Patents don’t protect tribal knowledge – incompatibilities

CHAPTER 4: THE HUMAN RIGHTS DIMENSION OF BIOPIRACY 1. Intellectual Property and Traditional Knowledge

The features of traditional knowledge have already been outlined, alongside with the need for its protection. At this point, after having analysed the most important aspects of intellectual property, an important matter appears, namely the issue of the protection of traditional knowledge under patents. Interestingly, Dutfield notes that while folklore tends to be listed within the boundaries of copyright law, traditional knowledge is more often discussed within patent law. Unfortunately, generally patent law is believed to be lacking when it comes to the protection of TK, and that it cannot provide promising solutions in this regard549. There are four main reasons to why patent law is considered not effective enough to provide the necessary protection to TK, according to Dutfield: first of all, traditional knowledge is a collective value, while patents are individual achievements; secondly, patents are granted on the basis of newness and discovery, while TK is based on tradition and ancient knowledge; patents descriptions and specifications have to be written in a technical way, which would be quite difficult to replicate in the case of TK; and lastly, applying and enforcing patents is extremely expensive550. With regard to the first issue, the alleged incompatibility between patent protection and TK stems from the fact that the latter is usually conceived as owned by the community as a whole, and that TK is generated by that very same community who owns it, and further develops it; while in order to grant patent protection, an individual, be it an author or inventor or owner, must be identifiable. Nonetheless, it is quite paradoxical that a new and non-obvious modification of TK achieved by an individual, as it falls within the category of newness and discovery, can be subjected to patent protection551. The third issue regards on the other hand, the fact that one of the criteria of patentability states that the invention must not be obvious to one skilled in the art, thus ruling out most of the TK from patentability. However, according to Dutfield, this argumentation could be widened also to Western scientific knowledge, which is equally non-patentable, thus making this particular issue not a valid objection to patent protection on TK552. Moreover, and this relates the third and fourth objections, if an indigenous community decided to apply for a patent to file the application and write the required technical description, this would result in a very likely expensive choice. Hiring an attorney, possible confrontations and litigations with corporate firms would require financial resources that many indigenous communities do not have, due to the their lack of economic self-sufficiency. This could be regarded, as the main reason why many indigenous communities are reluctant to file patent applications, and why patent protection is not considered effective enough to safeguard and preserve TK 553 . The solutions proposed by Dutfield, in order to overcome the incompatibility between patents and traditional knowledge, are manifold, which the author refers to as genuine possibilities. A possible alternative to avoid the extremely expensive costs of filing a patent application could be that of sharing the ownership of the patents with those enterprises or companies interested in the knowledge, which would apply on behalf of the indigenous communities, as they do have the means and financial resources to do so554. An alternative possibility would be the application for a patent by companies and the communities named together as the inventors, thus generating rights, mostly of compensation, also for traditional communities. Nonetheless, these options could only be feasible, if a mutual feeling of trust existed, which is sometimes lacking from both sides555. The notion that TK lacks the newness and innovation criteria to be eligible under patent protection has been recognised by many authors. For instance, TK should be in the form of an invention, thus sufficiently novel, and should not be exposed to the wider public prior to the moment of registration. Therefore, it is quite clear that TK is hardly eligible for patent protection according to the current IP system and rules556. A further issue related to the incompatibility between patents and TK, is the fact that patent protection is usually granted for a short period of time, thus neglecting one of the most important features of TK, which is continuity. As a matter of fact, UNDRIP recognised to indigenous people the right to maintain and control their own knowledge, as well as the ability to further develop it. Thus, a short-term protection would not be effective enough. Unfortunately, by looking at TK through the current IP system and rights, since it cannot be granted patent protection, it is available for everyone and for free, since it is part of public domain557. It was previously stated, in the chapter dedicated to the incompatibility between the TRIPS and the CBD, that between the two international legal instruments there are actual inconsistencies, which were noted by many scholars after the adoption of the TRIPS. Interestingly, the Nagoya Protocol, which is the additional Protocol to the CBD entered into force after the adoption of the TRIPS, could have tried to solve said incompatibilities. Unfortunately though, during the negotiations, the Parties were mostly interested in tackling the aspects related to genetic resources, thus paying again less attention to TK. Consequently, they ended up establishing a system tackling TK, which is very similar to that of GR, leaving aside the fundamental differences between the two558. Within the Protocol, two articles can be identified as somehow tackling the issue of IPR system related to TK, namely Articles 4 and 7. Article 4 is dedicated to the relationship between the Protocol and other international agreements. The first paragraph states that the aim of the article is not that of creating a sort of hierarchy between the international agreements and most importantly, while the following paragraphs affirm that the Protocol does not intend to affect the Parties’ rights and duties under other international agreements entered into force prior to the Protocol, provided that said rights and duties do not go against the scope and object of the Convention, namely the conservation and sustainable use of biodiversity559. The provisions of Article 4 allow Parties to enter other international agreements dealing with ABS, provided that they do not cause threats to biodiversity, thus going against the objective of the CBD, and that they do not render ineffective the ABS systems established under the Protocol560. Therefore, it could be stated that Article 4, and especially Paragraph 2, set some sort of limitations for future international agreements: the ABS system and PIC provision must be respected and enacted in order for Parties to be able to enter an international agreement concerning those issues. Always with regard to TK, these limitations are strengthened if interpreted in light of Article 7, which is dedicated to prior informed consent. As a matter of fact, Article 7 affirms that prior informed consent and approval of indigenous communities must always be met; therefore, if Parties wanted to enter an international agreement, they would still have to ensure that these provisions are enacted and respected561. Of course, some organizations representing the interests of indigenous people have expressed their concerns in regards to this particular issue, namely whether if patents and the IPRs system could provide effective protection to TK. For instance Third World Network, which is an NGO already described in the chapter dedicated to NGOs of this dissertation, drafted a booklet as the result of the “Workshop on Biodiversity, Traditional Knowledge and Rights of Indigenous People”, which involved several organizations aside from Third World Network, such as for example the Tebtebba Foundation and GRAIN. In this report, the authors outlined the main conclusions of the workshop, which included also how indigenous people conceived and viewed the current IPRs protection system in reference to TK562. According to them, the IPR system, and especially patents, cannot protect TK effectively enough for several reasons, such as for example the fact that the IPR system promoted by the TRIPS Agreement was born from Western views and interpretations of the world, which fundamentally differ from how indigenous people approach nature and the resources it provides them with563. Moreover, TK is conceived more as a commodity by Western countries, suitable for commercialization and profit, while indigenous people cherish TK as a gift either from nature or their ancestors, creators and great spirits. Hence, these contrasting views show that not even the preconditions are similar, leading to an inevitable incompatibility564. The report also restates the evidence identified also by Dutfield that TK is collectively held, or in some cases held by individuals but shared with communities through a complex system of regulations and customary norms. Moreover, patent protection is limited in terms of time, while TK is a dynamic concept, which is passed on from generation to generation, thus again proving the ineffective protection that patents would provide565. Several other reasons have been identified, for instance the fact that indigenous people already have a system of customary norms aimed at safeguarding and protecting their knowledge, which would inevitably be undermined by IPR system. Secondly, the IPR system, especially the one framed by the TRIPS Agreement, was not originally designed for the protection of TK, indeed, it was not even mentioned in the document, thus it cannot grant adequate protection566. Lastly, again the high social and financial costs of the IP protection are addressed, since the costs for IP protection would be extremely high not only from a monetary perspective, but also from a social one, ranging from the theft of TK and biopiracy, to the undermining and destruction of indigenous people’s cultures and ways of living. The report also addresses the issue of biopiracy as being intrinsically connected with the misappropriation and lack of protection of TK, as in many biopiracy cases not only GR are patented, but also the traditional knowledge associated to those resources, thus proving once again that the patenting of TK is far from ensuring protection and safeguarding, but is actually more likely to be a means undermining and endangering TK567.