Intellectual Property Rights and Indigenous People

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Annotated Bibliography: Intellectual Property Rights

Intellectual Property Rights and Indigenous Peoples

Annotated Bibliography

Jessica Scott Jerome

I. Legal Frameworks and Analysis

Alexander, D. 1993. “Some themes in intellectual property and the environment.” Review of European Community and International Environmental Law 2(2): 113-20.

Discusses the relationship between intellectual property law and environmental protection. The author argues that lawyers should cooperate to ensure that intellectual property rights support the objectives of environmental protection.

Barsh, R.L. 1986. “Indigenous peoples: An emerging object of international law.” American Journal of International Law 80: 369-85.

Reviews the different international institutions that have sought to recognize the rights of indigenous peoples. Among other topics, the article considers the regional scope and definition of the term “indigenous,” the role of the United Nations in protecting indigenous peoples’ rights and the growth of indigenous advocacy. The author concludes by arguing that indigenous organizations are emerging as a kind of regional group with broad interests, which seem likely to enhance both their credibility and the force of their claims.

Bozicevic, Karl. 1987. “Distinguishing products of nature from products derived from nature.” Office of the Patent and Trademark Office Society 69: 415-26.

Examines the legal distinction between a product of nature and a product derived from nature. A legal history of this distinction is provided. The article argues that setting forth standard criteria of seven “guide posts” will help to evaluate the potential patentability of commercial products.

Breckenridge, Lee P. 1992. “Protection of biological and cultural diversity: Emerging recognition of local community rights in ecosystems under international environmental law.” Tennessee Law Review 59(4): 735-85.

Examines the alliance between the themes of biological diversity and cultural diversity in the provisions of the United Nations Conference on Environment and Development (UNCED) documents related to management of biological resources. Part I advances the argument that international environmental law has supported notions of global trusteeship in the management of biological resources, while international human rights documents have supported recognition of local rights to access and management of resources. Both of these perspectives challenge existing concepts of sovereignty and private property. Part II shows how an international environmental standard of “sustainability” is linked to the empowerment of local communities and to the formulation of rights of indigenous peoples. Part III examines models of resource management that might be cited as exemplifying the linkages advanced by the UNCED documents.

Byrne, N. 1993. “Plant breeding and the UPOV.” Review of European Community and International Environmental Law 2(2): 136-40.

This article contests the view that breeders’ rights confer a license to pillage the resources of Third World countries. The authors argue that the Union for Protection of New Varieties of Plants (UPOV) system is to blame for erosion of genetic diversity of crop plants.

Cameron, James and Z. Makuch. 1995. “The UN Biodiversity Convention and the WTO TRIPs Agreement: Recommendations to avoid conflict and promote sustainable development.” Gland, Switzerland: World Wide Fund for Nature.

Negotiation of the Convention on Biological Diversity (CBD) took place with little discussion of linkages to GATT’s section on Trade-Related Aspects of Intellectual Property Rights (TRIPs). The authors analyze the relationship and potential conflicts between these two agreements and make recommendations to defuse any such conflicts and ensure that the objectives of the CBD are not undermined by TRIPs.

Canal-Forgues, E. 1993. “Code of conduct for plant germplasm collecting and transfer.” Review of European Community and International Environmental Law 2(2): 167-71.

This article describes the United Nations Food and Agricultural Organization’s (FAO) global system, the Commission on Plant Genetic Resources Code of Conduct for Plant Germplasm Collecting and Transfer, and the relation of the code to the Convention on Biodiversity. The author, a lawyer with the FAO, provides lots of insider legal detail.

Chung, Fong Joo. 1996. “Interests and policies of the state of Sarawak, Malaysia regarding intellectual property rights for plant derived drugs.” Journal of Ethnopharmacology 51: 201-4.

Describes the regulatory guidelines created by the Sarawak government to protect its indigenous biological resources. The author argues that unless property control is instituted to regulate the collection and use of its biological resources, the state of Sarawak may get none of the benefits derived from its rich biodiversity.

Cooper, D. 1993. “The international undertaking on plant genetic resources.” Review of European Community and International Environmental Law 2(2): 158-66.

Provides a discussion of the International Undertaking on Plant Genetic Resources (IUPGR) as it has developed since 1983. The author suggests that IUPRG facilitated the negotiations that led to the Convention on Biodiversity, but that a new legal instrument is needed to address the conservation and use of plant genetic resources.

Cragg, Gordon M. et al. 1994. “Policies for international collaboration and compensation in drug discovery and development at the United States National Cancer Institute: The NCI letter of collection. ” In T. Greaves, ed. Intellectual property rights for indigenous peoples: A sourcebook. Oklahoma City, OK: Society for Applied Anthropology, pp. 83-98.

The National Cancer Institute (NCI), a key figure in worldwide plant screening for treatments of cancer and AIDS, has taken a lead in recognizing that the practice of simply expropriating these plant substances and knowledge without recognizing the rights of countries and peoples of origin must stop. The NCI Letter of Collection is a benchmark in the widening practice of establishing these rights. The authors of this article present the NCI letter and argue that it can be used not only between the NCI and national institutions in host countries but also with indigenous societies.

da Costa e Silva, E. 1995. “The protection of intellectual property for local and indigenous communities.” European Intellectual Property Review 17(11): 546-9.

A technical legal article which affirms that it is possible to interpret the wording of the Convention on Biodiversity as including the traditions of local and indigenous communities within the current system of national and or international laws. The author provides an analysis of the protection of intellectual property for indigenous communities at the multilateral, regional and national level. Included in this analysis is a summary of the 1994 GATT negotiations, The Andean Pact, and a newly proposed Brazilian law, PL 824/91. The author concludes that national courts will have to decide whether protection for local and indigenous people can be granted by the existing system of laws.

Dam, K.W. 1995. “Intellectual property in an age of software and biotechnology.” Law & Economics Working Paper No. 35. Spring.

Essay discusses the economic principles of intellectual property as they apply to the decisionmaking framework for new technology. In particular, it examines the intellectual property problems created for courts and legislatures by two recent technologies: software and biotechnology. The author argues that the economic approach to intellectual property law clears up many of the technical issues of patent and copyright law.

Esquinas-Alcazar, J. 1993. “The global system on plant genetic resources.” Review of European Community and International Environmental Law 2(2): 151-7.

In this article, the Secretary of the Food and Agricultural Organization’s (FAO) Commission on Plant Genetic Resources describes the development of the FAO Global System for Plant Genetic Resources and the implications of the Convention on Biological Diversity for that system.

Flitner, M.; Leskien, D.; and Myers, D. 1995. Review of national actions on access to genetic resources and IPR in several developing countries. Gland, Switzerland: World Wide Fund for Nature.

Reviews recent national laws to implement the Convention on Biological Diversity and the section of GATT on Trade-Related Aspects of Intellectual Property Rights. The authors present the views of local NGOs on new legislation in selected countries with high levels of biodiversity.

Fundación Sabiduría Indígena and Brij Kothari. 1997. “Rights to the benefits of research: Compensating indigenous peoples for their intellectual contribution.” Human Organization 56 (2): 127-37.

Argues that compensation for the resources of indigenous peoples must be incorporated into ethnobotanical research itself rather than viewing it as a post-project undertaking. A strategy to implement rights to the benefits of research (RBR) which are based on ethical guidelines and indigenous peoples’ empowerment is suggested. In order to support this suggestion, the author discusses an ethnobotanical project conducted in Ecuador which has compensated indigenous people using RBR rather than intellectual property rights.

Golvan, Colin. 1992. “Aboriginal art and the protection of indigenous cultural rights.” European Intellectual Property Law Review 14(7): 227-32.

Examines how Australian aboriginal culture has sought to protect its art industry through the use of already available legal instruments. The author discusses current protection available for copyright, the aboriginal understanding of ownership, and a proposed legislative solution to protecting cultural property. The article concludes by arguing that other indigenous groups would benefit from incorporating laws used by the aborigines in pursuit of protecting their art and culture.

Greengrass, B. 1991. “The 1991 Act of the UPOV Convention.” European Intellectual Property Review 13(12): 466-72.

Article provides a technical examination of the text of the 1991 International Convention for the Protection of New Varieties of Plants Act (UPOV). It looks specifically at the changes made to the act from its creation in 1961 up to the most recent version adopted in 1991. The author withholds judgment as to the drawbacks or benefits of the latest version, providing instead a thorough account of the history and intent of the UPOV.

Harhoff, F. 1991. “Indigenous rights between law and sociology: Internationalizing soft norms in a hard context.” North Atlantic Studies 1(2): 64-70.

This article identifies certain aspects of dogmatic legal science relevant to the study of binding norms beyond traditional hierarchy of legal sources. The author argues that recognition of the right of indigenous peoples to self-determination in international law will depend on the international community’s willingness to accept modification to the principle of sovereignty.

Hendrickx, F.; Koester, V.; and Prip, C. 1993. “Access to genetic resources: A legal analysis.” Environmental Policy and Law 23(6): 250-8.

Analyzes Article 15 of the CBD, which deals with access to genetic resources, and contains a detailed discussion of the concept of prior informed consent in the context of the convention.

Jabbour, A. 1983. “Folklore protection and national patrimony: Developments and dilemmas in the legal protection of folklore.” Copyright Bulletin 18: 10-4.

A brief reflection by a cultural specialist working at the American Folklife Center on the multifaceted problems associated with protecting folklore. The author addresses the problems of authentication, expropriation and compensation. He also looks at various legal frameworks designed to cope with such problems. In conclusion, the author argues that all of these problems are embedded within a larger dilemma regarding the relationship of the world’s traditional cultures to the nation-states within the legal frameworks of which they must exist.

Kadidal, Shayana. “Plants, poverty, and pharmaceutical patents.” The Yale Law Journal 103 (177): 223-58.

Argues that the Rio Convention requires that less developed countries receive intellectual property rights in pharmaceutically useful chemicals derived from their biodiversity resources, and that a system of such rights would provide a more equitable and efficient method of valuing these resources. The author argues that modifications in our system of chemical patents may be required in order to fulfill the aspirations of the Rio Convention. She proposes changes to extant patent doctrines that would have the potential to make pharmaceutical development more efficient and responsive to diverse worldwide needs as well as to encourage the conservation of biological resources.

Lobo, S. 1991. “The fabric of life: Repeating the sacred Coroma textiles.” Cultural SurvivalQuarterly 15(3): 40-6.

Tracks the efforts of the people of Coroma, Bolivia who, upon discovering that some of their sacred textiles had been stolen as part of the illicit trade in antiquities, attempted to have them returned. The author argues that this case has stimulated awareness in North America of the scale of violations of indigenous peoples’ cultural property rights.

Maddock, Kenneth. 1989. “Copyright and traditional designs—an aboriginal dilemma.” Intellectual Property 2(1): 7-9.

Provides a comparative look at the complex traditional means of protecting intellectual or cultural property in aboriginal society. The author highlights the relationship between aboriginal art, law and social life.

Nafziger, James. 1987. “Protection of cultural property.” California Western International Law Journal 17: 283-9.

Summarizes international cultural property law, describes several recent developments related to the law and suggests some ways to improve the legal regime. The author claims that it is ridiculous to argue that all objects should remain in their country of origin, or that they should be restored or returned to those countries in all cases. He argues that we need to define the concept of “genuine significance” and attempt to determine which objects are important enough to require restitution and return. He concludes by suggesting four categories with respect to restitution claims that would further refine the international law of restitution.

Niedzielska, M. 1980. “The intellectual property aspects of folklore protection.” Copyright November: 339-46.

Outlines some of the problems with using intellectual property rights to protect folklore. The article carefully distinguishes between folk art and folklore and argues that although folklore is a form of property that does not properly belong to anyone, and cannot, at least under current laws, become the object of an exclusive right in favor of anyone, we should look for other means of legal protection. The author concludes that when one is addressing the question of protecting subject matter that is common property, the measures for protection under civil law have to be paralleled by application of the provisions of administrative law.

Nijar, Gurdial Singh. 1994. Towards a legal framework for protecting biological diversity and community intellectual rights: A Third World perspective. Penang, Malaysia: Third World Network.

Part I of the article broadly addresses the link between traditional people’s knowledge systems and the protection of biodiversity. Part II explains how international developments in the UPOV, FAO and Farmers’ Rights have affected the recognition of rights in biodiversity of nations, farmers and indigenous peoples. The final section of the article looks at alternative legal frameworks for regulating access to biological resources that would respect the rights of traditional peoples. Specific proposals are spelled out in the appendix.

Reichman, J.H. 1995. “Universal minimum standards of intellectual property protection under the TRIPs component of the WTO Agreement.” The International Lawyer 29(2): 345-88.

Provides a detailed and comprehensive picture of all of the important provisions contained in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), as finalized at Marrakech, Morocco, on April 15, 1994. It reviews the basic principles underlying the TRIPs agreement as well as examining the positions of both developing and developed countries. The author argues that the evolution of intellectual property legal framework will merit constant attention by all those economic actors in developed and developing countries whose long term fortunes depend on a proper balance between incentives to create and free competition.

Rubin, S.M. and S. C. Fish. 1994. “Biodiversity prospecting: Using innovative contractual provisions to foster ethnobotanical knowledge, technology and conservation.” Colorado Journal of International Environmental Law and Policy 5: 23-58.

Asserts that the Convention on Biological Diversity established certain principles and objectives that biodiversity prospecting contracts might follow. The article then examines the evolution of private bioprospecting contracts, contractual provisions that promote the conservation, sustainable development and protection of indigenous intellectual property and discusses possible frameworks for ensuring biodiversity conservation, equity and economic development. In conclusion, the authors argue that bioprospecting is an important tool that can be used to foster the conservation of biodiversity through the creation of a natural products industry in developing countries.

Sedjo, Roger A. 1992. “Property rights, genetic resources and biotechnological change.” Journal of Law and Economics 35(1): 199-213.

Discusses wild genetic resources and their uses, and demonstrates that these resources have elements of both public and private goods. The author argues that the lack of property rights associated with the public good aspect of genetic resources contributes to the current rates of tropical deforestation and habitat destruction. The article draws some conclusions about the property-rights mechanism that appears to be most effective for natural and wild genetic resources.

Shiva, Vandana. 1993. Monocultures of the mind. Malaysia: Third World Network.

This book contains five essays which reflect on the causes of disappearance of biological diversity and the challenge of conserving it. The essays range in topic from explanations for the spread of monocultures to a critique of the Biodiversity Convention. The author argues that the expansion of monocultures through the spread of biotechnology and agricultural movements such as the Green Revolution, has more to do with politics and power than with enriching and enhancing systems of biological production.

Sieback, W.E.; Evenson, R.E.; Lesser, W.; and Primo Braga, C.A. eds. 1990. Strengthening protection of intellectual property in developing countries: A survey of the literature. Washington, DC: World Bank.

Asserts that developing countries are being urged to strengthen intellectual property protection. This literature survey seeks to find out whether developing countries will benefit economically from strengthened IPR regimes. It concludes that information required to provide definitive answers is lacking and proposes a research agenda to investigate the issues.

Verma, S.K. 1995. “TRIPs and plant variety protection in developing countries.” European Intellectual Property Review 17(6): 281-9.

This article examines the effect of the 1994 Trade Related Intellectual Property Rights (TRIPs) Agreement on plant variety protection from the point of view of developing countries. It provides an overview of the historical development of the current position on plant variety protection, a description of the salient features of the International Convention for the Protection of New Varieties of Plants (UPOV Convention), and a discussion of breeder’s rights. In conclusion, the author argues that the TRIPs agreement is seen as an encouragement for foreign breeders to develop, sell, import and propagate their new plant varieties in developing countries.