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South Asian Indigenous peoples’ struggle for ICPR

This article is an abridged extract from the Report

of the Minority Rights Group International titled

“Intellectual and Cultural Property Rights of

Indigenous and Tribal Peoples of Asia”[1]

Edited by Ajithaa Edirimane *

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The practices, beliefs and philosophy that are unique to each indigenous culture form part of the Intellectual Property of such indigenous people. When traditional knowledge is removed from an indigenous community, the community loses control over the way in which that knowledge is used. In many cases, this system of knowledge evolved over centuries and is uniquely bound up with the indigenous people’s customs, traditions, land and resources. Indigenous peoples have the right to protect their intellectual property, including the right to protect that property against its inappropriate use or exploitation.

The heritage of indigenous people includes:

• language, art, music, dance, song and ceremony;

• agricultural, medicinal, technical and ecological knowledge and practices;

• spirituality, sacred sites and ancestral human remains;

• documentation

Some research and pharmaceutical companies are patenting, or claiming ownership of traditional medicinal plants, even though indigenous people have used such plants for generations. In many cases, these companies do not recognize indigenous peoples’ traditional ownership of such knowledge and deprive indigenous people of their fair share in the economic, medical or social benefits that accrue from the use of their traditional knowledge or practices.

Sri Lanka

Folklore & Culture: The Wanniyala-Aetto (forest beings) of Sri Lanka, are a fast disappearing race of indigenous people[2]. They are being displaced due to clearing of forests for cultivation and development projects. The International Movement Against All Forms of Discrimination and Racism (IMADR), an NGO, campaigns on their behalf. But very little has been done by successive governments to preserve their culture or intellectual property rights.

Bio Prospecting: As elsewhere in the world, indigenous healers in Sri Lanka have, for centuries, prepared medicines from wild plants and flowers gathered from the country’s tropical forests to treat a variety of illnesses. The ancient formulations of the ayurveda system of medicine were tightly guarded and were passed from one generation to the next in families that could trace back their ancestry for generations.

Feisal Samath[3] cites the ability of an indigenous doctor in the north-central town of Polonnaruwa to treat patients with heart problems who would otherwise require bypass surgery, which costs at least US$4,500 in hospitals in the country. Global drug firms seek to exploit this ancient Lankan wisdom, extracting chemicals from local plants and patenting them abroad. Export of medicinal plants or their extracts is banned in Sri Lanka. But Samath reports that biopiracy is flourishing in the country. Samath lists some of the local biological resources that have been patented abroad. One is the locally grown Kothalahimbutu plant (Salacil reticulata), which helps control diabetes. Ayurveda physicians in Sri Lanka advise diabetic patients to drink water left overnight in mugs or jugs carved out of Kothalahimbutu, whose production has become a cottage industry in the country. Citing local newspaper accounts, Samath reports that a Japanese drug company patented a product based on this plant through the American Chemical Society in 1997. (Kothala himbutu – Salacia reticulate: Patent – Takama System Ltd (Yamaguchi, JP)’s US Patent No. 6376682) The plant Weniwalgeta – used as a remedy for fever, coughs and colds – has also been registered by Japanese, European and American manufacturers.

The media has played a role in exposing biopiracy in Sri Lanka. Two biopiracy cases in September 1997 were widely publicized and led to a sudden interest in the issue among environmentalists and scientists in the country. A university botanist was intercepted by customs at Colombo Airport trying to smuggle out some plant extract. In the same month, customs officials discovered a container of Kothalahimbutu – 1,512 cups weighing some four tonnes – being shipped to Japan through a Sri Lankan-owned firm.

As the above shows there is virtually no attempt, at the international level, to explore alternatives to the current intellectual property rights system as a means of protecting traditional knowledge. The rush for ‘green gold’ from the private sector continues to accelerate the trend towards intellectual property rights (IPRs). For the private sector, exploiting biodiversity requires intellectual property rights.

Attempts to protect traditional knowledge in Sri Lanka: There are several regulations formulated for the protection of TK and to prevent bio-piracy. But these still remain in a draft stage. Such as, the Draft Protection of New Plant Varieties Act, 2001 and the Draft Access to Traditional Knowledge relating to the use of Medicinal Plants Act, 2000.

Comparison with the closest neighbor India: It is in India that some of the most significant struggles to protect biodiversity are taking place. For more than 2,000 years, Indian indigenous communities have used the sap of the Commiphora mukul tree to lower blood cholesterol level and treat other forms of illness. Now, the patent (Patent No. 6436991) on the use of tree’s sap is owned by the New Jersey-based Sabinsa Corporation. The extract from the tree is said to be an ‘antioxidant and has cancer chemopreventive roles for cancer. The invention relates to a composition and method for products extracted from Commiphora species for use in the prevention and treatment of abnormal cell growth and proliferation in inflammation, neoplasia and cardiovascular disease.’

Indian indigenous peoples and sympathetic NGOs are asking the government for compensation for the knowledge shared on the growing, care and management, use and processing of the tree and its extract, which the local people perfected over so many years. Indigenous peoples in India have contributed much to the identification, conservation and use of medicinal plants and continue to do so, although now they are wary of this.

How indigenous people can safeguard TK: Indigenous peoples’ organizations need to inform themselves as to developments in the international arena and, at the same time, should relate these developments to what is happening on the ground. Some indigenous peoples’ groups and organizations also avoid working or engaging with governments. They would rather struggle for their rights outside government processes. It is time to rethink this position. The UN and global indigenous peoples’ networks are not lacking in international declarations and conventions, which, despite their flaws, can become the basis for national policies. With these international declarations and conventions as frameworks, indigenous peoples themselves, at local and national level, can propose mechanisms and policies on biodiversity resource protection. Indigenous people, and their supporters from civil society, the churches and other sectors can also devise mechanisms, at village, national, regional and global levels, on how to create a more coherent approach. Indigenous peoples and their networks should study previous declarations and other global documents and conventions and recommend mechanisms and structures through which these declarations can be made more effective.

Sui generis system. Another possibility involves the adoption of sui generis forms of intellectual property protection specifically designed for plant varieties and animal breeds. Indigenous communities can make use of Inventors’ Certificates, which can reject financial compensation altogether in favour of non-monetary awards and non-exclusive licensing arrangements. Governments can help establish Inventors’ Certificates through uncomplicated national legislation; they need only notify WIPO and GATT that this legislation exists. Inventors’ Certificates can also be assigned to indigenous communities with the same flexibility as for imported inventions.

The Model Law on Folklore. The Model Law on Folklore, adopted in 1985 by both UNESCO and WIPO, affords indigenous communities three unique elements that are especially appropriate to the protection of biological products and processes. First, ‘communities’ can be the legally registered innovators; they can either act on their own behalf or be represented by the state. Second, community innovations are not necessarily fixed and finalized, but can be ongoing or evolutionary and still be protected by intellectual property law. And, third, communities can retain exclusive monopoly control

over their folklore innovations for as long as the community continues to innovate.

Revival of farming and medicinal systems. The revival of aspects of more traditional farming and medicinal systems would allow communities and citizens to be more self-reliant, reducing dependence on corporate- and state controlled seeds and drugs, among other things. Of course, given existing economic and social structures, and the increasing incursions of the global economy into the everyday lives of even ‘remote’ communities, this form of resistance is difficult. But there are significant movements that have kept alive its possibilities, for example the widespread revival of biodiverse farming systems in India and other parts of South and South-East Asia.

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