Human rights analysis
Legal protection of Indigenous Intellectual Property Rights
Mohammad Monirul Azam
THE principles of Intellectual Property (IP) law are substantially the same in all countries with variations to suit the national requirements of each country. Under IP law, owners are granted certain exclusive rights to a variety of intangible assets, such as literary, artistic, and musical works; ideas, innovations and inventions; and words, phrases, symbols, colour combinations and designs etc. Common types of intellectual property include copyrights, trademarks, patents, industrial designs and trade secrets in some jurisdictions. The majority of intellectual property rights provide creators of original works a form of temporary monopoly with the aim of creating an economic incentive to disclose, develop and share their ideas. However, most of the current national and international IP laws do not protect or recognize intellectual property of the Indigenous Peoples. In most of the cases, IP laws maintain the dominance of developed nations over the underdeveloped world neglecting the Indigenous practices.
Indigenous Intellectual Property
Indigenous Intellectual Property (IIP) includes special skills, knowledge, innovations, agricultural systems, medicinal and plant knowledge, even distinct way of life and cultural systems of indigenous peoples. It is quite mentionable that indigenous people first cultivated many of the world's staple foods; such as - potatoes, sugarcane, garlic, tomatoes etc. But indigenous farmers who cultivate the indigenous crops used to strengthen environment friendly, commercial hybrid crops receive no recognition for their agricultural contribution. On the other hand, medical Researchers, in several developed states have increasingly looked to indigenous medicinal knowledge as a guide of finding plants that could lead to useful new drugs. The process of deriving drugs from chemicals found in plants known as pharmacology seen as a viable alternative to genetically engineering drugs. Ethno-pharmacology which utilizes indigenous knowledge of plants to determine which plant to screen for possible drug developments hold several advantage over random screening and other methods of pharmacology including lowering the cost of drug searching. Although indigenous medicinal knowledge is used frequently, it is patented by the researchers and companies without giving due recognition or benefits to indigenous peoples. Furthermore, there are many forms of artistic expression that are unique to indigenous peoples such as designs, symbols, songs, dance, stories (commonly referred as folklores) and even languages which are being taken without permission and used for commercial purposes and not protected by law.
Negation of indigenous cause and existing Intellectual Property Laws
In this age of economic globalization, intellectual property has become international in character as it has great role in the economic development and transfer of technology. Since IP plays such a large role in international trade, international agreements serve to regulate between nations in the field of intellectual property. At the international level most of the intellectual property conventions/treaties are adopted under the auspices of the World Intellectual Property Organization (WIPO) and in case of multilateral trading system as espoused by the World Trade Organization (WTO), intellectual property is regulated under the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS). Therefore, international conventions/treaties adopted under the WIPO and the TRIPS agreement together constitute the greater part of current international IP laws and that is why to place indigenous cause of intellectual property rights in these two forums is a must to ensure maximum protection in Indigenous Intellectual Property Rights. But unfortunately neither the TRIPS nor any convention/treaty of WIPO recognized indigenous intellectual property rights.
Since current intellectual property laws recognize individual or corporation based ownership but do not acknowledge indigenous forms of community based ownership, therefore, indigenous peoples have no intellectual property rights under the existing intellectual property laws. In general the cultural properties of indigenous nations are not thought as 'commodified or commercialized' items, which can be sold or bought. In many cases, the cultural property is thought as belonging exclusively to the group whether the group is a tribe, a nation, a community, a clan or a family. In contrast, states around the world are increasingly reorganizing the entire social, economic and political order based on legal systems designed to protect private property and concentration of wealth in the control of corporations and individuals.
However, over the years, indigenous peoples around the world have taken several initiatives, declaration for the protection of their intellectual and cultural property rights such as Declaration of Belem, July 1988, Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, June 1993, Julayinbul Statement on Indigenous Intellectual Property Rights, November 1993, Santa Cruz de la Sierra Statement on Intellectual Property, September 1994, Suva Statement on Indigenous Peoples Knowledge and Intellectual Property Rights, April 1995, United Nations Declaration on the Rights of Indigenous Peoples etc. At the United Nation's General Assembly's 61st session, on the 13th September 2007, an overwhelming majority of members resolved to adopt the United Nations Declaration on the Rights of Indigenous Peoples. Regarding the intellectual property rights of indigenous peoples, the General Assembly reaffirmed "… that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples…. and solemnly proclaimed as an agreed standard for member nations around the world.” Article 11of the Declaration provides that states shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
Unfortunately none of the above Declaration has any binding force to compel the state parties to protect indigenous intellectual property rights. It is also frustrating to mention here that recent meeting of WIPO Inter-governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore held in Geneva from June 29-July 3, 2009 failed to reach any understanding regarding any future binding agreement for the protection of indigenous intellectual property rights. This failure is criticized by experts from developing countries as “where is IP protection-when developing countries need it?”
Although folklore, folk-dance, folk-literature, folk-songs and indigenous culture, agricultural practices, knowledge of biodiversity and traditions passed on from generation to generation, plays an important role in the formation of the cultural heritage of Bangladesh, those are not well protected under the existing laws. Neither the copyright law nor patent law of Bangladesh specifically mentioned or deals with them.
To protect IIP rights in Bangladesh, Government of Bangladesh should take following initiatives:
* Create necessary legal authority for the administration and identification of IIP.
* Provide financial assistance to the Universities and Research centers for conducting research works on IIP.
* Strengthen Intellectual Property Offices in Bangladesh to examine and provide legal protection to IIP.
* There must be a provision for compulsory declaration of origin and IIP check in all forms of intellectual property applications.
* Provide practical training on IIP to the personnel working in the Intellectual Property offices/organizations.
* Manage financial and technical assistance from the developed countries and international organizations to establish an Indigenous Knowledge Research Centre in Bangladesh.
While taking above initiatives, Bangladesh Government may take legal and technical assistance from WTO and WIPO. But it would be better if Bangladesh can develop its own expertise in the field of intellectual property law and indigenous knowledge protection system as well.
Intellectual property protection for indigenous peoples which recognizes their close and continuing links to their cultural heritage is vital because Indigenous peoples cannot survive, or exercise their fundamental human rights as distinct nations, societies and peoples, without the ability to conserve, revive, develop and teach the wisdom they have inherited from their ancestors. Therefore, survival of indigenous peoples is not merely a question of physical existence, but depends upon maintaining cultural and spiritual links with the land customs, knowledge etc. We should keep in mind that to talk about the needs and rights of indigenous peoples is to talk about the rights of at least 300 million indigenous peoples around the world, often among the poorest and the most disadvantaged in their countries. Therefore, in the interest of 300 million misfortunate but blessed with many distinct, inherent, innovative and natural qualities, the indigenous intellectual property rights must be recognized and given effective protection in their respective national legislations and international legal instruments in this field should be developed as soon as possible.
Mohammad Monirul Azam is an Assistant Professor, Department of Law, University of Chittagong and Researcher on Intellectual Property and International Trade Law