INTELLECTUAL PROPERTY

RIGHTS AND INDIGENOUS

KNOWLEDGE
 Introduction
• Intellectual Property Rights (IPR) are
mechanisms to individual and industrial
inventions which give patent holders
exclusive monopoly over their invention for
17-30 years.
• These rights prevent others from copying,
selling, or importing a product without
authorization.
 Introduction cont………
• IP laws ensure that inventors and
investors will be rewarded for their
investments if their product is sufficiently
commercialized.
• Safeguarding these property rights, fosters
economic growth, provides incentives for
technological innovation and attracts
investment that will create new jobs and
opportunities for their citizens
• IPR are usually limited to goods which can
be used or enjoyed by many people
simultaneously- the use by one person
does not exclude use by another.
• In early 1960s, The US passed a law
granting plant breeders the right to patent
seeds, preventing others from selling the
same variety. When the IPR laws are
amended, the scope of protection and the
rights of patent holders tend to be
expanded.
• The US 1985 Utility Plant Patent (UPP) is
the most powerful protection available for
plant and plant-related inventions. A single
application may cover multiple varieties, or
even an entire genus or species. These
plant patents can cover biological
materials, processes, genes, proteins,
recombinant processes, culture
techniques, plant parts, and seeds
• For instance, patent holders who identify
new genes can claim 20 years of exclusive
control over that gene in any plant,
including derived seeds and tissue.
• UPP is often used to cover genetically
engineered materials-whether whole
organisms, tissue culture, cells, or DNA
sequences-and transgenic materials.
• Corporations are aware of how cost
efficient it is to tap the knowledge of
communities that live with and depend on
biodiversity for their survival.
Pharmaceuticals have taken plant
samples from tropical forests to use as
raw materials in developing new drugs.
Agricultural companies took disease
resistant seeds.
• After some modifications, this genetic
material was patented, mainly in US, and
the resulting seed or product was
marketed. Moving a single gene from one
spot to another within a cell, whether or
not it causes an actual variation in the next
generation, creates a sufficiently ‘new’
plant variety to qualify as patentable
invention.
• Corporations have realized enormous
benefits from free access to genetic
materials, especially in the case of crop
plants from developing countries.
 Example
• The world market value of
pharmaceuticals derived from plants used
in traditional medicine had an estimated
value of 43 billion USD in 1985. Less than
0.001% of the profits have gone to the
original holders of that knowledge
 Convention on Biological Diversity
• CBD, made the sustainable use of its
components the fair and equitable sharing
of the benefits arising out of the utilization
of genetic resources. The Convention
states that access to genetic resources
will be subject to prior informed consent.
This is consent given after a full account of
the reasons for the activity, and specific
procedures involved, the potential risk,
and the foreseeable outcomes
• To date, the benefits arising from the use
of genetic resources have not been
equitably shared, which contravenes
article 8(j) of the convention. No benefits
have been returned to indigenous
communities. Although the Convention
recognizes the importance of biological
indigenous knowledge, more often than
not this knowledge has been used without
• Approval and involvement of the holders of
such knowledge. The global food system
is dependent on the appropriation of plant
genetic materials from indigenous peoples’
territories because biodiversity has been
systematically eliminated whenever
farmers adopt the large scale, high input
food production models championed by
agribusiness corporations.
• Indigenous farmers cultivate the
agricultural biodiversity that allows food
crops to adapt to changes, whether
evolving pests, diseases, climate change
or human intervention. However,
government policies and commercial
pressures push farmers to replace their
own varieties with high-tech, high-input,
high yielding varieties of staple grains and
livestock breeds.
• Although the CBD affirms the sovereignty
of nations over their biological resources, it
also accepts the concept of intellectual
property over living things and encourages
bilateral agreements between those who
want access to resources, knowledge and
governments.
 CBD shortcoming
• The Convention does not define protection
at the level of the community, thus setting
the stage for intercommunity conflicts
between a government and its
communities. It also has no mechanisms
to control outsider’s access to indigenous
bio resources and no mechanisms to
determine the equitable sharing of
benefits.
 INDIGENOUS KNOWLEDGE
• Indigenous knowledge (IK) is the local
knowledge that is unique to a culture or
society. This knowledge is passed from
generation to generation, usually by word
of mouth and cultural rituals and has bee
the basis of agriculture, food preparation,
health care, education, conservation and
other activities that sustain a society and
its environment on may part of the world.
• Most indigenous people have traditional
songs, stories, legends, methods and
practices as a means of transmitting
specific elements of IK. Sometimes it is
preserved in the form of memories, ritual,
ceremonies or dance. Occasionally it is
preserved in artifacts handed from father
to son, or mother to daughter.
• IK held by women needs special
consideration for a number of reasons:
• They are harvesters of medicinal plants,
seed stocks and small game, are keepers
of knowledge about significant spheres of
biodiversity in their own right and as such,
they are the only ones able to identify the
environmental indicators of ecological
health in those spheres.
• People’s knowledge and perceptions of
the environment and their relationships
with it, are often important elements of
cultural identity.
• For many indigenous people today, the
communication of traditional knowledge is
hampered by competition from European-
derived cultures that captures the
imagination of the young.
• They are bombarded by technology that
teaches them non-indigenous ways, and
limits the capacity of the elders to pass on
traditional knowledge to the young. As the
elders die, the full richness of tradition is
diminished, because some of it has not
been passed on and so is lost.
• It is important therefore to find ways of
preserving this knowledge.
• Currently there is a sense of urgency to
collect traditional knowledge. Databases of
traditional knowledge exist in many
locations, mostly outside traditional
communities, but there is as yet little
linkage among databases.
 IPR implications to Indigenous
Knowledge
• Until recently, IP was subject to national
legislation. Nations were free to determine
whether and how they would recognize IP.
• From a corporate standpoint, IP laws in one
country are of limited value without parallel
recognition by other countries. Accordingly,
industrialized nations and corporations have
lobbied aggressively to harmonize legislation at
the international level
• The corporate demand for IPR to
biodiversity is based on false premise that
only their investments need to be
rewarded. The toil of indigenous farmers in
domesticating, breeding and conserving
biodiversity over centuries is conveniently
forgotten.
• The existing IPR agreements fail to
recognize the rights of indigenous and
local communities to their own knowledge
and innovations.
• Treating some germplasm as valueless
and common heritage and other
germplasm as a valuable commodity and
private property has no justification.
• This distinction is not based on the nature
of germplasm, but on nature of political
and economic power.
• Various concerned groups have labelled
this state of affair an exploitive asymmetry
and biopiracy.
• Developing countries have strongly argued that
multinationals from the industrialized world
exploit their biological wealth and sell the
patented products back to them at expensive
prices.
• With the growth of the biotechnology industries,
in combination with the loss of biodiversity
worldwide, the access to control of genetic
resources have attracted the attention of
• Governments, corporations and others –
mainly because of tremendous potential
for generating commercial profits.
• The traditional lifestyles, knowledge, and
biogenetic resources of indigenous
peoples have become commodities,
to be bought, sold and traded.
• Commercial plant breeding is in the hands
of a few Transnational Corporation (TNCs)
that now control all significant gene banks.
TNCs are developing plants that respond
to their own agrochemicals. They are
working on genetic modifications aimed at
converting nonhybrid fertile plants, into
sterile hybrids.
• If a gene from one plant could induce sterility,
seeds would have to be purchased each year.
• If IPR systems continue to evolve in the current
direction, farmers’ prospects will include paying
royalties for patented seeds; becoming
dependent on one supplier for seed, fertilizers,
herbicides and pesticides and in the case of
hybrid sterile plants, buying new seeds each
year.
• As a rule, farmers save some of their crop
to use as seed in the following year. With
the US IPR regimes, farmers would have
to pay royalties on the seeds from
patented seeds- even in the case where
the farmers were the source of the original
stocks, those farmers would not be
allowed under (General Agreement on
Tariffs and trade ) GATT
• to market or use them.
• IPR to a folk variety would include the
rights to control the use of folk variety and
the rights to the information coded in the
DNA as a result of selection by farmers
and their farming systems.
 Policies
• If the research involves the removal of
biological samples, policies should be
developed to regulate the sustsianable
use of biodiversity and the fair and the
equitable sharing of benefits arising out of
the utilization of genetic resources
• If corporations can secure IPR protection
for their inventions then indigenous
peoples, too, should be entitled to
protection for their intellectual property.
• Thank you for listening