Patent system bad - We have to adapt the system to them

Recently, pharmaceutical companies have turned to natural compounds in search of substances with powerful healing properties. 1 The abundant and diverse plant life of many developing countries is at the forefront of such research. 2 Although this abundance is a promising source for cures, it also has proven to be a daunting obstacle. 3 Companies must examine roughly 10,000 plants for every species they find with promising medicinal qualities. 4 To cut costs and streamline research, pharmaceutical companies increasingly rely on the remedies of indigenous peoples to locate naturally occurring medicinal compounds. 5 In 74% of these cases, Western science confirms the curative value of these native remedies. 6 Accordingly, reliance on indigenous knowledge has proven a significant source of savings in drug research. 7 Despite the profits from the cures, as well as the benefits to humankind, indigenous peoples' cooperation and teachings, however, often go unrewarded. 8

Critics argue this dynamic is a reflection of inequities in the Trade Related Aspects [*368] of Intellectual Property Agreement (TRIPS) that rapidly is setting substantive requirements for patent protection throughout the world. 9 According to the critics, such requirements codify value-laden Western notions of property rights, as well as technology. 10 Thus, TRIPS is a form of economic imperialism whereby developed countries protect their own intellectual property rights but may legally plunder or colonize the intellectual heritage of indigenous cultures. 11 Therefore, some argue that intellectual property regimes should be reformed to correct this political and cultural asymmetry. 12

But some of these criticisms are misplaced. It is the West's refusal to compensate indigenous peoples for using their medicinal knowledge that is imperialistic rather than the requirements for patent protection. Instead of uncritically accepting patent rights as the answer to compensation for use of indigenous medicine in Western drug development, the international community should develop an alternative framework.

This article proposes that a Common Heritage of Mankind (CHOM) regime should compensate indigenous peoples for use of their medicinal knowledge. The article begins by defining the terms "indigenous people" and "indigenous medicinal knowledge." It then analyzes the status of indigenous medicine in the current patent regime and the desirability of extending intellectual property protection to it. The article also provides an overview of the CHOM and illustrates its applicability to the Western use of indigenous medicine. Finally, the article applies the elements of the CHOM to an indigenous medicinal knowledge regime.

II. DEFINING INDIGENOUS PEOPLE AND INDIGENOUS MEDICINAL KNOWLEDGE

For decades, anthropologists have struggled with defining the terms "indigenous people" and "indigenous knowledge." 13 A brief overview of relevant distinctions between rival definitions is instructive in adopting a working definition of each term.

A. Indigenous People

The term "indigenous people" is an evolving phrase. Anthropologist Stephen Brush, a prolific author in the field of indigenous studies, argues that the term "is best used in regions with a colonial history that has left a predominant national culture and autochthonous cultures that coexist and compete for limited resources, especially land." 14 This narrow definition is "not suited for large parts of Asia and Africa, where a single hybrid culture (e.g., European-Native) is not dominant." 15 Thus, it excludes a large portion of non-Westerners simply because they are no longer colonized. 16

[*369] In contrast, a much broader definition of indigenous people is "people living in tribal societies and peoples of aboriginal cultures in nation states. . . thus including both tribal peoples and peasant peoples." 17 This is consistent with more flexible definitions that provide exceptions to accommodate societies that are no longer struggling against colonization. For example, one definition explains that indigenous people are "existing descendants of non-Western peoples who in general continue to occupy their ancestral lands even after conquest by Westerners, or who have been relocated forcibly in the process of colonization." 18

This article adopts the second definition of indigenous peoples as "a people living in tribal societies and peoples of aboriginal cultures in nation states," 19 because it is consistent with the writings of activists, authors, and indigenous groups concerned about indigenous medicinal knowledge. 20 Most importantly, indigenous groups are opting for this broader definition. 21 For instance, the Fundaci'on Sabidur'i Ind'igena, or Foundation of Indigenous Wisdom (FSI), an Ecuadorian grass roots organization composed of Quichua-speaking campesinos (peasant peoples) endorses the more inclusive definition. 22 The Convention on Biodiversity also supports this broad construction by including "local communities embodying traditional lifestyles." 23

B. Indigenous Medicinal Knowledge

Typically, indigenous medicinal knowledge is defined as a type of indigenous knowledge consisting of the medicinal and curative properties of plants in indigenous culture. 24 Thus, analysis of the term "indigenous knowledge" is necessary to complete this definition. Some define indigenous knowledge as "the body of historically constituted (emic) knowledge instrumental in the long-term adaptation of human groups to the biophysical environment." 25 This definition attempts "to denote that which is directly functional in long-term survival" and thus creates a distinction between indigenous knowledge and culture that places indigenous knowledge on an epistemological plane comparable to Western scientific knowledge. 26

Western science and indigenous knowledge share structural similarities but are distinct fundamentally. 27 Western science is rooted in Cartesian Dualism, a philosophy [*370] positing that there is an objective reality and a subjective reality mediated by the senses. 28 Because the senses are prone to error, Cartesian philosophy focuses on objective reality. 29 Science inherited this focus through its emphasis on empirical data, measurement, testing, hypothesizing, objectivity, rationality, replicability, and verifiability. 30 In contrast, indigenous knowledge is subjective because of its basis in historical/cultural experience and uncontrolled observation. 31 The following is a helpful illustration:

A "spiritual" healer may explain a persistent headache not as resulting from physiological phenomena but from neglect of an ancestor. The plausibility of this explanation rests within the symbolic structure of the healer's culture. A scientific explanation, however, must be demonstrable outside of any unique symbolic structure; it must have universality under specified empirical methodological conditions independent of the practitioner's belief. 32

III. PATENT PROTECTION FOR INDIGENOUS MEDICINAL KNOWLEDGE

Currently, there is no patent protection for indigenous medicine, however, pharmaceutical companies can use indigenous medicinal knowledge to make patentable medicines and compounds. 33 Thus, some label the patent system as a new form of imperialism and others propose reforms to place patents for indigenous medicine in the hands of indigenous peoples as a means to empowerment and recognition of their intellectual contributions. 34 The patent system, however, is neither an ogre nor a savior awaiting the hands of indigenous people. Western intellectual property regimes properly exclude indigenous medicine from patent protection. Further, such rights are incommensurable with indigenous society and indigenous medicinal knowledge.

A. Indigenous Medicine and the Current Patent Regime

Under the auspices of the World Trade Organization, the TRIPS agreement recently set international standards both procedurally and substantively for patent protection. TRIPS' requirements for patents are essentially a codification of pre-existing Western standards. Under article 27 of the agreement, patentable subject matter is any "product or process . . . provided they are new, involve an inventive step and are capable of industrial application." 35

Because States and other entities, such as the European Patent Office, are responsible for implementing TRIPS, a representative survey of domestic legislation and case law from them is useful to show the barriers facing indigenous medicinal knowledge in the patent system. These legal obstacles include the ban on patenting products of nature and the requirements of novelty, inventive step (nonobviousness), industrial application (utility), and, where applicable, joint inventorship.

[*371] 1. Product of Nature

Because indigenous medicines often consist of raw and minimally altered plant material, they are prone to the objection that they are products of nature. 36 The oft-quoted report regarding patentable subject matter from the U.S. Congress epitomizes the philosophy of Western States by stating that patentable subject matter should, "include anything under the sun that is made by man." 37 Similarly, article three of the European Patent Convention (EPC) specifically excludes "plant and animal varieties." 38

Case law indicates such requirements will be applied to the detriment of indigenous medicine in patent applications. In Plant Genetics, Systems/Glutamine Synthetase Inhibitors, the European Patent Office Board of Appeals rejected a claim for plant cells that were genetically altered to be herbicide-resistant because it considered the plant a product of nature. 39 In the Rote Taube (Red Dove) case, however, the German Supreme Court (Bundesgerichtshof) stated that it would allow a patent for a product of nature if the plant resulted from the systematic application of biological forces of nature. 40 Indigenous people probably cannot capitalize on such an exception because they often use wild plants as remedies. 41

But even where they have cultivated a medicinal plant, the cases like the Canadian re Application of Pioneer Hi-Bred Ltd., appear to close this potential loophole. 42 The patent at issue dealt with a soybean plant produced naturally but with an artificial technique of cross breeding. In dicta, the court stated the technique did not "alter the soybean reproductive process, which occurs in accordance with the laws of nature," and thus had the status of being an unpatentable mere discovery. 43 Because the level of human intervention required for patent protection is so demanding, it appears to exclude most, if not all, types of plant utilization in indigenous medicine.

2. Novelty

Indigenous medicine is not novel by Western standards. 44 Article 54 of the EPC states "an invention shall be considered to be new if it does not form part of the state of the art," which is defined as "everything made available to the public by means of a written or oral description by use or in any other way, before the date of filing [the application]." 45 Because indigenous medicine normally has been used for millennia as [*372] part of an oral tradition, the novelty requirement acts as a bar to patenting it. 46

The United States' requirement for novelty varies slightly by only excluding inventions "known or used by others in this country, or patented or described in a printed publication in this or a foreign country." 47 Thus, disclosures made outside of the United States, such as indigenous oral traditions, are not considered prior art. Formerly, Japan had a similar rule regarding oral disclosures made beyond its borders, but has since adopted an absolute novelty standard. 48 Under the United States' rule, anthropologists inadvertently may impose a novelty bar through publication of accounts of indigenous medicine and knowledge. 49

The requirement that prior art outside of the United States be a written disclosure could be advantageous to indigenous peoples because they would not automatically face a novelty bar for oral disclosures made beyond United States territory. In practice, however, this requirement has proven to be more of a curse than a blessing. Because of it, the W.R. Grace Company was able to patent an extraction from India's neem tree as a natural environmentally-safe pesticide, although such uses for the neem tree were well established in India before its alleged date of invention. 50 Therefore, India, like many other nations of indigenous people, may be forced to endure the burden of a foreign monopoly on native technology because the written disclosure requirement prevents centuries of use and oral tradition from posing a novelty bar to American patents.

3. Inventive Step (Nonobviousness)

The development of indigenous knowledge does not satisfy the inventive step requirement. Article 56 of the EPC stipulates "an invention shall be considered as involving an inventive step if . . . it is not obvious to a person skilled in the art." 51 Japan and the United States have similar requirements, although the United States has adopted the term "nonobvious." 52 This requirement presents an obstacle to indigenous peoples because their knowledge has accumulated over time and thus lacks an inventive step. 53 This requirement, however, does not pose a bar to Western companies because isolating and identifying the previously unidentified bioactive substances in indigenous medicine qualifies, rightly or wrongly, as an inventive step. 54

4. Industrial Application (Utility)

Indigenous medicine may be barred for lack of industrial application because it is typically unrefined and it may not be perceived as useful as a medicine. 55 This appears likely, especially in response to standards such as those in Japan and TRIPS that require [*373] that an invention have "industrial application." 56

The United States has a similar criteria called "utility", which is defined as "useful." 57 The obvious utility or usefulness of indigenous knowledge from the Western perspective is in developing pharmaceuticals through identification of plants with healing properties. 58 The attempt by the National Institutes of Health to patent gene fragments that aid the development of gene therapy through their use in mapping gene sequences provides some insight into whether Western states would accept the usefulness of indigenous medicine in drug development as sufficient to meet the utility requirement. 59 The U. S. Patent and Trademark Office ignored the fragments' utility in aiding drug development and concentrated on its lack of proven medical applications. 60 This suggests that Western states might ignore indigenous medicines' utility in drug development and reject such patent applications for lack of utility.

5. Joint Inventorship

Some have suggested that the contributions of indigenous people to Western medicine may be legally cognizable under a claim of joint inventorship. 61 This, however, is not a workable solution for widespread protection and compensation of indigenous medicine. The status of joint inventorship applies to inventions that are made by two or more persons jointly. 62 It is required that the invention be the product of a collaboration working toward the same end and that each inventor must contribute to the inventive thought. 63 The collaboration requirement is flexible enough to accommodate the relationships between indigenous people and researchers. It does not require that joint inventors work together or at the same time, that they make the same type or amount of contribution, or make a contribution to every claim. 64

The intellectual contribution of indigenous people, however, may not be worthy of inventorship status because much of indigenous medicinal knowledge is considered available in the public domain. 65 Additionally, because indigenous people understand their medicine within the context of their culture, they may have difficulty proving the conceptual connection between their contribution and the medicine's ultimate use in Western medicine. 66 Thus, joint inventorship cannot be relied upon to provide the broad protections necessary to ensure compensation for indigenous people.

B. Indigenous Medicine in the Context of the Philosophical and Economic Justifications of Patent Law

The prevailing philosophical and economic justifications for patent law include [*374] natural law, reward theory, and patent inducement theory. Applying these concepts to indigenous medicinal knowledge offers some insight into whether the current patent regime is excluding it appropriately.

1. Natural Law

Natural law does not support patent protection for indigenous knowledge because the bulk of it is a product of oral tradition, rather than invention by contemporary indigenous peoples. Although some dispute the relevance of natural law, 67 it remains vital as a justification for the patent system. Historically, patent law from the United States, France, and England share a common affinity for natural law. 68 Further, natural rights rhetoric had a significant impact in the TRIPS negotiations. 69

Natural rights are "universally recognized rights attributable to human nature or immutable conceptions of 'reason' rather than the enactment of statute." 70 Inventors gain rights in intellectual property by virtue of their labor in creating it. 71 Rather than the creation of a contemporary individual, indigenous medicine is normally the result of generations of incremental improvements in medicinal techniques. 72 Therefore, patents for indigenous medicine cannot be reconciled with natural law's requirement that only the inventor merits exclusive rights to her property.

2. Reward Theory

The reward theory is an economic justification for patents with a basis in natural law's premise that an invention is the right of an individual rather than society. 73 The theory "views the patent system as a device that enables an inventor to capture the returns from his investment in the invention . . . ." 74 Accordingly, the benefits of patent protection in stimulating inventive activity offset the burdens of patent monopolies on society. 75 Because the impetus for developing indigenous knowledge is the needs of indigenous people, patents are unnecessary to ensure development of indigenous medicinal knowledge. 76

[*375] 3. Patent Inducement

The patent inducement theory posits "that if patents were only granted on inventions induced by the patent system, [it] would result in a net benefit to society." 77 Thus, the theory eliminates protection for inventions induced by the market, scientific curiosity, or accident. 78 The patent inducement theory supports the exclusion of indigenous medicinal knowledge because "indigenous medicinal knowledge has been acquired in a culture with no patent laws, although not necessarily serendipitous, such knowledge was not induced by the existence of patents." 79

C. Patent Protection in the Context of Indigenous Societies and Medicine

The nature of indigenous societies and indigenous medicinal knowledge provide unique questions regarding the desirability of patent protection. Such issues include whether indigenous people consider indigenous medicine to be property, whether it is fair to award individuals for what is collective or shared knowledge, and finally whether compensation under the patent system would be beneficial to indigenous peoples.

1. Indigenous Patents?

The widely held conception that indigenous people do not have a concept of intellectual property rights aids the uncompensated use of indigenous knowledge because it implies that the knowledge is considered properly to be in the public domain. Unfortunately, there is no comprehensive study of intellectual property rights in indigenous societies. 80 Anecdotal studies suggest that rights similar to trademarks and copyrights exist. 81 Evidence of patent-like rights is more rare. The concept of wou in the Mandang society of New Guinea, however, included an exclusive right to make certain pots and plant certain species of yams. 82

Evidence suggests that traditional medicines are either considered to be in the public domain or an indigenous equivalent of a trade secret. 83 As an anthropologist observes: "It is possible to argue that herbal medicine ought to be seen as a 'public good.' Whilst this may be true of the large majority of folk treatments, the . . . renowned herbalists have . . . guarded their knowledge . . . in great secrecy." 84

[*376] 2. Fairness--Who Gets Paid?

Modifying patent protection to accommodate indigenous medicinal knowledge creates an ethical dilemma of who should receive the royalties. It would be difficult to justify the award of a large sum of money to an individual healer when all healers work from a general body of knowledge. 85 One possible solution is to compensate individual towns or communities for using indigenous medicine in drug development. 86 This approach, however, would merely increase the scale of the problem by affecting relationships between entire communities. 87 Such balkanization could sabotage the "resurgence of interest in traditional medicine [as] part of the anti-colonial struggle and pride in cultural identity." 88

Even in cases where there is little overlap in indigenous medicinal knowledge, intellectual property rights would exacerbate economic inequalities among indigenous groups. 89 Brush notes, "Differentiation between indigenous communities often measured by economic and social criteria, is also found in the distribution and value placed on indigenous medicinal knowledge. Compensation for indigenous knowledge and biological resources is therefore likely to add to the problem of economic inequality." 90 Indigenous groups may even charge each other for indigenous medicine. 91 Thus, patent protection could become an instrument for the concentration of wealth 92 and the creation of a new indigenous elite rather than a means to redistributive justice. 93

3. Effects of Compensation on Indigenous Groups

Large quantities of monetary compensation from intellectual property rights would threaten the foundations of indigenous societies. Intellectual property rights are commodities of a market economy, which is "based upon competition among anonymous individuals: buyers compete for sellers, sellers compete for buyers." 94 By contrast, indigenous societies are community economies characterized as "cyclical or self contained [where] no transactions occur outside the group." 95 The introduction of intellectual property rights would "lead to economic transformation or adoption of the market form exactly among those people whom it is said to protect." 96

[*377] In other cases, national governments may interfere with the rewards of patent compensation:

The pattern is aptly expressed by a peasant homily from Kalimantan, which states whenever a "little" man chances upon a "big" fortune, he finds only trouble. He is in trouble because his political resources are not commensurate with his new-found economic resources. He does not have the power to protect and exploit great wealth and so, inevitably it is taken from him. 97

In response, some argue, "Still it is better that this occur, and that the money be accumulated in country where it can be appropriated by progressive elements at some future juncture than never arrive at all." 98 This unsatisfactory conclusion assumes that, in the interim, the elites have not squandered the returns.

Finally, patent protection is impractical to ensure that indigenous people receive timely compensation. Most indigenous people do not have access to attorneys. 99 Even if they do, it would take years to receive royalties from patents because of the 10-to-20-year time frame in bringing drugs to market. 100 Such time is crucial if the proceeds are meant to save endangered indigenous communities. The rate that indigenous cultures are disappearing is alarming, "because of poverty, acculturation, outside encroachment, and loss of habitat, extinction has been the fate of one indigenous culture each year in the Amazon region alone." 101

IV. THE COMMON HERITAGE OF MANKIND AND INDIGENOUS MEDICINAL KNOWLEDGE

The patent system is an inappropriate framework to address indigenous medicinal knowledge; however, there is an alternative. A CHOM regime is a promising means to compensate indigenous people. The history of the CHOM is not only helpful in understanding this concept but also illustrates its applicability to indigenous medicinal knowledge.

A. The Common Heritage of Mankind and Its History

Latin American, Andres Bello, first invoked the term "Common Heritage of Mankind" in 1832. 102 Arvid Pardo, Malta's ambassador to the United Nations, however, was the first person to articulate comprehensively the CHOM principle. 103 At the time, the law of the sea remained unsettled. 104 Attempts by the United Nations to codify preexisting customary international law had met limited success. 105 Also, scientists had discovered rich deposits of polymetallic manganese nodules on the ocean floor, which [*378] offered great wealth to those with the capability to exploit them. 106 The extant law of the sea regime considered the nodules to be res nullius--analogous to wild game, the nodules belonged to no one until captured. 107 The sea itself was res communis--beyond appropriation by any State and available to all States. 108 Because every State had the freedom to mine the nodules, the regime was presumed equitable. 109 Developing countries, however, did not have the capability to mine the seabed floor. 110 Thus, uncritical acceptance of the regime guaranteed the "intolerable injustice that would reserve the plurality of the world resources for exclusive benefit of less than a handful of nations." 111

Therefore, on November 1, 1967, Ambassador Pardo issued a historic declaration to the United Nations, eventually codified as Part XI of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). 112 The following memorandum that accompanied his declaration outlines the elements of the Common Heritage of Mankind:

(a) The sea bed and the ocean floor . . . beyond the limits of national jurisdiction, are not subject to national appropriation . . . .

(b) The exploration of the seabed and of the ocean floor . . . shall be undertaken in a manner consistent with the Principles and Purposes of the Charter of the United Nations;

(c) The use of the seabed and of the ocean floor . . . and [its] economic exploitation shall be undertaken with the aim of safeguarding the interests of mankind. The net financial benefits derived from the use and exploitation of the seabed and of the ocean floor shall be used primarily to promote the development of poor countries.

(d) The seabed . . . shall be reserved exclusively for peaceful purposes in perpetuity. 113

Henceforth, the elements of CHOM have been regarded as: non-appropriation, international management, benefit sharing, and reservation for peaceful purposes. 114

[*379] B. The Analogy Between Indigenous Medicinal Knowledge and Deep Seabed Mining

The strong analogy between polymetallic manganese nodules and indigenous medicine suggests that a common heritage regime, similar to Part XI of UNCLOS, provides a tenable solution to compensation of indigenous peoples. Both the legal as well philosophical and economic rejections of intellectual property rights for indigenous knowledge indicate its status as res communis. This Roman doctrine aptly applies to the public domain as a resource belonging to everybody but which may not be appropriated. In contrast, the doctrine of res nullius describes resources that can be freely used and appropriated by everyone. 115 This doctrine is an apt description of a patent regime. 116 Anyone may use information, but a patent may be used to appropriate a particular application of scientific knowledge in the form of technology. Further res nullius is an equitable doctrine only if the parties have an equal opportunity to exploit the resources. 117 Inequities under the substantive requirements of TRIPS arise because indigenous people do not have the industrial and technical capacity to capitalize on indigenous medicinal knowledge. 118 Hence, a regime similar to Part XI of the 1982 UNCLOS is required to manage the use of indigenous medicinal knowledge and ensure that benefits of this public resource are shared, particularly with indigenous peoples.

V. APPLYING THE COMMON HERITAGE OF MANKIND TO PRESERVATION AND MANAGEMENT OF INDIGENOUS MEDICINAL KNOWLEDGE

The four elements of CHOM can be applied to an indigenous medicinal knowledge regime (IMKR) that would properly compensate indigenous people. Part XI of UNCLOS provides a ready blueprint for administering this regime. It could operate under a committee authorized by the United Nations' World Intellectual Property Organization and would require that pharmaceutical companies share proceeds from derivatives of native remedies and pay an initial fee for using them in research. These funds would benefit indigenous people through the provision of aid, as well as programs designed to preserve indigenous knowledge and culture.

A. The Jurisdictional Scope of the Indigenous Medicinal Knowledge Regime

Management of the international seabed is within the jurisdiction of the International Seabed Authority. It is responsible for issuing licenses to mine the seabed, as well as ensuring compliance with various environmental regulations. 119 Its area of jurisdiction extends to the seabed beyond national jurisdiction. 120

[*380] Like the International Seabed Authority, an IMKR must have a clear formulation of its jurisdiction. Although indigenous medicinal knowledge has been defined previously as indigenous knowledge consisting of the medicinal and curative properties of plants in indigenous culture, 121 the scope of an IMKR's jurisdiction over the bioactive substances in indigenous medicine remains undefined. Extending jurisdiction over the compound forming the bioactive substance is not sufficient because the pharmaceutical companies need only alter the compound minimally without compromising its curative properties to circumvent the regime and freely benefit from indigenous medicinal knowledge. 122 Therefore, the scope of indigenous medicinal knowledge should be defined broadly to include all variants of bioactive compounds found in indigenous medicine that are medically useful. 123

B. Nonappropriation

Article 137 of Part XI provides, "No state shall claim or exercise sovereignty rights over any part of the Area or its resources, nor shall a state or natural or juridical person appropriate any part thereof." 124 This provision precludes states, people, and corporations from claiming the international seabed and its mineral resources. An indigenous medicinal knowledge regime would have a similar requirement precluding any states, businesses, or people from obtaining or granting intellectual property rights for indigenous medicinal knowledge. This would not be a substantial change from the status quo because the TRIPS requirements followed by a majority of States already precludes patent protection for indigenous medicine.

C. International Management

Under international authority from the World Intellectual Property Organization (WIPO), an IMKR could manage indigenous medicinal knowledge to ensure that its use benefits indigenous people. Similar to the International Seabed Authority, the IMKR should be presided over by a committee composed of representatives from indigenous peoples, developing countries, and developed countries. 125

Article 150 of UNCLOS provides, "Activities in the [seabed beyond national jurisdiction] shall be carried out in such a manner as to . . . promote international cooperation for the overall development of all countries, especially developing States . . ." 126 An IMKR would benefit the world by facilitating the dissemination of indigenous medicinal knowledge through public databases to aid in pharmaceutical research. Further, it would ensure that indigenous peoples and the world benefit from the use of their medicinal knowledge through programs that ensure its preservation. Such programs, known as "indirect compensation," already have proven palatable to indigenous peoples in the [*381] Food and Agricultural Agreement on Farmers Rights 127 and the compensation scheme provided by Shaman Pharmaceuticals. 128

The IMKR should administer these programs directly with the help of other branches of the United Nations more familiar with providing aid. Because many indigenous peoples are not recognized State entities, the IMKR should avoid funding governments directly because of potential corruption and animosity between States and ethnic minorities. 129

The IMKR could accomplish its goals through whatever means prove appropriate. A combination of ex situ and in situ preservation, however, appears the most applicable. Ex situ preservation consists of cataloging indigenous medicinal knowledge, including its cultural elements, to preserve knowledge and other aspects of indigenous culture. 130 Ex situ preservation alone is not enough to ensure the future of indigenous knowledge or indigenous peoples. According to the Fundaci'on Sabidur'i Ind'igena, "Ultimately it is not so much indigenous knowledge that needs to be preserved, but rather the system of innovation that has generated it and continues to." 131 Hence, in situ preservation focuses on assisting indigenous people in maintaining their traditional lifestyles and cultural identity, especially in the face of development. 132 The type of assistance will vary depending on the circumstances of indigenous people.

D. Benefit Sharing

An IMKR would ensure benefit sharing in the form of programs to help indigenous people preserve their knowledge and culture. Article 140 of Part XI of UNCLOS carries a similar requirement for sharing the monetary proceeds of seabed mining: "The Authority shall provide for the equitable sharing of financial and other economic benefits" with "particular consideration [for] . . . developing States and of peoples who have not yet attained full independence." 133 In most instances, direct compensation will be inappropriate due to its corrosive affect on indigenous culture, thus all proceeds will be used to fund programs which preserve indigenous knowledge and aid indigenous people. 134

Collection of proceeds would not depend on whether companies consulted indigenous peoples about their medicine. As in the case of seabed exploitation, the issue is indigenous peoples' lack of technical resources to take an equitable share of a relatively untapped public resource, rather than the notion that Western countries are stealing ideas from indigenous peoples. Therefore, independent creation is not an exception to the duty to share proceeds.

A potential objection to this framework is that it addresses the disparity in wealth between indigenous people and Western countries at the expense of recognizing their intellectual contributions. The process of preserving indigenous medicinal knowledge, however, builds recognition of indigenous peoples' intellectual contributions and understanding about indigenous societies and Western science. 135

[*382] The IMKR would levy two types of charges. Companies researching a particular indigenous medicine or compound found within it would have to pay an initial fee in recognition of the research time and costs that indigenous medicinal knowledge saves them. Thus, any company that researches a bioactive compound found in indigenous medicine would have to pay a "finders fee" equivalent to the savings in research. 136 Unlike patent royalties, collection of this fee is not contingent on bringing a drug to market. 137 Further, this fee is not subject to the excessive time frame necessary to collect royalties when a drug finally makes it to market.

Additionally, companies would have to pay royalties for any medicines that they successfully market that use compounds found in indigenous medicinal plants. 138 This royalty would be a flat rate and would not depend on whether the compound is used for the same or similar ailment in indigenous society. 139

The royalty period would end 20 years after the first successful marketing of a particular drug containing a particular bioactive compound from indigenous medicine. But this would not exhaust the royalty period for the same compound used in a different medicine. For instance, if a company successfully markets a burn ointment containing an active compound from an indigenous medicine, the royalty period for the use of the compound will last for the next 20 years. If another company also markets the same drug five years later, it must only pay royalties for the next 15 years. If the active compound in the medicine, however, becomes used as an antiseptic, rather than as an ointment, companies must pay a royalty on the new use for the next 20 years. To exhaust as many of these royalty requirements as possible, drug companies probably will list a broad range of uses for their drugs when marketing them. This does not offend the purpose of the royalty system because it is designed to preserve rights to compensation in unanticipated and previously unknown uses for medical compounds that may occur after initial development.

All indigenous groups would be eligible to receive benefits regardless of whether their medicinal knowledge is responsible for finding any Western cures. 140 Because it is not unusual for several groups to share remedies, it would be unfair to reward any given group over another. 141 Further, it would imply that some cultures are worth saving more than others because they are more valuable to Western science.

Some may argue that such a regime would be too costly to be politically tenable. Experience from the 1982 UNCLOS, however, proves otherwise. Even countries such as the United States and United Kingdom, which were extremely critical of the proposed regime, adopted domestic legislation and signed other treaties and agreements that required sharing the proceeds from mining the international seabed with developing countries. 142 Furthermore, pharmaceutical companies recognize the important public [*383] relations aspects of this issue and would be responsive to it. 143 Finally, international momentum is building for some form of compensation for indigenous peoples. 144

E. Peaceful Use

Article 141 provides that the seabed "be open to use exclusively for peaceful purposes." 145 In the unlikely event that indigenous medicine has potential use in warfare, the regime should ensure that it is not used to develop military weapons.

VI. CONCLUSION

Indigenous medicinal knowledge is a perplexing legal and social issue. Its solution does not lie in reforming the international patent regime under TRIPS. Rather, adapting the Common Heritage of Mankind to an Indigenous Medicinal Knowledge Regime is a promising means to address the interests of indigenous peoples and the Western world. At least for now, the direction of the West's pharmaceutical industry is yoked to successful preservation of indigenous medicinal knowledge and culture. To ensure the future of this relationship States must make preservation of indigenous people and indigenous knowledge a priority within the international community. Immediate action is necessary to stall the extinction of indigenous culture, as well as thousands of years of potentially irreplaceable innovation and observation.