APFT-Posey - Pages 5 thru 8

Knowledge of individual species (planting methods, care for, selection criteria, etc.);

Knowledge of ecosystem conservation (methods of protecting or preserving a resource

that may be found to have commercial value, although not specifically used for that
purpose or other practical purposes by the local community or the culture);

Biogenetic resources that originate (or originated) on Indigenous lands and territories;

Cultural Property (images, sounds, crafts, arts and performances);

Classificatory systems of knowledge, such as traditional plant taxonomies.

All of these are protected as part of the larger need to protect land, territory and resources and to
stimulate self-determination for Indigenous and traditional peoples.

2.2

Knowledge and conservation

Many of the world’s richest areas of biological diversity have for millennia been, and continue
to be, inhabited, managed, maintained and defended against destruction by Indigenous peoples
(Clay 1988; Colchester 1994a; Colchester & Lohman 1993; Pimbert & Pretty 1995). The
twelve megadiversity countries also have some of the most diverse Indigenous societies, within
whose territories much of the biodiversity is still conserved.

The term, Indigenous Knowledge System (IKS), is used by scientists to describe the totality of
information, practice, belief and philosophy that is unique to each Indigenous culture. An IKS
may be commonly held within a community or Indigenous society, or it may be known only to
specialists, tribal elders, lineage or gender groups.

Traditional Ecological Knowledge (TEK) is another term used to describe those aspects of IKS
that are directly related to management and conservation of the environment. Johnson (1992:4)
defines TEK as “a body of knowledge built by a group of people through generations living in
close contact with nature. It includes a system of classification, a set of empirical observations
about the local environment, and a system of self-management that governs resource use.”

Indigenous knowledge is being increasingly utilised to identify useful species and methods for
preservation, processing, and application of those species. Research and development costs
can be significantly reduced using traditional knowledge that has been “extracted” or “mined”
from Indigenous Knowledge Systems. Once bits of knowledge have been removed from the
local in situ system, local communities lose control over the information because mechanisms
are inadequate to effectively protect their rights (Gray 1991; Mead 1994).

The Convention on Biological Diversity provides for two quite distinct approaches to
Indigenous peoples: (1) in situ conservation utilising knowledge, innovation and practices of
local communities embodying traditional lifestyles, and (2) wider use and application of
Indigenous technologies. The latter amounts to a global call to extricate aspects of knowledge
from its systems context without providing appropriate mechanisms for protection and
equitable benefit-sharing. It should not be of any surprise, therefore, that Indigenous peoples

are suspicious of the CBD and its expansion of Nation State sovereignty over their knowledge
and biogenetic resources.

2.3

Biotechnology and “biodiversity prospecting”

Biodiversity prospecting is the exploration of biodiversity for commercially valuable genetic
and biochemical resources, with particular reference to the pharmaceutical, biotechnological and
agricultural industries (Reid et al 1993). Recent advances in biotechnology have increased the
ability of scientists to investigate organisms at the genetic level and to find ways to
commercialise products developed from such investigations. Expectation of profits from these
new products has stimulated biodiversity prospecting that, according to some, will in turn
stimulate conservation through the profit motive (Joyce 1994).

It is difficult to estimate the commercial promise of biodiversity prospecting. Given that to date
only a small proportion of biodiversity has been exploited, economic potential is thought to be
enormous.

For medicines alone, the 1985 market value of plant-based medicines sold in developed
countries was estimated at a total of $43 billion (Principe 1989). This frequently cited estimate
is unreliable, but whatever the true amount might be, only a minuscule proportion of profits
have been returned to Indigenous peoples from whom much of the original knowledge came (I
have estimated less than 0.001%; Posey 1990).

Companies that produce seeds and agrochemicals benefit substantially from the free flow of
germplasm from Indigenous lands. The market value of the seed germplasm utilising
traditional landraces is estimated by RAFI at $50 billion per year in the US alone (UNDP 1994:
19). Consequently, Indigenous peoples are providing subsidies to a modern agricultural system
that barely recognises their contributions. Similar situations exist with timber and non-timber
forest products (Burley 1987, 1994), as well as other natural product markets, such as personal
care, foods, industrial oils, essences, pesticides, and preservatives.

Biodiversity prospectors assume that organisms and ecosystems are “wild” and, therefore, part
of “the common heritage of humankind”. Even when “leads”, or even processed materials, are
provided by Indigenous peoples, it is the company that makes the protectable “discovery”.
Indigenous peoples see this situation as being parallel to the Europeans’ “discovery” of the
New World and are understandably weary of biodiversity prospecting (see Section 4).

In Costa Rica, for example, INBio, an NGO closely linked with the government, was given
rights to commercialise biogenetic resources to Merck Pharmaceuticals. The agreement
included collections on national lands, including those of eight Indigenous peoples, none of
which was ever consulted nor named as beneficiary.

Indigenous peoples are particularly disturbed about the “discoveries” made from blood samples
(Mead 1994a). Under the guise of “good science”, the Human Genome Organisation (HUGO)
and one of its subsidiary projects (the Human Genome Diversity Project), coordinates the

collection of blood samples from isolated communities “threatened with extinction”. The
results will supposedly reveal evolutionary links and identify genetic sequences for gene
therapy to improve human health (Cavalli Sforza et al 1991).

The “Human Vampire Project”, as it is known by Indigenous peoples, has brought much
discredit to scientific research because, once collected, data and cells are available for
commercial exploitation. Collections are also made without the Prior Informed Consent of the
sample groups.

At least three patent applications have been made for cell lines developed from blood “donated”
by Indigenous peoples, including one from a member of a recently-contacted group of 260
hunter-cultivators in New Guinea. The patent holder is the US Department of Commerce, with
the US government scientists involved in the project and the anthropologist who introduced the
research team to the tribe designated as inventors.

New Guinea has shown no concern over this situation. Indeed, most Nation States show
concern over exportation of traditional genetic resources or knowledge. This may be because
the image of Indigenous peoples as primitive and savage has been essential for the historic
takeover of their lands and resources. Thus, by recognising the value of traditional resources,
the philosophical underpinnings of colonisation and domination are challenged. Predictably
this process is slow and meets opposition at all levels of society and government.

Intellectual Property Rights and Ownership of Knowledge

3.1

Intellectual property rights as legal instruments

Patents are perhaps the most famous of these and discussions of intellectual, cultural and
scientific property usually degenerate into the legal quagmire of patentability. Patents are of
very limited interest to most Indigenous peoples because of difficulties in documenting
“inventions” and identifying individual inventors. Since Indigenous knowledge is considered
in the “public domain”, then “uniqueness” is also problematic.

Even if technical requirements for patents were satisfied, costs of filing, maintaining,
monitoring, legally implementing and enforcing would be prohibitively expensive for most
Indigenous groups (Colchester 1994b). The same can be said for Plant Breeders’ Rights
(PBRs), whose requirements for varietal protection can in principle be met by Indigenous
farmers, but only after considerable laboratory and research investments.

Know-how and trade secrets have potentially greater applicability, but also entail specialised
legal advice and corresponding expenses. Appellation of origin and trademarks are relatively
accessible IPR tools and can be effectively applied to products coming from Indigenous lands
or produced under Indigenous auspices or licensing agreements.

Copyright is easily obtained and is helpful in the protection of written texts, works of art and
databases. Enforcement and monitoring of copyright can be difficult, time-consuming and
costly. Scientists regularly depend upon copyright protection for protection of their own works

and are increasingly extending that protection through co-publishing with Indigenous
collaborators.

Copyright-like mechanisms are being attempted in some countries with Community Inventories
(see Section 6.2) of useful plant varieties and species. Inventories may be kept by the
community under strict rules of access, or published to put registered materials into the public
domain in hopes of impeding patent applications by others. This strategy is a form of
“defensive publication”, which argues that information in the public domain should not be
protectable by IPRs. This is a dangerous tack, since most patents are on processes of
extraction, purification, or synthesis, not on the original product or compound itself (Gannon,
Guthrie & Laurie 1993). Publication itself may actually facilitate commercial exploitation of
knowledge and resources, given the inequity of IPR application.

Such a case came from the description of tiki uba, an anti-coagulant used by the Amazonian
Urueu-Wau-Wau tribe, published in an article in a well-known magazine (McIntyre 1988:
807). Based on the published information, Merck Pharmaceuticals “discovered” that the plant
extract was indeed effective and might therefore be useful in heart surgery (Jacobs et al 1990:
31). Merck attempted to develop a new pharmaceutical product without any consideration for
the Urueu-Wau-Wau, who were by then threatened with extinction (Posey, Dutfield,
Plenderleith, 1995).

3.2

Indigenous problems with IPRs

IPRs are problematic for Indigenous peoples for the following reasons:

(i) they are intended to benefit society through the granting of exclusive rights to “natural” and
“juridical” persons or “creative individuals”, not collective entities such as Indigenous peoples
(Boyle, 1996). As the Bellagio Declaration puts it:

Contemporary intellectual property law is constructed around the notion of the author
as an individual, solitary and original creator, and it is for this figure that its
protections are reserved. Those who do not fit this model - custodians of tribal
culture and medical knowledge, collectives practicing traditional artistic and musical
forms, or peasant cultivators of valuable seed varieties, for example - are denied
intellectual property protection.

(ii) they cannot protect information that does not result from a specific historic act of
“discovery”. Indigenous knowledge is transgenerational and communally shared. Knowledge
may come from ancestor spirits, vision quests, or orally-transmitted lineage groups. It is
considered to be in the “public domain” and, therefore, unprotectable.

(iii) they cannot accommodate complex non-western systems of ownership, tenure, and access.
IPR law assigns authorship of a song to a writer or publishing company that can record or
publish as it sees fit. Indigenous singers, however, may attribute songs to the creator spirit and
elders may reserve the right to prohibit its performance, or to limit it to certain occasions and to

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