techniques, their wealth of bio-resources enriched, nurtured and used for generations due to what was now perceived as a legitimised piracy of their traditional knowledge (TK) and often the very mainstay of their livelihood and self-reliance. While it is indeed true that debates on issues as sensitive as these cannot but help being highly emotional and hence, somewhat polarised, some sort of a compensation was sought through bare facts, statistics and evidence-backed data. But this too proved tougher than imagined as each country was beleaguered by its own peculiar set of problems and its own characteristic strengths. As the World Bank itself acknowledged5:
“If TRIPS were fully implemented, rent transfers to major technology-creating countries – particularly the United States, Germany and France – in the form of pharmaceutical patents, computer chip designs, and other intellectual property, would amount to more than $20 billion” —(World Bank, 2001)6
It therefore followed that the buoyantly optimistic speculations regarding the long-term benefit to all nations accruing from implementing the TRIPS requirements, were perhaps not as substantial as the predictions of the naysayers, thereby justifying the concerns of the developing countries who were feeling increasingly short-changed.
TRIPS versus the CBD
Given the above scenario, it is understandable why the Convention on Biological Diversity (CBD) appeared, in the circumstances, to be the only glimmer of hope for gaining a toehold into the bargaining arena, which, despite chronologically predating the TRIPS Agreement, had been very astutely overshadowed by the far superior clout of the trade lobby.
Nevertheless, the CBD did touch upon several very significant areas viz: unanimously pledging to use the world’s biological resources in a responsible and sustainable manner, recognising the sovereign right of nation-states over their genetic resources and the need to preserve and maintain TK, innovations and practices of indigenous and local communities, all of which were to be achieved through the fair and equitable access to such resources and sharing the benefits therefrom7. At a time when the world’s genetic resources were being exploited more than ever before, this very noticeable shift in stance from what had come to be believed to be the inflexible tenets of IPR was heartily welcomed by the developing nations, who, despite its non-binding status, were quick to spot the invaluable framework it provided for them to re-fashion their domestic laws, which would then place them in at least a marginally stronger position to bargain for modifications in the TRIPS Agreement8.
As expected, when pitted against each other the inherent conflict between TRIPS and the CBD became starkly apparent, all the more so because of diametrically opposite objectives of the two instruments, i.e., while one was staunchly pro-profits and trade, the other was equally pro-equity and sustainability.
What the proponents of TRIPS failed to appreciate in this blinkered bid for adherence, was that it was, in fact, the pro-TRIPS lobby that was progressively distancing itself from the conventional long-term goal of IPRs, viz: enriching of the society as a whole by creating commendable works of the mind, and nowhere was this contrast more obvious than in the repeated emphasis on the primacy of the right-holder under the TRIPS regime as opposed to the element of equitable sharing of benefits by the largest numbers possible, per the CBD9.
Quite unsurprisingly therefore, the TRIPS Agreement was not only silent on issues of access and benefit sharing (ABS), TK, but also made no allusion to the CBD. Not to be deterred however, the developing nations continued their bid for a review of Articles 27.3(b)10 and 2911 of TRIPS, to ensure that at least the very basic of the rights enshrined by the CBD may be retained. This ultimately bore fruit at the 2002 meeting of the Conference of Parties at The Hague, where the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilisation were officially adopted, which though a guideline, was still a positive step as it is intended to influence the drafting of legislative, administrative or policy papers regarding ABS12.
TK & the Politics of IPRs
It is well known today that TK has played an important role in the lives of indigenous peoples for centuries and constitutes a vital part of their cultural heritage, contributes to preservation of biodiversity, and is fundamental to their sustainable development13. However, one of the great ironies for indigenous peoples worldwide is that, while scientific and commercial interest in their ecological knowledge and resource management practices have never been greater, human cultural diversity has been eroding at an ever-accelerating rate as the world becomes increasingly homogenous14.
There has been a growing recognition of the misappropriation of TK for commercial purposes, though it is actually the IPR system that has enabled the unauthorised use of TK by trans-national corporations15 while the indigenous peoples are forced to helplessly stand back and bear mute witness with little or no recourse available to them. Additionally, with the emergence of a vast global market, it has become obvious that the commercial value derived from TK has the potential to create opportunities for economic growth in developing countries16. This has finally led them to expect to play a significant role in international-level discussions at the WIPO’s Intergovernmental Committee (IGC) on IP and Genetic Resources, TK and Folklore17.
However, in addition to the obvious commercial potential, TK embodies particular cultural and social value specific to local communities. The protection of TK is therefore not only a commercial question but also of belonging, cohesion and identity and the interests at stake are not perfectly reconcilable with a conventional IPR model. Trying to constrain this debate within the vocabulary and concept of IP may therefore significantly compromise any resultant proposal18.
It has often been observed that while indigenous peoples welcome interest in TK as long as their status and ensuing rights as holders and custodians of this knowledge is respected, they have been unequivocally condemnatory about the “mining”19 or “salvaging”20 of their generations-old traditions by commercial and scientific concerns which fail to demonstrate any responsibility to ensure that equitable benefits flow back to the communities of origin, or to help stem the erosion of their cultures. To this end, IPRs have been bitterly criticised by many indigenous peoples and grassroots organisations, as they are viewed to be encouraging and legitimising what is termed as “biopiracy”21, an act that not just deprives the rightful TK holders of their share in the benefits accruing, but also in stripping age-old indigenous cultures of the sanctity of their traditions, if not tarnishing their very identity22.
But while such impassioned criticisms of IPRs may occasionally be more heartfelt than factually infallible, it is nevertheless an accepted fact today that mainstream IPRs are indeed inadequate for either protecting TK or in reversing the alarming tide of erosion of the vast and rich repositories thereof. In response, concerned scholars and scientists have been calling urgently for the documentation of such systems before it proves too late to protect and revitalise the TK culled through centuries, whilst keeping it in situ so that it may continue to evolve rather than stagnate in cold-storage of “international TK banks”23.
Finally, it must be borne in mind that the entire undertaking would be rendered both unethical and counter-productive if the IPRs of the very generators and holders thereof are ignored in the process. Paradoxically though, that is precisely the case in most situations, where the TK is respected much more than those who have done us the favour of generating, preserving, nurturing and sharing it24.
The question therefore remains: can IPRs protect traditional biodiversity-related knowledge? The answer unfortunately remains fraught with debate. In traditional societies, the sources of TK may be attributable to individuals, kinship, gender-based groups or to entire communities. While, theoretically, such knowledge may well be patentable, in practice it often transpires that a lot of TK is not traceable to any specific community or even a geographical area and is rendered ineligible for patent protection. But, in the process, that piece of TK gets recorded and once technically disseminated, its use and application slips beyond the control of the original knowledge providers25.
In summary therefore, it is abundantly clear that IPRs by their very nature are not equipped to accommodate the subtleties, complexities and the sheer diversity of the non-western proprietary systems. Thus, despite the very real inequality in power-relations between traditional communities and the corporate world, customary laws that aim to protect such property rights ought not to be dismissed outright26.
Indeed, what can be done is to discard the one-size-fits-all model for good and try to weave the basic tenets of the IPR regime together with said customary laws, such that equitable benefit sharing may be ensured between the providers of the TK associated with lucrative genetic resources and the corporations located mostly in technologically advanced nations.
1Carlos Correa: Formulating Effective Pro-Development National Intellectual Property Policies (2003) p.209
2Parke Davis v HK Mulford & Co., 189 Fed 95 (SDNY 1911), affirmed, 196 Fed 496 (2nd Circuit 1912).
3US patent No.1,469,994 (issued October 9, 1923): useful in the treatment of diabetes mellitus.
4Graham Dutfield: Intellectual Property, Trade and Sustainable Development (2006) p.2
5Supra footnote 1.
6Supra footnote 4.
7Ref. esp: Articles 8(j) and 15 of the CBD.
8Biswajit Dhar: The Convention on Biological Diversity and the TRIPS Agreement: compatibility or conflict? (2003) p.77
9> Ibid at pp.85-87
10This would render the sui generis systems of protection (which are often the only possible way) consistent with TRIPS.
11This is an effort to ensure the mandatory mention of the origin of biological material, in the event an invention seeking patent protection uses such material as a base or an ingredient at any stage. However, even if this were to be successful the problem with derivatives of genetic materials, would persist. There is to this day, no established and uniformly binding authority that lays down the standard in order to demarcate what extent of derivation/modification is required so as to create an independent entity, and the rare domestic legal precedent such as Lord Hoffman’s views on quinine as a cinchona derivative in Merrell Dow v HN Norton [Intellectual Property Reports, 33: 1-14, 1996 at 10] are all that one has to fall back on.
12Supra footnote 4 at p.18
13Palesa Tlhapi Guye: The Gap Between Indigenous Peoples’ Demands and WIPO’s Framework On Traditional Knowledge (available at http://www.ciel.org/Publications/WIPO_Gap_Sept07.pdf)
14Graham Dutfield: Protecting & Revitalising Traditional Ecological Knowledge: IPRs and Community Knowledge Databases in India (1999) p.103
15Carlos Correa: Traditional Knowledge and Intellectual Property: Issues and Options surrounding the protection of traditional knowledge: Quaker United Nations Office Discussion Paper (November 2001), [available at: http://www.iucn.org/themes/pbia/themes/trade/training/TK%20and%20Intellectual%20Property.pdf ]
16WIPO/RT/LDC/1/14, paragraph 10. See also WIPO/GRTKF/IC/4/8, paragraph 9.
17The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), was established in the 26th (12th Extraordinary Session) of the WIPO General Assembly, held in Geneva, 25 September to 3 October 2000 to consider and advise on appropriate actions concerning the economic and cultural significance of tradition-based creations, and the issues of conservation, management, sustainable use, and sharing of the benefits from the use of genetic resources and traditional knowledge, as well as the enforcement of rights to traditional knowledge and folklore.
18Johanna Gibson: Community in Resources, Tradition in Knowledge (available at available at: http://ssrn.com/abstract=1431063)
19Supra footnote 15
21Pat Mooney: “…there is no ‘bioprospecting’ only ‘biopiracy’” as cited by Graham Dutfield in Trading In Knowledge – Development Perspectives on TRIPS, Trade and Sustainability (2003), Ch.10
22Supra footnote 21
24Akhil Gupta: Postcolonial Developments: Agriculture in the Making of Modern India (1998) p.173
25For instance, if a researcher investigates a piece of published TK and then improves upon it in a practical way, the result may well become a patentable “invention” under law, and one that this researcher shall enjoy complete ownership and control over.
26Supra footnote 39.