Indigenous knowledge and IPRs: A Canadian Perspective Page 1

INTELLECTUAL PROPERTY RIGHTS, BIODIVERSITY AND INDIGENOUS KNOWLEDGE: A CRITICAL ANALYSIS IN THE CANADIAN CONTEXT

1. INTRODUCTION

The Convention on Biological Diversity, more commonly referred to as the Biodiversity Convention, was completed in 1992 and entered into force in 1993.[1] Among the many features of the Convention are a series of provisions relating to indigenous peoples, their knowledge, and their role in protecting and supporting the conservation and sustainable use of biological resources. The Convention, in this respect, made clear the view that the preservation of biodiversity required, in many ways, the preservation of cultural diversity and the respect for and inclusion of the diverse range of knowledge that could be brought forward by indigenous peoples.

The negotiation and inclusion of these provisions was one of the most controversial elements of the Convention process. They have, since first appearing in draft form, generated a large international debate on the relationship between the knowledge held by indigenous peoples and its recognition and protection through intellectual property rights and laws.[2]

For the purposes of this paper, this knowledge is referred to as indigenous knowledge, or IK. Indigenous knowledge has different meanings to different people, or peoples. No one definition has been universally endorsed or accepted by either Aboriginal or non-Aboriginal peoples in Canada. What is clear, however, is that indigenous knowledge as a concept concerns information, understanding and knowledge that reflects symbiotic relationships between individuals, communities, generations, the physical environment and other living creatures, and the spiritual relationships of a people. IK evolves as ecosystem and other factors change, but remains grounded in the more enduring aspects of identity, culture, generations and spirituality.

The key area within this very broad definitional context that will be focused on in this report is the indigenous knowledge relating to the quality and condition of the environment, and the use or conservation of biodiversity. This limitation does not mean that the critical holistic nature of indigenous knowledge is not recognized for purposes of this study. Rather, the study focuses on that knowledge which is most relevant in its main point of expression to the conservation and sustainable use issues that underlie the Biodiversity Convention.

This approach also highlights a critical issue: the substance of IK is not the same for each Native community. To the extent IK is dependent on, or variable with the local environment and local living resources, the substance will be specific to the local area of the knowledge holders. In a biodiversity context, this places an important emphasis on ensuring the contribution of the appropriate knowledge holders.

The goal of this paper is to go outside the precise terms and frame of reference of the international debate, and undertake a critical review of the relationship between intellectual property rights, indigenous knowledge and the protection and conservation of biodiversity in Canada. To do this, the paper will look first at what the international debate is about: the provisions contained in the Biodiversity Convention, related work in the United Nations Human Rights Committee, the role of the 1994 World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights, and work in the Organization of American States in this area.

Having set the stage of the international debate, the paper then moves to a consideration of Canadian IPR laws. A brief introduction and categorization of these laws is followed by a statute and common law centred view of their relationship to indigenous knowledge. This orientation takes the statutes (or common law) as the starting point: what are the existing opportunities and barriers to the use of IPR law in Canada in relation to IK?

The subsequent section will reverse this approach. It will take indigenous knowledge as the starting point and ask what type of protection and respect is being sought by Aboriginal peoples in Canada, and how does this fit with or require alterations in addition to IPR law as it exists today. This section puts a greater premium on an understanding of these objectives, and an ability to place them into the context of the existing goals and framework of IPRs in Canada and globally. The goal here is to place them into a context in which the best means to consider them can be systematically identified and developed.

Two concerns underlie a great deal of what follows. The first is that much of what is known today as intellectual property rights or laws have been derived from a commercial or commercialization context that is inconsistent with or otherwise not applicable to indigenous knowledge and its holders.

The second issue flows in many ways from the first. This is the use of the terms and language from the existing superstructure of intellectual property law to identify what deserves or does not deserve to be called a right. This creates, it is submitted, the reverse approach to what is likely to be needed to overcome the rhetoric that has become the hallmark of the debate. In determining whether indigenous knowledge is “deserving” of being called intellectual property or of having intellectual property rights protection through reference to the existing legal structures, we in reality avoid the preliminary, but critical, policy question of whether it is deserving of protection. Only after answering this question in the affirmative in a policy context, and then identifying what type of protections are desirable, can the next step of applying existing laws towards this end, or developing new laws, be successfully tackled. It is hoped that the structure of this paper will help highlight this difficulty, and assist in identifying a productive way forward.

The final section of this paper will try to synthesize the author’s understanding of the objectives for the protection of IK, where these can be accommodated by existing IPRs or by other types of laws, and where new legislation may be required. An effort will also be made to relate this to necessary international approaches in addition to potential domestic approaches.

An intriguing quote from a recent book on Canadian intellectual property law provides an appropriate conclusion to this introduction:

In a general sense, intellectual property law is about those legal principles that regulate the exploitation of ideas, creations or information. Ironically, of the three categories, that of ideas is the most problematic for the intellectual property lawyers.[3]

If ideas constitute a serious problem for intellectual property law, what then of indigenous knowledge with its confluence of what many IP lawyers would call ideas, culture, information and knowledge? How can this fit with the superstructure of intellectual property law that has been developed to give enforceability specifically to the rights articulated almost exclusively to support western commercial practices?

2. INTELLECTUAL PROPERTY AND INDIGENOUS KNOWLEDGE: THE INTERNATIONAL SETTING

2.1 Intellectual property, indigenous knowledge and the Biodiversity Convention

The Biodiversity Convention articulated a wide variety of tools and techniques in order to achieve the three objectives set out in Art. 1 of the Convention:

  • the conservation of biodiversity;
  • the sustainable use of its components; and
  • the sharing of the benefits from its utilization.

One of these tools was to identify a specific set of roles and values for indigenous peoples and their indigenous knowledge concerning the conservation and sustainable use of biodiversity.[4]

The first of the provisions in this regard is found in paragraph 12 of the preamble to the Convention. It recognizes:

the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of indigenous knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components.

This preambular recognition is further developed in four substantive sections of the Convention. Art. 8(j) sets out the primary convention obligations in this area, in the context of the obligations for the in situ conservation of biodiversity.[5]

8. Each contracting Party shall, as far as possible and as appropriate:......

(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of benefits arising from the utilization of such knowledge, innovation and practices.

Indigenous peoples and others have noted the opening limitation of this paragraph, “Subject to national legislation”, and its potential to frustrate the purpose of the paragraph.[6] For many, this places unspecified and uncertain limits on the balance of the provision and the associated implementation obligations on the Parties by giving priority to national laws over the Convention text, even if the laws are inconsistent with the Convention. These inconsistencies do not, of course, prevent states from taking measures in this area to implement these obligations in good faith.

The key obligations of the paragraph are respecting, preserving and maintaining the indigenous knowledge, promoting its wider application with the approval and involvement of the knowledge holders, and promoting the equitable sharing of benefits. The obligation for the approval and involvement of the knowledge holders is a procedural obligation[7] that is central to the debate linking this article tot he idea of intellectual property type protections, if not intellectual; property rights themselves. Closely tied to this is the notion of sharing equitably in the benefits of the use of this knowledge, as referred to in Art. 1 of the Convention. On its face, however, this article does not require states to ensure the consent of indigenous knowledge holders or communities for others to access or use the knowledge or genetic resources related to the knowledge.

These goals and obligations, including the procedural aspects, should also be understood in the context of the more specific provisions on access to genetic resources in Art. 15 of the Convention, and access to and transfer of technology in Art. 16. Broadly speaking, these provisions place a high reliance on prior informed consent for access to resources and technologies, and the recognition of patents and other intellectual property rights of the technology holder.

For some, this has begged the question of whether indigenous knowledge falls into the category of intellectual property rights so as to receive the same mandatory protections under the Convention. Indigenous knowledge is not specifically included in these sections. In addition, Art. 15, in particular paragraphs 15(1) and 15(5), highlights the national sovereignty aspect of the prior informed consent process, and the need for the consent of the Party, i.e., the state, prior to access taking place. This is in the context more of access to physical genetic resources as opposed to knowledge, but there are no further references in the Convention that expressly require the consent of the knowledge holder for access in that regard.

Similarly, Art. 16 speaks of the application of intellectual property rights to technology transfers, but this is best understood as those rights recognized in law. Thus, only to the extent that indigenous knowledge is protected by a legally recognized right would it necessarily be covered here.

Art. 10(c) of the Convention requires the Parties to protect and encourage customary use of biological resources in accordance with traditional practices that are compatible with conservation or sustainable use requirements. This is a more specific provision, as compared to Art. 10(2), which requires the Parties to adopt measures relating to the use of biodiversity to avoid or minimize adverse impacts on biological diversity. Both of these provisions can be linked to the issues of protecting and encouraging the use of indigenous knowledge as part of the process for managing and protecting resources.

Article 17 of the Convention deals with the exchange of information, from all publicly available sources. Para. 2 of the article specifically includes indigenous knowledge among the types of knowledge that should be exchanged under the Convention. Art. 18(4) also includes traditional technologies within the broader language of technologies, thereby expressly placing them on the same plane, at least in so far as it relates to encouraging and developing methods of co-operation for their development and use in pursuit of the objectives of the Convention.

One further factor should be noted here. No definition of indigenous or indigenous knowledge is found in the Convention. Thus, the full scope of application of these provisions of the Convention has not been set out. This also has an impact on the implementation requirements of the Parties.

As noted in the introduction, the inclusion of any provisions relating to indigenous knowledge was one of the more hotly debated aspects of the Convention. Their final inclusion is reflective of the increased appreciation, during the negotiation of the Convention, of the links between biological diversity and cultural diversity. Using and preserving the knowledge of indigenous peoples became understood as one of the important ways to conserve and sustainably use the biodiversity that the knowledge related to. Conserving and sustainably using the resources also came to be understood as critical to maintaining and preserving the indigenous and traditional lifestyles and communities that depend on biological resources for their own sustainability.

Recognition of this circular relationship allows a clearer understanding of the direct and indirect linkages drawn by the inclusion of the indigenous knowledge provisions. Directly, the use of indigenous knowledge provides additional information that supports the conservation of biodiversity. It also provides, in many cases, important insights into the sustainable use of these resources. These are benefits that can be shared with the community at large for the purpose of achieving the Convention goals. Using this knowledge may also help sustain the very lifestyles that are dependent on the resources. Sharing the benefits from the use of the knowledge, whether in a commercial context from the use of a specific resource, or a sound environmental management policy that benefits all, also helps financially and otherwise sustain the communities that harbour this knowledge. These are both direct and indirect relationships between the use and conservation of indigenous knowledge and the use and conservation of biodiversity.

This relationship also highlights the need for a broad set of tools and mechanisms. Reliance on one type of tool, intellectual property rights in the context of this paper, would not accomplish the full range of goals for the protections and use of indigenous knowledge, and the knowledge holders. This paper, therefore, is being written on the basis that IPR or IP related issues are one, but only one, part of the picture.

The choice of mechanisms is compounded by the absence from the Convention of specific requirements on how to implement the obligations in Art. 8(j) and elsewhere, and the relationships they seek to protect and nurture. While each of the references raises the possibility of specific rights and protections for indigenous knowledge per se, none of them actually provide for such rights or protections at the international or national levels. This may in part be a consequence of the uncertainties that surround the definition of indigenous knowledge. It may also reflect considerable concern for the practical modalities in identifying and rewarding such knowledge, and the consequences of the views of some states that they have no indigenous populations. In sum, there is no specific requirement for the same protection for indigenous knowledge as existing intellectual property regimes found in the Convention.

To date, no additional legal steps have been taken by the Biodiversity Convention parties in this area. The approach to this issue has been for the Secretariat of the Convention to undertake a series of studies that concern the various articles noted above, and their inter-relationship.[8] Following this expansive input, a decision was taken specific to the implementation of Art. 8(j) at the Third Conference of the Parties.[9] Paragraph 7 of the Decision mandated an inter-sessional process (i.e. between the third and fourth Conference of the Parties) to be undertaken to report back to the next Conference of the Parties. The most defined goal of the process, as set out in the Annex to the decision, is to assist the Conference of the Parties in setting out a specific work plan for implementing Art. 8(j) and the related articles. As part of this process, Paragraph 9 of this Decision set out the requirement for a five day workshop on Art. 8(j) and related articles of the Convention. It identified the following suite of issues, inter alia, for this workshop in para. 10: technology transfer, access to genetic resources, ownership, intellectual property rights, alternative systems of protection of knowledge, innovations and practices, and incentives, as well as the elaboration of key concepts and terms in Art. 8(j).