Plant plunder, genes and sneakers: can intellectual property be theft?

In numerous declarations and resolutions throughout the world in recent years, thousands of indigenous peoples, non-governmental organizations, coalitions, tribal groups and community representatives have consistently expressed opposition to the growing trend of patenting and marketing medicinal and food plants used traditionally by indigenous peoples, as well as the genetic heritage of animals and humans by multinational corporations, scientists and government institutions.

Indigenous peoples traditionally maintain that the spiritual, physical and cultural well-being of humankind is dependent upon sustaining a harmonious relationship with the living, sacred natural world - a relationship which the Creator has given indigenous peoples the responsibility to safeguard and protect.

The basic components of life, in the traditional indigenous world view, have their own spirits and rights of existence. They cannot be sold, altered or manipulated without grave potential consequences to the essence of that life form and, in turn, to all life forms within its ecosystem and beyond. This perspective underlies the position taken on the issue of "intellectual property" by many indigenous peoples, which is especially adamant as it applies to the growing practice by biotechnology industry of patenting life forms.

Patents, at one time restricted to the protection of industrial processes and applications, are now applied to micro-organisms, animal cells and genes, entire food crop species, and the cell lines of human beings. Under United States legal doctrine, which has served as a model internationally, the "modification" or artificial reproduction of genetic or cell material can be interpreted as "creation" or "invention", allowing patenting of slightly altered biological material, including cell lines "shuffled" from human genes.

Under international "intellectual property" and patenting laws, an "immortalized" or slightly altered animal, plant or human microbial cell line can be owned by an "inventor" such as a corporation, agricultural processor or biomedical company.

In regional and international forums on this issue, indigenous peoples have presented three primary and at times overlapping points of opposition to the patenting of life forms and their components.

The first is based on a principled opposition to any patenting of "life" on cultural and spiritual grounds. Another is based on the position that "bio-piracy" violates indigenous peoples' human fights, religious and cultural beliefs and their right of self-determination with respect to safeguarding the integrity of their lands, ecosystems, traditional knowledge and natural resources. In addition, this practice is carried out with no assurances of meaningful, legally-binding informed consent procedures which ensure determination over its methods of harvesting or use.

A third point is that patenting should be opposed because peoples from whom cultural knowledge, biological resources or genetic material are taken are not guaranteed any financial or health benefits or "ownership rights" to proceeds resulting from the development and marketing of commercial products.

There is a fundamental conflict in worldwide views regarding the meaning and scope of ownership, collective vs. individual rights, and basic relationships between human communities and the natural living world. "Intellectual property" is a marketplace concept intended to create a legally enforceable monopoly so that an individual or corporation can derive exclusive economic benefit from certain practical innovations or physical "inventions" for a period of years.

Such a concept is alien to traditional indigenous peoples, especially applied to that which cannot intrinsically be "owned" in the western sense.

Proponents of globalization and trade liberalization claim that legally enforceable intellectual property rights established under the rubric of free trade will create advances in agriculture and medicine that will benefit all of humankind. Yet, such supposedly universal benefits depend upon exclusive monopolies whereby indigenous peoples' traditional knowledge, ecosystems and biological resources, and even their own genetic heritage, are regarded as free for the taking, without regard or legal protection for the wishes, well-being or economic benefit of the indigenous peoples who have preserved and used them sustainably since time immemorial.

Indigenous ceremonial plants and plant medicines from many regions of the world have been patented for commercial use without the expressed consent or permission of the communities entrusted with their care, a recent example being Ayahuasca, a ceremonial plant long cultivated and used by indigenous peoples of South America. Estimates for total world sales of products derived from indigenous peoples' traditional medicines, plants and technical expertise approach $50 billion.

Incredibly, even indigenous peoples' cell lines and genomes, harvested without prior informed consent, have been patented and are being marketed by international biotechnology companies in one of the fastest growing areas of the biotechnology industry. The General Agreement on Tariffs and Trade's (GATT) agreement on Trade Related Intellectual Property (TRIP), requires GATT signatories to establish national laws protecting intellectual property along the lines of the United States model. Such model would seek protection of films and artistic works, yet it allows for the patenting of life forms. The European Community has recently adopted its own guidelines, also establishing patenting of life forms, including plant genes, as well as cell lines derived from human genomes.

Effective international protections for indigenous peoples and communities in the rapidly expanding "intellectual property" regime are either non-existent or completely inadequate. Several international instruments, including the Universal Declaration on Human Rights (Article 27) and the International Covenant on Economic Social and Cultural Rights (Article 5(d), among others, call for the protection without discrimination of property, which should also apply to the property of indigenous peoples. Yet the World Trade Organization (WTO) and other international trade organizations engage in their activities and enter into their protocols without regard to such human rights or fundamental freedoms. By failing to recognize indigenous peoples as peoples within the meaning of Article 1 in Common to the International Bill of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, Member States of the United Nations deny equal protection to indigenous peoples as afforded to all other peoples of the world. One such purported right of "all peoples" is the right to determine their own economic priorities, "to freely dispose of their natural wealth and resources".

According to GATT signatories and their TRIPS agreement, it would seem that only States and transnational corporations have the right to make free disposition of indigenous wealth and resources. This is considered by indigenous peoples to constitute theft on a massive international scale, however couched in legalities or terminology of the intellectual property rights regime. Most attempts to protect indigenous peoples' genetic material, or the plants and seeds of both traditional farmers and indigenous peoples, are either inadequate or, worse yet, said to have accelerated bio-prospecting activities on indigenous peoples' bodies and lands. For example, the Food and Agriculture Organization of the United Nations (FAO) established the International Fund for Plant Genetic Resources, pursuant to the 1991 revisions of the International Convention for the Protection of New Varieties of Plants, to be distributed to those farmers or peoples who, over the millennia, systematically cultivated plants that are now being used as the source material for patents. Yet FAO's initiative actually resulted in patent-like protection for transnational seed companies and, like other similar initiatives, has not resulted in any real economic benefit to the original caretakers and cultivators of these plants: traditional farmers and indigenous peoples.

Other international organizations have approached the problem as an ethical one, drafting codes, declarations and standards of conduct for research on indigenous peoples and their resources. UNESCO has recently adopted the Universal Declaration on the Human Genome and Human Rights, establishing principles of ethical conduct in the gathering and exploitation of the human gene. The basis of this and similar ethical codes appears to be the concept of informed consent. But whether pertaining to human genes inherited from ancestors or to seeds and plant medicines used and passed down over the generations, a myriad of fundamental questions and cultural distinctions remains regarding who has the right to assert "ownership" and provide consent for their use.

Some have suggested that national intellectual property legislation could be fashioned to recognize the collective rights of peoples also to "own" intellectual property, allowing indigenous peoples to collectively patent or make use of other intellectual property "protections". But such an approach poses what, in most cases, would be insurmountable cultural, practical and economic problems for indigenous peoples. In addition, such "protections" would be useful only for the duration of the patent, after which the genes, seeds or plants would become the "common heritage of mankind", available for economic exploitation by any and all, thereby extinguishing the ability of indigenous peoples to exercise their sacred responsibility to protect these natural resources.

WTO has begun a process of making decisions of import on intellectual property, such as the 1999 review of life parenting, the 2000 TRIPS review and the agenda setting for the millennial round. The input of indigenous peoples in such discussions has been minimal, although some attempts are now being made to reach out to those communities for input on proposed policy developments, such as at the First Roundtable on Intellectual Property and Indigenous Peoples, convened in Geneva on 23 and 24 July 1998 by the World Intellectual Property Organization. However, too often in such discussions, indigenous peoples are not afforded full and effective participation and, furthermore, face an almost insurmountable impasse due to the fundamentally opposed cultural contexts for the issues under discussion.

Some of the most extensive discussions regarding the protection of indigenous peoples' traditional biological knowledge and ecosystems have taken place since 1992 in meetings of the Conference of the Parties (COP) to the Convention on Biological Diversity. Indigenous peoples noted very early in these discussions, particularly in reference to Article 8(j) pertaining to in-situ conservation and the issue of "benefit sharing", that while the Convention recognizes indigenous peoples' contributions and traditional knowledge in this field, it lacks any corresponding mechanisms to safeguard the fundamental rights to protect this knowledge from unwanted commercial exploitation. In May 1998, COP 4 established the "Ad Hoc Open-ended Intersessional Working Group" in order to address the implementation of Article 8(j) and related provisions of the Convention.

Meanwhile, a few States, notably Ethiopia and the Philippines, have taken steps to provide such safeguards on a national level. The Philippines requires that before bio-prospecting can occur, the prior informed consent of indigenous and local communities must be obtained; in the case of indigenous communities, it must be "obtained in accordance with the customary laws of the concerned community".

From the perspective of indigenous peoples, sustainability and cultural integrity are integrally related. As discussions on intellectual property and the meaning and impacts of "benefit sharing" continue, indigenous peoples are unified about the need to implement international standards, which would recognize their inherent right to self-determination as a basis for the protection of their lands, resources and ways of life.

Central to this effort is the international initiative which seeks full adoption of the draft United Nations Declaration on the Rights of Indigenous Peoples. Adopted in 1994 by the United Nations Working Group on Indigenous Populations and the Subcommission on Prevention of Discrimination and Protection of Minorities, the draft Declaration is presently under discussion in the Commission on Human Rights. It includes the recognition, without qualification, of the right of indigenous peoples to self-determination as the fundamental underpinning of all other rights and freedoms essential to their survival.

Article 29 of the Declaration states that "indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, and visual and performing arts."

It is estimated that 80 to 90 per cent of the world's remaining biodiversity is found on indigenous lands. In order to protect this remaining natural abundance for future generations and maintain the delicate balance of nature upon which all life depends, indigenous peoples require the internationally recognized right to control access to their lands and to determine the conditions under which, and the extent (if any) to which, their lands, resources and cultural heritage are to be exploited for commercial purposes.

Indigenous organizations and peoples from all regions of the world have joined in the call for an international moratorium on the patenting of life forms until the grave concerns regarding the spiritual, social, political, legal, health and economic impacts on their peoples can be adequately addressed. The natural world, they continue to maintain, is not a commodity.