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THE RELEVANCE OF TRADITIONAL KNOWLEDGE IN THE SOCIO-ECONOMIC SYSTEM
HA Amankwah[1]*
Prologue
I Introduction
After decades of negative portrayal of traditional land tenure systems by the world's financial institutions, the World Bank has finally conceded that traditional modes of land tenure serve a beneficent purpose and provide a foundation for the functioning of non-market institutions. This is tantamount to recognition that land serves a dual function, namely the provision of the foundations of market and non-market social institutions.[4]
Thus, traditional land tenure systems can no longer be dismissed as a relic of ‘the Arcadian fantasy era in which noble savages were expected to wander off happily ever after to their dreaming sites and practice self-determination, in mystic communion with the land’.[5]
From such recognition of the function of traditional tenure flows the challenges it must face, the foremost being, how to make traditional land tenure viable and relevant in a global economic system propelled by market forces and concepts of sustainable development. Globalisation is proceeding on the assumption of a borderless world in which property and appurtenant interests and rights can be transferred instantaneously.[6] The issue is therefore whether traditional land tenure systems can retain a status independent of such a global economic matrix or be integrated into it.
In this regard the present writer essays a discussion of an issue of relevance in the current global economic system, namely natural resources and ownership of the traditional knowledge which sustains them.
II Traditional Knowledge
A crucial component of the traditional proprietary paradigm is Traditional Knowledge (‘TK’) also referred to as local knowledge.[7] Experience gained from the colonial existence of non-western cultures suggests that whenever western values and institutions come into conflict with those of non-western cultures the latter must yield to the primacy of their western counterparts. Non-western cultural values and institutions – political, social and legal – deserved recognition and protection only to the extent they approximated their western counterparts. Pluralism or coexistence of multiple cultural values and institutions was at best tolerated.[8]
The position is not any different in respect of traditional knowledge also, because the discourse of intellectual property excludes any consideration of traditional knowledge as a specie of interest or right informed by proprietary indicia. If land, the most concrete representation of property was not so long ago considered as encompassed by indigenous ideas of property,[9] is it any wonder that indigenous products of the intellect are excluded from the categories of legally recognisable and protectable rights and interests?
The globalisation process has further exacerbated the problem in its drive toward the evolution of a universal commercial monoculture in which goods and services are beyond the regulatory powers of individual territorial sovereigns.[10]
However, it is simplistic to generalise the concept of TK, because that would be an experiment in trivialisation. Most of such knowledge is context-specific, designed for solving localised problems. It is therefore important that its indicia be determined. It must be critically evaluated and validated. Such validation will enhance its protection and indiscriminate dissemination and exploitation.
Indigenous people assert ownership rights to their peculiar knowledge and practices relating to the bush which enabled them, and their forebears before them, to nurture and sustain the regenerative qualities of country in fishing, hunting and gathering and controlled burning of the bush. Additionally, indigenous people possess knowledge of the medicinal and curative properties of plants and vegetation which have been scientifically validated and are in great demand by pharmaceutical companies in western countries.[11]
This knowledge has been transmitted in a continuum through oral tradition from generation to generation and cannot be said to belong to particular individuals as its creators. Indigenous people are under enormous pressure to concretise such knowledge, reducing it into writing which makes it more amenable to piracy. The term ‘biopiracy’ was not coined by indigenous people. Biopiracy is the unauthorised appropriation of plant related substances for development into commercial commodities – such as pharmaceuticals, cosmetics and pesticides. This is the crux of the concern of traditional peoples today regarding intellectual property that is, the non-recognition and protection of TK from commercial exploitation.
Attempting to define TK can be likened to the proverbial Tropical African tree, the baobab, which is so large that it is said it cannot be encompassed by two human arms. It is embodied in the norms, customs and traditional practices of a people and passed down by oral tradition from generation to generation. It is sacred and cannot be revealed to outsiders. It is inextricably bound with the land and its tenure. Entitlement to its use and enjoyment is communal and resides in the group. It embraces knowledge of places and of their ecology, knowledge of vegetation and plants and their properties as food to sustain life or as medicine to assist in curing maladies and diseases, knowledge of minerals and their uses etc. And just as there is no such thing as knowledge but rather systems of knowledge, so also there are many systems of TK.[12]And there could be knowledge according to sex, age, status or other social stratification.[13]
Intellectual property in this context will be confined to patent law and away from copyright law because of the nexus between the World Intellectual Property Organisation's (WIPO's) Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) regime and Traditional Knowledge.[14]
III Ownership of Traditional Knowledge
The emergence of traditional/indigenous knowledge as an intellectual expression has serious implications for development and scientific exploitation of natural resources outside the predominantly western industrialised nations. Western and industrialised nations have tended to idolise intellectual prowess as the product of formal education buttressed in schools, colleges and universities. This posture has nurtured the inauguration of a monocultural intellectualisation which would not countenance the existence of other systems of knowledge in a world made up of multiple cultures. Non-western forms of knowledge are denigrated as unscientific and dismissed as based on superstition.
The realisation now, albeit grudgingly conceded, that knowledge can be formal or informal means there should be a re-evaluation of those interests, rights and claims built on the presumption of a universal monolithic intellectual culture. The North/South cleavage palpably demonstrates the correctness of the dichotomy of formal and informal knowledge systems.[15]
By relying on the knowledge of local people about resources and their properties, those interested in the acquisition of such knowledge save themselves the expense and trouble of engaging in long and drawn out experiments to arrive at such knowledge. However, even when such secret knowledge has been revealed by local people to bio-prospectors there is still the task of validating it scientifically.
The question regarding ownership of TK does not lend itself to an easy solution. It could begin initially as the thought of one individual which was then subsequently embraced by direct descendants and later practised by the entire community.[16]
Mobility, the extended family system and inter-tribal marriage could lead to the transportation of the knowledge so that over time it spread over regions and even countries and is transformed or refined into other knowledge products. As Sillitoe observes, local knowledge ‘is never still’.[17] Sikana echoes the same idea when he says local knowledge ‘is dynamic and strategic’.[18]
Native title claims in Australia demonstrate how difficult identifying the beneficiaries of a native title interest can be. Shiva states the matter eloquently:
[W]ithin indigenous communities, despite some innovations being first introduced by individuals, innovation is seen as a social and collective phenomenon and results of innovation are freely available to anyone who wants to use them. Consequently, not only the biodiversity but its utilization has also been in the commons, being freely exchanged both within and between communities. Common resource knowledge-based innovations have been passed on over centuries to new generations and adopted for newer uses, and these innovations have over time been absorbed into the common pool of knowledge about that resource. This common pool of knowledge has contributed immeasurably to the vast agricultural and medicinal plant diversity that exist today[19]
It is perhaps therefore not feasible to always determine with finality those who are entitled to payment of compensation for the appropriation or use of particular knowledge, whether a group or tribe, because they are considered currently to be the rightful owners of some knowledge. Doing so could well work injustice on unidentified but potential beneficiaries.[20]
IV Some Popular Expressions of Traditional Knowledge
Expressions of TK cannot be set out concisely and easily in a work of this kind. Suffice to posit that they are infinite in quantity and include but are not limited to a few that are accessible and verifiable.
They are wrapped in products and merchandise commonly marketed and sold in the so-called ‘informal’ or ‘black’ market or ‘agorism’ economy, especially in Africa and Asia. The designation and characterisation of the phenomenon is attributed by economists to Professor W Arthur Lewis of the University of London’s School of Economics, the putative author of the terms originally used in relation to his work in respect of Ghana and Kenya in the period preceding Ghana’s Independence in 1957.
He was said to have used the terms to signify or denote an economy that was ‘outside’ the prevailing European matrix of a ‘modernised sector’ underscored by ‘job security and social security’ and a regulatory taxation system.[21] Typical products and items included art and craft, pottery, woodwork and carving, beads and inferior gems, painting and portraits and even graffiti and hand woven and knitting yarn.[22]
V Sustainable Development and Harmonisation of Conflicting Property Paradigms: the Relevance of Environmental Law
After centuries of ruthless exploitation of the world's natural resources, often accomplished through subjugation of local populations, the real owners and custodians of such resources, humankind has realised that, despite nature's boundless bounty such natural resources are not inexhaustible and that unless extant patterns of exploitation and use of natural resources are drastically adjusted, there will be nothing left to bequeath to posterity and future generations. The conception of the ideology of sustainable environment and its institutional gestation resulted in the United Nations Conference on Environment and Development (‘UNCED’), also called the ‘Earth Summit’, in 1992 at Rio de Janeiro, and is critical to humankind’s survival. Among the outcomes of the UNCED, three instruments are significant and pertinent to the theme of that gathering viz:
1. The Rio Declaration on Environment and Development;[23]
2. Agenda 21;[24] and,
3. The Convention on Biological Diversity (‘CBD’).[25]
The first, the Rio Declaration on Environment and Development, is significant for its recognition of the potential of Indigenous and other traditional or local peoples to manage and develop the ecosystem through deployment of their TK systems. Principle 22 states:
Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.
The second, Agenda 21, is a comprehensive plan of action implementable in global, national and local proportions. Though more hortatory than a legally binding document, it wields a moral force and provides a yardstick by which the performance of states could be measured. Its significance lies in the recognition it accords the ‘holistic tradition of scientific knowledge of their lands, natural resources and environment’[26] of indigenous, traditional and other local peoples.
The third, the CBD, was the world's first legal instrument on biodiversity and its conservation. It is the most significant in its impact on the world's traditional peoples, not only for its objective of the conservation of biological diversity and the sustainable use of its components, but also for its objective of equitable sharing of benefits from the exploitation and use of genetic resources. To that effect Art 8(j) enjoins a contracting party:
Subject to its 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.
Article 10 buttresses Art 8(j) by obliging each contracting party to (inter alia):
c. Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable use requirements;
d. Support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced.
As is always the case with governance, whether national or global, good intentions are not enough, and since the CBD is short on details of the mechanisms for implementing Arts 8(j) and 10(c) and (d), the issue of the ‘equitable sharing of the benefits arising from the utilization of (traditional) knowledge, innovations and practices’ is still mired in endless debates – because, in recognising TK and requiring that users of such knowledge pay for the product, the rich and developed countries see an end to their monopoly of, and stranglehold on, the economic gains from intellectual property rights. Such a proposition sounds odious and preposterous to corporate interests. Traditional knowledge must remain entrenched in the public domain and exploitable without compensation being paid to their so-called owner.
However, there is an obvious correlation between securing legal protection of indigenous knowledge and the dictates of biodiversity – ie the variety of all life forms — the different plants, animals and microorganisms, the genes they contain, and the ecosystem of which they form a part and the integrity of the environment.[27] It is the fact that, in recognising and protecting one, interests in the other are enhanced automatically. Needless to comment that by ratifying the Convention on Biological Diversity in 1993 Australia is now under an international obligation to take legal measures to protect the rights of indigenous people relevant to biodiversity related knowledge and practices.[28]
VI The Advent of Trade-Related Aspects of Intellectual Property Rights (TRIPS)
Developing countries, home to a majority of the world’s traditional and indigenous peoples, find it difficult to understand the trappings of intellectual property law which is essentially a European legal contraption.[29] Some such laws were designed solely to protect patents already granted by the parliament of a colonial power.[30]Be that as it may, the introduction in 1994 of the Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) into the Uruguay Round of the GATT negotiations by the United States of America can be regarded as the turning point in the world’s intellectual property regime.[31] It was a move strategically designed to foist on the rest of the world the US type intellectual property regime. The idea was conceived and hatched by the Intellectual Property Committee (‘IPC’) of the United States made up of thirteen US based multinational corporations (‘MNC’) and assisted by industry associations of Europe and Japan.[32]
The TRIPS regime is an outgrowth of the World Trade Organisation's (‘WTO’s’) objective of forging a global or multilateral trade system by ‘promoting sustainable growth and development while contributing to a more stable and secure climate in international relations’.[33]
Here was the genesis of the inauguration of the agenda of linkage between global trade and the environment, an issue which would exacerbate the North-South cleavage with disastrous consequences for future WTO deliberations. At the Seattle Ministerial Conference in 1999, matters came to a climax with developing state members' refusal to accept or condone any such linkage. The developing countries regard the linkage as a diversion from real, proper and legitimate trade and economic issues. The conference ended in a fiasco.[34]
TRIPS was therefore not a case of a negotiated agreement by the GATT member nations and, with the simultaneous establishment in 1994 of the World Trade Organisation (WTO) as the administration body of GATT, the success of the scheme was assured. It was obligatory for member states to take steps to legislate the law by January 1, 2000. For developing nations this entailed amendment of existing legislation on intellectual property. The least developed nations were given up to 2005 to sign up. In the case of Australia, for example, this was accomplished by the Patents Amendment (Innovation Patents) Act 2000 (Cth). In adopting amending legislation, Australia was obviously acting as if it had no indigenous population whose concerns regarding TRIPS could be quite similar to those of developing nations.[35]
VII Problems Emanating from the TRIPS Agreement
The first thing to note about the TRIPSs agreement is that it was not negotiated in the manner in which multilateral treaties are customarily negotiated and concluded. It was largely imposed rather than being a negotiated outcome. Secondly, by affirming in its Preamble the exclusivity of patent rights as conferring private and individual rights, it denied recognition to communal interests and interests of groups such as those of indigenous people based on group entitlement.[36] Thirdly, the agreement flies in the face of the sovereignty of nations over their natural resources that is enshrined in several United Nations documents and reiterated in the Convention on Biological Diversity, as it treats national natural resources as private rights and ‘up for grabs’ under the TRIPS regime.[37] The question is: which of the two takes precedence over the other? Without doubt, nations would place the integrity of their sovereignty above every other consideration.[38] The exceptions in Art 27(2) of human, animal or plant life from patentability on grounds of public order or morality is stultified by the provisions of Art 27(3) which reads:
Members may exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
(b) plants and animals other than micro-organisms, and essentially biological processes for production of plants or animals other than non-biological and microbiological process. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
This is a very controversial provision, the interpretation of which has received considerable commentary.[39]
The fourth thing to note about the TRIPS Agreement is that a prohibition on patent protection for genetic resources relating to food and medicine, indeed, agriculture generally, was intended. This was because, for developing nations, food and medicine are life-sustaining matters and should not be allowed to be transformed or converted into industries simply to churn profits.
The United States is unlikely to accept any sui generic system which does not meet the rigorous standard of Art 8, that is, ‘appropriate measures’ that are ‘consistent with the ... Agreement’. These are the same expressions employed in s 301 of the Trade and Competitiveness Act 1988 (US) under which retaliatory measures are often taken against nations whose intellectual property laws are not consistent with standards ordained by the United States Government.
VIII Domestic Implementation of the TRIPS Agreement
In many countries the TRIPS agreement was implemented by amending existing domestic patent legislation.[40] In Australia the Patents Amendment (Innovation Patents) Act 2000 (Cth) was passed, amending the Patents Act 1990 (Cth) ‘by repealing the petty patent scheme (the old s 62) and providing for innovation patents.’[41] A new s 7 was inserted to define the new term ‘innovative step’. It read:
(4) For the purposes of this Act, an invention is to be taken to involve an innovative step when compared with the prior art base unless the invention would, to a person skilled in the relevant art, in the light of the common general knowledge as it existed in the patent area before the priority date of the relevant claim, only vary from the kinds of information set out in subsection (5) in ways that make no substantial contribution to the working of the invention.
(5) For the purposes of subsection (4), the information is of the following kinds:
(a) prior art information made publicly available in a single document or through doing a single act;
(b) prior art information made publicly available in 2 or more related documents, or through doing 2 or more related acts, if the relationship between the documents or acts is such that a person skilled in the relevant art in the patent area would treat them as a single source of that information.
(6) For the purposes of subsection (4), each kind of information set out in subsection (5) must be considered separately.
It is ironic that when existing knowledge is ‘shuffled around’ it is considered new knowledge and therefore patentable. However, TK, which is not always formally recorded, is regarded as being in the public domain and therefore exploitable by those with the means and ability to do so.
A new subsection added to s 18 defined ‘patentable inventions’. It provided:
(1A) Subject to subsections (2) and (3), an invention is a patentable invention for the purposes of an innovation patent if the invention, so far as claimed in any claim:
(a) is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies; and
(b) when compared with the prior art base as it existed before the priority date of that claim:
(i) is novel; and
(ii) involves an innovative step; and
(c) is useful; and
(d) was not secretly used in the patent area before the priority date of that claim by, or on behalf of, or with the authority of, the patentee or nominated person or the patentee's or nominated person's predecessor in title to the invention.
Applied to existing TK of unquestioned antiquity, it becomes a new idea because although it is practised openly (‘not secretly used in the patent area’) it has become a novelty through its encounter with another culture’s so called ‘innovative step’.
Again s 18 was amended to include two new subsections – which together provide for the exceptions to patentability. They read:
(3) For the purposes of an innovation patent, plants and animals, and the biological processes for the generation of plants and animals, and not patentable inventions.
(4) Subsection (3) does not apply if the invention is a microbiological process or a product of such a process.
Section 18(4) reverses everything that s 18(3) is designed to accomplish. It is however consistent with the intention behind Article 27.3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights and the US Supreme Court decision in Diamond v Chakrabart[42] – ie humans playing God. All the amendments were carried through without any hint of consultation with Australia’s indigenous people who live and order their lives around TK.
IX TRIPS and Plants and Seeds
For developing nations and indigenous peoples the most troubling aspect of the TRIPS regime is its effect on peoples’ daily livelihood and traditional existence – food, plants (medicine), and seed (farming). Indeed traditional existence is encompassed by the entire philosophy of biodiversity. This has been overwhelmed by external economic and monopolistic forces over which they have no control.
Newly invented plants are patentable in the developed nations. In the US since 1930 this has been the case.[43] In 1970 the Plant Variety Protection Act (7 USC) was passed which allowed farmers to sell seeds among themselves. That privilege was taken away by the Plant Variety (Amendment) Act 1994 which established virtual monopoly over seed in favour of the US seed industry.[44] In Australia the Plant Breeder’s Rights Act 1994 (Cth) accomplishes similar objectives.
Since the US Supreme Court decision in Diamond v Chakrabarty[45] was delivered, to the effect that an invention of a new bacterium genetically engineered to degrade crude oil was patentable because the micro-organism ‘is not... a hitherto unknown natural phenomenon but a non-naturally occurring manufacture or composition of matter – a product of human ingenuity... a discovery that is not nature's handiwork...’[46] the stage was set for human claims to nature’s products. The Court even went further saying, ‘anything under the sun made by man’ was patentable.[47]
The mere shuffling of genes and changing of already existing bacteria constitutes invention? The discovery of a hitherto unknown phenomenon of nature is not patentable ‘if there is to be invention for such a discovery it must come from the application of the law of nature to a new and useful end’.[48]
The controversial ‘appropriation’ of the Indian neem plant (azadirachta indica) by WR Grace and the patenting of chemical compounds obtained from its seed for the processing and manufacture of pesticides was challenged in the European Patent Office by over 200 organisations. The claims were vindicated notwithstanding the arguments on behalf of the patentee that: ‘The neem tree itself has not been patented, nor have its parts such as leaves, twigs, roots, stems etc’.[49] Despite that, the US Patent and Trade Mark Office continued to protect the operations of WR Grace.
Again, the patenting of Indian aromatic basmati rice lines and grains by RiceTec Inc of Texas in 1997 was an example of how traditional knowledge can be easily appropriated. Basmati rice is as indigenous to India as the neem tree. By patenting Basmati the patentee is assured ‘novelty’ rights and privileges appurtenant to it. It is exported under the brand names Kasmati, Texmati and Jasmati.[50]
However, it is in the area of medicinal plants that the issue becomes quite acute. The examples are infinite but include:
(a) The Fox Chase Centre of Philadelphia applied to the European Patent Office for a patent on Phyllanthus niruri for the treatment of hepatitis, citing an Indian text, India Materia Medica, which reports that the chemical substance derives from the Indian tree, Bhudharti, or Jar Amla or Bhuin Amla, and promotes the treatment of jaundice. Since both diseases relate to liver malfunctioning, the success of the application can only be described as an example of biopiracy.[51]
(b) Cromak Research Inc, a New Jersey based medicinal company, obtained a patent on Karela or jamun, a plant used in Indian traditional medicine to treat diabetes.[52]
(c) Brazil's effort to manufacture and promote its AIDS cocktail which would reduce the cost of AIDS treatment and make AIDS-fighting drugs cheaper under its Patent Law 1997 has been resisted by US drug companies assisted by the US Government.[53]
(d) In Australia, Davis records the Western Australia case of the Smokebush plant (Conospermun) which the US National Cancer Institute collected and screened under licence from the WA Government in the 1980s.The plant has medicinal properties which, it was believed, could assist in curing AIDS.[54]
The current posture of the WIPO on TK is clearly quite the reverse of that of other agencies of the UN which actively promote self-reliance and self-sufficiency in the developing nations by providing financial support for institutional programmes that foster integration of traditional and non-traditional institutions and practices. For example, the World Bank (the International Bank for Reconstruction and Development) has demonstrated how cooperation – that is, engaging traditional medicinal practitioners in bioprospecting, rather than antagonism towards them, can be beneficial to all concerned.[55]
X Whose Interest is Really Served by Bioprospecting?
Staggering corporate profits[56] resulting from the diversion of biological resources from developing to developed nations belie the altruistic posturing of the companies involved in poverty alleviation in developing nations.[57] Only State intervention, whether legal or political, can halt the depletion and waste of a nation’s natural resources. However, such State legislative action as has been taken is directed at revenue collection not at forest protection.
State laws are typically designed to protect State interests in biodiversity thus exposing indigenous interests to exploitation.[58] Indigenous people are therefore left to their own devices and usually find solace in the only legal option available to them, that is, to enter into contracts with bioprospecting companies. The unequal bargaining power of the parties in such situations is clearly conducive to the conclusion of unfair deals. Thus, while the State appears interested in ‘cashing in’ on the loot of ‘nature's pharmacy’ by commercial conglomerates, the depletion of our forests continues unabated. As Onaga observes:
The whole business structure is aimed at making human beings richer, not making forests conserved. However, the growing understanding that destroying rain forests means depleting Mother Nature’s medicine cabinet has raised the expectation among conservationists that some of these profits could, and should, be used to finance measures to preserve biodiversity, particularly in species-rich developing countries.[59]
XI Traditional Knowledge of Herbs and Medicinal Plants
Alternative medicine, a burgeoning health care area, is medicine based on non-western medicinal precepts. In Africa, Asia and North America, long before the introduction of European type medicine, plants and herbs provided the only sources of medicine. In West Africa Dalziet’s treatise[60] is a classic text on such matters supplemented by research outcomes of the Centre for Scientific Research into Plant Medicine (CSRPM) in Ghana and its counterpart in Nigeria, the Nigeria Institute of Pharmaceutical Research and Development (NIPRD). In Australia there are numerous texts on indigenous pharmacology.[61]
In Asia, China and India are leaders in the field.[62] In Central and Southern Africa the situation is the same.[63] In the South Pacific region, Vanuatu, Fiji and Papua New Guinea are leaders in the production of kava, reputed for its medicinal quality in the alleviation of stress-related ailments.[64]
XII What Prospects for the Future?
Uneven apportionment of rights and obligations in any legal setting bespeaks discrimination and unequal treatment. Democracy thrives only in environments suffused with egalitarian and equalitarian ideals. The current TRIPS regime is an affront to the dignity and self-sufficiency of indigenous populations all over the world as it is weighted against their interests while it upholds the primacy of the interests of western and industrialised countries. Injustice breeds alienation which in turn fosters temptation to resort to extralegal means for redress.[65] Only fairness can ensure social tranquility and the reign of law.
A Review Process
The TRIPS Agreement requires a review of Art 27.3(b), which deals with whether plant and animal inventions should be covered by patents, and how to protect new plant varieties, though not much has happened on that front since the fiasco of the Seattle and Cancún Conferences. Shiva argued that a review should have preceded the coming into force of the Agreement.[66] This writer argues that the shortcomings of any instrument become evident only after it has gone into force. Without experiencing problems with implementation, review and reform is otiose and meaningless. First, it is not just Art 27 that must be reviewed; rather the entire Agreement must be reworked because it is important to resolve the discrepancy between the Convention on Biological Diversity and the TRIPS Agreement and to enshrine the primacy of the former. Secondly, it is important to provide for the recognition and protection of traditional knowledge. Thirdly, TK should be patentable in its own right, and the problem of biopiracy ought to be addressed as well.
In areas where patent rights have already been established and therefore protected under an appropriate patent regime, it is necessary to inaugurate a knowledge bank in order to advance development in those areas where knowledge-related innovations and inventions come into play are critical to such development.[67]
B Challenging Patent Applications
Some hailed the Indian success at getting the European Patent Office to revoke European Patent No 0436257 on Neem Tree Oil granted to WR Grace as a victory for developing countries which demonstrates that they have clout and the wherewithal to have their rights vindicated.[68] However, the expenditure involved in such litigation is prohibitive and beyond the financial resources of most indigenous peoples and developing countries.
C Adoption of a Sui Generic System
Countries which rushed into meeting the deadline for the implementation of the TRIPS Agreement, believing that a safety net was provided in Art 27.3 for the protection of their peculiar national intellectual property interests, now realise that the Art 27.3 protection is illusory. The conjunction of ‘non-biological and ‘microbiological’ in Article 27.3(b) is, to say the least, a red-herring, for while they undoubtedly refer to biotechnology involving genetic engineering, that is the mixing of animal and plant genes, the consequential' production of permutations of animals and plants are essentially reproduction through biological processes. Humankind has no part in nature’s reproduction processes.[69] Further, Art 27.5.3(b) aims at the protection of plant varieties by patents or a sui generis system, without reference to the time-honoured practices of ordinary farmers and peasants across the globe. This is the part of the Agreement that threatens most the survival of peasant farmers worldwide. The plant varieties are of course those connected with the system of plant breeders’ rights recognised by the International Union for the Protection of New Varieties of Plants (UPOV) – established by the International Convention for the Protection of New Varieties of Plants, adopted in Paris in 1961 and it was revised in 1972, 1978 and 1991.
Article 8(1) of the TRIPS Agreement allows member states, when formulating or promulgating their national laws to implement that Agreement, to:
[A]dopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.
Other measures necessary to ‘prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology’ run the risk of being considered inconsistent with the provisions of the Agreement.[70]
These provisions, when juxtaposed with Art 8(j) of the Convention on Biological Diversity (CBD) evince an indisputable contradiction. Art 8(j) of the CBD places on each contracting party the obligation, as far as possible and appropriate to:
[R]espect, preserve and maintain knowledge, innovation and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation of 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 benefits arising from the utilization of such knowledge, innovations and practices.
It seems apparent therefore, that whereas the CBD seeks to promote in situ conservation of resources, the TRIPS Agreement ordains their exploitation, asportation and depletion.
An example of a sui generis regime is The Model Law for the Protection of Traditional Knowledge and Expression of Culture (The Model Law 2002), crafted by the South Pacific Commission and Pacific Island Forum in collaboration with UNESCO and endorsed by the Forum Regional Ministers in the same year. The Model Law seeks to protect TK and expressions of culture as traditional cultural rights and not as things in the public domain which are therefore amenable to private appropriation by outsiders.[71] Culture in the South Pacific embraces all traditional practices, usages and knowledge of the peoples of Melanesia, Polynesia and Micronesia. The rights are perpetual,[72] inalienable,[73] but, subject to the consent of the owners, who may be constituted as a Cultural Authority and exploitable in a manner that ensures appropriate profit sharing.[74] These rights are not categorised as tangible or intangible and do not negate or supplant the extant intellectual property regime; hence their sui generis character.
D Adoption of a Compulsory Registration System and Disclosures
Some advocate a system of compulsory registration of traditional knowledge which provides for the granting of a licence to those who require access to it.[75] Some people advocate just the opposite, that is, giving developing nations access to information obtained by developed nations in respect of TK.[76] Neither system however addresses the perennial issue of ownership of TK. Similar to the idea of registration is the call for the establishment of a system of disclosure of the source (country of origin) of TK employed in a biotechnology process.[77] This is akin to the requirement of acknowledgment and attribution of authorship implicit in the moral rights regime of Australian copyright law.[78] It is a mere palliative measure which protects the integrity of the work of an author and does not address economic issues which is an aspect of the concern of the customary owners of TK.
E Capacity Building
The deficit in indigenous people's ability to negotiate and enter into contracts with well-heeled corporate entities, some believe, can be cured through a process of training euphemistically labelled ‘capacity building’.
By this, it is thought that indigenous peoples’ representatives could be tutored and nurtured in such particular western and corporate-based acumen and techniques of management and technical legal know-how as position them to deal with business people and other corporate structures and institutions on an equal footing. It were as if overnight people can be imbued with corporate wisdom and transformed into shrewd business executives appreciative of, and competent in, the processes of negotiation and contract formation, the logic of the capital market system, resource and environmental protection laws and a myriad of internationally ordained ethical and legal prescriptions regarding the exploitation of natural resources. The Canadian-based advocacy group Rural Advancement Foundation International (RAFT) has argued that contracts could usher in economic opportunities – training, employment, infrastructure – but they do not address the perennial and critical indigenous concerns – that is, control and ownership of the outcomes of bioprospecting.[79]
F Change in Corporate Culture
It has been appropriately observed that:
When the company officials step out of their offices and into the village or into the forest clearing to meet with landowners they step into a customary law setting. When liaison officers make their regular trips to villages to hear the ‘talk’, they hear verbiage which comes from a customary law context and insofar as the talk raises disputatious matters, they are so in reference to the villagers’ aspirations for justice to be done according to custom. Land is the physical basis of the sovereignty of the community and customary law is the cultural and legal basis of the sovereignty of the community. In order to deal with these matters effectively community liaison officers must have a knowledge of, and sympathy for, customary law issues.[80]
That observation in relation to mining operations in Papua New Guinea has relevance for all investments in development projects. The locus and situs of such initiatives are quite different from the environment in which corporate decisions are made. Often development agencies enter such alien terrain with their own corporate ideas – operation of market forces, the logic of capital, representative bodies to negotiate with, principles of accountability, majoritarian decision-making processes, management by hierarchies etc, which are all foreign to indigenous institutions and traditional practices, and expect local people to understand such matters and play the game according to the rules. If local people exhibit an attitude of non-cooperation or antagonism as a consequence of their ignorance of such matters, developers are irked and become impatient and adopt a strategy of compliance through imposition. Without an appreciation of the cultural climate of these places, developers would be ‘playing with fire’ as Sillitoe and Wilson have demonstrated in respect of mining in Papua New Guinea.[81]
The authors provide an example of how fatal a lack of understanding of the implications of compensation payment in Melanesia in respect of mining on land could be. A ‘once for all times’ lump sum payment to landowners in Melanesia is a fond hope in a culture in which relationships are viewed as continuing. They assert:
Compensation is one of the key aspects of the company and community relationship. The egalitarian ethos that informs land rights should influence the process by which a mine recompenses local people for damages and disruption of lifestyle. People equate mining company compensation payments with traditional indemnity payments such as those given in repatriation for kin killed in tribal fights. Both involve negotiated recompense for loss. The corporate view of transactions is single cash payments made to settle claims for loss or damage. In contrast, the traditional view embraces long-term reciprocity, consolidation and reconciliation involving a web of associated persons.[82]
Obviously, a change in the paradigm of corporate culture will go a long way to improve the climate of economic development in a non-western cultural terrain.
In 2003, two high-ranking officers of the Monsanto Corporation, a United States MNC, issued a report in which they called for a change in United States corporate policy on patents which they saw as antithetical to the realisation of food security in developing nations.[83]A change in policy, they argued, could simultaneously augment food sufficiency in developing nations and the broader global interests of the United States. They said:
Important components of the biotechnology tool kit – gene traits, plant transformation tools, and genetically improved germplasm – have been patented in the United States and elsewhere by companies that have little economic incentive to develop and disseminate the technology to meet the needs of these farmers...There is flexibility within the TRIPS agreement, but it is important the developing countries are supported in using that flexibility to devise systems that meet their needs...If successful, this approach to harmonisation could hinder developing countries in adopting patent regimes tailored to their particular needs, including the need to foster dissemination of biotechnology for food security purposes. [84]
They said further:
There are changes the United States could make in both its domestic and foreign policies that would improve developing countries’ access to the patented tools of biotechnology without significantly undercutting the core invention incentives of the patent system...[85]
They urged that the United States:
[A]s the richest and most powerful country in the world... has a duty to avoid actions and policies with unnecessary and avoidable adverse impacts on progress elsewhere. This includes patent policies that adversely affect food security in developing countries.[86]
G Agroforestry Strategy
Several years’ of scientific studies have concluded that sustainable agricultural development globally is achievable only through agroforestry. Implicit in agroforestry is the integration of multipurpose trees into farming systems.[87] Agroforestry, the studies indicate, has long been understood and embraced by subsistence farmers in poor developing nations.[88]
Clearly not only is commercial agriculture based on indiscriminate tree clearing as is the practice in some Australian states incompatible with the tenets of agroforestry, it is also antithetical to the principle of sustainable development.
XIII Biodiversity
It is perhaps appropriate to conclude this paper with some observations on Nature – biodiversity – just as it began with some thoughts on some of the lessons that it teaches us. Nature, encompasses the entire spectrum of the visible universe in its pristine and material form. Biodiversity, for lack of a better definition, embraces Nature in its variegated forms and manifestations of ecosystems: terrestrial, celestial, aquatic, marine and subterranean. It permeates the totality of Nature, whether living organisms or inanimate things. Its dimension may be spatial or temporal.
Certain aspects of Nature may require human tending and intervention such as support of, or maintenance for, their continued existence, for example, rivers and lakes that are accessed for human needs or use. Such aspects usually give rise to the institution of a regulatory mechanism for their administration. Others, such as minerals, remain buried and dormant underground until accessed or harvested by humans and require no regular human support for their continued existence. Regulation attracts an administrative apparatus vested with power and authority to perform the functions of oversight and implementation.
It is the view of some authorities on the subject that there is a correlation between societal wellbeing and effective regulation of ecosystems, as where, for example, water pollution could jeopardise human lives in communities in their range of proximity. In the Royal Australian Air Force case, the defendant’s liability was based on its knowledge of the polluted stream’s use by adjacent neighbourhood dwellers for domestic purposes.[89]
The greatest threat to forest reserves constituted under a forest conservation regime and intended to ensure the continued viability of forest resources and products and the ecosystem of which they are an integral part, is the seasonal bushfires with their annihilative potential.
Among the repertoire of Indigenous Australian untapped and often denigrated and under-valued knowledge system is bush fire management which enabled them and their forebears to survive the ravages of rampaging bushfires for eons and long before the commencement of European colonisation of the continent of Australia. It is knowledge more of containment than anything else. At the peak of the dry season when there had been no rainfall for months and vegetation around settled areas had turned brown and flaky and the ground looked patched and cracked in several places, they would map out portions of the surrounding bushland and burn them, thus creating spacious and vacant areas devoid of foliage and dry wood, the incendiary materials that when left uncleared provided the veritable tinder for wild bushfires. In this way, even if there were to be an accidental fire, which was often the case due to people’s carelessness in the use of fire, or even a deliberately intended act of arson, the ensuing fire would consume only a fraction of bush and not result in an uncontrollable conflagration of the type that occasioned bushfires.
This technique of ‘controlled bushfire’ was an important Indigenous know-how or ‘technology’ of sorts in modern parlance, which the occupying British colonial administration often talked about but failed in their pride and sense of superiority to enlighten itself about. It was therefore never absorbed or incorporated into the arsenal of fire-fighting weapons and gadgets. The Western system of fire-fighting though undoubtedly superior, efficacious and reliable is costly both in terms of human lives and financial resources.[90]
This was a critical traditional knowledge and one worth acquiring in the interest of the Australian general public as a whole and not left wrapped in secrecy as the private possession of a few of the citizenry.
In his book The Biggest Estate on Earth: How Aborigines Made Australia, Bill Gammage[91] propounded a theory in explanation of Australia’s vast savanna (park-like grassland) coastal lands that resemble a landscape to the settlers, based on Aboriginal folklore relating to bushfires. He was not writing about a national park but about a typical English gentleman’s park or estate in which trees were deliberately situated in a well-nurtured grassland that provided sustenance and shelter to grazing animals. All this he attributed to the sophisticated Aboriginal usage of ‘fire-stick farming’ of which most Australians are today still ignorant, and now revealed to enable Australians to understand their country and so become ‘genuine’ Australians.[92] The issue however is whether, with the available scientific evidence of the effect of the cataclysmic consequences of climate change on the global environment, a return to ancient traditional practices in a quest for solutions can be regarded as a viable option. It may be worth carrying out experimental exercises to determine whether those practices are useful for, if we do not try, how do we establish their viability or otherwise? This issue bears a resemblance to that of traditional medicine discussed above.
Coming closer to home, in Ghana, the practice of controlled bushfire, though not common, is not altogether a mystery. It is engaged in principally by some inhabitants of the savannah regions of the country where bushfires are deliberate occurrences designed to lure bush animals to cleared spacious areas for game purposes. If the reader has consumed the favourite smoked game meat ‘akrantie’ (grass cutter) you have in all probability tasted bush meat harvested in this fashion by Australia’s Indigenous population. Still in Ghana, some game meat (nwiramu nam-Akan), (gbeme la-Ewe) such as antelope, wild boar, wild duck, rabbit are all favourite meats sold in markets. Even in so-called advanced countries, the UK, the USA, Canada and Australia, buffalo, pheasant and kangaroo are today still hunted for game meat. They are in a class of their own – delicacies high in protein and low in fat.
XIV Conclusion
A change is required in peoples’ perceptions of rights and interests under traditional laws and customs. In the real world today, land is an economic asset. Land per se is valueless unless it can be put to some economic use. The concept of property under the general law encompasses all things, tangible and intangible. In respect of traditional and customary rights however, interests and rights are consigned to a legal terrain of relicts and souvenirs of antiquity devoid of economic viability. They remained embedded in the past while new property rights are constantly being forged and evolved for all other species of interests. In 2002 a knowledgeable Peruvian leader was quoted as saying:
The land is the only thing you cannot forge. Once you have that, you can build mortgages and secondary mortgages, and then securities based on mortgages, and then you can create chattel mortgage systems and relate them like ships relate to the coast ... and then you forget the land. But the land is the crucial information system.[93]
Land under traditional tenure remains inalienable today. The anomaly this situation represents in terms of economic viability is emphasised by Ahmat, the Cape York Land Council Chief Executive:
Indigenous land for good reason is inalienable. It must remain so. However, inalienability represents a huge difficulty for our economic development. It is a difficulty we must overcome.[94]
That goes for TK and all its attributes also. However, any attempt to balance the imperatives of economic development and those of cultural survival of developing nations and indigenous populations outside the matrix of sustainable development is quixotic and an exercise in futility.
XV Epilogue
The English settlers arrived on the coast of the Australian continent ignoring the fact that the land was already occupied by indigenous people (then in nomadic hunter gathering tribes) who, from time immemorial, had been in occupation and possession of the land from Brisbane to Broome and from Darwin to Adelaide. They soon began to realize that they had a major problem on their hands. This writer considers this remiss on the part of the English settlers – a ‘vision’ issue, for there were clearly indications that the land was not terra nullius. In law, a person in possession of land is presumed to be the owner until someone else produces evidence of a superior title, that is, ownership. However, when the English realized that they had a mistaken view of the land, they ignored the plea by the Indigenous people that they were the rightful owners and, rather, resorted to the use of force to buttress or validate their claim as an occupying force. This writer regards this as an ‘audio’ issue, that is, a refusal to listen and acknowledge the true state of affairs.
World Wars I and II were rapidly to transform International Law, especially around the questions of the existence or non-existence of a State and the rights of citizens and residents within it. Our interest here focusses on the Rights of Indigenous Peoples, especially their right to equal treatment, a safeguard against previous discriminatory practices engaged in by States against them.[95] This is a Human Rights issue.
The UN Universal Declaration of Human Rights[96] and the UN Charter have enshrined, boldly and without equivocation, the dignity of mankind and the right to equal treatment under the law. This is the crossroad at which Indigenous Australians find themselves today in their marathon journey to freedom, justice and equality. It is nothing less than a quest for recognition of their humanity.
In a technological age, it cannot be over emphasized that some Indigenous know- how can be legitimately converted into everyday gadget and marketed worldwide for the benefit of humanity. The only obstacle to this development and realization of that reality would be cooperation, respect, trust and equality of status.
* LLM (Cornell); SJD (NYU). Dr Alex Amankwah was a senior member of the academic staff of the JCU School of Law from September [1]993 to his retirement in January 2006. During that time he served as the Deputy Dean for a period. He was also the Editor of the JCULR from 1994 to 2004.
[1] The term ‘Nature’ is used in the sense the English poets William Wordsworth, John Keats, Alfred Lord Tennyson, Robert Frost, Samuel Taylor Coleridge, Ralph Waldo Emerson and others (the Naturalist Poets) employed it, that is, the positive, vibrant, serendipitous and generative aspects of life. See Stopford Brooke, Naturalism in English Poetry (JM Dent & Sons Ltd, 1920).
[2] See Kirsten Weir, What You Need to Know about Willpower: The Psychological Science of Self-Control, (American Psychological Association, 2012).
[3] Oliver Wendell Holmes, Jr ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 457.
[4] K Deininger (ed) Land Policies for Growth and Poverty Reduction, A World Bank Policy Research Report (2003) xvii.
[5] C Pearson, ‘Case to Put the Land Right' The Weekend Australian, (Australia) 11-12 December 2004, 18.
[6] A Trotman, International Chamber of Commerce (1997), 3
[7] The ideas discussed here were first presented at a workshop: Property Rights – Key to Achieving Ecologically Sustainable Development in Outback Regions, CSIRO (Australia) Sustainable Ecosystems Workshop, 1-3 March 2005. Undara, Queensland, Australia.
[8] See Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology, (Basic Books, 1983) 16.
[9] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; contra Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.
[10] See generally Hans-Peter Martin and Harald Schumann, The Global Trap, (Pluto Press 1999) See also Roy Ellen et al (eds) Indigenous Environmental Knowledge and Its Transformations, (Psychology Press 2000)
[11] See M Davies ‘Indigenous Rights in Traditional Knowledge and Biodiversity: Approaches to Protection’, (1999) 4 Australian International Law Review 1
[12] See Frederick Cooper and Randall M Packard, International Development and the Social Sciences: Essays in the History of Politics of Knowledge, (University of California Press, 1997) 1-41.
[13] See David Brokensha et al (eds), Indigenous Knowledge Systems and Development (University Press of America, 1980), and Joyce Lewinger Moock and Robert E Rhoades (eds), Diversity, Farmer Knowledge and Sustainability, (Cornell University Press, 1992)
[14] See James Fairhead, Indigenous Technical Knowledge and Natural Resources Management in Sub-Saharan Africa: a Critical Overview, (Kent Natural Resources Institute, 1992).
[15] Geertz (n 8) Chapter 6.
[16] See Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1998) 157 ALR 193, 210 per von Dousa J.
[17] Paul Sillitoe, ‘The Development of Indigenous Knowledge: A New Applied Anthropology’, (1998) 39 Current Anthropology 223-52.
[18] P Sikana, Indigenous Soil Characterisation in Northern Zambia’ in Ian Scoones and John Thompson (eds), Beyond Farmer First: Rural Peoples Knowledge, Agricultural Research and Rural Practice (Intermediate Technology Publications, 1994) 80-82.
[19] Vandana Shiva, Protect or Plunder: Understanding Intellectual Property Rights (Zed Books, 2001), 46-47
[20] See B R Smith, ‘All Been Washed Away Now: Tradition, Change and Indigenous Knowledge in Queensland Aboriginal Land Claim’, in John Pottier, et al (eds), Negotiating Local Knowledge: Power and Identity in Development (Pluto Press, 2003) 121, 127-131.
[21] Dean Galbreath, ‘Hidden Economy: In the Shadows’ The Economist retrieved March 4, 2015; David D’Amato, ‘Black Market Activitism: Agorism and Samuel E Konkin III’ Libetarianism.org. November 27, 2018
[22] Louise Jefferson, The Decorative Arts of Africa, (Collins & Sons Ltd, 1974) passim.
[23] UN Doc. A/CONF.151/26/Rev.1.
[24] Agenda 21 (Adopted in the United Nations Conference on Environment and Development, Rio de Janeiro, June 14 1992).
[25] Entered into force December 29 1993.
[26] N Ribis and A Mascarenhas, ‘Indigenous Peoples after UNCED’ (1994) 18 Cultural Survival Quarterly. https://www.culturalsurvival.org/publications/cultural-survival-quarterly/indigenous-peoples-after-unced.
[27] Art 2. Convention on Biological Diversity, UN Doc AIRES/51/182, (June 1995). See (1992) 31 International Legal Materials 818.
[28] Current literature on the matter includes: DM Bodansky ‘International Law and the Protection of Biological Diversity’, (1995) 28 Vanderbilt Journal of Transnational Law 623; N Roht-Arriaza, ‘Of Seeds and Shaman: The Appropriation of the Scientific and Technical Knowledge of Indigenous and Local Communities’, (1996) 17 Michigan Journal of International Law 919; CM Horton, ‘Protecting Biodiversity and Cultural Diversity under Intellectual Property Law: Toward a New International System’ (1995) 10 Journal of Environmental Law and Litigation 1; A Hubbard ‘The Convention on Biological Diversity's Fifth Anniversary: A General Overview of the Convention - Where has it Been and Where is it Going?’ (1994) 10 Tulane Environmental Law Journal 415; MH Huft, ‘Indigenous Peoples and Drug Discovery Research: A Question of Intellectual Property Rights’ (1995) 89 Nebraska University Law Review, 1678; PJ Kushan, ‘Biodiversity: Opportunities and Obligations’ (1995) 28 Vanderbilt Journal of Transnational Law 755; CD Jacoby and C Weiss, ‘Recognizing Property Rights in Traditional Biocultural Contribution’ (1997) 16 Stanford. Environmental Law Journal 74; R L Margulies, ‘Protecting Biodiversity: Recognizing International Property Rights in Plant Genetic Resources’, (1993) 14 Michigan Journal of International Law 322; T Cottier, ‘The Protection of Genetic Resources and Traditional Knowledge’ (1998) 10 Journal of International Economic Law 555.
[29] See M Forsyth, ‘Intellectual Property Laws in the South Pacific: Friend or Foe?’ (2003) 6 Journal of South Pacific Law 8; C Oguamanan, ‘The CBD and Intellectual Property Rights: The Challenge of Indigenous Knowledge’ [2003] SCULawRw 3; (2003) 7 Southern Cross University Law Review 89.
See A Kothari, `Biodiversity and Intellectual Property Rights: Can the Two Co-Exist?' (1999) 4(2) Linkages Journal: http:llwww.iisd.caljournallkothari.htms
[30] See M Ahmadu, ‘Vanuatu's Accession to the WTO and the WIPO: A Reflection on Patent and Pharmaceutical Technology’ (1998) 2 Journal of South Pacific Law 30. Typically, the relevant legislation for Vanuatu, Kiribati, the Solomon Islands and Tuvalu are titled Registration of United Kingdom Patents Act. The French term, ‘propriete industrialle’ (industrial property) is more appropriate. In French the word ‘industrialle’ encompasses the whole gamut of human endeavour or labour. And again, in French the word ‘propriete’ does not connote property as in the strict common law sense. It connotes the power to restrain unauthorised replication in the form of imitation or other types of infringement of an art. See dicta of Holmes J in White Smith Music Publishing Co v Apollo Co [1908] USSC 66; 209 US 1 at 19 (1908). On the development of intellectual property see, P J Federico, ‘Origin and Early History of Patents’, (1929) 2 Journal of the Patent Office Society 293-295; J Kase, Copyright Thought in Continental Europe: Its Development, Legal Theories and Philosophy, (FB Rothman, 1967) 1-15; and Peter Drahos, A Philosophy of Intellectual Property, (ANU Press, 1996); World Intellectual Property Organisation (WIPO), Introduction to Intellectual Property: Theory and Practice (Wolters Kluwer, 1997); also, O Lippert, Individualism, Intellectual Property and the Future of Capitalism, (1999) 8-10; and the Statute of Monopolies, 1620; Fred Warshofsky, The Patent Wars: The Battle to Own the World’s Technology, (John Wiley & Sons Inc, 1994); Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law, (Cambridge University Press, 1999).
[31] This contrasts sharply with the most significant of the objectives of the Uruguay Declaration of 1986, namely, ‘to...bring about further liberalisation and expansion of world trade to the benefit of all countries, especially less developed contracting parties, including the improvement of access to markets by the reduction and elimination of tariffs, quantitative restrictions and other non-tariff measures and obstacles’: Para B (iv); see (1986) 25 International Legal Materials 1623
[32] The membership of the US IPC consisted of corporations such as: Bristol Myers, Dupont, General Electric, General Motors, Hewlett Packard, IBM, Johnson and Johnson, Merck, Monsanto, Pfizer, Rockwell and Warner. See John Croome, Reshaping the World Trade System: A History of the Uruguay Round (WTO, 1995) See also Robert Buderi, Engines of Tomorrow: How the World's Best Companies are Using Their Research Labs to Win the Future, (Simon & Schuster, 2000).
[33] Para 2, Singapore Ministerial Declaration, 1996. The Ministerial Conference is the WTO’s apex decision making body. See Marrakesh Agreement Establishing the World Trade Organisation, April 15 1994, entered into force January 1 1994. See (1994) 33 International Legal Materials 1125
[34] See S Subedi, ‘The Road from Doha: The Issues for The Development Round of The WTO and The Future of International Trade’ (2003). 52 International and Comparative Law Quarterly 425
[35] For the text of the Agreement see GAAT, The Results of the Uruguay Round of Multilateral Trade Negotiations 365 (WTO, 1994), reproduced in (1994) 33 International Legal Materials 1179.
[36] See Art.28 for the content of the rights.
[37] Some critics argue that limiting access to bio-resources globally would be tantamount to dispossession of the public of rights in the public domain: See W Van Caenegen, ‘The Public Domain: Scientia Nullius?’ (2002) 24 European Intellectual Property Review 324.
[38] See the seminal discussions of reconciling the two documents: M Kruger, ‘Harmonizing TRIPS and the CBD: A Proposal from India’, (2001) 10 Minnesota Journal of Global Trade 169; S Young S, ‘The Patentability of Maori Traditional Medicine and the Morality Exclusion in the Patents Act (NZ) 1953’ (2001) 32(1) Victoria University of Wellington Law Review 1; S K Verna, ‘ Access to Plant Genetic Resources and Intellectual Property: The Case of India’, (Spring/Summer 2001) CASP Newsletter; C R McManis, ‘The Interface Between Intellectual Property and Environmental Protection: Biodiversity and Biotechnology’ (1998) 76(1) Washington University Law Quarterly 255; J P Mishra, ‘Biodiversity and Intellectual Property Rights: Implications for Indian Agriculture’, (2002) 3(2) Journal of World Intellectual Property 211; V Cutlet, ’Revision of the TRIPS Agreement Concerning the Protection of Plant Varieties’ (1999) 2(4) Journal of World Intellectual Property 617; and L Helfer, ‘Regime Shifting: The TRIPs Agreement and New Dynamics of Intellectual Property Lawmaking’, (2004) 29 Yale Journal of International Law 1.
[39] See R Cunningham, `Rights for All', Managing Intellectual Property, 120, 34-37; P Braga and A Carlos, ‘International Transactions in Intellectual Property and Developing Countries’, (2000) 19 International Journal Of Technology Management 35; P Braga, ‘Intellectual Property Rights: Imperatives for a Knowledge Industry’, (2000) 22 World Patent Information 167; S K Mathur, ‘Domestic Challenges and the TRIPS Agreement: The Way Forward for India’, (2001) 3(4) Journal of World Intellectual Property 337; ‘The Right to Good Ideas’ (2001) The Economist 359 (8227) 25-29); B Chaytor ‘The Convention on Biological Diversity: Exploring the Creation of a Mediation Mechanism’, (2002) 5 International Journal of World Intellectual Property 157; S Elwyn-Jonas, Report of the Commission on Intellect Property Rights. (2002) 5(3) Bio-Science Law Review 101; A Viswanathan A, ‘From Marrakesh to Doha: WTO's, Passage to India for Pharmaceutical Patents’, (2002) 17 World Intellectual Property Report 22; K Stegemann, ‘The TRIPS Agreement as an Alliance for Knowledge Production’, (2003) 6(4) Journal of World Intellectual Property 529; W Pretorius, ‘TRIPS and Developing Countries: How Level is the Playing Field’, in P Drahos (ed) A Philosophy of Intellectual Property (ANU Press, 2002)
[40] See for example the Indian Patent (Amendment) Act 1999 amending the Patent Act 1970 to remove the exceptions from patentability of food, medicine and drugs in the old legislation: Shiva, (n 19), 104-105.
[41] Preamble of the Act. So called because they involve ‘innovative steps’. Innovation patents are now also in the process of being abolished. On 26 February 2020, the Intellectual Property Laws Amendments (Productivity Commission Response Part 2 and Other Measures) Bill 2019 (Cth) received Royal Assent. It effectively abolishes innovation patents from 26 August 2021 because applications for innovation patents can only be filed until 25 August 2021. This means that, while patents awarded under the innovation patent scheme continue, new innovation patents cannot be issued after 25 August 2021.
[42] [1980] USSC 119; 447 US 303 (1980).
[43] Plant Patent Act (1930).
[44] See Asgrow Inc v Winterboer [1995] USSC 5; 513 U S 179 (1995); also JEM Ag Supply Inc v Pioneer Hi-Bred Int'l Inc. [2001] USSC 69; 534 US 124 (2001).
[45] See n 45.
[46] Ibid.
[47] Ibid, 309
[48] Funk Bros Seed Co v Kalo Co [1948] USSC 22; 333 US 127, 130 (1948)
[49] Shiva (n 19), 60
[50] Ibid, 56-57. Notice the similarity between the brand names and the original name, Kasmati. See also I Hering, ‘Culture Clash’, (2001) 113 Managing Intellectual Property 14-17; O Das, ‘Patenting and Ownership of Genes and Life Forms’ (2000) 3(4) Journal of World Intellectual Property 577; L E Jackson, ‘Agricultural Biotechnology and the Privatisation of Genetic Information’ (2000) 3(6) Journal of World Intellectual Property 825
[51] See Shiva (n 19) 54-55.
[52] Ibid. 55.
[53] See L Onaga, ‘Cashing in on Nature's Pharmacy’, (2001) 2(4) European Molecular Biology Organisation (EMBO) Reports 263.
[54] M Davis, ‘Biological Diversity and Indigenous Knowledge’ (1998) Research Paper No 17 Canberra Parliamentary Library.
[55] World Bank, ‘Traditional Medicine Practice in Contemporary Uganda’ (March, 2003) 54 I K Notes. See also K Moran et al, 2001, ‘Biodiversity Prospecting: Lessons and Prospects’, (2001) 30 Annual Review of Anthropology 505.
[56] For some figures see ETC Group, ‘Oligopoly Inc: Concentrations in Corporate Power 2005’, (2005) www.etcqroup.org; and G Rausser and A A Small, ‘Valuing Research Leads: Bioprospecting and the Conservation of Genetic Resources’, (2000) 108 Journal of Political Economy 173.
[57] See P Sillitoe and R A Wilson, ‘Playing on the Pacific Ring of Fire: Negotiation and Knowledge in Mining in Papua New Guinea’, in Johan Pottier et al (eds) Negotiating Local Knowledge: Power and Identity in Development (Pluto Press, 2003) 241.
[58]See for example, the Biodiscovery Act 2003 (Qld). While bioprospecting is seemingly based on consent, biopiracy is not!
[59] Onaga (n 56).
[60] HM Burkill, The Useful Plants of Tropical Africa, (University Press of Virginia, 1964).
[61] See Dulcie Levitt, Plants and People: Aboriginal Uses of Plants on Groote Eylandt (Australian Institute of Aboriginal Studies, 1981); L P Sharp, The Social Anthropology of a Totemic Society in Northern Australia, (PhD Dissertation, Harvard University 1937), and G Steward, People, Plants and Wangarr Wirws: Notes on Traditional Healing, (Undated, Kowanyama Aboriginal Land and Natural Resource Management Office).
[62] Systems of medicine – Ayurveda, Unani and Siddha is covered by treaties which include K M Nadkarni's Indian Material Medica; also Wealth of India; Compendium of Indian Medicinal Plants; and Treatise on Indian Medicinal Plants. See Shiva (n 19) 53-55 for details. Also, Y Liu, ‘IPR Protection for New Traditional Knowledge: A Case Study of Traditional Chinese Medicine’, (2003) 25 European Intellectual Property Report 194.
[63] See J F Esegu, Research in Medicinal Plants in Uganda (Forest Resources Research Unit, 2002); R H Bannerman et al Traditional Medicine and Health Care Coverage (WHO, 1993).
[64] Samoa is reported to have developed a drug from the bark of mamala tree (homalantus) which can check the spread of HIV virus. See Forsyth (n 32) fn, 77.
[65] The closure of the Bougainville copper mine by forces opposed to the operations of the Australian mining giant BHP Billiton in Papua New Guinea is a pointer to this modality of self-help: See Sillitoe and Wilson (n 60).
[66] Shiva (n 19) 117.
[67] For example, India’s Traditional Knowledge Digital Library (TKLD) and the World Intellectual Property Organization’s (WIPO’s) Portal of Online Databases and Registries of Traditional Knowledge and Genetic Resources (PODTKGR). See Documents WIPO/GRTKF/IC/3/6 and WIPO/GRTKL/IC/3/17
[68] See S Kadidal, ‘Subject-Matter Imperialism? Biodiversity, Foreign Prior Art and the Neem Patent Controversy’, (1997) 37 IDEA 371.
[69] For some views on the moral and ethical implications see International Plant Genetic Resources Institute, ‘Ethics and Equity in Conservation and Use of Genetic Resources for Sustainable Food Security’, (Proceedings of a Workshop to Develop Guidelines for the CGIR, Rome, 1997).
[70] Article 8(2).
[71] Section 7.
[72] Section 9.
[73] Section 10.
[74] Part 4.
[75] See Cottier (n 31).
[76] Ibid.
[77] Ibid.
[78] Copyright Amendment (Moral Rights) Act 2000 (Cth).
[79] This is in relation to the Merck/National Biodiversity Institute (INBio) Costa Rica Agreement 1996. See also C Oddie, ‘Bio-prospecting’ (1998) 9 Australian Intellectual Property Journal 18-19.
[80] J Rivers and HA Amankwah, ‘Sovereignty and Legal Pluralism in Developing Nations: A Reappraisal of the PNG Case’ (2003) 10 James Cook University Law Review 85, 108.
[81] Sillitoe and Wilson ‘Playing on the Pacific Ring of Fire: Negotiation and Knowledge in Mining in Papua New Guinea', in Negotiating Local Knowledge (n 60) 241.
[82] Ibid 265.
[83] M Taylor and J Cayforth, December 22, 2003, ‘’US Should be More Flexible on Patent Law’, In D Dickson (ed) Science and Development (2003).
[84] Ibid.
[85] Ibid.
[86] Ibid
[87] For some details, see http:llwww.conference.ifas.ufl.edu/wcal/
[88] See E D Schulze, and H A Mooney (eds), Biodiversity and Ecosystem Function (1993); W W Collins, and CO Qualset (eds), Biodiversity and Agroecosystems (1999): G Schroth et al, Agroforestry and Biodiversity Conservation in Tropical Landscapes, (2004); M van Hoordwijk et al (eds) (2004), Below-ground Interactions in Tropical Agrosystems: Concepts and Models with Multiple Plant Component, (2004); N W Simmonds and J Smartt, (1999) Principles of Crop Improvement (1999); J E Arnold and P A Deweer, Farms, Trees and Farmers: Responses to Agricultural Intensification (1997); P Huxley, Tropical Agroforestry (1999); LE Buck et al, Agroforestry in Sustainable Agricultural Systems (1999); CA Palm et al, Slash and Burn: The Search for Alternatives (2005); L Guarino, Traditional African Vegetables, (International Plant Genetic Resources Institute, 1997).
[89] See Royal Australian Air Force case: Linton Besser, Lisa McGregor and Jeanavive McGregor:
‘Defence Force Admits Three-year Delay in Warning People about Toxic Foam Danger.’
ABC TV Four Corners Story October 9, 2017. See also ‘Contamination: The Unfolding Scandal of Toxic Water in Australian Communities. ABC TV and iview aired at 8.30 pm October 9, 2017.
[90] See generally Flannery, Tim, The Future Eaters: An Ecological History of Australian Lands and People (Grove Press, 2002). Also, Fuller, Thomas, ‘Reducing Fire and Cutting Carbon Emission, the Aboriginal Way’ The New York Times January 17, 2020.
[91] (Allen and Unwin, 2011) reviewed by James Boyce, ‘The Biggest Estate on Earth’, The Monthly Magazine, Quarterly Essays Australian Foreign Affairs Dec 2011 – Jan 2012.
[92] David Bowman, Aboriginal fire management – part of the solution to destructive fires https://www.utas.edu.au/news/2016/2/24/43-aboriginal-fire-management-part-of-the-solution-to-destructive-fires/.
[93] Sarah A Laird (ed), Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice (EarthscanPublications Ltd, 2002); R Kindt, Methodology for Tree Species Diversificaiton Planning for African Ecosystems, (PhD Thesis, University of Ghent 2002); RR Leakey and AC Newton (eds), Tropical Trees: The Potential for Domestication and the Rebuilding of Forest Resources (HMSO, 1996); R R Leakey et al (eds), Domestication and Commercialization of Non-Timber Forest Products for Agroforestry, Non-Wood Forest Products, Proceedings of an international conference held in Nairobi, Kenya19-23 February 1996 (FAO, 1996).
[94] See P Botsman, ‘Aboriginal Prosperity Through Property’, The Australian, 11 December, 2003, 11.
[95] Art 1(2) UN Charter signed at San Francisco June 26, 1945 entered into force on October 24, 1945. See also Stan Grant, ‘I Can’t Breathe’ ABC 7.30pm Monday July 14, 2020.
[96] UN Doc G A Res, 217A.
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