Intellectual Property, Community Rights and Human Rights

The Biological and Genetic Resources of Developing Countries

Marcelin Tonye Mahop

• Publisher: Routledge
• Year: 2010
• eBook ISBN: 9781136980459
• Edition: 1
• Topic: Economics
• Subtopic: Knowledge Capital
• Index: Economics

This book considers the issue of biodiversity in developing countries in relation to intellectual-property rights, community rights and human rights. Drawing together a number of case studies of developing countries rich in biological and genetic resources including India, South Africa and Brazil, the book examines the access to PGRs and their utilizations in the contexts of scientific and commercial oriented activities pursued both in the source and user countries. Exploring how community rights are protected in national biodiversity-related regulations and some international legal instruments, Marcelin Tonye Mahop also discusses the relationship between community rights and human rights in the context of biodiversity. The book looks at the issue of bio-piracy, asking whether this phenomenon should only be seen as a North–South clash, whereby biodiversity rich countries of the Southern Hemisphere blame developed countries and their actors as its principal perpetrators. While recognizing that developing countries' actors play a role in this bio-piracy phenomenon, the book goes on to suggest alternative measures for the legal protection of community rights at the national level with the possibility of national and international enforceability.

Essential reading for students and scholars of intellectual-property rights, biodiversity regulations and human rights, this book will also be of great value to researchers and members of professional organizations working in these subject areas. National and regional negotiators in the international processes dealing with the issues covered in the book will find it a useful tool that can help them to understand various facets of these processes.

1
Setting the scene

Focus, main themes and broader objectives

As indigenous peoples, the protection (legal or otherwise, such as through voluntary instruments and professional bodies’ declarations) of ‘community rights’¹ at the national level in countries rich in biological and cultural diversity, needs to follow the path of a human-rights approach.² This suggestion is based on the recognition that community rights are crafted in many human rights instruments, international and regional, legally and non-legally binding (such as declarations), which should be taken into account in national policy-making. Unfortunately, in respect of national policy-making processes aimed at protecting community rights and addressing their concerns about access to and use of biological and genetic resources, and traditional knowledge (TK) in scientific and commercially motivated activities, there is often a lack of integration of human-rights considerations in the process. Furthermore, law and policy-making aimed at addressing the concerns of local communities are usually pursued in a very fragmented and piecemeal fashion at the national level, with no practical cooperation among the various actors and government institutions involved in the various aspects of management and regulation of community assets. As a consequence of this unpractical approach, there is no comprehensive and workable regulatory framework in force anywhere in the countries endowed with significant richness in bio-cultural diversity which can be viewed as providing protection to community rights from a human-rights perspective and addressing the various concerns of traditional and local communities – one of which being the issue of bio-piracy – over access to and use of their assets³ by technologically advanced and capacitated users.

Ironically, to address their interests, technologically capacitated users of the assets of traditional communities use other weapons in their possession, such as the application of modern intellectual property rights (IPRs) such as patents or PBR systems over the outputs of their research endeavours based on the raw assets taken from local communities or their traditional lands. Analyses contained in the following sections and chapters are based on the realization and acknowledgement that IPRs and community rights are, in a way, all linked to each other within the framework of existing human-rights instruments. Indeed, even though human rights and IPRs are fundamentally dissimilar regimes because they pursue different aims, it is nevertheless the case that IPRs and community rights are all encapsulated in a number of international and regional human-rights treaties and recognized by international bodies such as the UN (more on this in Chapter 4). Despite this obvious linkage between human rights and IPRs, current regulatory avenues such as the ABS legislations (or biodiversity regulations) being established at the international and national levels and the voluntary mechanisms in the form of, for example, some declarations of professional bodies aiming to address the concerns and expectations of rural communities, fail to incorporate human-rights considerations from their development through to their implementation. Perhaps this situation is due to the lack of involvement of human-rights experts in these law-and policy-making processes. One of the consequences of this failure is that the weight and consideration given to IPRs in the end products from these law-making processes generally outweigh community rights and interests, perhaps due to the significant influence of corporate actors in these processes, who after all are not ready to lose, see themselves weakened, or have undermined all the benefits that they currently enjoy from strong consideration of IPRs. There seems to be profound and arguably obvious resentment on the part of traditional communities and actors sympathetic to their concerns that, indeed, in respect of policy development targeting issues of access to community assets and use of them in scientific and technology-intensive processes, IPRs of corporate and technologically capacitated actors have more influence than the community rights of local and indigenous peoples who are also traditional holders and custodians of biological resources and associated TK. For example, while corporate and research operators enjoy all the benefits arising from protecting their plants and TK-based research and development outputs by patents or PBRs including the associated financial benefits and the bargaining leverage, indigenous and local communities are being prevented from enjoying their own social and cultural benefits arising from their traditional rights over the very assets that formed the bedrock of technologically based research and development endeavours. Some of these rights that communities are arguably prevented from enjoying by PBRs are the rights to save and reuse planting materials for the next farming season and the rights to participate in decision-making processes pertaining to access to and the use of their assets at all stages of modern research and development processes.

How then should human rights come into play in an attempt to balance the interests of technology holders and modern users of the assets of traditional communities, the concerns of local and traditional communities over access and use of their assets, modern intellectual property (IP) over the application of the relevant outputs? This question is at the centre of the discussions and arguments running through the following sections and chapters of this book. Our point of departure is that in every instance involving access to community assets and use of them in profit-making technology-intensive processes with the application of patents and PBRs, we argue that stakeholders need to address the expectations of local communities from a human-rights perspective. This approach does not necessarily mean that the financial and other beneficial expectations of technology-holders would be affected negatively if they adopted a human perspective in the course of their actions. Rather, such an approach will more likely have no effect on such beneficial expectations of technology holders, but will instil and strengthen communities’ trusts in the activities of technology holders, setting the stage for sustainable and more mutually beneficial relationships between local communities and the users of their assets. The human-rights considerations will be crafted in workable policy measures that will comprehensively integrate community rights and interests as well as the goals and objectives of the IPRs.

Using four carefully selected jurisdictions, namely Brazil, India, Peru and South Africa, this book focuses on suggesting some workable, comprehensive and enforceable policy measures embedded in regulations aimed at protecting the rights and addressing the concerns and expectations of traditional communities without undermining the goals and objectives of IPRs (patents and PBRs) in the context of access to community assets, use of them in scientific and commercially oriented activities. The book does so by decrypting how modern exploitation of community assets in research and development processes and the application of patents and PBRs, in line with the concept of bio-piracy, typically bring disrespect to community rights, which are recognized in regional and international human-rights law and processes. There is no intention here to blindly blame corporate and research institutions practices for bio-piracy. The subsequent bio-piracy-related accounts are objectively analytical in nature. They refute the bio-piracy concept when a specific case is not grounded on convincing evidence and, therefore, aim to oppose any non-evidenced or blatantly anecdotal negative impact of patents and PBRs on the rights, interests and expectations of indigenous and local communities. It must however be stressed that analyses carried out in this book are not strictly limited to the four selected countries. Where deemed necessary, the book will refer to cases and examples from other countries and areas rich in bio-cultural diversity, to the extent that such examples are relevant to the main themes discussed herein.

As it transpires from the above, the main themes discussed in the book are:

• Community rights. The rights of local and indigenous communities will be defined and discussed within the frames of the various laws and policies covered in this book.

• Human-rights instruments to the extent that they address community rights and concerns.

• Biodiversity-related regulations with special emphasis on the extent to which they address community rights, interests and expectations.

• IPRs, in particular, patents and plant variety protection (PVP) systems.

• Scientific and commercially oriented exploitation of community assets with the application of patents and PBRs in the protection of the relevant outputs – with an eye on the concept of bio-piracy.

The objectives of the book are among others:

• To examine cases of access to PGRs in Brazil, India, Peru and South Africa and their utilizations in scientific and commercially oriented activities pursued both in the source and user countries, noting that the source country may also be a user of the resources in question.

• To discuss the biodiversity-related regulations, national, regional and international instruments on access to and use of the biodiversity components. Rights-related issues such as prior informed consent (PIC), participation of local communities in the relevant decision-making processes and issues of enforcement of community rights both at the national and international level will be discussed.

• To discuss community rights as human rights. On the one hand, this discussion will look at how community rights are protected in international and regional human-rights-related instruments. On the other hand, the discussion will address the extent to which national policy processes embrace community rights as human rights as crafted in international instruments and recognized by international bodies.

• To discuss IPRs systems, especially patents and PBRs, their goals and objectives and the extent to which they address the interests and expectations of local communities and modern users of community assets. This discussion will be guided by specific cases as it intends to address the impact of some allegedly claimed bio-piracy.

• To suggest alternative and comprehensive policy and regulatory measures at the national level that are workable and convenient to address the interests and expectations of local communities from a human-rights perspective. Under this objective, the wider, international applicability of the proposed measures and their national and international enforceability are examined.

After setting the stage of our investigations, the following section attempts to unravel the interlinkages of the key themes discussed in the book, in a conceptual framework.

Conceptual framework: the nexus community rights, human rights and IPRs

The focus of this book is on exploring and suggesting practical avenues for the legal protection of the rights of rural communities at the national level in four selected countries, namely Brazil, India, Peru and South Africa, through comprehensive and workable IP-based biodiversity regulatory measures from a human-rights perspective. Our approach is to merge both IP systems (especially patent and PBR systems) and environmental and biodiversity-related regulations in a comprehensive framework, which encapsulates the concerns and expectations of rural communities as human-rights-related concerns. The concerns of rural communities about access to, acquisition of and use of their assets relate to, among other issues: the sustainability of their assets which occur in their culturally and traditionally owned lands; their PIC and rightful benefit-sharing expectations in respect of scientific and commercial use of their assets by scientific and commercial operators; and their rightful concern related to lack of participation in decision-making processes in which their assets are the core elements sought for eventual scientific and commercial exploitation. Generally speaking, various IP devices can be applied in the protection of technologically processed outputs based on the exploitation of the assets of traditional communities, despite the fact that these devices may as well be used to address the concerns of local and indigenous communities over access to corporate, scientific and commercially motivated use of their assets. For example, it has been well documented that copyrights, trademarks, geographical indicators and trade secrets can be used to address the concerns of rural communities about the commercial use of their intangible (TK, practices, dances and songs) and tangible assets (PGRs, artefacts).⁴ However, this recognition is unfortunately not associated with practical cases as evidence of the way that these devices can be seen to be useful to traditional and local communities. Rather, there are increasing concerns that some IP devices are to the contrary harmful to local and traditional communities regarding the way they are applied in scientific and commercial exploitation of their assets. This book has chosen to focus on patents and PBRs as they represent the IP devices most used by scientific (increasingly academic researchers) and commercial users to secure private rights over the outputs deriving from their creative minds based on the exploitation of PGRs, TK and practices of local and indigenous communities.

The workable IP-based regulatory measures proposed and discussed subsequently address the concerns of rural communities and national interests, from a human-rights perspective, because, as we demonstrate below, community concerns are human-rights based. The proposed regulatory measures are framed to cover community rights over PGRs and TK, both the tangible and intangible assets. Indeed, a significant amount of anthropological studies stress the difficulties of separating these two components of the bio-cultural assets of traditional communities.⁵ Moreover, an assessment of the relationships between local communities – who are the traditional custodians of PGRs and TK – and commercial and scientific users of these assets is additional evidence of the intricate linkages between the tangibles and the intangibles within the framework of exchange of these assets.⁶ This book is one of the critical steps made towards the development of a comprehensive and integrated human-rights-based approach to protecting community rights and addressing their concerns. It is grounded on the practicality of the recognition of the linkages between PGRs and traditional germplasm (the tangibles) and the associated knowledge and practices (intangibles) of local and indigenous communities and traditional farmers in the developing countries.⁷

Another important approach adopted by this book relates to the manner in which it elaborates and considers the rights of rural communities that require legal protection. For many communities living in rural areas in biodiversity-rich countries across the world, PGRs and TK are generally owned in a communal manner. Using a model called the cultural consensus model (CCM) empirical studies provide strong evidence about how ethno-botanical knowledge is shared among communities from the same and neighbouring villages.⁸ Within the framework of this model, the concept of TK is approached in its broadest sense. It encapsulates this type of knowledge which is held and nurtured by rural communities including but not limited to their traditional medicinal knowledge, traditional environmental-management knowledge, traditional farming and agricultural knowledge and the tangible resources to which such knowledge is associated. Taking all the components of community assets together as described within the realms of the CCM, this book’s approach is that the associated rights of local and indigenous communities discussed herein should be broadened to community intellectual and cultural property rights (CICPR), because it provides a better understanding of the depth of the concerns and expectations of local communities.

The concept of CICPR over PGRs and associated TK and practices is therefore at the heart of our investigations. Although the major trend is to discuss community rights as communal rights, we do not totally ignore ‘individual rights’, although this dimension is not purposely argued for in the proposed regulatory measures. Indeed, as it emerges in a substantial amount of literature, in the Indian context for instance, some forms of knowledge at the community level are either owned individually or are only held by a particular and identifiable family lineage.⁹ In the case of traditional medicinal or farming knowledge, it may be the case that just one individual or one family in a wider community masters the specific know how about the utilization of the medicinal plants or seeds (farming meterials). This individual or family will share this knowledge and the associated technical know how with community members under specific circumstan...

Table of contents

• Routledge Research in Intellectual Property
• Contents
• Foreword
• Preface
• Acknowledgements
• Abbreviations
• 1 Setting the scene
• 2 Patents, PBRs and community rights in international forums
• 3 Brief overview on community rights in selected national regulatory instruments
• 4 Selected international and regional human-rights instruments and their provisions on community rights and IPRs
• 5 Incursion in the ‘bio-piracy’ debate
• 6 Soft and regional undertakings aimed at community rights
• 7 Broader framework of the suggested regulatory measures
• 8 Applicability of the regulatory measures
• 9 Final remarks
• Appendix I CITES permitting approach in brief
• Appendix II Laws, policies, professional and ethical codes and declarations
• Appendix III Glossary
• Notes
• Bibliography
• Index