Category Archives: traditional knowledge

New Book from PIIPA: Intellectual Property and Human Development

PIIPA – Public Interest Intellectual Property Advisors – recently published this book, subtitled Current Trends and Future ScenariosPIIPA is a non-profit that provides pro bono IP legal counsel to governments, businesses, indigenous peoples, and public interest organizations in developing countries that seek to promote health, agriculture, biodiversity, science, culture, and the environment.  The email I received announcing the launch provides this description:

“…(the book) examines the social impact of intellectual property laws as they relate to health, food security, education, new technologies, preservation of bio-cultural heritage, and contemporary challenges in promoting the arts.

It explores how intellectual property frameworks could be better calibrated to meet socioeconomic needs in countries at different stages of development, with local contexts and culture in mind. Scenarios for the future are discussed.”

You can download the book at http://piipa.org/index.php?option=com_content&view=article&id=99&Itemid=77

There are nine chapters covering everything from traditional knowledge to education. I read Chapter 3 – Food security and intellectual property rights: Finding the linkages which seek to:

 “… identify some of the connections and linkages between food security and IP, particularly in terms of how the right to food as a human right may become affected through policy and legal restrictions and limitations imposed by the very nature of IP.”

 The authors believe that:

 “The balance between controlled access and free access (to food) is at the core of the IP system. There are strong voices saying that the balance has shifted too much towards protection, effectively undermining the dissemination of new, applicable knowledge.”

I’ve excerpted a few key points from the Chapter as follows:

“• A farming community that finds a new way to keep plants safe from rodents is no less innovative than an employee of a company that invents a new strain of rice in a company lab.

• The extension of IPRs – specifically patents – towards rewarding innovation in the area of living organisms was only developed in the 1970s and the ‘real’ repercussions have yet to be fully understood.

• One important question from a human development viewpoint in relation to IPRs is whether the latter create incentives for agricultural research and technology transfer which support a diversity of farming models and are relevant to the situation of poor farmers, who need to improve their harvests but cannot afford huge investments. The industrial farming model prevalent in many developed countries has steadily been transposed to developing countries and LDCs.”

Coverage of the subject, with its complexity and interconnections, is exhaustive, and addresses the impacts of IPRs on farmers’ rights and practices; the growing concentration of economic power in sectors involving farm input suppliers; the privatization and patenting of agricultural innovation, and the diminished role of public sector R&D in agriculture.

The implications of the MDGs, PVP, CBD, TRIPS and ITPGRFA are well covered, and there are suggestions for future development, including national and community-based seed banks; stimulating collective participatory breeding; protecting and promoting the TK of indigenous communities, and exploring open source or cross-licensing structures.

In their conclusion, the authors observe that:

“The crucial balancing between access and incentives, as well as an acknowledgement of the various alternative options that should exist parallel to IPRs, is recognized in a recent report to the WIPO Standing Committee on the Law of Patents (WIPO 2009, paras. 286–288). Such recognition ought to provide an opening for different approaches to IP legislation which take into account national circumstances, and not uniform, harmonized models based on the laws of developed countries.”

This book is an invaluable resource. I would add one critical factor – the need for a higher level of reporting on and dissemination of innovations that do work and the contributing success factors.  Leveraging these investments by enabling others to benefit is an important piece of the equation, and NGOs should not withhold what are, after all, IPGs.  A good example of sharing is the recently published The New Harvest – Agricultural Innovation in Africa, an invaluable record that may guide a new generation of innovators.

Post written by Peter Bloch

  

WIPO, ICG and the meeting of working groups on TK and Genetic Resources

I wanted to repost this from the IPKat, entitled “Progress on folklore, culture, genetic resources: ‘streamlining’ in sight.”  They are referring, with comment, to the WIPO media release “IGC Makes Significant Progress, Sets the Stage for Working Groups on GRs and TK

The following may be of interest to our readers:

“The third IWG, to take place from February 28 to March 4, 2011, will address the subject of intellectual property and genetic resources. The Committee transmitted a series of existing documents to IWG 3, and suggested that IWG 3 prepare a draft text of objectives and principles as well as a draft list of options for future work. These would be transmitted for consideration by the Committee at its next session in May 2011. Discussions on genetic resources also saw the introduction of new proposals by the African Group and by Australia, Canada, Japan, New Zealand, Norway, and the United States of America. [The Kat suspects that, in practice, this will be the most keenly-contested area since the possibility of financial reward is so great and the interest in sharing it is correspondingly high].”

And I have to agree, the original article has MORE than its fair share of acronyms – something we of the CGIAR’s CAS-IP know all too much about…

(thanks to Francesca Re Manning for sending me this link)

Prevention of bio-piracy in India; the Traditional Knowledge Digital Library (TKDL)

Back in February last year we blogged an item about Indian TK being made available to the EPO to help prevent bio-piracy. “Sharing database on Indian traditional knowledge extends greater protection from misappropriation

It is now great to be able to blog news items that show this initiative has had some success!  The Item from Yahoo News, India “EPO rejects 15 patent applications for bio-piracy” says:

European Patent Office (EPO) has rejected 15 patent applications of various international companies during the past one year after it found they had used India’s traditional medicinal knowledge to prepare certain products. The action was taken after the government entered into an access agreement with EPO in February last year to share India’s traditional medicinal knowledge and prevent the practice of foreign companies taking patent on Indian systems of medicine.

Another specific example of the utility of the database can be seen on Asian Times Online “India scores bio-piracy victory” regarding the “pudina patent” from 2007 in connection with treatment of avian flu.  See also item on the Times of India, “India foils Chinese bid to patent pudina

(thanks to B. Hanumanth Rao for sending me the Yahoo! News, India link)

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For further information see:

Free download of paper “Defensive Publishing: A Strategy for Maintaining Intellectual Property as Public Goods – Briefing Paper

Prior art project in the CGIAR.  Facilitated by CAS-IP, lead centre ICRISAT

TKDL introduction & milestones

Havasupai Tribe v. Arizona Board of Regents; settlement reached over allegations of unauthorized genetic studies

An interesting story in the NY Times last month “Indian Tribe Wins Fight to Limit Research of Its DNA” details a dispute over the use of DNA samples collected by researchers from Arizona State University from members of the Havasupai Indians tribe. The case has now reached a settlement.  The NY Times item reports: (emphasis is my own)

“…the university’s Board of Regents on Tuesday agreed to pay $700,000 to 41 of the tribe’s members, return the blood samples and provide other forms of assistance to the impoverished Havasupai — a settlement that legal experts said was significant because it implied that the rights of research subjects can be violated when they are not fully informed about how their DNA might be used.”

It goes on to say:

“But genetics experts and civil rights advocates say it may also fuel a growing debate over researchers’ responsibility to communicate the range of personal information that can be gleaned from DNA at a time when it is being collected on an ever-greater scale for research and routine medical care.”

The Scope Medical Blog where I first read about the case (thanks for sending me the link Jeremy!), quotes a law professor and director of the Center for Law and Biosciences as saying the Havasupai case is a “big deal” and that he thinks “science has been taking a too cavalier view of how broadly it can use samples and data it gets from people for one purpose” “. The Scope Blog item was making references to the much older case of Henrietta Lacks and questioning whether the Havasupai case will provide a means for her descendents to seek redress.

Whilst on the subject of PIC it might be of interest to note that in 2008 CAS-IP presented draft guidelines for the acquisition and use of traditional knowledge by CGIAR scientists. These guidelines were presented to the CGIAR’s Genetic Resources Policy Committee (GRPC) and can be viewed: http://www.cas-ip.org/resources/publications/traditional-knowledge-guidelines/

Does a declaration of “cultural heritage” constitute protection?

SciDevNet ran a story today outlining how “the Peruvian government has declared the knowhow associated with growing a variety of large-eared white maize to be ‘cultural heritage’”.  The item included some discussion about whether there was any legal effect to this move, and that of the earlier ‘designation of origin’ granted to the crop in 2005.

There are no specific details on the item – but its important to remember this is not an end in itself.  What we can say is that it doesn’t matter that it might not hold water in a legal sense, if that’s not the purpose.  Protection can be expansive as well as restrictive.  Such a move could for example serve to ensure the knowledge is officially documented and hence in the public domain.  Once in the public domain misappropriation is more difficult.

However, further probing might lead to questions such as: What would the community be expecting to get from this?  How has this been explained to them?  Then one would need to consider the legalities further to determine whether or not cultural heritage declaration or designation of origin are appropriate tools to meet the expectations.

Update on the CBD

IPWatch has reported on the meeting that industry representatives had last week in Geneva to discuss the legally binding regime that the Convention on Biological Diversity (CBD) intends to create for the access and benefit sharing (“ABS”) of national genetic resources and traditional knowledge.  Presumably this discussion was sparked by the Montreal meeting of 2-15 November (see our blog posted on 25 November).  The industry claimed that:

“A legally-binding international system on ABS may harm business interests and also fail to reach its objectives of protecting and preserving biodiversity. “

Further, Esther Schmitt, unit head of natural products at Swiss biotechnology company Novartis added:

“Successful collaboration between local communities and biotechnology companies requires legal certainty, exclusivity and  transparency and prior informed consent.”

I agree with Ms. Schmitt that the international community needs legal certainty, and IPWatch quotes Alan Oxley, chairman of the Asia-Pacific Economic Cooperation (APEC) Centre at the Royal Melbourne Institute of Technology University in Australia:

“Part of the difficulty in negotiation of the regime is that there is “no common agreement on what the problem is…There is “no legally-instructive definition of the key terms,” nor an agreement on the “means by which commitments are to be delivered”.”

And unless economic activities are encouraged, developing countries will not have real benefits to enjoy.

However, a question comes to mind: “whose business interests and whose biodiversity”?  It seems clear that the industry does not want to be legally bound to national rules as to ways of accessing and using the genetic resources of developing countries.  How many companies have really contributed towards the Secretary Fund of the ITPGRFA?  And how many companies complain about the requirement to compensate the international community for depriving it of its genetic resources (see the payment mechanisms of the SMTA, art. 6 and 7)?

Post written by Francesca Re Manning, consultant to CAS-IP

The Convention on Biological Diversity (CBD); comment on meetings that concluded this month

A few days ago the meeting on the Convention on Biological Diversity (CBD) in Montreal was concluded.  First, the sixth meeting of the Ad-hoc Open-ended Working Group on Article 8(j) and Related Provisions (Article 8(j) WG 6) of the CBD was held (from 2 to 6 November), and then the eighth meeting on Access Sharing (9-15 November).  You can see a summary of the highlights along with related documents here http://www.iisd.ca/biodiv/wg8j-6/ and here http://www.iisd.ca/biodiv/abs8/

Dr Claudio Chiarolla, expert, UNEP ABS Knowledge Hub of the International Institute for Sustainable Development (IISD), made the following comments:

“the discussions on traditional knowledge (Article 8j) developed reasonably well. It seemed however that too much caution was taken in relation to the mechanisms to incorporate the text of new submissions into the draft of the international ABS regime; the result was that ‘real’ negotiations on this document did not even start.”

I agree that this is a shame as a Protocol, once incorporated into national laws, could change radically the way that research and innovation are carried out, as well as turning a very convoluted document like the CBD into something more concrete and manageable. On a positive conclusive note though Dr Chiarolla adds:

“it was encouraging however to see how many countries were discussing openly and frankly the issue of Prior Informed Consent (PIC) of indigenous and local communities”.

Is WIPO’s alleged push towards traditional knowledge really working?

Post written by Francesca Re Manning, consultant to CAS-IP

Father of Grass Root Innovation: Prof. Anil K. Gupta and His Ideologies

Special thanks to Sahida Kamri who is a blogger on the Gen-X blog - a blog created by the budding IP and technology management professionals of India. Bloggers are students of PGD-IPTMA Course, National Academy of Agricultural Research Management (NAARM), India.  The following post was written and submitted by Sahida Kamri for the CAS-IP blog:

Father of Grass Root Innovation: Prof. Anil K. Gupta and His Ideologies

Prof. Anil K. GuptaProfessor Anil Kumar Gupta, a senior faculty at the Indian Institute of Management, Ahmedabad is successfully blending knowledge of grassroot innovators with corporate houses.  He is the executive vice-chairman of NIF (National Innovation Foundation).  In an interview with The Wall Street Journal | India he talks about cross-pollination work of grassroots innovations, ideas on globalization, technology commons and his experience with big industries as well as Government.  The persistent and dedicated work of NIF under his leadership has more than 120,000 grass root innovations and traditional knowledge practices.  These are documented from fields such as agriculture, animal and human medicines, herbal drugs, mechanical devices, rural technologies from the informal and unorganized sector of rural and urban India.  Prof. Anil K Gupta’s contribution for grass root innovators and rural people has been also recently discussed in the blog Gen – X ideas on IP.

How did it start?

In 1986, after a tour of Bangladesh Prof. Anil K Gupta seriously thought about helping poor rural people.  He worked hard to create recognition and awareness around the importance of grass root innovators in the formal system.  He also took the initiative to document traditional knowledge, some of which is now on the edge of extinction.  This vision developed into the National Innovation Foundation. Established under the Department of Science and technology, Government of India on 28th February, 2000, the main aim being to scout, document and scale sustainable innovations, and to help innovators from the informal sector get their products to market through incubation and business development.  NIF helps in protecting Intellectual Property rights of grass-root innovators and documents their various innovations and traditional practices.  It also helps in the technology transfer of suitable technologies.  57 technologies have been already licensed.  The former President of India Dr. APJ Abdul Kalam has been a great supporter and guide to NIF since its inception and highly appreciates Prof. A.K. Gupta’s efforts.  A database of innovations and medicinal plants in various languages is maintained by NIF.  Two appendages of NIF are SRISTI and GIAN which provide complete support to it in all its activities.

Shodh Yatra – A journey to reach knowledge

More than ten years ago Prof. Anil K Gupta learned about a creative idea called “Shodh Yatra”, one he has continued.  Shodh Yatra is a journey on foot through the remote areas of India for the exploration of knowledge, creativity and innovations at grassroots.  The main aim of the journey is to understand and document traditional knowledge and grassroots innovations that have not only simplified the lives of men, women and farm workers but have also significantly contributed towards the conservation of bio-diversity. Prof. Gupta used to conduct Shodh Yatra twice in a year especially in summer and winter to share knowledge across rural India. Our Organization NAARM (National Academy of Agricultural Research Management) with NIF had organized Shodh Yatra (we called it Gyan Shodh) for students of PGD IPTMA (Post Graduate Diploma in Intellectual Property and Technology Management). It was a great experience and learning for us, the report of the Gyan Shodh is available on the internet. His work and noble thought inspired us to join the Shodh Yatra.

India is really blessed having a son like Prof. Anil K. Gupta.  He is a true role model to be followed by the youth of nation.  His many ideologies such as respect to traditional practices as well as grass root innovations, belief in sustainable technologies etc match with that of the Father of Nation – Mahatma Gandhi.  He works for India but his essence of work has spread globally.

Sarawak Biodiversity Centre, TK and IP Management: a trip report

An elderly medicine man from the Bidayuh community at Semadang Village explaining to the staff and family members of Bioversity-APO about the various uses of medicinal plants conserved at the village garden.

photo by G.H.Teh

 The weekend before last was special.  The Bioversity-APO office, where I’m hosted, organised a trip for their staff and family members to Kuching.  This beautiful city is located in Sarawak, the biggest state in Malaysia which probably has the richest biodiversity in the country.  When we arrived on Friday morning, we were transported to the Sarawak Biodiversity Centre (SBC) (http://www.sbc.org.my/) for a visit and tour of their facility. SBC has been involved in various projects on traditional knowledge (TK) documentation with indigenous communities for about 10 years now (click here for more information – publication sharefair2009 PN).  During this time, they have managed to collect and document TK and information of various medicinal plants, and to subsequently conduct research to “discover chemicals and enzymes…that would be useful over a broad range of applications as industrial related products such as essential oils, bio-pesticides and commercial dyes” (see: SBC’s Bioprospecting Programme -).

GHT delivering her talk

photo by Chan Yunn Horng

As part of the visit, I presented a talk on IP management (see – SBC Presentation by GHTeh), by sharing experiences in the CGIAR system on various issues. 

 

 

From conversations with the Chief Executive Officer of SBC, Dr Rita Manurung, I have been apprised of the following IP challenges faced by the institution:

a)       Formation of an IP policy for SBC and the state of Sarawak;

b)       Development of in-house IP capacity to assist with IP management and implementation;

c)       Providing access to genetic resources and associated TK in a way that respects and takes into account the contribution of indigenous communities in Sarawak; and

d)       Developing benefit-sharing mechanisms for use of genetic resources and associated TK by third parties.

 Although my visit was very brief, the impression I got about SBC was very encouraging.  They have been pioneers in Malaysia for TK documentation and it is highly likely that this state institution is well on its way to strategise on taking their TK inventory and discoveries to the next level.  “We cannot stop the progress of science and technology”, says Dr Manurung.  To this, I can only say that IP must be an enabling tool for us to share with the world the wonders of biodiversity and the many promises that it can potentially bring for mankind.

Post written by Guat Hong Teh, legal specialist for CAS-IP.

TK and Folklore in South African IP law bill; critical analysis shouldn’t lead to abandonment

http://www.mg.co.za/article/2009-07-30-intellectual-property-bill-slammed-as-an-abomination
Thanks to Irina Curca from CAS-IP who sent the above link and the following comment:

“A new wave of debate just hit the historically “tough” iceberg of the Traditional Knowledge and Folklore. The Amendment to the South African Intellectual Property Law Bill is now being severely criticized as “abomination that deserves to be thrown on the legal scrapheap”, and is being accused (by a legal expert from Owen Dean of Spoor & Fisher) of being a legal non-sense.

It seems that some of the critiques Owen Dean of Spoor & Fisher can be recognized as valid, since an attentive analysis of the Bill reveals several grey areas which needs further legal refinement. To mention just a few, the terms “indigenous origin” and ” traditional culture” are not defined. Also, the traditional intellectual property assets  (TIP) are supposed (by the Bill) to be managed by an ad hoc institution (a national trust fund), but the rules of the representation of the community within the fund are not defined by the legislator

However, in our view, these shortfalls should not be used, neither manipulated to invalidate the Bill! The recent amendment, in fact, brings with it a huge improvement as it finally allows the communities to protect their inventions, IPRs and to commercialize and license their inventions. This is a huge step forward, as opposed to the original Bill which was supposed to protect the IPRs of the individuals only.”

For further comments check the link below: http://afro-ip.blogspot.com/2009/08/traditional-knowldege-aladdins-lessons.html