Indigenous Law Bulletin
by Jill Jones
On the face of it, a study of the relationship between the Agreement on Trade Related Aspects of Intellectual Property (‘TRIPS’) and the Convention on Biological Diversity (‘CBD’) should make for turgid reading. Nothing could be further from the truth. Environmental protection versus free trade; globalisation versus loss of cultural heritage; the rights of indigenous people to profit from traditional knowledge versus the alleviation of human suffering; individual rights versus collective rights; biodiversity versus creeping monoculture; risk versus reward; poverty versus enrichment: these are all issues that fall within the ambit of TRIPS and the CBD.
Heroes and villains are present, too. The heroes may be indigenous peoples’ interest groups and developing countries that are prepared to stand up to transnational corporations. They may be the Indian farmers who took to the streets of Bangalore to demonstrate for ‘collective, not individual control over seeds and plants.’ To many, the World Trade Organisation (‘WTO’) is the villain of the piece.
There are scandals too, providing useful imagery for the discord between TRIPS and the CBD. In the context of intellectual property rights (the subject matter of TRIPS) and biological diversity (the subject matter of the CBD) there has been no shortage of scandals. Patents granted in respect of turmeric, neem, basmati rice, ayahuasca, the rosy periwinkle and the smokebush plant are cases in point.
The turmeric scandal involved the patenting of an ancient herbal remedy. Turmeric has healing properties that have been known for centuries to Indians. As far as neem is concerned, in 1971 a timber importer from the United States, after noting the properties of the neem tree, began importing it. The importer obtained a Patent for a pesticide developed from the tree. In 1988 he sold the Patent for the pesticide to the multinational company W R Grace & Co. The company said that it did not intend to compensate anyone in India for providing the knowledge behind the pesticide. In fact the Indigenous contribution to the development of the product was dismissed as ‘folk medicine’.
The basmati rice scandal involved the patenting by Rice Tec in September 1997 on a type of rice produced by crossing a strain of Indian basmati rice with an American variety. The company, in terms of the Patent, claimed rights in respect of basmati-like rice grown anywhere in the Western Hemisphere. It also claimed future rights on any new varieties produced by crossing the new variety with existing Asian varieties.
The approval of this patent caused a furore in India. Farmers took to the streets in protest. They believed that they had been robbed of a national resource. The farmers argued that an American rice producer should not be allowed to use the name ‘basmati’. (In fairness, as the WTO points out, the patent had nothing to do with the name.) Basmati rice is a valuable export crop earning India approximately US$800 million a year. The USA takes less than 10 percent of the annual exports of 480,000 tonnes.
Closer to home, Aborigines have long known the healing capacity of smokebush. The plant can apparently be used for destroying some strains of the HIV virus. The Western Australian Government granted the National Cancer Institute of the United States a license to collect these plants. In turn, the license to develop the Patent was awarded to Amrad, a pharmaceutical company. The unfairness of this expropriation of cultural knowledge is obvious.
Sometimes unfairness is recognised and rectified. Usually it is not. In 1996 the US Patent Office granted a Plant Patent on the ayahuasca plant used by Indigenous people in the Amazon in religious and healing ceremonies. The US Patent Office later admitted its mistake and cancelled the patent after groups from nine South American nations filed for a reexamination of the patent. The unfairness was also rectified in the case of turmeric. The US authorities withdrew the patent, accepting the objection by the Indian Council for Scientific and Industrial Research that the proposed ‘new’ use of turmeric lacked novelty. Turmeric, after all, has been used to treat wounds in India for thousands of years.
There are many situations where unfairness is not rectified. This will often be due to a lack of the financial resources required to challenge corporate patents. For instance, the rosy periwinkle plant, a native of Madagascar, has made Eli Lilly large profits. Vincristine and Vinblastine, anticancer drugs derived from the rosy periwinkle have produced excessive revenues yet virtually nothing has gone to Madagascar, one of the poorest countries on earth.
The preamble of the CBD recognises the desirability of sharing the benefits arising from the use of traditional knowledge, innovation and practices. In this, as the above examples demonstrate, it has had only limited success. Part of the reason is that it is undermined to a significant extent by disharmony with TRIPS. Although the CBD predates TRIPS, it is unclear which treaty takes precedence when conflicts occur.
Nominally, both treaties have equal authority. But TRIPS has greater authority simply because it has enforcement and penalty provisions and the CBD does not. In other words, TRIPS is ‘hard’ law, but the CBD is ‘soft’.
TRIPS attempts to foist upon the world a property rights system that is alien to a significant proportion of the world’s population. The CBD promotes equitably shared benefits from use of biological resources and the protection of traditional knowledge while TRIPS promotes private appropriation of benefits. TRIPS allows for the privatisation of biological resources that are incapable of western style ownership. The CBD is supportive of farmers’ rights whereas in TRIPS they are not mentioned. TRIPS allows the patenting of life forms, which is an anathema to many indigenous people. The CBD asserts national sovereignty.
In terms of the preamble to TRIPS, intellectual property rights are described as being individual rights. TRIPS ignores the communal nature of much indigenous knowledge, innovations and ideas. It imposes an individualistic conception on the fruits of the intellect.
Intellectual property rights have a bad name in many countries. Some see the patent system as a way for Western countries to maintain their lead in technology by denying the transfer of the necessary mechanisms that would allow developing countries to begin their own research and development industries. Western privatisation of industry through TRIPS deprives developing countries of sovereignty over their lands' natural resources, obliging them to pay royalties on products originally created by their own indigenous communities. This is in contrast to Article 1 of the CBD, which requires an equitable sharing of benefits.
TRIPS is about trade, privatisation and individual rights. The CBD is about the environment, communities and shared values. TRIPS seeks to promote world trade. The CBD seeks to preserve biological diversity. They embody different values and a different vision. The CBD, in view of its different focus, employs a far more rhetorical style than TRIPS. It uses phrases such as the ‘common concern of humankind’, ‘urgent need’, ‘attack the causes’, ‘important role’ and so on. It singles out women as playing a ‘vital role’ in the conservation of biological diversity. TRIPS, on the other hand, is drafted in the style of a trade agreement, which indeed it is.
Trade versus the environment is an issue that provokes strongly held opinions. Few would deny that trade and trade policy significantly affect biological diversity, both directly and indirectly. For instance, foreign demand for timber, agricultural and wildlife products may intensify pressures for over-exploitation and the conversion of habitat. Shipping introduces alien species into new habitats where they can threaten native species and destabilise ecosystems. Yet trade should not be dismissed out of hand as being destructive of biodiversity. Trade policy can create incentives for effective conservation. Article 11 of the CBD provides that each contracting party shall, as far as possible and as appropriate, adopt economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biological diversity. The Parties' activities in multilateral trade institutions are also relevant to Article 5. This Article requires parties, as far as possible and as appropriate, to cooperate through competent international organisations in respect of matters of mutual interest for the conservation and sustainable use of biological diversity.
TRIPS conflicts with the CBD because it ignores the fact that many cultures do not subscribe to the Western, individualistic notion of intellectual property. The non-indigenous view emphasises material form and economic rights, whereas the indigenous view emphasises preservation of culture. Intellectual property rights, according to the non-indigenous perception, are individually based and owned whereas indigenous intellectual property rights are socially based and collectively owned. Non-indigenous intellectual property rights are alienable, whereas indigenous rights are generally not regarded as being transferable. Where they are transferable, this transferability may be subject to various cultural considerations. On the TRIPS view intellectual property is placed in categories, whereas on the indigenous view all aspects of cultural heritage are interrelated. For these and other reasons, many indigenous people do not believe that intellectual property law (with the possible exception of copyright) is a necessary or desirable means to protect indigenous knowledge. Nor do they see intellectual property law as encouraging innovation within their communities.
TRIPS requires member states to provide patent protection for ‘any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application’. Traditional knowledge fails the test for patenting on the ‘novelty’ requirement alone, to say nothing of the ‘utility’ and ‘capable of industrial application’ requirements of the test. Traditional knowledge, in many cases, has been known for hundreds, perhaps thousands of years. As far as the utility requirement is concerned, what may be useful to an indigenous community may be seen as outdated or useless for patent purposes in a developed country. This is so despite the fact that transnational corporations may find many of these products useful to them in making a ‘patentable discovery’. It also appears that prior use or invention in an indigenous community will carry very little weight in a developed country.
According to legend, cave-dwelling giants peopled England when the Ancient Britons first arrived there. The Britons refused to inhabit damp, dark caves. They chose instead to build houses. This so annoyed one of the giants, Gog, that he waged war on the invaders. His brother, Magog, sided with the Britons. Gog made an unsuccessful attack on London. Afterwards his brother offered him a choice. Gog could either join Magog and guard the city, or fight to the death. Gog’s answer was to whirl his weapon, a morning star, and rush upon Magog. But Magog’s answered this attack armed with a weapon provided by the Britons.
There is a happy ending to the story. The Britons helped Magog to nurse Gog back to health. Gog eventually joined Magog as co-guardian of the people of London.
Only the naïve or the willfully blind would deny that there is disharmony between the CBD and TRIPS. It is the International Chamber of Commerce's position that TRIPS and the CBD are fully consistent with each other. They are not. Certain aspects of them can be reconciled but this does not mean that they are consistent. Like legendary characters Gog and Magog, TRIPS and the CBD must be reconciled so that together they can be the guardians of ‘this fragile earth.’
The potential exists for a new, cooperative vision where trade and conservation of the environment can support one another. There has already been some success in respect of contractual provisions, however many of these arrangements were created on a case-by-case basis. A framework of true rights and obligations of the parties under the CBD still needs to be worked out.
Especially important for the future is the enforceability of CBD provisions against third parties. Another issue to address is the disparity of bargaining power between the parties. Reconciliation may mean allowing, in some cases, for collectively held intellectual property rights. Almost certainly it will mean encouraging developing countries to develop a hybrid system. This might include intellectual property rights, environmental protection measures and contractual protections designed to harmonise the goals of free trade and conservation. After all, Gog and Magog now keep watch over the city of London. They are here too, in our corner of the world. Visitors to Melbourne can see their statues, smaller versions of the ones in London, keeping watch over the Royal Arcade.
Jill Jones BA LLB MCom Law (Hons) is a Senior Lecturer at the Manukau Institute of Technology, New Zealand.
 John Tanner, India: US Giant, Peasants Battle for ‘Blessed Tree’, Inter Press Service Global Information Network, 12 October 2003.
 Catherine Farley and Daphne Field, ‘Healing Plants’, Toronto Star (Toronto, Canada) 8 January 1995, B1 cited by Naomi Roht-Arriaza, ‘Of Seeds and Shamans: The Appropriation of the Scientific and Technical Knowledge of Indigenous and Local Communities’ 17 Michigan Journal of International Law 919.
 Patent No 5,663,484.
 Kitty Warnock and John Bonner, ‘Greed or Need? Genetically modified crops’ (Briefing No 30, Panos, 1999), 23.
 No 5,751.
 Ibid 14.
 Parties to the Convention on Biological Diversity, Third Meeting, Buenos Aires 4 - 15 November 1996, Item 14 of the Provisional Agenda, ‘The Convention on Biological Diversity and the Agreement on Trade-Related Intellectual Property Rights (TRIPS): Relationships and Synergies’.
 The Book of Common Prayer, imposed upon England in 1549 by the Act of Uniformity.