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Protecting traditional knowledge
By Dr JACOB SIMET
In recent years indigenous peoples'
cultural resources have become bones of contention, for many
different reasons.
They are given different labels, manifesting the different ways in
which people define them; mostly based on their concepts of
usefulness.
On a global level, there is an interest in indigenous peoples'
intellectual cultural resources because of the economic value they
may have.
There is recognition that a lot of indigenous peoples'
intellectual properties have a usefulness which could be developed
into lucrative saleable commodities.
This could be in the area of traditional medicine, agricultural
propagation techniques or types of technology.
The World Intellectual Property Organization (WIPO) is an
international body which regulates rules and laws regarding
intellectual property and its implications to trade.
WIPO is part of the United Nations (UN) system.
It deals with a number of the existing international agreements
and treaties regarding intellectual property; such as the Berne
Convention, the Rome Convention, the Paris Convention, and a
number of recent ones covering new forms of information technology
such as the internet.
These international agreements and protocols relate to national
laws such as copyright and neighboring rights laws, patents and
industrial designs, trademarks and so forth. Papua New Guinea is a
member of WIPO having ratified the Convention in 1997.
Beginning nearly six years ago now, WIPO joined those
international organizations which have developed an interest in
indigenous peoples' intellectual cultural resources.
WIPO's interest in traditional knowledge is in line with the
organizations mandate to "promote through international
cooperation the creation, dissemination, use and protection of
works of the human mind for the economic, cultural and social
progress of all mankind.
Its effect is to contribute to a balance between the stimulation
of creativity worldwide, by sufficiently protecting the moral and
material interests of creators, on the one hand, and the provision
of access to the socio-economic and cultural benefits of such
creativity worldwide, on the other hand".
Pharmaceutical companies are interested in some of the traditional
medicines of indigenous people, because of two main reasons; one
is that many of them do actually work. Secondly; that it is safer
to try these medicines in laboratories and on people as indigenous
had been using for long periods. There is a rush by pharmaceutical
companies and other areas of industry to get to indigenous
peoples' traditional knowledge.
In this situation WIPO goes beyond the promotion of human
creativity and balancing this with benefits. It has in recent
years increasingly set out to assist developing countries (DCs)
and least developed countries (LDCs) whose indigenous peoples'
cultural resources are yet to be properly exploited, for
indigenous people to receive the full benefits for their
creations.
In response to this, those member states of WIPO who are in the
categories of DCs and LDCs; took a particular position on this.
This was that if industries; which were mostly from the developed
countries; wanted these resources, the owners have to be properly
remunerated for them, in the same way that intellectual property
owners of developed countries ensure that they are properly
remunerated for the use of their properties.
As it works out; much of the indigenous peoples' traditional
knowledge which is yet to be exploited are in the developing and
least developed countries.
While there is an interest to promote creativity and balance it
with benefits there was also the concern to protect the same
traditional knowledge from unauthorized and wanton misuse, abuse
and even destruction by non-indigenous peoples.
As a result, the WIPO General Assembly established the
Intergovernmental Committee on Traditional Knowledge, Expressions
of Culture and Genetic Resources (IGC). This committee had the
specific mandate of drawing up provisions for the protection of
traditional knowledge, expressions of culture and genetic
resources; while at the same time facilitating access to these
resources by people who want to use them and at the same time
ensuring that the providers of these resources are properly and
adequately remunerated.
WIPO is very well-intentioned in trying to achieve some balance
between protection, facilitating access and ensuring fair and
equitable benefits, however, the agendas of the intending "users"
of these resources are quite different.
Pharmaceutical companies, industrial entities and other users want
to gain access to the traditional knowledge with the most minimum
of hindrance.
Thus they do not necessarily appreciate WIPO's and indigenous
peoples' preoccupation with the need for protection and
maintaining proper remunerations to the "holders" or owners of
such resources.
As many developing and least developed countries are home of most
indigenous populations, thus hosts to most of the traditional
knowledge, these states now support the need for protection and
proper and appropriate remunerations.
In recent years this situation has created a yawning gulf between
the DCs and LDCs on the one hand and the developed countries on
the other hand. It is from the developed countries where most of
the pharmaceutical and other industries originate. They want
access to these resources by their companies with little hindrance
while DCs and LDCs do not want to have any part of it.
What is happening at WIPO though is not confined to this
organization only, The same polarization between DCs, LDCs and
developed countries, is found in the Convention on Biological
Diversity (CBD) on discussions relating to the same resources and
related access and benefit-sharing proposals; and also at the (TRIPPS)
of the World Trade Organization (WTO) when it comes to issue of
certificate of origin as a requirement in patent application.
This writer has been a participant in the WIPO debates on a number
of occasions, both as a government delegate and also as an expert
on indigenous issues; the most recent of such occasions was from
30th November to 8th December 2006.
At WIPO, apart from a number of areas of disagreement, between the
developing/least developed countries and the developed countries;
the main area of disagreement is over the question of whether
there should be an international legally binding instrument to
regulate the protection, access and proper/equitable remuneration
of the owners of traditional knowledge.
As to be expected, developed countries are reticent about an
international instrument while the developing/least developed
countries are in support of this idea. Developed countries want
there to be national laws for each country and the matters of
protection, facilitating access and determining related
remunerations should be worked out between the host countries and
the users.
Developing/least developed countries on the other hand want an
international instrument as it will be more binding beyond their
national borders as much of intellectual property these days is
used outside of the original sources' national boundaries.
Adjacent to what is being debated and done at WIPO, we in the
Pacific have been working on a legal mechanism to protect and
regulate access to traditional knowledge in the Pacific, for the
last eight years.
We now have the "Pacific Model Law for the Protection of
Traditional Knowledge and Expressions of Culture", which was
endorsed by the Pacific Ministers Council in 2002 and which is now
being considered by Pacific states for possible adoption or
adaptation.
With the very high degree of cultural diversity that we have in
this country, it follows that we would have a high proliferation
of traditional knowledge. We know that our traditional communities
have different kinds of traditional medicine and healing
practices, and at the same time knowledge about the propagation of
plants which have been handed down to us from the past.
The challenge for us today is to ensure that our people who are
the owners of these knowledge do benefit from them in equitable
ways. We must ensure that we avoid the mistakes that were made in
the exploitation of their natural resources, such as timber and
minerals. It is incumbent upon us then to know what decisions are
being made in metropolises around the world which have
repercussions for our peoples' cultural resources and ultimately
their lives.
*The writer is the Executive Director of
the National Culture Commission
 
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