Intellectual Property Rights and Ethnobiology: An Update
on Posey's Call to Action
Authors: Jacob Golan, Simone Athayde, Elizabeth Anne Olson, and Alex
McAlvay
Source: Journal of Ethnobiology, 39(1) : 90-109
Published By: Society of Ethnobiology
URL: https://doi.org/10.2993/0278-0771-39.1.90
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Journal of
Ethnobiology
2019 39(1): 90–109
Intellectual Property Rights and Ethnobiology:
An Update on Posey’s Call to Action
Jacob Golan1*, Simone Athayde2, Elizabeth Anne Olson3, and Alex McAlvay4
Abstract. Following the 1988 International Congress of Ethnobiology, at which the Belém Declaration
had been adopted, Darrell Posey published a global call to action for researchers and policy makers to
address outstanding issues related to the protection of Indigenous and local knowledge (ILK) (1990a).
ILK protections are today largely treated as a matter of intellectual property rights, a field whose
global political landscape has undergone intense regulation and critical scrutiny since the time at
which Posey was writing. This paper provides an update on the state of intellectual property policy as
it relates to the “just compensation” of Indigenous and local communities, while also addressing how
global bodies and various national governments have grappled with Posey’s suggestions. Additionally,
we highlight how the shortcomings of national and international policy to address outstanding issues
related to intellectual property have affected cultural, ecological, and biological conservation. In
conclusion, an update to Posey’s suggestions is offered in light of the Belém +30 Congress (August
7–10, 2018) and of ongoing developments in intellectual property policy.
Keywords: intellectual property, Darrell Posey, Declaration of Belém, FPIC, Indigenous rights
Introduction
In 1990, the Journal of Ethnobiology
published an article by the ethnobiologist
Darrell Posey (1990a), a renowned researcher
of Indigenous traditional knowledge,
titled “Intellectual Property Rights: What
is the Position of Ethnobiology.” Posey’s
work resulted from the First International
Congress of Ethnobiology, held in Belém,
Brazil, in 1988, when the International Society of Ethnobiology (ISE) was formed and
the Declaration of Belém was composed
(ISE 1988). The Declaration explicitly states
the responsibilities of researchers and practitioners to address the needs of Indigenous
Peoples and local communities1, and to
recognize the critical role of these cultural
groups in biodiversity conservation and
global planning. This was also the first time
that an international scientific organization
recognized a basic obligation that “procedures be developed to compensate native
peoples for the utilization of their knowledge and their biological resources” (ISE
1988:Statement 4).
In order to prevent the further loss of
“cultural, ecological and biological diversity
of this planet” (Posey 1990a:97), Posey laid
out five suggestions for the safeguarding of
the intellectual property of Indigenous and
local communities. In addition, the 1988
Declaration and Posey’s call to action sent
a message to those working in the governmental, professional, and business sectors,
outlining goals for the achievement of intellectual property protections for Indigenous
Peoples and Local Communities (IPLC). Policy
makers and legislators were called upon to
give economic value to the living forest and
to natural habitats through the valorization
of “natural products.” At the same time, they
were urged to recognize that Indigenous and
other local Peoples hold the key to understanding the rational use and management
1
Departments of Botany and Bacteriology, University of Wisconsin-Madison, 430 Lincoln Drive, Madison, WI
53706.
2
Tropical Conservation and Development Program (TCD), University of Florida.
3
Department of History, Sociology and Anthropology, Southern Utah University.
4
Department of Ecology and Evolutionary Biology, Cornell University.
*
Corresponding author (jgolan@wisc.edu)
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An Update on Posey’s Call to Action
of these living natural areas, and to develop
legal and practical mechanisms for the “just
compensation” of Native Peoples’ traditional
knowledge (Posey 1990a).
Posey’s pioneering suggestions have
significantly contributed to international
institutions taking action and to the signing
of multilateral agreements addressing ILK
as a matter of intellectual property rights
(Greene 2004). The Earth Summit that met
in Rio de Janeiro in 1992 resulted in 150
national parties signing the Convention on
Biological Diversity (CBD) (see Table 2).
The convention promised to develop
national strategies not only for the sustainable use and conservation of biological
diversity, but also for the “fair and equitable sharing of the benefits arising out of
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the utilization of genetic resources” (CBD
1992:Article 1)2. Shortly after, several international treaties and working groups
focusing on Indigenous Peoples emerged,
including the United Nations’ Declaration on the Rights of Indigenous Peoples
(UNGS 2007; see Table 2) and the World
Intellectual Property Organization (WIPO)
Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore (IGC
2006). On the other hand, Posey’s work has
sparked much debate among scholars and
policy makers, as part of broader disputes
concerning the international regulation
of intellectual property. As such, several
areas covered by Posey’s suggestions have
remained unaddressed.
Table 1. Acronyms used throughout the paper.
Acronym
Full Form
AOC
Appellation d’origin contrôlée
COP
Conference of the Parties
FAO
Food and Agricultural Organization
FPIC
Free Prior Informed Consent
GI
Geographical Indications
HAP
Herbal Anthropology Project
IGO
Intergovernmental Organization
ILK
Indigenous and Local Knowledge
IP
Intellectual Property
IPINCH
Intellectual Property Issues in Cultural Heritage
IPLC
Indigenous Peoples and Local Communities
IPR
Intellectual Property Rights
ISE
International Society of Ethnobiology
NCAB
National Commission Against Biopiracy of Peru
NGO
Non-Governmental Organization
TCE
Traditional Cultural Expression
TK
Traditional Knowledge
TKDL
Traditional Knowledge Digital Library
TRIPS
Trade-Related Aspects of Intellectual Property Rights
UNESCO
United Nations Educational, Scientific and Cultural Organization
UNPFII
United Nations Permanent Forum on Indigenous
WHO
World Health Organization
WIPO
World Intellectual Property Organization
WTO
World Trade Organization
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Golan, Athayde, Olson, and McAlvay
Table 2. Major international treaties and organizational bodies whose provisions relate, in part, to protecting the
intellectual property of Indigenous Peoples and local communities.
Instrument
Acronym
Year
Contribution(s)
Patent Cooperation
Treaty
PCT
1970
Harmonizes patent
law requirements at an
international and national
level
1989
Discourages assimilationist
policies by countries toward
Indigenous peoples
Indigenous and
Tribal Peoples
Convention
Notes
Convention on
Biological Diversity
CBD
1992
Promotes sustainable use and
conservation of biological
diversity and benefit sharing
from use of genetic resources
No formal language on
rights of Indigenous Peoples
or integration of ILK within
national and international
intellectual property regimes
Trade-Related
Aspects of
Intellectual Property
Rights
TRIPS
1994
Establishes intellectual
property related regulation of
international trade
Just compensation not
included in initial agreement
Patent Law Treaty
PTL
2000
Coordinates patent law
requirements nationally and
internationally
Intergovernmental
Committee on
Intellectual
Property and
Genetic Resources,
Traditional
Knowledge and
Folklore
IGC
2000
Protects intellectual property
in the form of genetic
resources, traditional
knowledge, and traditional
cultural expressions. Provides
international monitoring and
resources to IPLCs
2002
Helps align TRIPS with CBD
Doha Declaration
Leaves IPLCs vulnerable as
biopiracy and unequal benefit
sharing are only prosecutable
on a national level
International Treaty
on Plant Genetic
Resources for Food
and Agriculture
ITPGRFA
2004
Regulates food and
agricultural resources as
well as associated access to
benefits
Limited FPIC procedures
in dealing with local
communities
United Nations’
Declaration on
the Rights of
Indigenous Peoples
UNDRIP
2007
States how Indigenous and
local communities should be
treated both nationally and
internationally
Does not mention intellectual
property specifically
2010
(Enact.
2014)
Addesses gaps in the CBD
and ITPGRFA, and establishes
mechanisms for signatories
to gain access to genetic
resources and associated ILK.
Emphasizes benefit sharing
and FPIC
Inconsistently applied and
enforced, legal ambiguity
Nagoya Protocol
This paper provides an update on
developments in the state of intellectual
property policy and strategies as they relate
to Posey’s five suggestions. In addition, it
shows how the shortcomings of national and
international policy to address outstanding
issues of intellectual property have affected
cultural, ecological, and biological conservation. Finally, it recommends an update
to Posey’s five suggestions in light of the
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An Update on Posey’s Call to Action
recent Belém +30 Congress (August 7–10,
2018) and of the rapidly changing landscape of international intellectual property
regulation.
Posey’s Suggestion 1: Support an
International Call, through Its Members
in All Countries that Participate in United
Nations Activities, for UN Action on the
Question of Intellectual Property Rights
The Convention on Biological Diversity
Shortly after Posey’s publication in
1990(a), the United Nations Conference on
Environment and Development (UNCED),
more commonly referred to as the Rio
Earth Summit (held in 1992), brought 178
nations together in Rio de Janeiro, Brazil.
The purpose of the summit was to foster
international discussions on economic
development, in light of a growing urgency
to protect the environment and nonrenewable resources. Arguably the most lasting
effect of the Rio Earth Summit, with respect
to intellectual property, was the signing
of the Convention on Biological Diversity
(CBD) (Table 2), which shapes international
discussion and debates regarding intellectual property rights and ILK to date (CBD
1992). In addition to sounding a global
call to conserve biodiversity and promote
the sustainable use of biological resources,
the CBD explicitly demands the fair and
equitable sharing of benefits arising from
the utilization of genetic resources (CBD
1992:Articles 15, 16, and 19). Moreover,
Article 8(j) specifically mentions the need to
“respect, preserve and maintain knowledge,
innovations and practices of Indigenous
and local communities.” The CBD treats
the protection of Indigenous and local
knowledge (ILK) as only one of the many
aspects needed to promote sustainable
development and environmental preservation. Though being an important first step
towards protecting genetic resources and
Indigenous Peoples’ rights, the CBD did
not implement any formal language recognizing the rights of Indigenous Peoples, nor
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any that easily facilitated the integration of
ILK within national and international intellectual property regimes (Curci 2010).
The Nagoya Protocol
It would be another 18 years before
further UN action would specifically
address these latter two issues. This was
done through a supplementary text to the
original CBD: The Nagoya Protocol on
Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits Arising
from their Utilization to the Convention on
Biological Diversity, or simply the Nagoya
Protocol (Table 2). The Protocol establishes
roles and mechanisms by which signatories can gain access to genetic resources
and associated ILK, while also supporting
the fair and equitable sharing of benefits for their utilization (SCBD 2011). The
Protocol entered into force on October 12,
2014. It currently has 105 parties (with the
United States notably absent), 92 of whom
are signatories, committed to implementing national-level benefit sharing policies
(Parties to the Nagoya Protocol). While Article 16 of the CBD recognizes the impact
of intellectual property policy on access
to benefit sharing, detailed mention of
intellectual property is surprisingly absent
from the Nagoya Protocol. Nonetheless,
the Protocol does require signatories to
formulate fair and non-arbitrary procedures
for access to genetic resources, as well as
guidelines when applying policy related to
Free, Prior, and Informed Consent (FPIC,
see below) within the context of trade deals
and permit applications (UNCTAD 2014).
The International Labor Organization
(ILO)
The 169th ILO convention concerning
Indigenous and Tribal Peoples in Independent Countries (1989) constitutes another
important example of a supranational
agreement that specifically addresses Indigenous and local communities’ FPIC. While
the central goal of the convention was to
provide agency to Indigenous and local
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Golan, Athayde, Olson, and McAlvay
communities with regards to access to their
lands, resources, ILK, and labor-related
issues, Article 4.1 relates specifically to
such groups’ intellectual property by stating: “special measures shall be adopted as
appropriate for safeguarding the person,
institutions, property, labor, cultures and
environment of the peoples concerned”
(ILO 1989:Article 4.1). Although intellectual property is not specifically mentioned,
the 169th ILO convention established an
early framework by which FPIC could be
internationally administered. However, the
“special measures” suggested by Article 4.1
are nowhere specified in the original document, and actualizing such measures at the
national level, across the ILO’s current 187
member states, has remained inconsistent.
An important aspect of the 169th ILO
Convention is safeguarding the right of Indigenous and Tribal Peoples to be consulted on
projects, policies, or actions affecting their
lands, resources, knowledge, and/or livelihoods. As McGee (2010) highlights, FPIC
is not just about the right to be consulted
and to participate in the decision-making
process, but also an opportunity to prevent
unwanted development. Although the right
to FPIC has remained under dispute in many
countries, its upholding on the part of the
169th ILO Convention has been invoked by
many Indigenous and local communities,
as well as by some judiciaries. For example, the Community Referenda is one such
instrument that provides “a measure of the
position of local voters on a given proposed
project, through a democratic process that
promotes fair and informed debate, and
provides an avenue for communities to
express their consent or refusal of a specific
project” (McGee 2010:162). Likewise,
“Consultation Protocols” developed by some
Indigenous groups and local communities
in Brazil and other Latin American countries
outline specific procedures that government officers are required to follow so as to
respect traditional systems of socio-political
organization and decision-making (Garzón
et al. 2016).
Despite the CDB, the Nagoya Protocol,
the 169th ILO Convention, and other international agreements, critics often point out
the lack of one international standard regulating the implementation of FPIC, which
for the most part is enforced differently by
each nation. For example, Brazil’s Conselho
de Gestão do Patrimônio Genético requires
that two “competent authorities” issue
authorization of access to genetic resources,
while, in the Philippines, more autonomy
is granted to the local community (Hirakuri
and Tobin 2005). Additionally, the application of the Nagoya Protocol to goods whose
permit had been obtained prior to 2014
has been left to national policy, exposing a
wide array of genetic resources to the possibility of unjust access to benefit sharing
(UNCTAD 2014). Furthermore, ethnobiologists and other researchers have commented
that the Nagoya Protocol, at times, hinders
research:
inconsistent
implementation
across countries and legal ambiguity in
the document may deter researchers who
are genuinely seeking to conserve local
knowledge, support land rights claims, or
revitalize traditional food systems (Cho
2017; Vanheusden and Van den Berghe
2017). Others criticize the Nagoya Protocol for impeding research with potential
benefits to global health (Cressey 2017).
Additionally, legal definitions and practical
aspects of scientific research are difficult to
apply uniformly across all domains of life
(cf. Overmann and Scholz 2017). Because of
the different pace of scientific development
and policy, there is often a delay between
the development of new technologies (for
example, gene-editing tools), and their
subsequent interpretation under the Nagoya
Protocol (Wynberg and Laird 2018). Moreover, Robinson and Forsyth (2016) argue
that many social aspects are still overlooked,
specifically:
Power, agency, and resource allocation,
the bounded nature of communities
and their relationship with land or sea;
the fluidity and dynamism of custom-
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An Update on Posey’s Call to Action
ary law; and challenges stemming
from multiples sites of agency and the
potentials of pluralism. (Robinson and
Forsyth 2016:324)
International Treaty on Plant Genetic
Resources for Food and Agriculture
Outside of the CBD and its supplementary protocols, the Food and Agricultural
Organization (FAO) of the UN’s International Treaty on Plant Genetic Resources
for Food and Agriculture (ITPGRFA) (FAO
2001; Table 2) regulates access to food,
agricultural resources, and benefits. Article
9.2a, on Farmers’ Rights, makes specific
mention of ILK and of the rights of traditional
farmers to protect the genetic resources
associated with food and agriculture (FAO
2001:Article 9.2a). Some countries (for
example, Thailand) were reluctant to adopt
ITPGRFA out of concern that it may inadvertently encourage the commoditization
of Indigenous and local genetic resources,
while also resulting in inadequate FPIC
procedures in dealing with local communities (Robinson 2010:38). As the Nagoya
Protocol was put into effect about a decade
later, it virtually replaced ITPGRFA provisions.
World Intellectual Property Organization
While the CBD, the Nagoya Protocol,
and ITPGRFA do not specifically address
the issue of intellectual property rights
within the context of ILK and genetic
resources, they are key first steps taken
to protect the interests of Indigenous and
local communities directly following the
Belém Declaration and Posey’s call to
action. Of the UN agencies specifically
related to intellectual property, the World
Intellectual Property Organization (WIPO)
is currently the most prominent global
player, with 191 member states (WIPO
2012). This specialized agency of the UN
was created in 1970 and has since overseen the development of several global
intellectual property initiatives that directly
address the protection of ILK and genetic
95
resources. Most notably, the Intergovernmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore (IGC) was established
in 2000 as a “forum where WIPO member
states discuss the intellectual property
issues that arise in the context of access to
genetic resources and benefit-sharing as
well as the protection of traditional knowledge and traditional cultural expressions”
(WIPO 2015a, 2016a). The IGC performs
an important role in recognizing Indigenous and local communities’ rights, even
when national governments are reluctant
to do so. For example, the IGC is open not
only to WIPO member states, but also to
accredited inter-governmental (IGO) and
non-governmental (NGO) organizations.
Additionally, the WIPO Voluntary Fund
assists participation of Indigenous and local
communities in the work of the IGC by
funding their attendance to IGC sessions.
Although the IGC provides an important basis by which, for example, the
objectives of the CBD can be internationally monitored, issues such as biopiracy or
unjust access to benefits are typically only
prosecutable at the national level, leaving the intellectual property of Indigenous
and local communities still largely vulnerable (Robinson 2010). The IGC provides
resources to Indigenous and local communities to document their ILK, though it is
best seen as an advisory committee on
international ILK policy, rather than a
legal body equipped to effectively enforce
national intellectual property law.
Perhaps the most dynamic WIPO
program that relates to ILK and genetic
resources is the Patent Cooperation Treaty
(PCT 1970; Table 2), followed by the more
recent Patent Law Treaty (PLT 2012). In
effect, both harmonize patent law requirements at international and, to a large
extent, national levels. The commitment
of WIPO not only to preside over international intellectual property disputes,
but also to ensure that member states are,
for example, complying with the Nagoya
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Golan, Athayde, Olson, and McAlvay
Protocol, creates more substantive pressure
on national intellectual property offices to
carefully regulate how genetic resources
and ILK are protected at a national level.
This is all the more true at a time when
national patent offices are increasingly
eager to expand uniform intellectual property regulation across borders (Reichman
2009). The specific emphasis on ILK and
genetic resources makes WIPO a useful
resource for ethnobiologists and other
researchers. In addition to training courses
and workshops, they offer services such as
the Traditional Knowledge Documentation
Toolkit (WIPO 2012), which presents a set
of best practices for working with ILK.
Posey’s call for international action
on international property rights has been
partially addressed by the ILO 169, CBD,
and WIPO. While these are limited in their
ability to directly address issues of ILK and
genetic resources, they have had substantial
impacts on how ethnobiological research
is conducted. However, the best strategies
and tools for reinforcing the intellectual
property rights of Indigenous communities
remain a point of continued discussion,
slowing progress to better protect ILK.
Posey’s Suggestion 2: Seek National
Legislation to Secure Indigenous
Intellectual Property Rights in All
Countries Where Native Populations Exist
WIPO at the National Scale
WIPO also advises on intellectual
property policy at the national level upon
request. The WIPO Legislature Service
describes itself as providing tailored
advice on the creation of laws related to
patents, trademarks, industrial designs, and
geographical indications (GIs), as well as
on provisions related to intellectual property enforcement, taking into account
specific countries’ needs and situations
(WIPO 2016). The agency keeps records of
member states’ involvement in WIPO but
does not explicitly compile which national
intellectual property programs have been
designed under WIPO advisory (WIPO
2019a). This makes it somewhat difficult
to evaluate WIPO’s impact on national
intellectual property laws concerning ILK.
Nevertheless, WIPO does provide an array
of freely available resources for national
intellectual property strategy development
(WIPO 2019b) and publishes reports of its
general services for intellectual property
law and policy development as they relate
to ILK (such as in Jamaica [Radauer 2015],
Rwanda [Mengistie 2015], and Sri Lanka
[Mendes 2015]).
CBD at the National Scale
Several national governments have
also enacted intellectual property laws
and policies that are aimed at protecting
genetic resources and ILK in line with treaties such as the CBD. These countries tend
to be located in biodiverse areas and to
possess a relatively large Indigenous population (for example, Peru, South Africa, and
Thailand). Still, some countries have done
more than other ones to protect genetic
resources associated with ILK. South Africa
stands out for having passed, in 2005, an
amended Patent Act, whose Section 30:3B
requires that patent applicants provide
proof of origin and specify the intended
use of an Indigenous or local biological
resource. South African law also states that
“bioprospecting begins once a patent application has been filed” (UNCTAD 2014:2).
This provision was issued in the wake of
a major international intellectual property
suit involving extracts of South African
endemic Rooibos (Aspalathus linearis)
and honey bush (Cyclopia spp.) (Robinson
2010). These species were implicated in
a series of international patents submitted
by Nestlé that made commercial use of
the species’ anti-inflammatory properties
(Robinson 2010). Evidence surfaced that
Nestlé had never acquired the necessary
permits under South African Law, the CBD,
or the Nagoya Protocol, despite having
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An Update on Posey’s Call to Action
acquired the biological material outside
the country of origin. The patent applications later failed pre-examination at WIPO,
largely due to action by the South African
government.
Still, the example of South Africa
highlights the difficulty of enforcing the
CBD’s specification that genetic resources
are under the sovereignty of the nation of
origin (CBD 1992:Articles 3 and 15). Per
the Nagoya Protocol, while the simple sale
of a fruit or vegetable (for consumption)
across borders does not require special
permission, if these goods are later used
for research purposes, then the appropriate
access to benefit sharing and FPIC permits
must still be submitted (UNCTAD 2014:18).
The transfer of imported genetic resources
from their intended use––for example, as
food––to research most often represents
an exceptional case for customs officials
and, as a result, they are often reluctant to
apply the Nagoya Protocol retroactively
(UNCTAD 2014:18).
The government of Peru also has established national procedures to protect their
biological resources and ILK. In 2004, the
National Commission Against Biopiracy
of Peru (NCAB) was established to “identify, prevent, and avoid potential cases of
‘biopiracy’” in Peru (UNCTAD 2014:71).
NCAB has prioritized 35 Peruvian biological resources, many of which relate to
ILK, and has campaigned successfully for
the rejection, abandonment, or withdrawal
of nine controversial patents involving
Peruvian genetic resources and/or ILK.
Examples include patents filed by the Japanese patent office for the use of Amazonian
Camu Camu (Myrciaria dubia), cultivated
for centuries but more recently found to
produce high levels of vitamin C (Robinson
2010). Peruvian law makers successfully
argued on an international stage against
any inventive step underlying the patents,
and, more substantially, demonstrated the
ability of national government to police
their Indigenous genetic resources at the
international level.
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Sui generis Intellectual Property Systems
Aside from employing existing international intellectual property mechanisms to
protect national genetic resources and ILK,
many governments have enacted sui generis
systems (that is, extended intellectual property categories and definitions) that better
suit the unique nature of ILK. Unlike traditional intellectual property systems, ILK can
rarely be attributed to a single owner, and it
makes little practical sense to grant limited
time rights to knowledge and resources that
have existed within communities for generations. Several national and multilateral
consortia have elaborated upon national
sui generis intellectual property rights to
address exceptional ILK cases. Examples
include: the Andean Community’s Decision 391 on Common Regime on Access
to Genetic Resources (2002); the Pacific
Islands Forum’s on Traditional Biological
Knowledge, Innovations, and Practices
Act (2008); the African Regional Intellectual Property Organization’s Swakopmund
Protocol on the Protection of ILK and
Expressions of Folklore (2010); Thailand’s
Act on Protection and Promotion of Traditional Thai Medicinal Intelligence, H.E.
2542 (1999); Portugal’s Decree-Law No.
118/2002 (2002); and South Africa’s Regulations on Bio-Prospecting, Access, and
Benefit-Sharing (2008) (UNCTAD 2014).
Sui generis national laws require researchers to familiarize themselves with each
country’s particular implementation of
intellectual property protection. As these
systems are further refined, researchers will
need to continue to stay abreast of new
national and international developments
to avoid conflicts for both themselves and
Indigenous communities
Geographic Indications
National governments can also protect
ILK by making use of Geographic Indications. An extension of international
trademark law and loosely regulated under
WIPO’s Standing Committee on the Law
of Trademarks, Industrial Designs, and
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Geographical Indications, Geographic
Indications are regulated in accordance to
several multilateral treaties, most notably
the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS 1994;
Table 2). Familiar examples of Geographic
Indications include the famously strict use of
French regions in wine names, for example,
“Champagne” or “Bordeaux,” and the legal
obligation that such wines be produced only
within the confines of a specified geographic
area (for example, the appellation d’origine
contrôlée [AOC] designation system). From
the perspective of ILK, which often involves
genetic resources linked to geographic provenance, Geographic Indications can be an
important mechanism by which Indigenous communities can maintain intellectual
property sovereignty.
However, the employment of Geographic Indications for the purposes of
ILK protection presents several shortcomings. Geographic Indications have been
highly controversial as critics argue that,
for example, they hinder the free market
on an arbitrary geographic basis, and/or
unfairly favor European nations, which
have a longer history of producing traditional goods (Watson 2016). Additionally,
there is a general lack of adherence to
Geographic Indication regulations across
international borders (mostly notably by
the United States, Australia, and New
Zealand). Complex Geographic Indication regulation can become a significant
barrier to the communities supposedly
protected. For example, Mexican Tequila
production is frequently cited as a successful extra-European example of Geographic
Indications; its application in this case
offers ILK protection to communities in
the state of Jalisco and to limited municipalities in the states of Guanajuato,
Michoacán, Nayarit, and Tamaulipas
(Bowen 2015). However, Mexican law
related to Geographic Indications makes it
difficult for new, small distillers to enter the
market. Legal requirements for chemical
analysis, member fees, and several quality
requirements further discourage small scale
producers (Bowen 2015). At the same time,
high profits from Tequila production are
rapidly displacing local production methods, such as that of traditional Mezcal, and
reducing agricultural diversity by spreading
the cultivation of blue agave (Agave tequilana) at the detriment of other crops (El
Benni and Reviron 2009). While there are
still many examples of Geographic Indications helping to protect ILK (though mostly
in Europe), national and international policymakers should ensure that the protection
of communities endures in the future.
Nonetheless, ethnobiologists and other
researchers working with communities in
defense of geographically situated ILK may
choose to leverage Geographic Indications
as a legal tool to provide intellectual property protections.
Posey’s Suggestion 3: Encourage Funding
Agencies and Development Banks
to Support Research into Traditional
Knowledge, Its Practical Applications, and
Ways that Native Peoples Can Be “Justly
Compensated” for Their Knowledge.
“Just Compensation”
In 1990 Posey published also another
paper, “Intellectual Property Rights and
Just Compensation for Indigenous Knowledge” (Posey 1990b). As the title suggests,
Posey discusses the impact of intellectual
property rights on Indigenous communities. He also proposes what he refers to
as an “eco-ethno” ethics code, according
to which practitioners, anthropologists,
ethnobiologists, and other researchers can
work towards the “just compensation” of
ILK. Under this proposed ethic, researchers
should be forthcoming about the importance of Indigenous communities’ resources
to promote their economic independence.
While Posey never actually defines what he
means by “just compensation,” he arguably
implies that it can go hand in hand with
intellectual property rights.
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An Update on Posey’s Call to Action
Since underscoring the oversight of
Indigenous issues by intellectual property
policy, several international and national
treaties, and legislation have attempted to
specifically outline and address the “just
compensation” of ILK. However, major
international treaties and agreements
have only grappled with the issue of “just
compensation,” as evidenced by what
appears to be their intentionally vague
definition of terms. Articles 15, 16, and
19 in the CBD (1992) deal explicitly with
equitable sharing of benefits, as it is relevant to access to genetic resources, the
transfer of technology, and the handling
of biotechnology and distribution of its
benefits, respectively. The CBD formulates important directives, for example,
that “genetic resources shall be subject to
free, prior and informed consent” (CBD
1992:Article 15.5), and “legislative, administrative or policy measures [should require
the] sharing in a fair and equitable way the
results of research and development and
the benefits arising from the commercial
and other utilization of genetic resources”
(CBD 1992:Article 15.7). However, these
statements apply to “Contracting Parties,”
a phrase seen throughout the CBD and
nowhere defined in Article 2: Use of Terms.
Similar vague language continues in the
Nagoya Protocol, in which ILK (“Traditional
Knowledge [TK],” specifically) is mentioned
at least ten times (CBD 1992:Articles 3, 5,
7, 10, 12, 13, 16, 18, 21, and 22) but only
discussed within the context of contributing
to “biological diversity and the sustainable
use of its components” (SCBD 2011).
Apart from the CBD, which discusses
intellectual property rights as one aspect
of its main objective, the World Trade
Organization’s (WTO) Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS 1994), effective as of
1995 between all UN member states, deals
specifically with international intellectual property issues. Notably, no mention
of “just compensation” for ILK is made
in the initial agreement. The later Doha
99
Declaration (WTO 2002; Table 2) somewhat reinterprets TRIPS, but only goes so
far as to mention ILK as an agenda item
for the WTO. Specifically, paragraph 19
of the Doha Declaration seeks to broaden
the discussion surrounding the review of
TRIPS Article 27.3(b) (which deals with
the patent-eligibility of genetic resources)
to align better with the mandates of the
CBD. However, the coordination of CBD
and TRIPS objectives has been subject to
contentious international debate, which
has dramatically hindered workable solutions (cf. Curci 2010).
Additionally, in a series of proposals issued by the TRIPS Council since
2001, “just compensation” for ILK has
been addressed explicitly only in 2006.
The TRIPS Disclosure Proposal (Council
for TRIPS 2002a:28) obliges “members to
require that an applicant for a patent relating to biological materials or to traditional
knowledge provide [the appropriate] information,” such as the source of the genetic
material, evidence of prior informed
consent, and proof of fair and equitable
benefit sharing under the relevant national
government (Council for TRIPS 2002a:Paragraph 17). The proposal has yet to be
formally agreed upon by WTO members,
and subsequent amendments to TRIPS in
2008 (TNC 2008) and 2011 (Council for
TRIPS 2002b) have yet to be fully adopted
and/or mention very little by way of ILK and
“just compensation.”
Voluntary Mechanisms, Data
Depositories, and Funding Sources
Lacking multilateral bases whereupon
to obtain or enforce “just compensation,”
many Indigenous groups instead rely on
differing means of “defensive intellectual property protection.” Such a strategy
involves carefully documenting and/or
obtaining intellectual property rights, such
as to provide a legal basis that bars others
from misappropriating knowledge and/or
resources. For Indigenous communities,
this usually comes in the form of large dataJournal of Ethnobiology 2019 39(1): 90–109
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100
Golan, Athayde, Olson, and McAlvay
bases or depositories (for example, India’s
Traditional Knowledge Digital Library
[TKDL]). Several small non-profit organizations, such as Intellectual Property Issues in
Cultural Heritage (IPINCH) and the Herbal
Anthropology Project (HAP), have also
worked to conduct defensive intellectual
property protection projects. The WIPO
Voluntary Fund for Accredited Indigenous
and Local Communities finances individuals and organizations working with
Indigenous rights and is subsidized by both
national governments and private donors
(WIPO 2018c). Additionally, WIPO makes
available the Online Databases and Registries of Traditional Knowledge and Genetic
Resources, which do not directly fund
ILK and intellectual property, but serve as
a hub for international repositories of ILK
and can be an important documentation
center for defensive intellectual property
protection (WIPO 2018a). For example,
WIPO compiles information from the Traditional Chinese Medicine Patents Database,
the Korean Traditional Knowledge Portal
(KTKP), Peru’s Registers of ILK, and several
other databases.
Some repositories provide a means
of documenting ILK without making the
knowledge widely available: The UN
Voluntary Fund for Indigenous People,
for example, provides financial and logistic assistance to Indigenous communities
and individuals seeking to participate in
the UN’s Working Group on Indigenous
Populations of the Sub-Commission on
the Promotion and Protection of Human
Rights, the Permanent Forum on Indigenous
Issues (per resolution 56/140 of December
19, 2001), as well as other UN conferences
(UNGS 2007:40/131). Finally, a wide array
of third-party international agencies and
NGOs actively fund programs related to
ILK and intellectual property. These organizations include UNESCO, International
Work Group for the Indigenous Affairs
(IWGIA), the Swiss National Science Foundation, the Christensen Fund, and the
Indigenous Peoples’ Centre for Documen-
tation, Research, and Information (DOCIP).
In some cases, ethnobiologists are eligible
to apply for funds to establish legal protection and/or document ILK in collaboration
with these organizations.
Ethnobiologists and researchers working with Indigenous Peoples and local
communities can contribute to defensive
intellectual property protection through
documentation of ILK. As ethnobiology
increasingly moves away from “laundry lists” of resource usage and towards
hypothesis-driven research, basic information on the specific uses of a given species
may remain unpublished. Researchers can
serve an important role in intellectual property protection by connecting with relevant
ILK repositories or forming new ones that
can be consulted in legal disputes.
Posey’s Suggestion 4: Establish a Special
Working Committee to Investigate the
Issues of Intellectual Property Rights in
Relation to Native Rights and Report
to the Society with Guidelines for
International and National Legislation.
CBD Working Groups
Among the accomplishments of the
CBD was the formation of working groups
that specifically address ILK and Indigenous
communities’ intellectual property-related
issues. Article 8(j) outlines that:
Each contracting Party shall, as far as
possible and as appropriate: Subject to
national legislation, respect, preserve
and maintain knowledge, innovations and practices of Indigenous
and local communities embodying
traditional lifestyles relevant for the
conservation and sustainable use of
biological diversity and promote their
wider application with the approval
and involvement of the holders of such
knowledge, innovations and practices
and encourage the equitable sharing of
the benefits arising from the utilization
of such knowledge innovations and
practices. (CBD 1992)
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An Update on Posey’s Call to Action
Since the CBD went into effect in 1993,
13 Conference of the Parties (COP) to the
convention have addressed Article 8(j).
The high proportion of COP meetings with
sessions devoted to Article 8(j) demonstrates the latter’s central importance to the
overall objectives of the CBD.
The first COP meeting focused on
Article 8(j) met in Bratislava, 1998, during
which a working group was established to
address the implementation of Article 8(j)
and related provisions of the CBD (COP
1998:Paragraph 1). Since then, COP decisions have varied in focus: the Nagoya
Protocol emerged in inchoate form at the
7th COP in Kuala Lumpur in 2004, where
a working group on access and benefit sharing was established to collaborate
with the earlier COP working groups (COP
2004). The most recent 13th COP adopted
“voluntary guidelines for the development
of mechanisms, legislation or other appropriate initiatives to ensure the ‘free, prior
and informed consent’ or ‘approval and
involvement’” (COP 2016a). However,
as with all COP decisions, the ultimate
implementation of such guidelines is at the
discretion of each national government,
and the interpretation of, for example, FPIC
remains subject to national laws and their
level of legislative accommodation for
Indigenous and local communities. While
the COP regularly addresses issues related
to Article 8(j), the principle limitation of
such working committees is their reduced
ability to influence national legislation.
United Nations Permanent Forum on
Indigenous Issues
The United Nations Permanent Forum
on Indigenous Issues (UNPFII) is a potentially more influential working group than
those already mentioned, since member
states are theoretically obliged to act in
accordance with international legislation. UNPFII was established in 2000
and mandated to “deal with Indigenous
issues related to economic and social
development, culture, the environment,
101
education, health and human rights”
(UNCHR 2000:Resolution 2000/22). The
working group holds annual sessions,
each with special themes. These include
such titles as “The Doctrine of Discovery: Its Enduring Impact on Indigenous
Peoples and the Right to Redress for Past
Conquests” (COP 2012), and “Principles
of Good Governance Consistent with the
United Nations Declaration on the Rights
of Indigenous Peoples: Articles 3 to 6 and
46” (COP 2016b).
However, for intellectual propertyspecific issues, the UNPFII defers to the
UN’s specialized subsidiary, WIPO. Unlike
the CBD, which has created mostly ad hoc
committees, and UNPFII, which addresses
Indigenous rights from a broad legal
perspective, WIPO’s Intergovernmental
Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge
and Folklore (IGC) (Table 2) is a formal
working group. Its mandate specifies its
role to “undertake text-based negotiations” on international legal instruments
that, using intellectual property law tools,
would protect “traditional knowledge (TK),
traditional cultural expressions (TCEs) and
genetic resources” (WIPO 2015b). Since
the establishments of the IGC in 2001, the
working group has met 38 times to discuss
a variety of issues pertaining to ILK and
intellectual property. However, in 2014,
the IGC was suspended for a year due to
member states’ disagreement regarding
committee programming. The committee
has a 2018 deadline to present to the UN
General Assembly “a factual report along
with the most recent texts available of its
work up to that time with recommendations,” and a 2019 deadline to submit the
results of its work to reach “an agreement
on … international legal instrument(s)”
that would protect ILK from an intellectual
property perspective (WIPO 2018b).
Although the CBD and WIPO have
met Posey’s suggestions for the creation of
working committees related to Indigenous
rights and intellectual property, internaJournal of Ethnobiology 2019 39(1): 90–109
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Golan, Athayde, Olson, and McAlvay
tional policy has yet to permeate national
legislations. There are several national
working committees that advocate for
Indigenous rights at both the national and
international level, such as Peru’s NCAB,
as well as those integrated within Ecuador
and Bolivia’s constitutions (Macinnes et
al. 2017); other states that are members of
both the CBD and the UN, however, are
much less willing to implement said agreements’ proposals for ensuring FPIC, access
to benefit sharing, or just compensation for
ILK. Without support from national legislatures for international working committees,
their efficacy remains unclear.
Posey’s Suggestion 5: Include on the
Agenda of an Ethics Committee the
Issues of Intellectual Property Rights in
Relation to Activities of Researchers with
Indigenous Populations
As described above in suggestions one
through four, there are still many hurdles
to overcome regarding international legislative consensus for the ethical treatment
of ILK. Many infractions related to ILK
and intellectual property are dealt with
at the national level, owing to the lack of
agreed-upon international measures to
enforce, for example, just compensation
and sanctions on biopiracy. Although the
CBD itself states that genetic resources are
national sovereignty, no forthright statement
is provided by international agreements
for intellectual property cases in which
ILK or genetic resources are moved across
borders (Robinson 2010). As a result, local
and Indigenous communities continue to
be excluded from the sale or export of ILK
(for example, the case of Round-Up Ready
Soy [Glycine max] production in Argentina,
or the Mexican Barbasco yam [Dioscorea
mexicana, D. floribunda, and D. composita]), and both genetic resources and
cultural integrity are threatened (for example, the case of Hawaiian taro [Colocasia
esculenta] patents PP12,361, PP12,342,
and PP12,772, and the now endangered
Hoodia [Hoodia gordonii] plant in South
Africa) (Robinson 2010:Chapter 3).
Ethics Committees
While there are many ethics committees that oversee fair and ethical treatment
of Indigenous and local communities
across the globe (such as UNESCO and the
World Health organization [WHO]), there
is a surprising lack of governing bodies that
specifically deal with ethical issues related
to ILK and intellectual property. At the 10th
COP of the CBD, the Tkarihwaié:ri Code of
Ethical Conduct to Ensure Respect for the
Cultural and Intellectual Heritage of Indigenous and Local Communities Relevant
to the Conservation and Sustainable Use
of Biological Diversity was adopted (COP
2010). The decision provides an outline by
which national governments can develop
“models of codes of ethical conduct for
research, access to, use, exchange and
management of information concerning
traditional knowledge,” though actual
implementation is left to national legislatures (COP 2010).
Of the ethics committees that specifically relate to intellectual property, WIPO’s
IGC is perhaps the most prominent. At the
IGC’s 16th session in 2010, the committee
explicitly stated that the ethical management of intellectual property and ILK
is inherent to its mission (WIPO 2010).
Several independent organizations have
also formulated their ethics policy, for
example, the International Society of Ethnobiology’s ISE Ethics Program and Code of
Conduct (the most comprehensive code of
ethics for researchers working with Indigenous and local Peoples to date), and the
Herbal Anthropology’s intellectual property
statement (HAP 2018; ISE 2018). However,
concrete legal action has yet to be systematically pursued. Translating international
policy to national legislation, which is at
the same time enforceable, is a continuous obstacle that WIPO has been grappling
with since its inception.
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An Update on Posey’s Call to Action
Unsurprisingly, ethics committees related to ILK and intellectual property have
been successful in countries where the
ethical treatment of Indigenous groups has
been given greater priority. For example, the
Australian Institute of Aboriginal and Torres
Strait Islander Studies operates a Research
Advisory Committee and Research Ethics
Committee; Canada’s Royal Commission on
Aboriginal Peoples has organized a special
“Ethical Guidelines for Research,” under the
Government of Canada Interagency Advisory Panel on Research Ethics; the Health
Research Council of New Zealand has
developed Guidelines for Researchers on
Health Research Involving Māori; and Peru’s
NCAB actively polices cases of biopiracy,
bioprospecting, and misuse of national
genetic resources at both national and international courts.
To extend the work of the above
committees and organizations, as well as to
foster the creation of new ones, ethnobiologists can work with national governments
to draft and refine guidelines for ethical
ethnobiological research that may in turn
shape policy and legislation. Researchers are uniquely positioned to ensure that
intellectual property guidelines and laws
are both appropriate and enforced due to
their intimate knowledge and participation
in Indigenous communities’ activities.
Belém 30
In August of 2018, the Federal University of Pará and the Museum of Pará Emílio
Goeldi, in collaboration with the International Society of Ethnobiology (ISE) and
the Brazilian Society of Ethnobiology and
Ethnoecology (SBEE), organized the XVI
Congress of the International Society of
Ethnobiology in Belém do Pará, in conjunction with the XII Brazilian Symposium on
Ethnobiology and Ethnoecology. The event
convened around the theme, “The Rights
of Indigenous and Traditional Peoples and
the Sustainable Uses of Biodiversity Three
Decades after the Declaration of Belém”3.
103
With the leadership and participation of
many Indigenous, traditional, and local
groups, and more than 2,500 individuals
from around the globe, the conference
showcased
research-informed
issues
related to intellectual property and ethical engagement with Indigenous and local
knowledge.
A key purpose of the Belém +30
conference was to articulate an updated
Declaration of Belém (ISE 1988)3. Traditional
knowledge
and
Indigenous
sovereignty remain important factors in
the work of ethnobiologists, anthropologists, and other researchers, as well as in
that of bioprospecting companies. With
growing recognition for the sustainability
and climate crises that face communities
around the globe, the value and importance of Indigenous knowledge cannot be
overstated (Salick et al. 2009; Turner and
Clifton 2009; Wolverton 2013). Bringing
Indigenous and local voices to the forefront
of discussions is essential to identifying and
addressing ongoing dilemmas, and will
serve to shift the balance of representation.
Upon the conclusion of a series of
forums at the Belém +30 conference, a
revised Declaration of Belém was approved
by the Congress participants; it is now in
the process of being disseminated. With
input from the many participating individuals and groups, the document reflects
current imperatives and trends highlighted
by the special forums on research, policy,
and decision-making processes related to
Indigenous and local knowledge, territorial rights, and consultation. The forums
lasted for many hours and were a platform
for listening to the many voices of Indigenous peoples, Afro-descendant groups, and
others who were present and played key
roles in drafting of the Belém +30 Declaration. The time invested in the forums is
a testament to the importance placed by
the conference organizers on updating and
revisiting the 1988 Declaration of Belém.
Among the main topics highlighted by the
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Golan, Athayde, Olson, and McAlvay
document were: a) the call for governments
to respect the right of FPIC of Indigenous
peoples, as well as traditional and local
communities, especially as such rights
relate to research, development projects,
policies, and/or actions that may affect their
lands and livelihoods (including respect for
their socio-political organization, consultation specificities, and/or protocols); b) the
call for de-criminalization of Indigenous
knowledge and practices; c) the need for
respecting sacred sites and regions that
may be located outside of legally protected
Indigenous or community lands and reservations; and d) the need to preserve the right
to access data and information collected on
their knowledge, practices, and/or lands.
The Belém +30 Congress’s Declaration contains a renewed assertion of the
value of traditional knowledge, the importance of supporting and valuing Indigenous
researchers and scholars, and the necessity
to support Indigenous and local populations in their efforts to protect and retain
cultural knowledge. Through this ongoing
process of updating and revising the Declaration of Belém, ethnobiologists and other
researchers affirm the continued need to
acknowledge the leadership of Indigenous
and local communities as we move forward
and pursue culturally-appropriate, ethical,
and scientifically rigorous avenues for the
study and retention of ILK.
Looking Ahead
Although biopiracy and bioprospecting
continue to seriously threaten Indigenous
Peoples and local communities’ sovereignty and knowledge, it must also be
acknowledged that much has been accomplished since the Declaration of Belém in
1988 and Darrell Posey’s (1990a) initial
call to action in 1990. Since the United
States’ ratification of the Patent Law Treaty
(PLT) in 2013, there are glimmers of hope
that efforts such as those of the CBD and
WIPO’s IGC will receive further national
and international legal backing. At the
same time, ethnobiologists, anthropolo-
gists, and others working specifically with
ILK and intellectual property should remain
mindful of the difficulties of applying and
enforcing intellectual property rights to
ILK. The ancestral, communal knowledge
of Indigenous groups and local communities is situated, at best, at the peripheries
of the jurisdiction of modern intellectual
property law, which is designed to protect
“cutting-edge,” proprietary knowledge
held by one or several individuals. As an
additional challenge, nearly all Indigenous
and local communities are subject to their
respective national governments, making
the implementation and enforcement of
any change deriving from international
policy slow and difficult.
With these hurdles in mind, perhaps
ethnobiologists, anthropologists, and other
advocates of ILK should shift their focus
to the national level. Almost thirty years
after Posey’s initial suggestions, and in
light of the recent adoption of the Belém
+30 Declaration, Posey’s five suggestions
could be updated (points 1 through 5) and
supplemented (point 6) as follows:
1. Support, on behalf of national
ernments, campaigns to broaden
the participation of Indigenous leaders in United Nations and World
Intellectual Property Organization
(WIPO) initiatives that address ILK
and intellectual property rights;
2. Seek and/or develop national legislation to secure Indigenous Peoples’
and local communities’ intellectual
property rights aligned with WIPO
safeguards and standards;
3. Encourage national funding agencies and development banks to
support research related to ILK,
including the training of Indigenous and local researchers and
provisions for “just compensation,” which should be determined
through transparent consultation
processes and dialogue with the
target communities;
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An Update on Posey’s Call to Action
4. Establish national working committees that include Indigenous and
local community representatives
to investigate intellectual property concerns, and to report to the
national legislature with guidelines
for implementing due diligence per
the CBD, the Nagoya Protocol, and
UNDRIP;
5. Develop national committees, with
the participation of Indigenous and
local community representatives,
to monitor and prosecute ethical
infractions to national intellectual
property law as they relate to ILK.
6. Support national policies that
guarantee Indigenous and local
communities’ rights to free,
prior, and informed consent and
consultation (in accordance with
forms of self-organization and
decision-making) in relation to
research and development projects
that may affect their territories and
sacred places.
Ethnobiologists and other researchers
with similar interests are uniquely poised
to play active roles in policy that protects
ILK, genetic resources, and related intellectual property, as their work is often at the
interface of local knowledge and scientific
discovery (Athayde et al. 2016; Wolverton
2013). In moving towards a more engaged
ethnobiology, researchers can also coordinate with Indigenous organizations to form
or join non-profits with the goal of defensive intellectual property protection and
advocacy for Indigenous and local communities’ sovereignty over their knowledge.
Notes
1
In this paper we adopt the Intergovernmental
Science-Policy Platform on Biodiversity and Ecosystem
Services (UN IPBES 2016) definition of Indigenous
and traditional populations: “Indigenous and local
knowledge systems are understood to be dynamic
bodies of integrated, holistic, social and ecological
knowledge, practices and beliefs pertaining to the
relationship of living beings, including people, with
one another and with their environment. Indigenous
105
and local knowledge is grounded in territory, is
highly diverse and is continuously evolving through
the interaction of experiences, innovations and
different types of knowledge (written, oral, visual,
tacit, practical and scientific). Such knowledge can
provide information, methods, theory and practice
for sustainable ecosystem management. Indigenous
and local knowledge systems have been, and
continue to be, empirically tested, applied, contested
and validated through different means in different
contexts” (UN IPBES 2016:5[a]).
2
For the purposes of this paper, a “genetic resource”
is defined in accordance with Article 2 of the CBD as
“…any material of plant, animal, microbial or other
origin containing functional units of heredity” (Schei
and Tvedt 2010).
3
The Belém+30 Declaration has yet to be publicly
released. The information provided here refers to
updates circulated after the Belém30 Congress.
More information can be found at: https://www.
ise2018belem.com/englishversion. Co-authors Dr.
Athayde and Dr. Olson participated in the Congress, as
well as on the drafting of the Belém +30 Declaration.
References Cited
Athayde, S., J. R. Stepp, and C. Ballester. 2016.
Engaging Indigenous and Academic Knowledge on Bees in the Amazon: Implications
for Environmental Management and Transdisciplinary Research. Journal of Ethnobiology and Ethnomedecine 12:1-19.
Bowen, S. 2015. Divided Spirits: Tequila,
Mezcal, and The Politics of Production.
University of California Press, Berkeley, CA.
CBD (Convention on Biological Diversity). 1992.
1760 U.N.T.S. 79, 143; 31 I.L.M. 818.
Available at: https://www.cbd.int/doc/legal/
cbd-en.pdf.
Cho, A. Y. 2017. Practical Implementation Issues
for the Convention on Biological Diversity
and the Nagoya Protocol from a Korean
Perspective. The Korean Journal of International and Comparative Law 5:61–82.
COP (Conference of the Parties). 1998. Decision
IV/9: Implementation of Article 8(j) and
related provisions. Convention on Biological Diversity, Bratislava, Slovakia, May
4–15. UNEP/CBD/COP/4/10 [webpage].
URL: https://www.cbd.int/decision/cop/
default.shtml?id=7132.
COP (Conference of the Parties). 2004. Decision VII/16: Article 8(j) and Related Provisions. Convention on Biological Diversity,
Kuala Lumpur, Malaysia, February 9–20.
Journal of Ethnobiology 2019 39(1): 90–109
Downloaded From: https://bioone.org/journals/Journal-of-Ethnobiology on 03 Apr 2019
Terms of Use: https://bioone.org/terms-of-use
Access provided by University of Wisconsin Madison
106
Golan, Athayde, Olson, and McAlvay
UNEP/CBD/COP/DEC/VII/16. Available at:
https://www.cbd.int/doc/decisions/cop-07/
cop-07-dec-16-en.pdf.
COP (Conference of the Parties). 2010. Decision
X/42: Decision Adopted by The Conference
of The Parties to the Convention on Biological Diversity at its Tenth Meeting X/42. The
Tkarihwaié:ri Code of Ethical Conduct to
Ensure Respect for the Cultural and Intellectual Heritage of Indigenous and Local
Communities. Convention on Biological
Diversity, Nagoya, Japan, October 18–19.
UNEP/CBD/COP/DEC/X/42. Available at:
https://www.cbd.int/doc/decisions/cop-10/
cop-10-dec-42-en.pdf.
COP (Conference of the Parties). 2012. Report
of the Eleventh Meeting of the Conference
of the Parties to the Convention on Biological Diversity. Convention on Biological
Diversity, Hyderabad, India, October
8–19. UNEP/CBD/COP/11/35. Available
at: https://www.cbd.int/doc/meetings/cop/
cop-11/official/cop-11-35-en.pdf.
COP (Conference of the Parties). 2016a. Decision XIII/18: Article 8(j) and Related Provisions. Convention on Biological Diversity,
Cancun, Mexico, December 4–17 CBD/
COP/DEC/XIII/18. Available at: https://
www.cbd.int/doc/decisions/cop-13/
cop-13-dec-18-en.pdf.
COP (Conference of the Parties). 2016b. Report of
the Conference of the Parties to the Convention on Biological Diversity on its Thirteenth
Meeting. Convention on Biological Diversity, Cancun, Mexico, December 4–17.
CBD/COP/13/25. Available at: https://www.
cbd.int/doc/c/c533/6dcd/0b0221d38ffc4fc8e992587b/cop-13-25-en.pdf.
Council for TRIPS (Council for Trade-Related
Aspects of Intellectual Property Rights).
2002a. The Relationship between the TRIPS
Agreement and the Convention on Biological Diversity: Summary of Issues Raised and
Points Made, Note by the WTO Secretariat.
IP/C/W/368. Available at: https://docs.wto.
org/dol2fe/Pages/FE_Search/FE_S_S009-DP.
aspx?language=E&CatalogueIdList=71013
,62129,56741,57426,31006,99535,2794
9,49398,66043,40823&CurrentCatalogueI
dIndex=5&FullTextHash=&HasEnglishRecord=True&HasFrenchRecord=True&HasSpanishRecord=True.
Council for TRIPS (Council for Trade-Related
Aspects of Intellectual Property Rights).
2002b. Review of the Provisions of Article
27.3(B): Summary of Issues Raised and
Points Made, Note by the WTO Secretariat. IP/C/W/369. Available at: https://
docs.wto.org/dol2fe/Pages/FE_Search/FE_S_
S009-Html.aspx?Id=104850&BoxNumber=3&DocumentPartNumber=1&Language=E&HasEnglishRecord=True&HasFrenchRecord=True&HasSpanishRecord=True&Window=L&PreviewContext=DP&FullTextHash=371857150#.
Cressey, D. 2017. Treaty to Stop Biopiracy Threatens to Delay Flu Vaccines. Nature 542:148.
Curci, J. 2010. The Protection of Biodiversity
and Traditional Knowledge in International
Law of Intellectual Property. Cambridge
University Press, Cambridge, UK.
El Benni, N., and S. Reviron. 2009. Geographical
Indications: Review of Seven Case-studies
World Wide. Working Paper No. 2009/15.
NCCR Trade Regulation: Swiss National
Centre of Competence in Research, Berne,
Switzerland.
FAO (Food and Agriculture Organization of the
United Nations). 2001. International Treaty
on Plant Genetic Resources for Food and
Agriculture (ITPGRFA). FAO, Rome. Available at: http://www.fao.org/3/a-i0510e.pdf.
Garzón, B. R., E. Yamada, R. Oliveira, D.
Cerqueira, and L. D. B. Grupioni. 2016.
Obstacles and Resistance to the Process
of Implementing the Right to Free, Prior
and Informed Consultation and Consent
in Brazil. RCA – Rede de Cooperação
Amazônica, São Paulo, Brazil.
Greene, S. 2004. Indigenous People Incorporated? Culture as Politics, Culture as Property in Pharmaceutical Bioprospecting.
Current Anthropology 45:211–237.
HAP (Herbal Anthropology Project). 2018.
Intellectual Property - Herbal Anthropology
Project [web page]. URL: http://herbalanthropology.org/about-us/intellectual-property/. Accessed on April 30, 2018.
Hirakuri, S. R., and B. M. Tobin. 2005. Prior
Informed Consent and Access to Genetic
Resources and Benefit-Sharing. Work in
Progress 17:12–14.
Journal of Ethnobiology 2019 39(1): 90–109
Downloaded From: https://bioone.org/journals/Journal-of-Ethnobiology on 03 Apr 2019
Terms of Use: https://bioone.org/terms-of-use
Access provided by University of Wisconsin Madison
An Update on Posey’s Call to Action
IGC (Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore). 2016.
Glossary of Key Terms Related to Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural
Expressions, February 15-19. WIPO/
GRTKF/IC/29. World Intellectual Property
Organization, Geneva. Available at: https://
www.wipo.int/edocs/mdocs/tk/en/wipo_
grtkf_ic_29/wipo_grtkf_ic_29_inf_7.pdf.
ILO (International Labour Organization). 1989.
C169–Indigenous and Tribal Peoples
Convention, 1989 (No. 169). Convention
Concerning Indigenous and Tribal Peoples
in Independent Countries, June 27, 1989.
Available at: http://www.humanrights.se/
wp-content/uploads/2012/01/C169-Indigenous-and-Tribal-Peoples-Convention.pdf.
ISE (International Society of Ethnobiology).
1988. Declaration of Belém [web page].
URL: http://www.ethnobiology.net/whatwe-do/core-programs/global-coalition-2/
declaration-of-belem/.
Accessed
on
October 16, 2018.
ISE (International Society of Ethnobiology).
2018. ISE Ethics Program [web page].
URL: http://www.ethnobiology.net/whatwe-do/core-programs/ise-ethics-program/.
Accessed on April 20, 2018.
Macinnes, A., M, Colchester, and A. Whitmore.
2017. Free, Prior and Informed Consent:
How to Rectify the Devastating Consequences of Harmful Mining for Indigenous Peoples. Perspectives in Ecology and
Conservation 15:152–160. DOI:10.1016/j.
pecon.2017.05.007.
McGee, B. 2010. Participation with a Punch:
Community Referenda on Dam Projects
and the Right to Free, Prior, and Informed
Consent to Development. Water Alternatives 3:162–184.
Mendes, P. 2015. Integrating Intellectual Property into Innovation Policy Formulation in
Sri Lanka. WIPO, Geneva, Switzerland.
Mengistie, G. 2015. Integrating Intellectual
Property into Innovation Policy Formulation
in Rwanda. WIPO, Geneva, Switzerland.
Overmann, J., and A. H. Scholz. 2017. Microbiological Research Under the Nagoya
107
Protocol: Facts and Fiction. Trends in
Microbiology 25:85–88.
PCT (Patent Cooperation Treaty). 1970. 28
U.S.T. 7645, 1160 U.N.T.S. 231 reprinted
in 9 I.L.M. 978 (1970). Available at: https://
www.wipo.int/export/sites/www/pct/en/
texts/pdf/pct.pdf.
PLT (Patent Law Treaty). 2012. S.3486, 112th
Congress (2011-2012). Available at: https://
www.wipo.int/edocs/lexdocs/treaties/en/
plt/trt_plt_001en.pdf.
Posey, D. 1990a. Intellectual Property Rights:
What is the Position of Ethnobiology?
Journal of Ethnobiology 10:93–98.
Posey, D. 1990b. Intellectual Property Rights:
And Just Compensation for Indigenous
Knowledge. Anthropology Today 6:13–16.
Radauer, A. 2015. Integrating Intellectual Property into Innovation Policy Formulation in
Jamaica [online]. Available at: https://www.
wipo.int/edocs/pubdocs/en/wipo_report_
inn_jm.pdf. WIPO, Geneva.
Reichman, J. H. 2009. Intellectual Property in
the Twenty-First Century: Will the Developing Countries Lead or Follow? Houston
Law Review 46:1115–1185.
Robinson, D. F. 2010. Confronting Biopiracy:
Challenges, Cases and International
Debates. Earthscan, UK.
Robinson, D. F., and M. Forsyth. 2016. People,
Plants, Place, and Rules: The Nagoya
Protocol in Pacific Island Countries.
Geographical Research 54:324–335.
Salick, J., Z. Fang, and A. Byg. 2009. Eastern
Himalayan Alpine Plant Ecology, Tibetan
Ethnobotany, and Climate Change. Global
Environmental Change 19(2):147–155.
Schei, P. J., and M. W. Tvedt. 2010. ‘Genetic
Resources’ in the CBD: The Wording, the
Past, the Present and the Future. Convention on Biological Diversity, Rio de Janeiro.
Available at: https://www.cbd.int/doc/meetings/abs/abswg-09/information/abswg-09inf-01-en.pdf.
SCBD (Secretariat of the Convention on Biological Diversity). 2011. Nagoya Protocol
on Access to Genetic Resources and the
Fair and Equitable Sharing of Benefits
arising from their Utilization. Secretariat
Journal of Ethnobiology 2019 39(1): 90–109
Downloaded From: https://bioone.org/journals/Journal-of-Ethnobiology on 03 Apr 2019
Terms of Use: https://bioone.org/terms-of-use
Access provided by University of Wisconsin Madison
108
Golan, Athayde, Olson, and McAlvay
of the Convention on Biological Diversity,
Montreal. Available at: https://www.cbd.int/
abs/doc/protocol/nagoya-protocol-en.pdf.
TNC (Trade Negotiations Committee). 2008.
“Draft Modalities for TRIPS Related Issues.
World Trade Organization, Geneva, Switzerland.” TN/C/W/52. Available at: https://
docs.wto.org/dol2fe/Pages/SS/directdoc.
aspx?filename=q:/tn/c/w52.pdf.
TRIPS (Agreement on Trade-Related Aspects
of Intellectual Property Rights). 1994.
Marrakesh Agreement Establishing the
World Trade Organization. 1869 U.N.T.S.
299, 33 I.L.M. 1197 (1994). Available
at:
https://www.wto.org/english/docs_e/
legal_e/31bis_trips_01_e.htm.
Turner, N. J., and H. Clifton. 2009. “It’s so Different
Today”: Climate Change and Indigenous Lifeways in British Columbia, Canada. Global
Environmental Change 19(2):180–190.
UNCHR (United Nations Commission on Human
Rights). 2000. Establishment of a Permanent
Forum on Indigenous Issues. ECOSOC Resolution 2000/22. Available at: http://www.
un.org/en/ga/search/view_doc.asp?symbol=E/RES/2000/22&referer=http://www.
un.org/en/documents/index.html&Lang=E.
UNCTAD (United Nations Conference on Trade
and Development). 2014. The Convention
on Biological Diversity and the Nagoya
Protocol: Intellectual Property Implications:
A Handbook on the Interface Between
Global Access and Benefit Sharing Rules
and Intellectual Property. UNCTAD/DIAE/
PCB/2014/. United Nations, NY. http://
dx.doi.org/10.18356/89035066-en.
UNGS (United Nations General Assembly).
2007. United Nations Declaration on the
Rights of Indigenous People (UNDRIP).
A/RES/61/295. Available at: http://www.
un.org/en/genocideprevention/documents/
atrocity-crimes/Doc.18_declaration%20
rights%20indigenous%20peoples.pdf.
UN IPBES (United Nations Intergovernmental
Science-Policy Platform on Biodiversity
and Ecosystem Services). 2016. Indigenous
and Local Knowledge Systems (deliverable
1 (c)). IPBES/5/4. Available at: https://www.
ipbes.net/sites/default/files/downloads/pdf/
ipbes-5-4-en.pdf.
Vanheusden, B., and G. Van den Berghe. 2017.
The Implementation of “Access and Benefit-sharing” in Five EU Member States:
The Achievements and Deficiencies of the
Nagoya Protocol and the EU Regulation
511/2014. Journal for European Environmental and Planning Law 14:7–40.
Watson, K. W. 2016. Reign of Terroir: How to
Resist Europe’s Efforts to Control Common
Food Names as Geographical Indications.
Cato Institute Policy Analysis, Washington
DC, USA [web page]. URL: https://www.
cato.org/publications/policy-analysis/
reign-terroir-how-resist-europes-effortscontrol-common-food-names. Accessed on
October 16, 2018.
WIPO. 2010. Intergovernmental Committee on
Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore, 16th
Session. World Intellectual Property Organization, Geneva, Switzerland.
WIPO. 2012. The World Intellectual Property Organization Traditional Knowledge
Documentation Toolkit. World Intellectual
Property Organization, Geneva. Available
at: http://www.wipo.int/export/sites/www/
tk/en/resources/pdf/tk_toolkit_draft.pdf.
Accessed on May 5, 2018.
WIPO. 2015a. Intergovernmental Committee on
Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore, 29th
Session. WIPO/GRTKF/IC/29. World Intellectual Property Organization, Geneva.
Available at: https://www.wipo.int/edocs/
mdocs/tk/en/wipo_grtkf_ic_29/wipo_grtkf_
ic_29_inf_7.pdf.
WIPO. 2015b. Intellectual Property and Genetic
Resources, Traditional Knowledge and
Traditional Cultural Expressions: Overview.
WIPO Publication No. 933E. World Intellectual Property Organization, Geneva.
WIPO. 2016. Developing a National Strategy
on Intellectual Property, Traditional Knowledge and Traditional Cultural Expressions.
World Intellectual Property Organization,
Geneva. Available at: http://www.wipo.int/
edocs/pubdocs/en/wipo_pub_tk_3.pdf.
WIPO (World Intellectual Property Organization). 2018a. Online Databases and Registries of Traditional Knowledge and Genetic
Resources [web page]. URL: http://www.
Journal of Ethnobiology 2019 39(1): 90–109
Downloaded From: https://bioone.org/journals/Journal-of-Ethnobiology on 03 Apr 2019
Terms of Use: https://bioone.org/terms-of-use
Access provided by University of Wisconsin Madison
An Update on Posey’s Call to Action
109
wipo.int/tk/en/resources/db_registry.html.
Accessed on May 23, 2018.
URL: https://www.wipo.int/directory/en/.
Accessed on January 31, 2019a.
WIPO. 2018b. Report on the Intergovernmental
Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore (IGC). WO/GA/50/8.
World Intellectual Property Organization,
Geneva. Available at: https://www.wipo.
int/edocs/mdocs/govbody/en/wo_ga_50/
wo_ga_50_8.pdf.
WIPO (World Intellectual Property Organization). 2019b. National IP Strategies [web
page]. URL: https://www.wipo.int/ipstrategies/en/. Accessed on January 31, 2019.
WIPO. 2018c. Voluntary Fund for Accredited
Indigenous and Local Communities Decisions taken by the Director General in
Accordance with the Recommendation.
WIPO/GRTKF/IC/35/INF/6. World Intellectual Property Organization, Geneva. Available at: https://www.wipo.int/edocs/mdocs/
tk/en/wipo_grtkf_ic_35/wipo_grtkf_ic_35_
inf_6.pdf.
Wolverton, S. 2013. Ethnobiology 5: Interdisciplinarity in an Era of Rapid Environmental
Change. Ethnobiology Letters 4:21–25.
WTO (World Trade Organization). 2002. The
Doha Declaration on the TRIPS Agreement
and Public Health. WT/MIN(01)/DEC/W/2.
Available at: https://www.who.int/medicines/areas/policy/tripshealth.pdf?ua=1.
Wynberg, R., and S. A. Laird. 2018. Fast Science
and Sluggish Policy: The Herculean Task of
Regulating Biodiscovery. Trends in Biotechnology 36:1–3.
WIPO (World Intellectual Property Organization). 2019a. Country Profile [web page].
Journal of Ethnobiology 2019 39(1): 90–109
Downloaded From: https://bioone.org/journals/Journal-of-Ethnobiology on 03 Apr 2019
Terms of Use: https://bioone.org/terms-of-use
Access provided by University of Wisconsin Madison