Traditional Knowledge Between The Public Domain And Intellectual Property Rights

E/CN.4/Sub.2/AC.4/2005/CRP.3

Page 5

Distr. RESTRICTED
E/CN.4/Sub.2/AC.4/2005/CRP.3
13 July 2005

ENGLISH, FRENCH, SPANISH
AND RUSSIAN

COMMISSION ON HUMAN RIGHTS
Sub-Commission on the Promotion and
Protection of Human Rights
Working Group on Indigenous Populations
Twenty-third session
18-22 July 2005
Item 4 (b) of the provisional agenda

Review of developments pertaining to the promotion and protection of the rights of indigenous peoples, including
their human rights and fundamental freedoms:

Principal theme: “Indigenous peoples and the international and
domestic protection of traditional knowledge”

Joint Statement from the Indigenous World Associationand Indigenous Media Network

GE.05-14895

Traditional Knowledge and the Information Society

Our collective traditional knowledge is the very foundation of our cultures. It is indivisible from our identities and our laws, institutions, value systems and cosmovisions[1]. It derives and develops from our daily interaction with our ancestral territories. Thus, the protection, preservation and development of our knowledge can not be separated from our right to maintain and strengthen our distinctive spiritual and material relationship with our lands, territories, inland waters and coastal seas.[2]

Indigenous cultures provide for rules and regulations on communicating, sharing, using and applying traditional knowledge. These rules and regulations are cultural obligations we have to comply with and are part of our own customary laws. Our distinctive spiritual and material relationship with our ancestral territories and their environments contains similar duties and responsibilities that we need to attend to when using plants, animals or other living beings for our own needs.

Also, future generations are strong rights-holders in our cultures and our responsibility for their rights and well-being requires us to meet specific obligations on their behalf.

Our cultural obligations towards communicating, sharing, disseminating, using and applying our knowledge should be legally recognized and respected by the non-Indigenous actors of the Information Society.

At the same time, we request the worth of our cultures and the value of our traditional knowledge to be fully acknowledged for past, present and future positive contributions to global human progress and sustainable development. We particularly call for recognition of our historic contributions to human development such as those of our medicines. We insist that Indigenous Peoples are not mere recipients of Western knowledge and treatment.

Traditional Knowledge and Genetic Information in the Knowledge-Based Economy of the Information Society

Our collective knowledge is not merely a commodity to be traded like any other in the market place.[3] We strongly object to the notion that it constitutes a raw material or commercial resource for the knowledge-based economy of the Information Society. We equally denounce the conception that genetic information of humans and other life forms would be a mere resource for commercial use and economic development. We are deeply concerned that privatization and commodification of our knowledge and natural resources, as currently taking place, will undermine the political, social, economic, and cultural integrity of our peoples.[4]

Furthermore, we stress that there are striking similarities between seizing our territories and the taking of our knowledge by defining it as part of the public domain. Both are based on the notion that they constitute res nullius, the property of no one, and can be treated as such. Placing our knowledge into the public domain turns it into a freely available resource for commercial utilization. Thus, it also creates the pre-condition for using non-indigenous Intellectual Property Rights (IPR) regimes to patent “inventions” based upon our knowledge. The same principle is being applied to our own human genes as well as to genetic information contained in other life forms taken from our ancestral territories. One example is the current practice of third parties to seek IPR protection on medicinal products derived from our medicinal knowledge and curative properties carried by the flora and fauna of our ancestral territories.

Other affected areas include our cultural expressions such as oral traditions, literatures, designs and visual and performing arts. In this context, we also highlight that digital recording and documentation of our knowledge and cultural heritage in order to strengthen our own cultures simultaneously contributes to their easy accessibility for inappropriate use and exploitation by third parties - as the content is being considered part of the public domain when displayed.

We therefore strongly reject the application of the public domain concept to any aspect related to our cultures and identities, including human and other genetic information originating from our lands and waters.[5] We equally reject the application of IPR regimes to assert patents, copyrights, or trademark monopolies for products, data, or processes derived or originating from our traditional knowledge or our cultural expressions, when conducted without due authorization by our peoples. Genetic material, isolated genes, life forms or other natural processes must be excluded from IPR regimes.[6]

Furthermore, we assert our right to control the dissemination and use of genetic information contained in our human cells or in biological material taken from our ancestral territories. We thus request non-Indigenous actors to refrain from unauthorized bioprospecting and research activities on our traditional territories.

Finally, we are concerned about current practices by third parties of storing our traditional knowledge on public and private databases for scientific, economic or development purposes. These practices contribute to either placing our knowledge in the so-called public domain or creating private property rights on such databases containing the foundations of our cultures.

Also, respect for the integrity of our knowledge has to be shown when creating databases. Much of our knowledge contains teachings and should not be stripped of its holistic contents, when codified for digital storage. Furthermore, not all knowledge can be digitally stored or preserved. Our cultural obligations and customary laws have to be respected and recognized as a guideline when creating databases.

Sharing is part of our cultures. We readily contribute our knowledge for the benefit of human kind and global human progess. However, sharing of our knowledge must take place on our own terms and cannot put us at risk of losing our cultures and identities.

Recommendations for Action

1. We urge Governments to establish specific legal frameworks, recognizing Indigenous Peoples’ rights to self-determination and ancestral territories as a necessary prerequisite to ensure the protection, preservation and development of our traditional knowledge.[7]

2. In this context we particularly call on Governments to adopt the United Nations Draft Declaration on the Rights of Indigenous Peoples as approved by the UN Working Group on Indigenous Populations and the UN Sub-Commission on the Protection and Promotion of Human Rights.[8]

3. Furthermore, we strongly request the implementation of Agenda 21 recommendation 26.4 to “adopt or strengthen appropriate policies and/or legal instruments that will protect indigenous intellectual and cultural property and the right to preserve customary and administrative systems and practices”.

4. We therefore demand, in co-operation with Indigenous Peoples, the elaboration of an international legal instrument for the full and adequate protection of our intellectual and cultural property rights in the Information Society. Existing legal mechanisms are clearly insufficient and do not support our right to equal participation in the evolution of the Information Society on our own terms.[9]

5. We request that the elaboration of an international instrument should, inter alia, take into account the following aspects:

- our right to the full ownership, control and protection of our cultural and intellectual property;

- our culturally diverse concepts and provisions of our customary laws in defining the term “intellectual and cultural property”[10];

- our cultural obligations towards communicating, sharing, disseminating, using and applying our knowledge;

- a cooperative rather than competitive system[11];

- alternatives to the application of the public domain concept to our knowledge and genetic information;

- alternatives to the application of current IPR regimes to our knowledge and genetic information;

- the collective status of our knowledge;

- our culturally diverse concepts of ownership;

- a multi-generational coverage span[12];

- our right to be first beneficiaries of our knowledge[13];

- culturally appropriate mechanisms of benefit sharing;

- our right to say “no”[14];

- adequate monitoring mechanisms.

6. Until the development of a respective legal instrument we request the exemption of our knowledge and genetic information from application of regulations under the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement of the World Trade Organization (WTO).[15]

7. We further demand the halt of all unauthorized exploitation of our knowledge and our biodiversity.

8. We strongly call for the development of models and guidelines for the culturally respectful creation of databases when using Indigenous knowledge. For this purpose, a process should be set up between Indigenous and relevant non-Indigenous actors of the Information Society, such as the scientific community, the private sector and development agencies.

9. We demand the establishment of mechanisms between the scientific community, the media and Indigenous Peoples to determine the future use of

- all human, botanical and genome collections taken from Indigenous Peoples[16], and

- all collections of Indigenous songs, videos, digitized photos and other collections of their traditional knowledge and cultural expressions.

10. Finally, we stress that funds should be made available to establish legal services by Indigenous Peoples for Indigenous Peoples to support them in knowing and excercising their intellectual and cultural property rights.

Note:

This document derives from the Indigenous Position Paper for the World Summit on the Information Society. Geneva, December 2003 (Draft version). The paper is available at:

http://www.unige.ch/iued/wsis/DEVDOT/02511.HTM

Contact: Kenneth Deer, THE EASTERN DOOR, Box 1170, Kahnawake Que J0LI B0

Tel: +1-450-635-3050, Fax: +1-450-635-8479, e-mail:

[1] See: Statement of the International Indigenous Forum on Biodiversity at the Ad Hoc Open-Ended Working Group on Access and Benefit Sharing. Bonn, Germany, 22-25 October 2001; para. 6

[2] see also: The Kimberly Declaration; International Indigenous Peoples Summit on Sustainable Development; Khoi-San Territory, Kimberley, South Africa, 20-23 August 2002; third paragraph.

[3] Statement of the International Indigenous Forum on Biodiversity at the Ad Hoc Open-Ended Working Group on Access and Benefit Sharing. Bonn, Germany, 22-25 October 2001; para. 6

[4] see also: ibid, para. 8

[5] see also: The Kimberley Declaration; International Indigenous Peoples Summit on Sustainable Development; Khoi-San Territory, Kimberley, South Africa, 20-23 August 2002; sixth paragraph.

[6] see also: Indigenous Peoples’ Plan of Implementation on Sustainable Development. Johannesburg, South Africa; para. 28; submitted to the World Summit on Sustainable Development, Johannesburg 26 August – 4 September 2002

[7] see ibid, para. 5

[8] ibid

[9] see also: The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples; para. 2.3 and 2.5

[10] see also: Indigenous Peoples’ Plan of Implementation on Sustainable Development. Johannesburg, South Africa; para. 29; submitted to the World Summit on Sustainable Development, Johannesburg 26 August – 4 September 2002

[11] The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples; para. 2.5

[12] ibid

[13] see ibid

[14] Statement of the International Indigenous Forum on Biodiversity at the Ad Hoc Open-Ended Working Group on Access and Benefit Sharing. Bonn, Germany, 22-25 October 2001; para. 7.7

[15] see also: Indigenous Peoples’ Plan of Implementation on Sustainable Development. Johannesburg, South Africa; para. 30; submitted to the World Summit on Sustainable Development, Johannesburg 26 August – 4 September 2002

[16] see also: ibid, para. 33