Intellectual Property Perspectives: TKs, conventional IPRs, interface controversies

Re-contexualising concepts

 

By its very nature and scope, traditional knowledge is community-based cooperative creative effort which is inherently an expression of a given people or territory’s belief systems, values and socio-economic organisations, hence functionality. It is communally owned, evolves with the changing environment of the community and governed by customary rules and practices.

In its totality, it pervades the entire spectrum and spheres of human endeavour and creativity in its evolutionary trend to include literary, artistic, musical and scientific works. In consequence, whereof, it inevitably interfaces with aspects of conventional intellectual property fields of copyright and related rights, patents, utility models, industrial designs, trade secrets, trademarks, geographical indications and unfair competition.

This interface raises many contentious issues which traditional legislative frameworks have to date failed to resolve. This is because the international frameworks have for centuries perceived intellectual property rights as arising from individual creative effort as opposed to community-based, as is the case with tradition-based products, and that is documented as proof  thereof. In the aftermath, knowledge holders have been left in quandary and short-changed  in most circumstances.

Expressions of folklore in copyright

The unprecedented accelerated  technological revolutions especially in the electronic media has lead to the improper exploitation of folklore which have been, and continue to be,commercialized on a global scale without the consent of  the community holders of such works. This is done with blatant disrespect and  total disregard of the affected communities’ cultural heritage and economic interests.

A case in point is one of the most popular song ever to emerge from Africa, The Lion Sleeps Tonight, composed and  recorded by a Zulu singer, one Solomon Linda. The song is compiled from memorable lyrics which Solomon recalled from his escapades of hunting lions as a boy. The studio unscrupulously obtained copyright over the song and commercialized it in its own name. As fate would have it, the song was then used as back-up music in the film The Lion King. For all his creative efforts, Solomon Linda just received one pound from  the studio. The community from which the song originated received no benefit whether in cash or kind. Meanwhile it is estimated that approximately US$20 million was received as royalties for the song by the studio and other intermediary players. Can you imagine such gruesome injustice .

Traditional crafts

Traditional crafts can legitimately either fall under industrial design or copyright protection under conventional IPRS protection regimes, but for lack of specific provisions thereto. Alternatively, certification marks could be used as these symbolise and promote the interests of a group of traders under trademark legislation. And yet we witness the continued expropriation of traditional crafts in conventional intellectual property creations without due recompense or reward.

This was the sad experience of the Kwakiutl Indians of the west coast of Canada and many others across the developing world. For centuries the Kwakiutl women have been knitting sweaters with a traditional thunderbird motif. In the 1980’s, two Japanese businessmen visited this Indian reservation, purchased some sweaters and mass produced these back home. They made over US$100 million  in sales on the Asian market, much to the chagrin of the Kwakiutl community which only received payment for a handful of their prized tradition-based sweaters

Ethnobotanical knowledge

Ethnobotanical knowledge is essentially knowledge of socio-economic uses of biological resources passed on through generations. This knowledge is prone to be preyed upon  and incorporated into conventional intellectual products without recompense to the knowledge holders. This is particularly rife with respect to patents for pharmaceutical products and trade secrets.

At the center of the interface then are two controversial issues, these being; the protection against intellectual rights acquired by outsiders as a result of the illicit exploitation of traditional knowledge, and protection of traditional knowledge itself by the existing intellectual property rights systems. This brings into focus issues pertaining to access, conservation, sustainable use, and equitable benefit- sharing of biological resources between the community, knowledge holders and foreign enterprises.

Hereunder we present some instances wherein traditional knowledge of local communities was misappropriated by foreign corporations with little or no recompense.

The “temate” of Amazon Indians

In Ecuador the Amazon Indians have since time immemorial used the wild “temate” for its cancer fighting properties. This is a small cylindrical tomato, most probably similar to our local one and whose medicinal properties was knowledge passed on from generations. As fate would have it, a multinational pharmaceutical company went to Ecuador, obtained this local knowledge, isolated the active ingredient and patented it at the expense of the local knowledge-holders. Now it is a proud proprietor of cutting-edge pharmaceutical products of cancer. Quite irritating, isn’t it?

The turmeric of India

We are all familiar with turmeric as a delicious spice locally. Little do we know about its therapeutic properties. This is an Indian plant that the Indians have used for thousands of years for healing wounds and rushes as well as pest control. Guess what? The University if Mississippi Medical Center obtained a patent for healing wounds. Luckily the Indian Council for Scientific Research managed to have the patent revoked  upon production of ancient documents demonstrating its traditional use. As such the patent was revoked for lack of novelty.

The Neem of India and South-East Asia

The Neem plant is a multi-medicinal plant with pesticidal functions found in India and some parts of South-East Asia. The oil extracted from its seeds  can be used to treat various human diseases such as skin diseases, malaria and meningitis. It is also a pesticide for the white fly and fungus diseases for crops . An American corporation had its patents for these treatments revoked for lack of novelty and inventive step upon proof of these traditional uses.

The Ayahuasca of Amazon

The Ayahuasca is a vernacular term for the Amazonian Benisteriopsis caap plant. The Amazon Quichua people have always revered it as a sacred plant which they used for medicinal and ritual purposes. Now, here appears an American scientist unto the scene who went  on to isolate the active ingredient and patented same. Fortunately, the patent was later revoked for lack of novelty upon proof of publications describing the plant’s intrinsic medicinal properties and known effects prior to the filling of the patent application.

Developing countries doubly disadvantaged

From the foregoing, the logical perception created is that developing countries are doubly disadvantaged in so far as their resources were without meaningful recompense, while at the same time, the patented product thereof came with a high price tag due to the patent monopoly.

The paradox is thus clearly one of a technology-poor but genetic-rich South (developing countries) versus a technology-rich but genetic-poor North (developed countries). Under such a scenario, a tug-of-war prevails where, on  one hand, the developed countries are keen on conservation of the gene pool  in the developing countries for purposes of their bioprospecting (access, selection, collection and processing), while on the other hand, developing countries are desirous to acquire appropriate technology from developed countries for purposes of exploiting their vast biological resources optimally.

 

Pasipanodya is an IP consultant who writes in his own capacity. Feedback on: mobile +263 775053007, or e-mail:henripasi@gmail.com, legacyipchambers@gmail.com

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