Challenges in the TK Debate

8/10/2019 Challenges in the TK Debate

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Challenges in the traditional knowledge-IPR debate

Peggy Fairbairn-Dunlop, University of the South Pacific (USP)

Paper for Chennai Fol low -Up Meeting: Uti l izing Science and Technolo gy for Women's Econom ic

Empowerment: Prog ress and New Challenges, Seoul, Republic o f Korea, Nov 2000 UNESCO/

UNDP

______________________________________________________

Intro

When preparing this talk I found that while many of my Pacific colleagues had a general understandingabout IPRs and about traditional knowledge, they had less understanding of the influence of IPRs ontraditional knowledge systems - nor key terms such as patents, copyright, the WTO, TRIPs, WIPO, suigeneris and community rights, biopiracy, bioethics and bioprospecting.

Country papers presented at the WIPO Pacific regional meeting (1999) showed a range of views. CountyA said there is `not a lot of awareness of this in our country.. these abstract termsare foreign to us'. InCountry B's view IPRs were not necessary because traditional knowledge `was ours and belongs to us'.

This knowledge was safeguarded by customary sanctions. Country C saw a lack of public thrust orinterest in protecting traditional knowledge people were not perturbed by and did not react negativelyto exploitation of traditional avenues, while country D highlighted the fragmented nature of understandingcaused by each ministry and section having their own laws. County E saw increased technology andinformation flow making the `stealing' of ideas easier and untraceable. All participants knew thetraditional crop kava had been `taken over' by foreign investors and they were wary that this wouldhappen to nonu, as seen in these comments:

(Nonu) traditionally a medicinal plant is now exported wholesale as part of a commercializeddeal with an American company for pharmaceutical purposes. To the exporters, the cultural valueof this plant is not significant as long as they get financial gain. But to the Tongan, it is thecommercialized exploitation of a plant which is extricable bound to Tongan tradition and customs.In this case, this lack of definition in coverage of what the laws protects in terms of traditionalcultures seriously needs to be addressed so that indigenous cultural property may receive legalprotection against mere financial exploitation. (Bloomfield 1999).

A second example occurred almost a year ago when I gave a paper at a New Zealand Conferencedescribing a training technique I had developed with the National Council of Women. At the conclusionof my paper a New Zealand woman said `you'd better patent that! An idea far from my thoughts.

The issues

So what do we in the Pacific know about IPRs and, what must women scientists be aware of as weresearch and discuss traditional knowledge and technologies with women (usually rural women) in theinterests of poverty alleviation?

First, we know the protection of expressions of culture is vital to maintaining cultural identity and integrity.

Without effective protection, traditional knowledge and culture are open to pillage and erosion. Not onlythat, most of the economic benefits derived will continue to be diverted to non-indigenous persons andinstitutions. At the same time, we know that the current Western intellectual property regime is concernedprimarily with the protection of economic interest. This does not fit well with indigenous peoples' ideas ofprotecting our traditional culture. The underlying issue is one of ownership. In the Pacific, ownership oftraditional knowledge and expressions of culture is not based on individual rights, as postulated by theWestern copyright and patent laws, but on a system of collective rights that are managed on a custodialbasis according to customary laws. While IPR laws may offer limited support for community knowledgeand innovations, in general they are inappropriate because they seek to privatise ownership; they aredestined to help individual and corporation rather than communities; they are expensive to apply for and


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to maintain; and they give a restrictive interpretation of the invention (see Pacific Concerns ResourceCentre, Fiji).

Second, we know that if we want to make a stand on this issue, timing is critical. IPRs law does notinclude traditional knowledge/ biodiversity related knowledge although TRIPS is trying to devise how todeal with these. So this time of flux and change in IPRs legislation provides an invaluable opportunity fordebate and input. Most countries find the idea of privatising living material or material to be used formedicinal purposes repugnant, and patent laws have been prohibited from extending to living things or tomedicines. However, the need for revision of international standards has seen the creation of a newdivision in the World Intellectual Property Organization (WIPO) the Global Intellectual Property IssuesDivision. This division is exploring the relationship between intellectual property and issues such as theprotection of traditional knowledge, innovations and creativity.

Third we know that through mass mobilisation developing countries can rally the forces to challenge theextension of patenting to life forms under the TRIPS. We know it is the Third Worlds' biodiversity andhuman diversitywhich is being pirated by northern corporations' and, the Third world which is leadingthe debate on the ethics of biosafety. (see Article 19.3 in the Convention on Biological Diversity). Finally,it is clear that the protection of traditional knowledge is vital to women. Pacific women have always beentechnologists, inventing and using the tools for basic agriculture, food gathering and preservation, formaking clothing, mats containers, baskets, paints and dyes water collection and carriage and traditional

medicine. All women's activities rely heavily on natural resources and environmental sustainability.Technology now has wider implications for women: reproductive technologies, new information andcommunication technologies, biotechnology and even nuclear technology influence women whetherconsciously or unconsciously. It is vitally important for women to have sufficient understanding andknowledge to influence programmes and policies and to improve their political understanding of decision-making, regarding developments which affect their lives (see Lechte 1998)

Trade policies impact on welfare of men and women in different ways. Women's concerns relate to theway trade regimes influence health, livelihood and human security. For example, African women arefocussing on the patenting of life forms: they are fearful of the loss of their sources of traditionalmedicines and livelihoods as the corporations expand operation. Women are calling to the end ofbiopiracy - the patenting of indigenous biodiversity-related knowledge such as the anti-diabetic propertiesof various herbs and plants.

Towards solutions: laying the foundation to protect TK and customs

The key challenges in strategies to protect traditional knowledge systems are discussed:national/regional/ global understanding of place of traditional knowledge systems; national understandingof IPR and implications; what kind of protective measures? (mainstream/ new stream); global regional,national and local responsibilities and obligations and the role of women scientists. Debate on theseissues should take place at all levels and by all agencies so as to move discussions away from the WTOarena and into civil society: local, national, regional and international: NGOs, community agencies andGovernment, school curriculums through to trade and commerce agencies; male, female, youth andwomen.

1 National/ regional/ global understanding of the place of traditional knowledge

Why should we protect? (identity human diversity, biodiversity issues); what to share and what weshould try to `keep' and, global conventions to support the protection of traditional knowledge andcustoms

Traditional knowledge is not a commodity owned by individuals to be protected for the economic benefitsthese may yield, but are integral parts of the heritage and identity of the community to which they belong.


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Without doubt, women's knowledge is integral to these systems. Any intellectual property protection mustrecognise these close and continuing links to the cultural heritage. Our knowledge:

Unites communities and recognises the creativity of previous generations'

Releases cultural tensions and ambivalence, educates and entertains.

Is the social cement - provides the cohesion which enhances quality of life and assists in thedevelopment and articulation of cultural identity.

Reflects on the past and is the foundation for the future

Is living and evolving and sets the national legal, moral and cultural values.

Traditional knowledge is documented and conserved in a unique way, passed on in a particular way andat a particular time to specific people. Often those with specialised knowledge cannot explain this inlogical, sequential or teachable way. But they know what to do.

In the fast growing multicultural societies of most Western nations of the world, the protection ofexpressions of culture is important in creating/ maintaining identity, in promoting self-confidence and pride

and, to social survival. Vandana Shiva challenges with the words that `ethics and values are distinctelements of our cultural identify and our pluralistic civilization'

Not only must we understand the role of traditional knowledge in our societies there must also be publicdiscussion about which traditional knowledge can be shared, and which should not be shared (i.e. arecentral to our national psyche) and how this should be done. This is a personal (family) community andnational debate. While this is in many ways a rhetorial question - we cannot control the spread of ideasthrough travel and education and technology such as the internet - this question must still be asked. Thedecision to `share' requires concerted research of the chemical properties and use of traditionalmedicines as well as decisions on how best to trade these.

We can use to advantage the many international laws/ global conventions and local judicial adaptationson this issue . For example, the Convention on Biodiversity (CBD) asserts intellectual property rights mustnot be in conflict with conservation and sustainable use of biodiversity. The CBD acknowledges

sovereignty and the rights of communities to share the benefits of biological diversity, neither of which isacknowledged by TRIPS. The CBD gives countries a great deal of control over their indigenousresources, not just at the government level, but devolving to the communities that have traditionally usedthese resources. The TRIPS agreement on the other hand, seeks to commercialise traditional knowledge;it fails to recognize the relationships between communities and biological resources. It is structured so asto give an unequal advantage to commercial interests of the north. Agreement between the two can beresolved by developing nations taking full advantage of the scope of sui generislegislation, which wouldprotect the interests of the group. (see Annex 1).

Undoubtedly changes in public attitudes to traditional knowledge will be a long time process. Pacificnations do not have a sound appreciation of the value/s of our traditional knowledge beause we havebeen colonised into believing our knowledge is not as good ( valid, or scientific) as Western knowledge.

2 National understanding of IPRs and implications

Getting under the rhetoric of IPR- the hidden agenda, Understanding the IPR processes, andcase studies

First, what is the truth behind the IPR debate? For example,

Global uniformity, rules and regulations backed by legal controls


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Under TRIPS, rules which apply to the US apply also to other developing nations regardless ofdifferences/ stages of development. This is a case of mass rules as against cultural pluralism and theright to be different.

North/ South exploitation or the pooling ideas for the growth of global knowledge?

The underlying aim of IPRs is the growth of global knowledge through the sharing of ideas. It is argued

that encouraging invention through IPRs leads to a better quality of life as all members of society get toenjoy the benefits of that invention. At the same time it is no accident that it is the knowledge from theSouth that is being plundered in acts of blatant biopiracy. There are numerous examples of outrageousclaims to items whose origins were thought indisputable. Vandana Shiva (Independent ResearchFoundation for Science Technology and Ecology) has labelled the basmati patent the theft of theintellectual and biodiversity heritage of individual farmers and traders and a deception of consumers. Wein the Pacific could say the same about the Kava and Nonu (Annex 2)

Second, is understanding the IPR systems. IPR are ownership rights over inventions. If someone inventssomething they expect a) financial returns for knowledge, time and effort (b) social returns - knowing thisinvention is being used by society. IPR laws meet both these aims by giving the owner a monopoly overtheir invention and the right to exploit this invention for a set period. During this period the ownerpublicises the invention and other people can start making further reinventions based on this while

competitors will work in anticipation of when the IPR expires. In theory everyone benefits: the inventorgets the chance to make money from their invention and people in society will enjoy using the invention.IPRs raise clear issues of ownershipand legal processes; private and public domain, controls, and whathappens after the patent period ends and the product becomes part of the public domain.

IPRs are a significant component of world trade but work overwhelmingly in favour of developedcountries. PICS can use existing IPR laws, but the costs of research, applying and enforcing an IPRresult in IPR laws being are rarely used in the Pacific, and patent officers operate mainly to registeroverseas inventions.

Finally actual case studies are needed to show the effects of IPRs. For example, documented casesindicate TRIPS sanctioned patents are depriving patents from having equitable access to essential drugsin African countries. Drug companies seek to justify the high prices charged as being necessary torecoup the high research and development invested in producing that drug. The same justification is used

to defend the use of patents to prevent any competitor from producing cheaper versions of the drug. Thisimpacts on the domestic pharmaceutical industry as well as traditional healers and medicines.

3 What kind of protective measures?

Sui generis legislation, Mainstream/ new stream, the need for definitions

The question is not whether to have global trade rules to protect traditional knowledge and culture , butrather what kind of rules and in whose interest do they operate, and how should these be balanced toensure they do not have an adverse impact on social, health and environmental sphere nor worsenexisting inequalities. A protective system is needed which reconciles the two opposing stances - theknowledge grounded in community and community responsibility and the individual patented knowledgeguarded by legal sanctions. What type of protection is required, if any, and the inadequacy of Europeanlegal institutions to effectively address problems in these areas.

The vision The starting point in protecting TK relates back to a vision of a world order which givescountries the space to implement their own strategies for sustainable multi-dimensional development,while respecting the priorities of other countries. Acceptance of divergent development strategies iscultural - because development cannot be viewed in simple terms of per capita income. It is a multi-dimension process and each country should have the autonomy and flexibility to decide how it prioritizesthese dimensions


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The strategy Sui generis rights (Community Intellectual Rights). The argument for sui generis law isthat current IPR laws operate in a discriminatory fashion and that laws enacted should better reflect therealities of people's lives. The impetus for this sort of law has arisen from the conviction of farmers indeveloping countries that they have not received recognition or compensation for the efforts they haveexpended in domesticating wild crops or improving trade relations. Africa, Asia and South America havealready acknowledged the need for sui generis law. It is argued that the twin platform for sue generisLegislation should be a) communal authorship and b) perpetual protection of traditional knowledge.Denial of perpetual protection, it is argued, is likely to imply agreement to the continuation of culturaldispossession and possibly lead to cultural extinction

Mainstream/ new stream Can the existing IPR laws be adapted to encompass/ integrate traditionalknowledge protection, or do we need new systems?

MAINSTREAM NEW STREAM

IPRs Traditional knowledgesystems

Ownership

Property and process

Time ( x years to publicdomain)

Legal sanctions

Communal

Shared rights

The past, present and future

Protected by communitysocial systems and sanctions

I believe there must be a new system: introducing sui generis based measures into the currentintellectual property regime would be confusing. Sui generislegislation giving indigenous peoples' rightsunknown (outside) the common law is the most viable option. However, prior to the passing of such

legislation, there is a need for education programs to help indigenous/ non-indigenous peoplesunderstand why is it necessary to protect the indigenous cultural heritage and knowledge and why it is notnecessarily discriminatory to do

Some Questions

Systems

Must a system be devised to safeguard the authenticity and genuiness of traditional knowledge andprovide a framework for control? This would prevent traditional knowledge from being appropriatedwithout permission and compensation and would help their meaning, purpose and effect from beingdiluted, denigrated and/or misrepresented. Such a system would require documentation of a) the scopeof cultural heritage - which is a difficult and contentious issue b) the kind of identification to be provided c)

the kinds of protection to be conferred d) the purpose of identification measures e) formulation of rulesand guidelines such as dispute settlements procedures 6) who/ what body would identify or legitimisethese processes.

Defining characteristics

How could traditional knowledge (such as kava planting and use) be considered an invention? A plant isconsidered an invention if it has been altered in some way such as moving a gene from one spot on theDNA chain to another. A new variety of plant found by breeding is considered an invention becausehuman ingenuity has gone into inventing this. In order to be given this ownership right, a plant must be


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distinct, uniform, stable and novel. This type of IPR is known as a Plant Breeders Right and it protects aplant breeder against other using this variety. To qualify for a patent, the invention needs to be novel (newand not previously existing) useful (capable of industry application) and there must be an inventive step-the plant will not be considered for protection if it is already well known to the public (see annex 3definitions)

Authorship and ownership under copyright

Under copyright the basic rule is that the author is the first owner of copyright. This contrasts withcustomary law that emphasizes the concept of group or collective ownership: it is often not possible toidentify the author of the work/ or medicine. Patentsare used extensively overseas for protecting thesediscoveries. In the United States, the Courts have given a liberal interpretation to what they perceive aninvention to be. The mere isolation of a gene or chemical from a plant may be sufficient for patentprotection. An alternation in some way of a plant gene or chemical may also be deemed an invention andtherefore patentable.

Time

A patent gives the holder monopoly rights over the invention for a limited amount of time, typically 17-20years. During this period no one else may use the patent except with permission of the patent holder. The

patent is effective only in the country in which it has been granted, however, the holder may choose toextend his coverage by registering the patent in other countries. A major question here is what happensto the invention/ knowledge after that time - that community have no control over authenticity for example.

How controlled?

Were laws enacted there would still be the question of finding the expertise and moneyto carry out fieldtests and apply for protection.

4 Global and national obligations

The TRIPS agreement obliges WTO member countries to adopt standards of intellectual property rights

protection along the lines of the developed countries. How do these global responsibilities tie with nationalrights and obligations?

International and national priorities. There are many balancing issues such as : government responsibilityto their people and the requirements of an international system; growth with protection of its culturalheritage; the protection of indigenous knowledge in a way that augurs well with WTO obligations andensuring global systems respect the different priorities of countries at various stages of development.

Should international protection be preceded by national legislation? There are numerous examples ofnational efforts to protect traditional knowledge. For example all kava growing countries in the Pacificregion could: ban the export of kava cuttings, except for purposes such as intra-regional cooperation;search databases for claims on existing varieties, chemicals genes etc - taken out by individuals orcompanies and determine their authenticity; get a definitive opinion to the effect that all existing kavavarieties are ineligible for IPR protection; support and keep informed on MTAs regarding kava germplasmin gene banks and ex-situ collections and insist that accessions are the property of the country or regionof births (Source: Peteru 1999)

In a second example, Vanuatu has a Cultural Research Policy covering consultation with localcommunities, chief's councils and women's groups as well as foreign researcher. This ensure a processof using knowledge to the benefit of all parties and a respect for indigenous methods of controllingknowledge. Vanuatu is also promoting aTraditional Property Rights Policy, referred to in the KastomPolicy of the National Council of Chiefs, the Malvatumauri. Under the Traditional Property Rights Policy,traditional copyright is defined as the traditional right of individuals, families or communities to control the


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ways the information they provide is used and accessed the issue of traditional copyright arises whenindividual families or communities either own or are the custodians of specialised (and usually tabu)knowledge and it communications. This knowledge can include names, designs or forms, oral tradition,practices and skills These belong to the ni-Vanuatu, who have a priority right to this knowledge and thatresearch is a cooperative venture intimately involving indigenous communities and their knowledge. Thebottom line is no research without community agreement (Source: Regenvanu (1999)

Unity between national institutions and NGOs Pacific countries have not made a concerted stand onIPR issues. Instead, the debate has been carried out over a wide range of areas (arts, music, mechanicalrights, public performance and broadcast reprographic rights visual arts as well as biodiversity) and bydifferent agencies. For example, government Departments have separate laws within their respectiveadministering Ministry/ Department undermining attempts to form a united strategy.

Promoting and supporting regional moves at consolidating and facilitating the setting up of a coordinatedsystem with sui generis or special protective law will also catalyze local/ national development of policiesand regimes. Governments must have a clear perception of national interest, complemented by ongoingcollaboration with civil society. NGOs such as the Pacific Resources Centre have been stirring leaders inadvocacy on IPRs.For example, a proposal of the Consultation on Indigenous Peoples Knowledge andIntellectual Property Rights held in Suva in 1995 argued for a treaty declaring the Pacific Regions to be alife -forms patent-free zone.

The role of research institutions: In earlier times research institutions focussed on the collection anddissemination of new knowledge - research brought prestige and status of the institutions. Today,research must include IPR implications. For example, the Tissue culture laboratory (USP) is finalising acontract (MTA) which places conditions on the release and use of ex-situ collections of germplasm keptby the USP, particularly at Alafua Campus School of Agriculture. Conditions would include gettingpermission for the country from which the germplasm was taken before it could be released. Where thecountry is not known, as organisation like the Forum Secretariat or the USP may be able to act as thedefault owner on behalf of Pacific Countries. Globally,MTAs are being developed for CGIAR genebanks.

5 Women and

Women scientists play a central role in promoting knowledge about/ safeguarding / finding out anddiscussing these issues. In all our research should be aware of these implications for traditionalknowledge and the knowledge of women. Women's NGOs have also been prominent in raising issues asseen in the publications ofEcowomen and Wainimate Healers (Wainibule) whose activities are fanningout from the Fiji base to include Samoa, Solomon Islands, Tonga and the Marshall Islands. To conclude,women scientists can not say I'll do the research you look after the property rights and patents. We mustall do this together.

Some references

Lechte R (1998) Poverty, Environment and the Roles of Women in Regional Conference on PovertyRelated Core Data Needs for the Asia Pacific Region, Kuala Lumpur, May 1998 UNDP, USRA

Pacific Concerns Resource Centre (n.d) Intellectual property rights and plants sui generis laws

Peteru C (1999) Protection of biological Diversity and Genetic Resources, Symposium on the protectionof traditional knowledge and expressions of indigenous culture in the Pacific Islands,

Regenvanu R (1999) The Vanuatu Cultural Centres' efforts towards protecting indigenous knowledge andcultural expressions inn Vanuatu Symposium on the protection of traditional knowledge and expressionsof indigenous cultures in the Pacific Islands, Noumea Feb 1999

Resurgence, Issue No 120-121, Pharmaceuticals, Patents and Profits


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Shiva V (1997) bioethics: a Third word Issues, Development Bulletin, July

WIPO (2000) Papers from the WIPO Sub-regional seminar on copyright and related rights for SouthPacific countries, Samoa August 2000


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Annex 1 : Global conventions and treaties

UNESCO-WIPO Model provisions for National Law for the protection of Folklore Against IllicitExploitation and other prejudicial actions (1985)

UNESCO-WIPO World Forum on the Protection of Folklore (1997)

ILO Convention no 169. (1991) Article 15

Earth Summit (1992)

UN Draft Declaration on the Rights of Indigenous Peoples Articles 12, 24 and 29. And

The Julayinbul Statement on Indigenous Intellectual Property Rights (1993)

The Phuket Plan of Action formulated at UNESCO-WIPO 1997 World Forum noted that currentlythere is no international standard for protection of expressions of folklore and that the copyrightregime is inept. Delegates called for UNESCO and WIPO to establish a Committee of experts todraft an international agreement on sui generis protection of expressions of folklore, which wouldalso strike a balance between the community owning cultural heritage and the users of

expressions of folklore and traditional knowledge.

WIPO are trying to clarify international norms in this area, Phuket Plan of Action (with UNESO1997)

WIP undertook a Fact Finding Mission in the South Pacific in June 1998 and hosted Roundtableson OP and Indigenous Peoples in 1998 and 1999 in Geneva

In 1999, WIP and UNECO organized Regional consultations on the protection of expressions offolklore, including a Consultation for countries of Asia and the Pacific in Hanoi (April 1999

Convention on Biodiversity (CBD)

TRIPS is in conflict with the Convention on Biodiversity (CBD) since the latter asserts that intellectual

property rights must not be in conflict with conservation and sustainable use of biodiversity

Universal Declaration of Human Rights (1948) Article 18 freedom of religion and thought.Article 26 declares that all people have the right to freely participate in the cultural life of thecommunity to enjoy the arts and to share in the scientific advancement of its benefits. `Everyonehad the right to the protection of the moral and material interests resulting from any scientific,literary or artistic production of when he is the author'

International Covenant on Civil and Political Rights (1976)

Issues pertaining to freedom of expression, religion, from discrimination and self-determination.Article 27 of the Covenant `in those States in which ethnic religious or linguistic minorities existpersons belonging to such minorities shall not be denied the right, in community with other membersof their group, to enjoy their own culture, to profess and practice their own religions, or to use theirlanguage.

ILO Convention (no 169) Concerning Indigenous and Tribal Peoples in Independent countries.ILO Primarily concerned with the protection of indigenous peoples. Government must ensure theprotection of the rights of indigenous and tribal people and there is a responsibility for theirintegrity. The religious, spiritual cultural and social values held by these people must also berespected and recognized and due regard should be given to their custom and customary laws.

The Australian government working party on the protection of aboriginal Folklore recommended


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that the government enact special sui generis legislation to prohibit non-traditional use of sacred -secret materials. Amending the Copyright Act to ensure freedom of customary users to exercisetheir rights. Rejected the suggestion of a register of items of folklore.

The Jahnke Report raised a wide range of concerns about the appropriation of traditionalknowledge of plants, animals and the environment and the use of genetic materials of indigenouspeoples.

Annex 2: The case of kava

Although almost every Pacific Island has patent laws, as far as is known, no patients have been taken outby Pacific Island country on either bio-chemicals found in plants or on plant genetic materials. But thereare examples of plant materials originating in the Pacific being taken to the United States or Europe foranalysis and a) bio-chemicals isolated and subsequently patented, or b) products prepared from the bio-chemical which have been patented. The kava plant is perhaps the most well known example. Theknowledge, uses and modification of medicinal plants by local communities while of critical importance toresearch, have not been given legal recognition and protection, whereas inventions based this knowledgehave

At present all kava varieties are in the public domain. Undoubtedly the best of Pacific kava varieties will

be experimented on so as to create new and improved varieties. Research will eventually focus on thegenetic structures for example, synthetic kavalactone research and tissue culture of kava is alreadyunderway. IPR will be taken out, and superior stock will be planted in overseas plantations. Eventuallythe Pacific will be outclassed at that end of the market. Yet, Pacific farmers have spent thousands ofyears and considerable ingenuity developing kava. They deserve recognition and compensation for this.Moreover, kava is a Pacific plant.

Annex 3: Definitions

A comprehensive report entitled Our Culture: Our Future (Jahhke) examined issues of protection oftraditional knowledge and culture in the existing framework of Intellectual property laws, and suggestedpossible areas of reform.

Definit ion of Indigen ous Cultural and tradit ional knowledg e

To own and control the commercial use of indigenous cultural and intellectual property in accordance withtraditional customary laws

To rule and proper attribution

To protect sacred and significant sites and control lands which are conserved because of their indigenouscultural values

To prevent derogatory offensive and fallacious use of indigenous cultural and IP

To be consulted in the preservation and management and control of cultural artifact, food resources

To control the use of traditional knowledge of medicinal plants, biodiversity environmental management

cultural custom and expression and language. (Source Morris (1999: 4)

Rights

To prevent further erosion of traditional cultural identity, the following rights deserve recognition, amongothers

Indigenous Cultural and intellectual Property refers to Indigenous peoples' rights to their heritage.

Heritage comprises all objects, sites and knowledge, the nature or use of which has been transmitted or


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continues to be transmitted from generation to generation, and which is regarded as pertaining to aparticular Indigenous group or its Territory. Heritage includes

- Literary and artistic works

- Scientific agricultural technical and economic knowledge (inducing cultivators, medicinal plants and thephenotypes of flora and fauna

- All items of movable cultural property

- Human remains and tissues

- Immovable cultural property (including sacred and historically significant sites and burial grounds

- Documentation of indigenous people's heritage in archives, film, photographs videotape or audiotapeand all forms of media

Challenges in the TK Debate

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