Beyond intellectual property : toward traditional resource rights for indigenous peoples and local communities

If a stranger entered your community, and started asking questions about its people, its resources, and its history, what would you do? In today's global marketplace, no stone goes unturned. Where there is commercial value, there are profits to be made. However, as entrepreneurs scour the world in search of new commodities, a voice of dissent is growing and striving to be heard. That voice belongs to the world's indigenous peoples, and it is voice that has been ignored long enough. In Beyond Intellectual Property, authors Darrell A. Posey and Graham Dutfield listen and respond to this voice. They offer sound and reasonable advice on how indigenous peoples and local communities worldwide should approach and deal with the myriad of issues surrounding intellectual property and traditional resource rights. For indigenous peoples' groups, activists and policymakers in intellectual property, and all those concerned with the preservation of our planet's biological and cultural diversity, Beyond Intellectual Property provides an invaluable and eye-opening look into one of the most provocative and explosive issues of this century and likely the next: the patenting of life. Contents 6 Preface 12 Acknowledgments 14 Introduction 18 Chapter 1 Who visits communities, what are they seeking, and why? 22 Who visits indigenous communities? 23 What are they seeking? 29 Why is it being sought? 30 Conclusions 37 Chapter 2 What happens to traditional knowledge and resources? 38 Conservation centres for biogenetic resources 39 The commercial sector 44 Museums, art galleries, and the trade in works of art 45 Museums, universities, and human remains 45 Libraries, archives, and electronic databases 46 Conclusions 49 Chapter 3 Who benefits from traditional resources? 50 The value and importance of traditional knowledge 51 Publication and the public domain 52 What constitutes "just compensation"? 54 Conclusions 58 Chapter 4 Will the community be informed? 60 Violations of indigenous peoples' right to be informed 61 Conclusions 65 Chapter 5 What right do communities have to say "yes" or "no" to commercialization? 66 The effects of trade 67 Option 1: say "no" 69 Option 2: say "yes" 72 Conclusions 74 Chapter 6 How can a community take legal action? 76 Western and indigenous property systems and customary law 77 Organizational options 79 Who are the partners? 80 Conclusions 81 Chapter 7 What are contracts and covenants? 84 Legal agreements 85 Nonlegal agreements 87 Covenants and model contracts 89 Conclusions 91 Chapter 8 Are intellectual property rights useful? 92 Patents 93 Petty patents 98 Copyright 100 Trademarks 101 Industrial designs 104 Trade secrets 104 Plant breeders' rights 105 Geographic indications and appellations of origin 107 Certification and labeling 108 Conclusions 109 Chapter 9 Can communities develop their own system for protecting traditional resourcerights? 110 What are traditional resourcerights? 112 Community intellectual property rights 114 Model draft community intellectual rights act 114 The Unesco—WIPO model provisions 116 Conclusions 117 Chapter 10 Are legally binding international agreements useful? 118 The GATT agreement on Trade-Related Aspects of Intellectual Property Rights 119 The Convention on Biological Diversity 120 International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights 128 The World Heritage Convention 129 The Rome Convention 131 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 132 The International Labour Organisation's Convention 169 134 Conclusions 134 Chapter 11 How can communities use "soft law" and nonbinding international agreements? 136 What is "soft law" and why is it relevant? 137 The Universal Declaration of Human Rights 137 ECOSOC and the Working Group on Indigenous Populations 138 The Rio Declaration 139 Agenda 21 140 The FAO International Code of Conduct for Plant Germplasm Collecting and Transfer 141 Unesco's cultural documents 141 Conclusions 143 Chapter 12 Are nongovernmental, nonlegal instruments useful? 144 Indigenous peoples' declarations 145 Ethical guidelines and declarations 146 Conclusions 148 Chapter 13 Why are funds and funding guidelines important? 150 Who are the funders? 151 The Global Environment Facility 152 The Fund for Farmers' Rights 154 Conclusions 154 Chapter 14 What creative strategies and unique solutions have been developed? 156 Community-based initiatives 157 Networks 162 Model laws to implement the Convention on Biological Diversity 164 Other national laws 167 Chapter 15 Toward protection, compensation, and community development 172 Appendices 178 1. The Human Genome Diversity Project 178 2. The Covenant on Intellectual, Cultural, and Scientific Resources 192 3. Declaration of Principles of the World Council of Indigenous Peoples 196 4. UN Draft Declaration on the Rights of Indigenous Peoples 198 5. Kari-Oca Declaration and the Indigenous Peoples' Earth Charter 206 6. Charter of the Indigenous-Tribal Peoples of the Tropical Forests 216 7. The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples 222 8. Recommendations from the Voices of the Earth Congress 226 9. COICA/UNDP Regional Meeting on Intellectual Property Rights and Biodiversity 232 10. UNDP Consultation on the Protection and Conservation of Indigenous Knowledge 236 11. UNDP Consultation on Indigenous Peoples' Knowledge and Intellectual Property Rights 240 Glossary 244 A 244 B 244 C 244 D 246 E 246 F 246 G 247 H 247 I 247 J 248 K 248 L 248 M 248 N 248 O 249 P 249 R 250 S 250 T 251 V 251 Acronyms and abbreviations 252 References 254 Resource guide 262 People and organizations 262 E-mail links 296 World Wide Web addresses 298 Annotated bibliography 299 The concept of traditional resource rights (TRR) reflects the necessity of rethinking the limited and limiting concept of intellectual property rights (IPR). The TRR concept can accommodate a wide range of relevant international agreements as a basis for a sui-generis system of protection for indigenous peoples and their intellectual, natural, and technological resources. This book introduces the TRR concept in a manner organised around a series of questions that might emerge in a community when a visitor arrives to collect information or cultural or biogenetic materials. Each chapter begins with a summary of the main issues it addresses and ends with options and suggested actions. Issues discussed include who benefits from traditional resources, the rights of communities to approve or resist commercialisation, types of potential legal action, the applicability of traditional IPR, development of community systems for protecting TRR, the use of binding or non-binding international agreements, and TRR funding. Examples are included of creative strategies and unique solutions that indigenous communities have developed for protecting and benefiting from TRR.

For indigenous peoples’ groups, activists and policymakers in intellectual property, and all those concerned with the preservation of our planet’s biological and cultural diversity, Beyond Intellectual Property provides an invaluable and eye-opening look into one of the most provocative and explosive issues of this century and likely the next: the patenting of life.

Broad overview of international developments in the protection of traditional resource rights; biodiversity prospecting; cultural property; Human Genome Diversity Project; traditional knowledge; ecosystems management; lists Aboriginal Australian contact organisations; includes annotated bibliography