Intellectual Property, Traditional
Knowledge and Genetic Resources
Including the Non-Governmental
Where do the rights of heritage groups meet
the world of commerce?
Despite our discussion of tourism and its importance, the
principal engagement of heritage and commerce lies in the
realm of intellectual property.
Intellectual property is the term that covers copyright, patents,
industrial design protection, and so forth. It offers strong
protection to creations that are original, novel, and attributable
to an individual creator/owner (person or corporation).
What is copyright?
Copyright is the legal protection extended to the owner of the rights
in an original work that he or she has created. It comprises two
main sets of rights: the economic rights and the moral rights.
The economic rights are the rights of reproduction, broadcasting,
public performance, adaptation, translation, public recitation,
public display, distribution, and so on. The moral rights include
the author's right to object to any distortion, mutilation or other
modification of his work that might be prejudicial to his or her
honor or reputation.
The general principle is that copyright protected works cannot be
used without the authorization of the owner of rights. Limited
exceptions to this rule, however, are contained in national
copyright laws. In principle, the term of protection is the creator's
lifetime and a minimum of 50 years after his death.
At the international level, the economic and moral rights are
conferred by the Berne Convention for the Protection of
Literary and Artistic Works, commonly known as the
This Convention, which was adopted in 1886, has been revised
several times to take into account the impact of new
technology on the level of protection that it provides. It is
administered by the World Intellectual Property
Organization (WIPO), one of the specialized international
agencies of the United Nations system.
What is a Patent?
A patent is an exclusive right granted for an invention, which is a
product or a process that provides, in general, a new way of doing
something, or offers a new technical solution to a problem.
An invention must, in general, fulfill the following conditions to be
protected by a patent.
It must be of practical use;
it must show an element of novelty, that is, some new characteristic
which is not known in the body of existing knowledge in its technical
field. This body of existing knowledge is called " prior art".
The invention must show an inventive step which could not be deduced
by a person with average knowledge of the technical field.
Finally, its subject matter must be accepted as "patentable" under law. In
many countries, scientific theories, mathematical methods, plant or
animal varieties, discoveries of natural substances, commercial
methods, or methods for medical treatment (as opposed to medical
products) are generally not patentable.
Heritage: Traditional Knowledge
Concepts of intellectual property systematically exclude products of the
creativity of a large part of humankind-creations that may be
considered traditional knowledge.
The imbalance between the strongly protected rights of individuals and
lack of protections for cultural properties of “traditional knowledge
holders” has led to a series of meetings by the Intergovernmental
Committee on Genetic Resources, Traditional Knowledge and
Folklore (shortened often to ICG) at the Geneva headquarters of the
World Intellectual Property Organization (shortened to WIPO).
Differences of opinion between participants focus on whether current
copyright laws offer sufficient protection. Would the problem
disappear if the third-world countries adopted first-world copyright
laws? Would the problem be solved by greater enforcement of
copyright laws and treaties?
Third-world countries and non-governmental groups (NGOs) insist
that specially tailored (sui generis) international procedures must be
Who composes a folksong, creates a folk
If one holds that folklore is an individual act within a community,
then the communal rights are not sustainable. However, if one
emphasizes that individuals recreate from the learned
traditions, then communities do have a right of ownership and
new laws are necessary.
Vladimar Hafstein terms this “communal origination through
individual re-creation” (this is the reading for this class on the
If a Kwakiutl artist designs a pattern or symbol,
drawing on his or her native tradition, it is
not unlikely that I may run across that very
design a few weeks later in a tourist store in
downtown Vancouver, stamped onto an
ashtray. The artist is not consulted, nor does
he or she receive any royalties. Why?
Because the design is traditional! It is, in
other words, a node in a network of relations:
not an isolated original, but a reproduction, a
copy. The unstated assumption here is, of
course, that a white Canadian artist is not
working within a tradition, that his or her art
is original (the adjective appears to be an
antonym of “aboriginal”). According to this
logic, a design by a member of the majority
population is an individual achievement, a
thing unto itself. It is a “work”: a production,
not a reproduction.
Koskimo house-post, ca 1910
Endemic to the isle of Madagascar, the rosy periwinkle (Catharanthus roseus) is a
leafy plant with pink flowers that has long been part of the native population’s
traditional pharmacopoeia. In the 1950s, researchers from Eli Lilly
Pharmaceuticals were led to the rosy periwinkle by local medicine men. In
subsequent laboratory testing, the plant was found to have properties valuable
in the treatment of various cancers. The pharmaceutical company developed
the drugs vinblastine and vincristine from the rosy periwinkle; the former has
brought remission rates for Hodgkin’s disease to 80 percent, and the latter has
increased remission rates for childhood leukemia from 20 percent to 90
percent. In the 1990s, these two drugs combined produced sales of $100 million
annually; however, even though both the plant and the knowledge of its
medicinal properties were obtained from the inhabitants of Madagascar, they
do not share in the revenue generated by these drugs. Needless to say,
purchasing the drugs produced by Eli Lilly is beyond the means of the citizens
of Madagascar (also, ironically, as a result of the patent system). In fact, as a
result of poor health care and limited access to clean drinking water, an
average child in Madagascar stands poorer chances of surviving beyond the
age of five than a Western child diagnosed with leukemia stands of remission.
Is this really a problem?
An NGO delegate at WIPO representing the Indigenous Peoples’
Biodiversity Network illustrated this charge with a striking
contrast. According to him, drugs made from plants that come
from indigenous peoples grossed $485 million in sales in 2001
alone. “Meanwhile,” this delegate said, “indigenous people are
dying every day in destitute poverty from diseases curable with
a few aspirins.”
One strand of World Music in particular brought attention to this
dilemma-so-called ethno-techno, popular in dance clubs in
Europe and America in the 1990s. In a public relations stunt in
1992, Sony successfully promoted musical exploitation of this
variety into a major media event. Using ethno-musicological
recordings, Michel Sanchez and Eriq Mouquet fused “digital
samples of music from Ghana, the Solomon Islands and African
pygmies with ‘techno-house’ dance rhythms”, producing the
album Deep Forest (1992). In addition to selling two million copies
of this album, Sony Music and the producers also licensed tracks
from “Deep Forest” to Coca-Cola, Porsche, Neutrogena, and the
Body Shop for advertisements, reaping a generous profit-none of
which benefited musicians in Ghana, the Solomon Islands, or
among African pygmies. Sanchez and Mouquet have since
released several albums based on the same formula, sampling
traditional music from various parts of the world, including
Boheme (1995) on which they fused music from Mongolia,
Eastern Europe, East Asia, and Native Americans.
What is the issue?
The case of “Deep Forest” also bears witness to the global nature of
the problem at hand. Whereas the “primary circulation” of
ethno-musicological recordings may be acceptable to traditional
communities whose music circulates through them, or at least
less objectionable than the “secondary circulation” of
commercial records without benefit sharing, neither is tied to
national borders, least of all to the borders of those countries
where the music is traditional. This is an important part of the
rationale for putting folklore on the agenda of international
organizations such as UNESCO and WIPO. At the fourth
meeting of WIPO’s Intergovernmental Committee in December
2002, the Ghanaian delegation, in fact, cited “Deep Forest” as an
example of “inappropriate and unauthorized exploitation of
Ghanaian cultural heritage by the music industry.”
It seems we are faced here with a categorical distinction-originality versus
traditionality-that runs very much counter to the interests of those less
This classification is manifest in our common conceptual apparatus as well
as in legislation that systematically and a priori rules out the knowledge
and resources of local communities, indigenous populations, and the
inhabitants of poorer states.
It places value only on knowledge and resources that persons (natural or
corporate) in richer countries can privatize. The importance granted to
this distinction attests to the persistence of colonialism in a postcolonial
Alternatively, as businesses have become more complex they have
increasingly recognized creativity as a social process. Large laboratories
create new knowledge through teams of researchers, not an individual.
As the processes of innovation have become more systemic, the
products appear to be generated more like tradition-based recreation.
Who ever heard of the American Folklore Society?
The American Folklore Society believes that the issues in front of the
IGC are deserving of international assessment, and we applaud the
work of the IGC in addressing issues of considerable concern to
communities and peoples throughout the world. In order that the
IGC best achieve its objectives in a process that provides input
from all relevant stakeholders, the AFS recommends the following:
The impacts of intellectual property regimes on traditional
knowledge and folklore, and especially on those individuals and
groups who actively maintain the dynamic traditions and lore that
contribute to the world’s knowledge and diversity. This knowledge
has been, and continues to be, a significant source of social,
cultural, economic, and political power.
The AFS believes that the IGC-GRTKF must consistently strive to be
sensitive to the needs of diverse knowledge systems and
communities, as well as to issues of social and political justice
bound up in diverse forms of expressive culture.
Formal intellectual property systems are becoming more dominant in today’s
society and have important and widespread implications for the social,
cultural, and economic well-being of individuals and groups.
WIPO should recognize that traditional knowledge and folklore are part of the
culture of both indigenous peoples and non-indigenous peoples. The latter
includes groups who have developed significant traditional knowledge and
folklore over the course of generations in locations different from their
historical places of origin.
WIPO must recognize the tangible and intangible values of traditional
knowledge and folklore. Any mechanisms recommended and developed
that attempt to place a “value” on traditional knowledge and folklore must
include provisions that recognize tangible and intangible values, and that
recognize that commodification and privatization of these values may run
counter to the rights and desires of holders of traditional knowledge and
WIPO should recognize that compensation issues (e.g., benefit sharing) should
reflect procedures and criteria acceptable to and required by indigenous
people and traditional knowledge communities. Support should be given to
develop systems and standards that allow indigenous peoples and
traditional knowledge communities to directly negotiate commercial use of
their traditional knowledge and folklore.
WIPO doctrines covering “informed prior consent” should recognize
the core right of relevant indigenous peoples and traditional
knowledge communities to grant or not grant free, prior, and
Scholarly research of all kinds-by native and outside scholars and
leading to the creation and communication of artistic, cultural,
humanistic, and/or scientific insight-is essential to the increase of
human knowledge and to the informed pursuit of the WIPO
WIPO should clearly advocate for responsible scholarship-carried out
in the spirit of partnership with indigenous people and traditional
knowledge communities and in terms of personal standards and
institutional codes of ethics and professional practice-and the
consonance of scholarship carried out in this manner with the needs
of indigenous people and traditional knowledge communities.
Who should have a right to participate?
Nation-states are by their construction heterogeneous societies.
Should the majority or power-controlling polity have a right to control,
sell, or appropriate the traditional knowledge of social and heritage
communities within their boundaries?
What should be the rights of non-governmental organizations to speak in
world discourse on intellectual property?
These would include socially, culturally, religiously based communities
within a nation state.
What about the communities of heritage or culture whose members live
within multiple nation states?
The goal of international organizations who seek to improve the welfare of
all peoples cannot solely operate through the lens of national