I want to focus attention on the intersection of the international legal regimes protectin

THE NEW DISCOVERY DOCTRINE: SOME THOUGHTS ON
PROPERTY RIGHTS AND TRADITIONAL KNOWLEDGE
The recent commercial success of products developed with resort to the knowledge of traditional cultures, such as hoodia,1 has convinced many thatbiological resources, particularly when accompanied by traditional knowledgeabout how to exploit these resources, will be a new gold mine in the twenty-first century.2 Like all gold rushes, the scramble to capture and exploitbiological resources and the traditional knowledge about their use has * Rebecca M. Bratspies is an associate professor of Law at CUNY School of Law. With Russell Miller, she organizes the yearly University of Idaho Symposium on International Law.
Special thanks to the participants of the 2006 Idaho Symposium Indigenous Peoples UnderInternational Law, and to the participants of the 2006 University of Ottawa Right to Food at theNexus of Trade and Technology Symposium for providing valuable feedback on this project,to Caitlin Borgman, Julie Goldscheid, Sid Harring, Penelope Andrews and Russell Miller forreading drafts of this essay, to Shalini Deo for her able research assistance, and to NaomiFlorence Schulz for her endless cooperation. 1. Hoodia is a cactus that is native to the South African Kalahari Desert. For centuries, the hunter-gatherer San people relied on its appetite suppressant qualities to minimize hungerand thirst during long Kalahari hunting expeditions. Based on this traditional use, a SouthAfrican quasi-governmental scientific organization began researching the unique properties ofHoodia. Their animal studies suggested that Hoodia induced rapid weight loss without anyapparent negative side effects. After patenting the biologically active molecule, the SouthAfrican researchers sold the rights to Hoodia to a biotech company. Ultimately Pfizerpurchased the rights for $21 million. The San peoples were completely unaware of theseevents, and received no benefit from this exploitation of their traditional knowledge. The CEOof the biotech company claimed that the South African scientists had led him to believe that "thetribes which used the Hoodia cactus were extinct." Antony Barnett, In Africa the HoodiaCactus Keeps Men Alive: Now Its Secret Is ‘Stolen’ to Make Us Thin, THE GUARDIAN, June 17,2001, available at http://education.guardian.co.uk/print/0,3858,4205467-102275,oo.html. Afteran international outcry, a modest benefit-sharing program was arranged on behalf of the Sanpeople. See San Rights Vis-à-Vis the Hoodia Succulent, WIMSA ANNUAL REPORT ONACTIVITIES 2002/03 (2003), http://www.san.org.za/wimsa/ar2002_3/annualrep10.htm. How-ever, the San have lost the opportunity to profit from exploiting this knowledge, or even todecide whether and how to share their traditional knowledge with the world.
2. Robert Weissman, A Long Strange TRIPS: The Pharmaceutical Industry Drive to Harmonize Global Intellectual Property Rules, and the Remaining WTO Legal AlternativesAvailable to Third World Countries, 17 U. PA. J. INT’L ECON. L. 1069 (1996); see also U.N.
CTR. ON TRANSNATIONAL CORPS. [UNCTC], INTELLECTUAL PROPERTY RIGHTS AND FOREIGNDIRECT INVESTMENT at 23-29, U.N. Doc. ST/CTC/SER.A/24, U.N. Sales No. E.93.II.A.10(1993) (discussing the impact of intellectual property rights on foreign direct investment).
Electronic copy available at: http://ssrn.com/abstract=987042 attracted its share of prospectors, hucksters and thieves. And, like all goldrushes, this one has raised fundamental questions about ownership of thesenewly-discovered, or newly-valued resources.3 Attempts to answer suchquestions have generated a vast literature about biopiracy and traditionalknowledge.4 The discourse surrounding traditional knowledge takes place on a number of levels simultaneously. Trade advocates view ownership of traditionalknowledge and biological diversity through the lens of the World TradeOrganization (WTO) agreements. Environmentalists approach the questionwith ecosystem preservation in mind. Because most of the world’s remainingbiodiversity5 exists within the territories of indigenous peoples, issues ofsovereignty, identity, colonialism, and exploitation inevitably swirl beneaththe surface of the discussions.6 And, of course, all these dialogues occuragainst a backdrop of a globalizing market economy that values resourcesalmost exclusively in terms of their monetary value. So far, the dynamic seems to be a tug of war between two alternative 3. Examples of these fundamental questions are: Are the biological resources in question already owned, or even ownable? If they are already owned, who owns them? If they areownable, how does one acquire ownership? What are the consequences if the resources are notownable at all? These same questions are central to the related, though different set of issuessurrounding the patenting of genetic sequences. See Dorothy Nelkin, A Brief History of thePolitical Work of Genetics, 42 JURIMETRICS J. 121, 127 (2002) (situating attempts by NIH topatent genetic sequences isolated from indigenous groups in a history of eugenics research);Margaret Lock, Genetic Diversity and the Politics of Difference, 75 CHI.-KENT L. REV. 83(1999); Gary Taubes, Scientists Attacked for ‘Patenting’ Pacific Tribe, 270 SCIENCE 1112(1995). The United States has been at the forefront of extending patent protection to a widearray of genetic material isolated from humans and other living organisms. Eric B. Chen, WhoOwns the Property Rights to Your Genetic Material?, 13 U. BALT. INTELL. PROP. L.J. 1, 2(2004) (discussing recent state and federal judicial patterns concerning the granting of propertyrights in human tissue). 4. See, e.g., Paul J. Heald, The Rhetoric of Biopiracy, 11 CARDOZO J. INT'L & COMP. L.
5. Article 2 of the Convention on Biological Diversity (CBD) defines biodiversity as "the variability among living organisms from all sources including, inter alia, terrestrial, marine andother aquatic ecosystems and the ecological complexes of which they are part; this includesdiversity within species, between species and of ecosystems." Convention on BiologicalDiversity, art. 2, June 5, 1992, 31 I.L.M. 818 (1992) [hereinafter CBD].
6. See Russel Lawrence Barsh, How Do You Patent a Landscape? The Perils of Dichotomizing Cultural and Intellectual Property, 8 INT’L J. CULTURAL PROP. 14 (1999)(discussing the close relationship between indigenous knowledge and the landscapes in whichthey arose and terming the insistence on isolatable property rights to be “cognitiveimperialism”).
Electronic copy available at: http://ssrn.com/abstract=987042 property visions: state ownership of biological resources, as articulated inArticle 8j of the Convention on Biological Diversity (CBD),7 and privateownership of these resources under the WTO’s Trade Related Aspects ofIntellectual Property (TRIPS) agreement.8 There is, however, a third aspectto this struggle over traditional knowledge and biological resources. Most ofthe world’s remaining biodiversity exists within indigenous lands andterritories. Rather than as an aspect of state sovereignty over territory, or thefruits of private invention, indigenous leaders conceive of these resources asan aspect of self-determination — as a recognition of their fundamental rightsto property and culture.9 Indigenous groups are thus trying to expand thediscourse over biological resources so that it includes their interests and theirhopes for wresting back control over their territories, resources and heritage.10 This effort is critical because while the tug of war may currently be between TRIPS and CBD over whether to assign ownership of theseresources to individuals or states, both of these regimes potentially conflictwith indigenous claims and aspirations to group ownership of these same 7. CBD, supra note 5, at 826.
8. General Agreement on Tariffs and Trade - Multilateral Trade Negotiations (The Uruguay Round): Agreement on Trade Related Aspects of Intellectual Property Rights,Including Trade in Counterfeit Goods, Dec. 15, 1993, 33 I.L.M. 81, 84 (1994) [hereinafterTRIPS].
9. See U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, Preliminary Report: Protection of the Heritage ofIndigenous Peoples, Annex ¶ 2, U.N. Doc. E/CN.4/Sub.2/1994/31 (July 8, 1994) (prepared byErica-Irene Daes); id. ¶¶ 11-12 (combining cultural and intellectual property of indigenouspeoples under the term “heritage”); S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONALLAW (2d ed. 2004); see also Barsh, supra note 6, at 20 (asserting that “land rights andknowledge are so closely intertwined” and that attempts to separate them are “a peculiarlyWestern reductionism, which views the right to use land as separable from knowledge of howto use land properly”).
10. See, e.g., Int’l Alliance of the Indigenous & Tribal Peoples of the Tropical Forests, Charter of the Indigenous Tribal Peoples of the Tropical Forest (Feb. 15, 1992) (revised Nov.
22, 2002), available at http://www.international-alliance.org/documents/charter_eng.doc;Indigenous Peoples Council on Biocolonialism, Kari-Oca Declaration (May 30, 1992),available at http://www.ipcb.org/resolutions/htmls/karioca.html; ECOSOC, Sub-Comm. onPrevention of Discrimination & Prot. of Minorities, Working Group on Indigenous Populations,Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, U.N.
Doc. E/CN.4/Sub.2/AC.4/1993/CRP.5 (1993) (adopted at the First International Conferenceon the Cultural and Intellectual Property Rights of Indigenous Peoples, Whakatane, N.Z.); biological materials.11 To date, their success has been muted. Indigenous peoples find themselves in direct conflict not only with states but also withmultinational corporations — all vying for control over traditionalknowledge, land and resources.12 As has happened throughout history,aboriginal peoples are too often finding themselves on the losing end of thisstruggle over ownership and access to resources.
Given the resources that have been devoted to developing comprehensive laws to ensure protection of intellectual property one might ask why thecurrent legal system does so little to safeguard the cultural and intellectualproperty interests of indigenous groups. This failure is perhaps even morestriking in light of the bedrock principle in international law that the right toown property is a fundamental human right. The Universal Declaration ofHuman Rights,13 the International Covenant on Civil and Political Rights,14Protocol 1 of the European Convention on Human Rights15 and the American Thammasat Resolution (Dec. 5, 1997), reprinted in SYNTHESIS/REGENERATION, Summer 1998,http://www.greens.org/s-r/16/16-13.html (“Our rights are inalienable; they existed long beforeIPR regimes were established. As legal, political, economic, social and cultural rights, they arepart of peoples’ sovereignty and therefore part of human rights.”); see also DARRELL A. POSEY& GRAHAM DUTFIELD, BEYOND INTELLECTUAL PROPERTY: TOWARD TRADITIONAL RESOURCERIGHTS FOR INDIGENOUS PEOPLES AND LOCAL COMMUNITIES 112 (1996). This is not tosuggest that “indigenous peoples” are some kind of monolith. There are certainly individualsand groups within that community who are eager to commodify and exploit traditionalknowledge. This discussion of the property issues surrounding the exploitation of traditionalknowledge does not depend on the issue being of universal concern within the affectedcommunities.
11. See generally ANAYA, supra note 9.
12. See, e.g., Arthur Manuel & Nicole Schabus, Indigenous Peoples at the Margin of the Global Economy: A Violation of International Human Rights and International Trade Law, 8CHAP. L. REV. 229 (2005) (making this argument in the context of Canada’s Affiliated Tribesand softwood lumber).
13. Universal Declaration of Human Rights, G.A. Res. 217A, at 74, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) (declaring that “everyone has the right to ownproperty” and “no one shall be arbitrarily deprived of his property”), available at http://www.
un.org/Overview/rights.html.
14. International Covenant on Civil and Political Rights, G.A. Res. 2200(XXI), art. 1(2), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 ( Dec. 16, 1966), 999 U.N.T.S. 171,http://www.ohchr.org/english/law/pdf/ccpr.pdf [hereinafter ICCPR] (declaring that all peopleshave the right to fully and freely utilize their natural wealth and resources as they deemappropriate regardless of any international economic agreements). 15. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, art. 1, Mar. 20, 1952, 213 U.N.T.S. 262 (“Every natural or legal person is entitledto the peaceful enjoyment of his possessions.”).
Declaration of the Rights and Duties of Man16 all recognize the right toproperty as fundamental. When the interests and assets of an entire group are, by definition, not embraced within the protective mantle we call property, it ought to promptexploration of some hard questions.17 First and foremost, one must exploremore fully the international community’s proclamation that the right to ownproperty is a fundamental human right. More specifically, one must ask whatwe mean by “property.” To what exactly does one have this human right?Whose definition should or will be used to mark the contours of property? The international community needs to rethink the very idea of property — which people should be entitled to claim what sorts of rights over things andunder what conditions? Although this essay takes up those questions, itcannot begin to answer them all with any kind of rigor. Instead, by laying outthe dimensions of a few of those questions, this essay is intended to spark anew dialogue on the meaning of property. In particular, I hope it will provokea rethinking of how a bounded vision of the right to property has stymied thedevelopment of a full-fledged right to culture, and has trapped indigenouspeoples in a seemingly unending cycle of dispossession and exploitation.
Part I of this essay provides a brief background on the conflict over traditional knowledge. Part II details aboriginal aspirations for ownership ofthese resources and situates those aspirations in the broader context of TRIPSand the Convention on Biodiversity. Part III explores the relationship betweentraditional knowledge and patent protection. Part IV draws some parallelsbetween contemporary debates over whether traditional knowledge should beprotected by intellectual property regimes and historical debates overaboriginal land rights.
Most of the earth’s remaining biodiversity is located in the global south.
The region’s countless varieties of plants and trees are viewed as a treasuretrove of genetic material with innumerable potential applications. More 16. American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, art. XXIII (1948), OEA/Ser.L/V/I.4Rev. (affirming the right of every person to "own such private propertyas meets the essential needs of decent living and helps to maintain the dignity of the individualand of the home”).
17. Scholars are beginning to explore this point. See, e.g., Malla Pollack, Towards a Feminist Theory of the Public Domain, or Rejecting the Gendered Scope of United StatesCopyrightable and Patentable Subject Matter, 12 WM. & MARY J. WOMEN & L. 603 (2006)(asserting that the public domain is inherently feminist).
importantly, these resources are perceived as unexplored and unowned — avast commons of potential riches awaiting claimants. Never mind that theseresources are already in use, or that their value hinges, at least in part, uponthat use. One easy way to identify a useful compound is to begin by tapping into the work of local communities that have long studied and experimented touncover the medicinal, agricultural and scientific properties of theseresources. The “discovered” compound can then be patented by the researchers, enablingthem to exploit the biological resource for a profit and to exclude others fromfreely accessing and exploiting their proprietary resource. Once issued, thepatent essentially acts as a toll on commerce, one that may make its holderwealthy. The community that developed the know-how, by contrast, ownsnothing and receives nothing. Its technology and knowledge are the publicdomain.
This situation should sound familiar. Once again, outsiders are coming into traditional communities and their territories in search of gold (this timemetaphorical rather than literal) with little or no regard for those whocurrently possess and use that gold. The imbalances inherent in that equationhave not gone unnoticed. Indeed, many have observed that the rush to exploitbiological resources strongly resembles the extravagant claims of ownershipmade by outsiders coming to the “new world” during the Age of Discovery.18 Most legal regimes award the mantle of “property,” with its attendant rights, only to the tangible goods produced by indigenous cultures, paying noattention to the contexts in which those goods were produced and used.19 Asa result, these legal regimes too often try to force indigenous resources intoproperty definitions external to the cultures themselves.20 In this process, 18. See infra Part V.
19. See Barsh, supra note 6. By contrast, the International Covenant on Civil and Political Rights suggests a broader vision that includes all aspects of a group’s history, works, traditions,practices and knowledge within the sphere of protection. ICCPR, supra note 14, art. 26(providing that persons belonging to "ethnic, religious or linguistic minorities . . . shall not bedenied the right, in community, with other members of their group, to enjoy their own culture. . . .").
20. See, e.g., Michael Blakeney, Communal Intellectual Property Rights of Indigenous Peoples in Cultural Expressions, 1 J. WORLD INTELL. PROP. 985, 986 (1998) (noting that amajor flaw of the existing international regimes is the refusal to permit indigenous communitiesto claim and enforce communal intellectual property rights); Michael Blakeney, IntellectualProperty in Dreamtime: Protecting the Cultural Creativity of Indigenous Peoples (OxfordIntellectual Prop. Research Ctr., Working Paper No. 11/99, 1999), available at http://www.
oiprc.ox.ac.uk/EJWP1199.html.
indigenous cultures wind up compartmentalized, with artifacts entitled tolegal protection as “cultural property,”21 but with the real wealth ofindigenous peoples - their traditional knowledge about biodiversity, theirfolklore, designs and traditions - left outside this mantle of protection. Thiscompartmentalization has been the subject of stringent criticism as aninappropriate attempt to sandwich non-Western cultures into a westernCartesian worldview.22 The role that it plays in facilitating a transfer ofwealth from indigenous cultures to multi-national corporations and non-indigenous researchers has been the subject of less attention.
For indigenous groups, ownership of their traditional knowledge is inextricably linked with issues of sovereignty and cultural survival.23 Thislinkage is slowly filtering into the mainstream international discourse. Forexample, the World Intellectual Property Organization (WIPO)Intergovernmental Committee on Intellectual Property and GeneticResources, Traditional Knowledge and Folklore has worked very hard todevelop intellectual property policies capable of responding to indigenousaspirations. Similarly, the Draft Declaration on the Rights of Indigenous 21. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231, 234, 10 I.L.M.
289; Native American Graves Protection and Repatriation Act of 1990, 25 U.S.C. § 3001(3)(D)(2000).
22. For this reason, many believe that “heritage” is a better, more inclusive term. Heritage has alternatively been defined to include “all expressions of the relationship between the people,their land and the other living beings and spirits which share the land, and is the basis formaintaining social, economic and diplomatic relationships-through sharing-with other peoples”or “all objects, sites and knowledge the nature or use of which has been transmitted fromgeneration to generation, and which is regarded as pertaining to a particular people or itsterritory.” ECOSOC, Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, Studyon the Protection of the Cultural and Intellectual Property of Indigenous Peoples, ¶ 164, U.N.
Doc. E/CN.4/Sub.2/1993/28, (July 28, 1993) (prepared by Erica-Irene Daes) [hereinafterECOSOC, Study on the Protection of the Cultural and Intellectual Property of IndigenousPeoples]; ECOSOC, Sub-Comm. on the Prevention of Discrimination and Prot. of Minorities,Final Report on the Protection of the Heritage of Indigenous People ¶ 11, U.N.Doc.
E/CN.4/Sub.2/1995/26 (June 21, 1995) (prepared by Erica-Irene Daes); see also Barsh, supranote 6. A full discussion of this definitional issue is beyond the scope of this essay, it is enoughto note this wider discussion as a backdrop for the exploration of how international law treatstraditional knowledge about biological resources.
23. See, e.g., ANAYA, supra note 9.
Peoples24 not only expressly recognizes that indigenous peoples have a rightto “the past, present and future manifestations of their cultures, . . .
technologies and . . . cultural, intellectual, religious and spiritual property,”25but it also indicates that rights to indigenous knowledge, innovations, andpractices (referred to as “cultural and intellectual property”) cannot bediscussed in isolation from indigenous peoples’ rights to their territories andresources.26 The Draft Declaration specifically recognizes the “distinctivespiritual and material relationship” of indigenous peoples with their lands andterritories.27 Similarly, the 1989 amendments to the International LabourOrganisation’s (ILO) Convention (No. 169) Concerning Indigenous andTribal Peoples in Independent Countries recognized the special relationshipof indigenous cultures and peoples with the land and territories.28 Convention169 also recognized the central importance of traditional lands to indigenouscultures and spiritual values.29 Unfortunately, the Draft Declaration has yet to be adopted,30 and few countries have ratified ILO Convention 169.31 In short, these measures areonly a beginning. They have yet to displace or even profoundly influence thetwo major international law paradigms, those stemming from TRIPS and fromthe CBD. Thus, it is worth looking at each regime in turn.
24. ECOSOC, Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, Technical Review of the Draft Declaration on the Rights of Indigenous Peoples, Addition, U.N.
Doc. E/CN.4/Sub.2/1994/2/Add.1 (Apr. 20, 1994). 25. Id. art. 12.
26. Id. arts. 25, 29.
27. Id. art. 25.
28. International Labour Organisation [ILO], Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, arts. 13-14, June 27, 1989, 28 I.L.M. 1382(entered into force Sept. 5, 1991).
29. Id. art. 13(1).
30. On July 29, 2006, the United Nations Human Rights Council adopted the Declaration on the Rights of Indigenous Peoples and recommended its adoption by the General Assembly.
H.R.C. Res. 2006/2, U.N. Human Rights Council, U.N. Doc. A/HRC/1/L.10 (June 30, 2006).
The vote was thirty in favor, two opposed (Canada and the Russian Federation) with twelveabstentions. Id. In December 2006, however, the General Assembly deferred adoption of theDraft Declaration to “allow more time for further consultation.” Press Release, U.N. Gen.
Assembly, Concluding Consideration of Third Committee Reports, General Assembly AdoptsConvention on Enforced Disappearance, U.N. Doc GA/10563 (Dec. 20, 2006), available athttp://www.un.org/News/Press/docs/2006/ga10563.doc.htm.
31. Currently only seventeen countries have ratified ILO Convention 169. International Labour Organisation, ILOLEX: Conventions, http://www.ilo.org/ilolex/english/convdisp.htm(last visited Jan. 20, 2007).
A. Private Ownership of Resources Under TRIPS The WTO’s TRIPS agreement, which has been described as a regime of “hyperownership,”32 radically reshaped intellectual property law, especiallywith regard to genetic resources and biodiversity. Prior to the 1994 adoptionof TRIPS as part of the Uruguay Round of the GATT multilateral tradenegotiations, intellectual property was not covered by the GATT agreement.
Instead, each country had its own national intellectual property laws, with afew international conventions like the Berne Convention33 and theInternational Union for the Protection of New Varieties of Plants34 (UPOV)serving as a common backdrop. Traditionally, intellectual property was adomestic, rather than an international issue; states were free to set their ownlevel of protection based on their particular circumstances. TRIPS changedall that by establishing universal and uniform standards for intellectualproperty law.
To generalize, the United States,35 the European Union36 and Japan37 had expansive intellectual property regimes that provided strong protections toindividual inventors for a broad array of inventions. Developing countries,by contrast, granted fewer protections to a more narrow class of inventions,and many refused to recognize intellectual property claims to medicines,foods and other essential items. India, for example did not permit patentingof pharmaceuticals or living organisms.38 TRIPS, by contrast, imposed a 32. Sabrina Safrin, Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life, 98 AM. J. INT’L L. 641, 641(2004).
33. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, 828 U.N.T.S. 221, (amended Sept. 28, 1979), available at http://www.wipo.int/treaties/en/ip/berne/pdf/trtdocs_wo001.pdf.
34. International Union for the Protection of New Varieties of Plants, http://www.upov.
int/en/publications/conventions/1991/act1991.htm (last visited Jan. 20, 2007).
35. Even under the TRIPS Agreement, United States law continues to permit the imposition of sanctions against countries that in its unilateral view deny "provision of adequate andeffective protection of intellectual property rights notwithstanding the fact that the foreigncountry may be in compliance with the specific obligations of the Agreement on Trade-RelatedAspects of Intellectual Property Rights." 19 U.S.C. § 2411(d)(3)(B)(i)(II) (2000).
36. Convention on the Grant of European Patents, Oct. 5, 1973, 1065 U.N.T.S. 255, 13 37. Patent Law No. 121 (filed Apr. 1959), amended by Law No. 102 (Oct. 2005) (Japan).
38. Averie K. Hason & Jean E. Shimotake, Global Interdependence and International Commercial Law: Recent Developments in Patent Rights for Pharmaceuticals in China andIndia, 18 PACE INT’L L. REV. 303, 309 (2006); see also Theresa Beeby Lewis, Patent Protectionfor the Pharmaceutical Industry: A Survey of the Patent Laws of Various Countries, 30 INT’LLAW. 835, 858-59 (1996). one-size-fits-all approach that created mandatory minimum standardsregardless of the state’s domestic situation.
Indeed, TRIPS was intended to standardize these differences in intellectual property protection between the nations of the global north and the globalsouth. Because the United States, the European Union, and, to a lesser extent,Japan wield tremendous influence in the WTO, their voices drew the mostattention in the process of drafting the TRIPS agreement. These nations were,in turn, influenced by the commercial interests of their corporate citizens. Infact, the TRIPS agreement was drafted and introduced in the Uruguay Roundof GATT by an American industry coalition, the Intellectual PropertyCommittee (IPC), which conducted what it called “missionary work” to sellthe idea to the international community. James Enyart, Monsanto’s Directorof International Affairs at that time, is credited as having described thisstrategy as absolutely unprecedented in GATT. Industry has identified amajor problem for international trade. It crafted a solution,reduced it to a concrete proposal and sold it to our own and othergovernments . . . . The industries and traders of world commercehave played simultaneously the role of patients, the diagnosticiansand the prescribing physicians.39 The WTO negotiations succeeded in reshaping international trade because the process bundled previously unrelated areas into a single take-it-or-leave-itpackage. To participate in the global economy, states had to agree to abideby all the agreements that make up the WTO. Among the mass of terms werenew intellectual property standards. By linking specified levels of intellectualproperty protection to previously unrelated trade issues, such as labor and 39. Vandana Shiva, The Real Reasons for the Second Amendment of the Indian Patent Act, SYNTHESIS/REGENERATION, Winter 2003, http://www.greens.org/s-r/30/30-19.html; see alsoVANDANA SHIVA, BIOPIRACY: THE PLUNDER OF NATURE AND KNOWLEDGE 81 (1997) (notingthat TRIPS was conceived and shaped by coalitions of U.S., Japanese and Europeancorporations); George Monbiot, Human Traffic (Oct. 28, 1999), http://www.monbiot.com/archives/1999/10/28/human-traffic/; Primal Seeds.org, Patents, http://www.primalseeds.org/patents.htm (last visited Jan. 22, 2007). Although the exact words may be apocryphal, thestatement captures the dynamic of the TRIPS negotiation. It is undisputed that it was anindustry-led process. The IPC consisted of a small group of self-appointed executives fromWestern pharmaceutical, entertainment, and software multinationals. Together, they designedand sold the TRIPS agreement with the interests of their high-tech industries in mind. SUSANK. SELL, PRIVATE POWER, PUBLIC LAW: THE GLOBALIZATION OF INTELLECTUAL PROPERTYRIGHTS (2003); MICHAEL P. RYAN, KNOWLEDGE DIPLOMACY: GLOBAL COMPETITION AND THEPOLITICS OF INTELLECTUAL PROPERTY 91-121 (1998).
environment, the TRIPS negotiation forced developing countries to sign onto higher standards of intellectual property than their state of developmentwould otherwise have dictated.40 These intellectual property standards arehaving profound effects.
Many scholars have commented on these marked asymmetries in the development of intellectual property norms and principles captured by theTRIPS agreement.41 Nowhere is that asymmetry as sharply delineated as itis in the treatment of the claims of indigenous peoples to a property interestin their traditional knowledge and biological resources. This asymmetrystems in large part from one of the most significant changes in intellectualproperty rights through TRIPS — the expansion of the kinds of things thatwill be patentable.
In particular, TRIPS Article 27, entitled “Patentable Subject Matter,” requires marked changes to the domestic patent law of many states. UnderArticle 27.1, states must ensure that patents “shall be available for anyinventions, whether products or processes, in all fields of technology,provided that they are new, involve an inventive step and are capable ofindustrial application.”42 The most controversial portion of the TRIPSagreement, at least from the indigenous rights perspective, has been Article27.3’s requirement that states include plants and animals within theinventions eligible for patenting (or develop a sui generis plan for protectingthese inventions).
Arguably there is room within the TRIPS agreement to reshape implementation in a manner that protects traditional knowledge.43 Article 7identifies the objectives of the entire TRIPS agreement as to “contribute to thepromotion of technological innovation and to the transfer and disseminationof technology, to the mutual advantage of producers and users of 40. See, e.g., Symposium, The Boundaries of the WTO, 96 AM. J. INT’L L. 1 (2002); Jose M. Salazar-Xirinachs, The Trade-Labor Nexus: Developing Countries’ Perspectives, 3 J. INT’LECON. L. 377, 381 (2000) (discussing reasons for Latin American and Caribbean countries’opposition to linking trade and labor issues in trade negotiations and agreements).
41. See, e.g., CARLOS M. CORREA, INTELLECTUAL PROPERTY RIGHTS, THE WTO AND DEVELOPING COUNTRIES: THE TRIPS AGREEMENT AND POLICY OPTIONS 5-6 (2000); Paul J.
Heald, Mowing the Playing Field: Addressing Information Distortion and Asymmetry in theTRIPS Game, 88 MINN. L. REV. 249 (2003); Ruth L. Okediji, Public Welfare and the Role ofthe WTO Reconsidering the TRIPS Agreement, 17 EMORY INT’L L. REV. 819, 888 (2003).
42. TRIPS, supra note 8, art. 27.1.
43. See Margaret Chon, Intellectual Property and the Development Divide, 27 CARDOZO L. REV. 2821 (2006) (arguing that TRIPS can be read to incorporate substantive equalitynorms). technological knowledge and in a manner conducive to social and economicwelfare, and to a balance of rights and obligations.”44 This language, togetherwith Article 8, which provides that member states may adopt measuresnecessary to protect public health and to promote the public interest in“sectors of vital importance to their socio-economic and technologicaldevelopment,”45 was included in the final TRIPS agreement at the behest ofdeveloping countries. These provisions have become something of a rallyingcry for groups attempting to blunt the force of Article 27.3.46 Recently, there has been some modest success in this campaign. In Paragraph 19 of the Doha Round Ministerial Declaration, for example,negotiators reaffirmed that Article 27.3(b) needs to be reconsidered in lightof the Article 7 and 8 objectives, with regard to traditional knowledge.47 TheDeclaration emphasized that this is to be accomplished in the context ofprotecting the rights of developing states and the environment, with referenceto CBD.48 Nonetheless, the focus to date has been predominantly onprotecting producers by expanding protections rather than on balancinginterests. According to the WTO, “[i]ntellectual property rights are the rights given to people over the creations of their minds.”49 Yet the way TRIPS isstructured, it is difficult, if not impossible, for indigenous groups to claim anyintellectual property rights over the unmediated products of their traditionalknowledge. As a result, indigenous and traditional knowledge is consignedto the global commons. This produces a striking imbalance — the “creations 44. TRIPS, supra note 8, art. 7.
45. Id. art. 8.
46. For example, the argument for compulsory licensing of AIDS drugs relied heavily on Article 8. See, e.g., WTO, Council for TRIPS, Submission by the African Group, Barbados,Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Honduras, India, Indonesia, Jamaica,Pakistan, Paraguay, Philippines, Peru, Sri Lanka, Thailand and Venezuela, ¶ 22, IP/C/W/296(June 29, 2001), available at: http://commerce.nic.in/wto_sub/TRIPS/sub_Trips-ipcw296.htm.;Uché Ewelukwa, Patent Wars In The Valley Of The Shadow Of Death: The PharmaceuticalIndustry, Ethics, And Global Trade, 59 U. MIAMI L. REV. 203, 277-78 (2005).
47. World Trade Organization [WTO] Ministerial Conference, Ministerial Declaration of 14 November 2001, ¶ 19, WT/MIN(01)/DEC/1, 41 I.L.M. 746 (2002); see also Haochen Sun,A Wider Access to Patented Drugs Under the TRIPS Agreement, 21 B.U. INT’L L.J. 101, 104(2003) (hailing the Doha Declaration as a turning point “for legal and political relations at theWTO”). The ramifications of this Declaration’s language remains to be seen.
48. Sun, supra note 47, at 104-05. For a discussion of why the CBD alone does not protect indigenous peoples, see infra Part II(B).
49. TRIPS Material on the WTO Website, Intellectual Property Rights and the TRIPS Agreement, http://www.wto.org/english/tratope/trips_e/trips_e.htm (last visited Jan. 20, 2007).
of the mind” of modern science are considered property and eligible for thefull panoply of TRIPS protections, while the “creations of the mind” ofindigenous peoples are not.
When goods and services are made possible by combining traditional knowledge with western science, the contributor of the western scientificthinking is entitled to patent protection — a recognition of his or her propertyinterest in creations of the mind — under TRIPS, the contributor of traditionalknowledge is entitled to nothing. At its worst, TRIPS legitimizes the transferof exclusive ownership and control of biological resources and traditionalknowledge from indigenous innovators to western ones, with no recognition,reward or protection for the contributions of the indigenous innovators.50 50. Unfortunately there are many examples of this, such as Neem, Ayahuasca, and rosy periwinkle. For centuries the products of the Neem tree have been employed in India for amyriad of uses: insect repellent, fungicide, Ayurvedic medicine toiletries and cosmetics.
Nevertheless, in 1994, the European Patent office granted USDA and W.R. Grace patentnumber 436257 for use of a neem extract as a fungicide. After a decade-long court battle,opponents of the patent ultimately succeeded in having the patent invalidated on the ground ofprior public use. See India Hails EPO Ruling Against Patent Relating to TraditionalKnowledge, 14 World Intell. Prop. Rep. (BNA) 10 (Apr. 2005), available at http://pubs.bna.
com/ip/BNA/wipr.nsf/is/a0b0q7m3d0 (subscription only) (on file with author); Press Release,European Patent Office, “Neem Tree Oil” Case: European Patent No. 0436 257 Revoked (May10, 2000), available at http://www.european-patent-office.org/news/pressrel/ 2000_05_11_e.htm. For a discussion of this litigation, see, e.g., LINDA BULLARD, RESEARCH FOUND. FOR SCI.,TECH. & ECOLOGY, FREEING THE FREE TREE: A BRIEFING PAPER ON THE FIRST LEGAL DEFEATOF A BIOPIRACY PATENT: THE NEEM CASE (2005), available at http://www.ifoam.org/press/press/pdfs/Briefing_Neem.pdf; ANJA VON HAHN ET AL., INDIGENOUS HERITAGE ANDINTELLECTUAL PROPERTY 73-76 (Silke von Lewinski ed., 2004). Ayahuasca (Banisteriopsiscaapi) is a sacred plant for the Amazon Quichia people, who use it for medicinal and ritualpurposes. In 1986, Loren Miller, a United States scientist who had done research in Ecuador,was granted U.S. patent No. 5751 on Ayahuasca under the name “Da Vine.” After a concertedeffort by the Coordinating Body of the Indigenous Organizations of the Amazon Basin(COICA), which represented mor than 400 Amazon tribes, and the Centre for InternationalEnvironmental Law (CIEL), the U.S. Patent and Trademark Office (USPTO) re-examined andrevoked the patent in 1999 on ground of lack of novelty. However in 2001, six days after theBush Administration took office, the USPTO reversed itself and restored the patent. USPTO,Notice of Intent to Issue Reexamination Certificate: Statement of Reasons for Patentability orConfirmation (Jan. 26, 2001), available at http://www.ciel.org/Publications/PTO_Examiner_Transcript.pdf; see Leanne M. Fecteau, The Ayahuasca Patent Revocation: Raising QuestionsAbout Current U.S. Patent Policy, 21 B.C. THIRD WORLD L.J. 69, 69-70, 84 (2001). TheAyahuasca patent expired in 2003. For a discussion of the rosy periwinkle see James O. Odek,Bio-Piracy: Creating Proprietary Rights in Plant Genetic Resources, 2 J. INTELL. PROP. L. 141,143, 147 (1994); Shayana Kadidal, Plants, Poverty, and Pharmaceutical Patents, 103 YALE L.J.
223, 223 (1993). For a thorough exploration of the issue of biopiracy and bioprospecting in thecontext of Africa, see Debbie Collier, Access to and Control over Plant Genetic Resources for Thus, in the definitional moment itself, TRIPS excludes indigenous innovation about biological diversity from what will be property in this newglobalized legal world. This treatment stands as a sharp contrast to the patentrights that biotechnology routinely generates, and that TRIPS requires berecognized. By defining property to exclude the resources of indigenouspeoples while including what is developed from those resources, this visionof property reconstructs the cycle of dependency that was at the heart ofcolonialism. TRIPS has to date proven itself resistant to accommodating and protecting indigenous works within the hyper-owned world it has created. While theDoha Declaration recognized this problem of inequitable recognition ofproperty rights, the Minister’s state-based perspective suggests that thefundamental problem of inequity with regard to indigenous rights is unlikelyto be resolved in the near future.
B. State Ownership of Resources Under the Convention on BiologicalDiversity In contrast to TRIPS, the Convention on Biological Diversity (CBD) vests ownership of biological resources in nation-states. Article 8(j) of the CBD isthe operative provision for purposes of considering indigenous knowledge.51This provision frames traditional knowledge and biological resources throughthe lens of state sovereignty, and vests ownership of these resources in thestate52 (thus treating traditional knowledge much like a tangible resource akin Food and Agriculture in South and Southern Africa: How Many Wrongs Before a Right?, 7MINN. J. L. SCI. & TECH. 529 (2006). But see MICHAEL F. BROWN, WHO OWNS NATIVECULTURE? 136-38 (2003); Jim Chen, There’s No Such Thing as Biopiracy . . . and It’s a GoodThing Too, 37 MCGEORGE L. REV. 1 (2006). In pointing out the great disparity in treatment ofintellectual contributions in these instances, this essay is not meant to suggest that these casesare easy or that recognition of traditional knowledge would not be challenging. Indeed, it wouldrequire a rethinking of what will be considered property — exactly what this essay proposes.
Each Contracting Party shall, as far as possible and as appropriate: . . . .(j) Subjectto its national legislation, respect, preserve and maintain knowledge, innovationsand practices of indigenous and local communities embodying traditionallifestyles relevant for the conservation and sustainable use of biological diversityand promote their wider application with the approval and involvement of theholders of such knowledge, innovations and practices and encourage the equitablesharing of the benefits arising from the utilization of such knowledge, innovationsand practices.
CBD, supra note 5, art. 8(j).
52. Id. art. 3; see also International Treaty on Plant Genetic Resources for Food and to oil or uranium). Along with Principle 22 of the Rio Declaration,53 the CBDlooks at the protection of traditional knowledge as an essential component ofthe broader concern for global ecological sustainability.
This perspective was hailed by many as a victory for developing states and for the environment. Activists have sought to use it as leverage in theiropposition to the TRIPS 27.3(b) requirement that states recognize patentrights in plants and genetic resources. Vandana Shiva, for example, arguesthat the CBD permits protection of traditional knowledge as the “commonproperty of the people of India, and as a national heritage” despite anyprovisions of TRIPS to the contrary.54 Even if activists are successful in staking out room for states to maneuver around the TRIPS patenting requirement, that victory alone will not satisfythe aspirations of indigenous peoples to have control over their resources andknowledge. Neither Article 8(j) nor anything else in the CBD recognizes orvests any rights in indigenous peoples. The Conference of Parties has takensteps to remedy this deficiency by creating an ad hoc working group todevelop guidelines on access and benefit-sharing. In 2001, the working groupproposed “Draft Bonn Guidelines on Access to Genetic Resources and Fairand Equitable Sharing of the Benefits Arising out of their Utilization.”55 Thisdraft mentions the rights of indigenous communities to their traditionalknowledge and calls for prior informed consent as well as benefit-sharing.56However, the Guidelines are only recommendations for voluntary state action, Agriculture, art. 10, opened for signature Nov. 3, 2001 (entered into force June 2004), availableat ftp://ftp.fao.org/ag/cgrfa/it/ITPGRe.pdf (characterizing these resources as “sovereign nationalproperty” though the treaty also commits states to the principle of equitable benefit sharing).
53. U.N. Conference on Environment and Development, Rio de Janeiro, June 3-14, 1992, Rio Declaration on Environment and Development, princ. 22, U.N. Doc. A/CONF.151/6/Rev.1(June 14, 1992), 31 I.L.M. 874. Principle 22 provides: Indigenous people and their communities, and other local communities, have avital role in environmental management and development because of theirknowledge and traditional practices. States should recognize and duly supporttheir identity, culture and interests and enable their effective participation in theachievement of sustainable development.
54. Vandana Shiva, Biopiracy: Need to Change Western IPR Systems (Dec. 22, 1999), http://www.sedos.org/english/shiva.htm. This is an argument she has made frequently 55. Conference of the Parties to the Convention on Biological Diversity, Hague, Apr. 8-19, 2002, Report of the Ad Hoc Open-ended Working Group on Access and Benefit-Sharing, 14,U.N. Doc. UNEP/CBD/COP/6/6 (Oct. 31, 2001), available at http://www.biodiv.org/doc/meetings/cop/cop-06/official/cop-06-06-en.pdf. not mandatory requirements.57 Thus, the Guidelines are vastly different thanthe requirements imposed by TRIPS. Even if these Guidelines weremandatory, it is not clear how much effect they would have. Where TRIPSis backed by the power of the WTO Dispute Resolution process, the CBDenforcement measures are quite weak. That makes it unlikely that a CBDruling would be enforced at the expense of interests protected by TRIPS.58 Moreover, vesting ownership and control of traditional knowledge in states can be extremely problematic. Westphalia aside, states often cannot betrusted to protect the interests of their citizens, particularly the interests ofminority groups.59 This phenomenon is of even more concern when theinterests of historically oppressed minority groups, like most indigenouspeoples, conflict with the perceived interests of the majority culture. This isa situation in which indigenous groups often find themselves. While stateownership can give states the needed leverage to protect traditionalknowledge,60 state ownership can also hasten the dispossession of indigenousgroups as states clamor for foreign investment.61 Another more subtle risk is state pressure in the form of investments (often in conjunction with foreign partners) designed to transform indigenouscultures into a marketable commodity. With the growth of eco-tourism andcultural tours, commodification of indigenous culture has become a big 57. Id. at 14, ¶ 4.
58. Another major roadblock to the success of the Biodiversity Convention more generally is the failure of the United States to ratify it. Since its inception, the United States has beencritical of the Biodiversity Convention, largely on this very ground--that it would impairAmerican intellectual property rights.
59. See Rosemary Coombe, Intellectual Property, Human Rights & Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and theConservation of Biodiversity, 6 IND. J. GLOBAL LEGAL STUD. 59 (1998).
60. For example, members of the Andean Community have adopted a Common Regime on Access to Genetic Resources, and a Common Intellectual Property regime. These regimeslay out conditions for access to genetic resources, their by-products, and associated knowledge.
Read together, these regimes enabled Andean Community to create a property regime thatrequires the consent of indigenous communities and a plan for equitable profit sharing beforeany patent can be claimed for a product derived from genetic resources or traditionalknowledge. Andean Community/Decision 391: Common Regime on Access to GeneticResources (July 2, 1996), http://www.comunidadandina.org/ingles/normativa/d391e.htm;Andean Community: Decision 486 (Sept. 14, 2000), http://www.comunidadandina.org/ingles/normativa/d486e.htm. Similarly, Costa Rica’s Biodiversity Law mentions indigenous peoplesin the context of access to genetic resources. However, in both cases, implementation has beenthe big challenge.
61. See, e.g., Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2003 Inter-Am. Ct.
H.R. (ser. C) No. 79, at 232 (Aug. 31, 2001).
business. Only rarely do the indigenous groups in question have control ofthis process, raising concerns and allegations about “cultural theft.”62 III. Traditional Knowledge and Patent Protection In the context of traditional knowledge, the state-ownership regime envisioned by the CBD collides head on with the private ownership modelembedded in TRIPS. Given the sovereignty aspirations of indigenouspeoples,63 this collision might be an opportunity to rethink the meaning ofproperty systems.
The basic problem is that the intellectual property principles embedded in TRIPS were largely developed to meet the needs of a capitalist marketeconomy. As a result, the very terminology of western intellectual propertylaw is largely antithetical to indigenous forms of ownership that tend to centeron collective, inter-generational production from community-basedeconomies.64 So too, the basic concepts that undergird the intellectualproperty system: exclusive ownership, alienability, and monopoly rights donot translate across this divide. Traditional knowledge does not fit into thesecategories because it is rooted in communal development of knowledge ratherthan in individual innovation. While many have argued that from a humanrights perspective, the right to property is not only an individual right ofpossession (a civil right), but is also a collective social, economic, and 62. See Rosemary T. Coombe, The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy, 6 CAN. J.L. & JURIS. 249(1993) (detailing accusations that the unauthorized use of native histories by non-indigenousauthors amounts to “the theft of voice”). In the United States, for example, the names of nativeAmerican tribes and historical leaders have been used to sell every type of consumer product —from automobiles to alcoholic beverages. 63. A full description of these aspirations is beyond the scope of this essay. Interested readers should see ANAYA, supra note 9.
64. See, e.g., World Intellectual Prop. Org. [WIPO], Intergovernmental Comm. on Intellectual Prop. & Genetic Resources, Traditional Knowledge and Folklore, The Protectionof Traditional Knowledge: Revised Objectives and Principles, Annex 11, WIPO/GRTKF/IC/9/5(Jan. 9, 2006) (asserting that “[p]rotection of traditional knowledge should respond to thecollective or communal context and inter-generational character of its development,preservation and transmission, its relationship to a community’s cultural and social identity andintegrity, beliefs, spirituality and values, and constantly evolving character within thecommunity”) [hereinafter WIPO, Revised Objectives].
cultural right,65 such arguments have not had much impact in the intellectualproperty context.
Although the particular challenges of protecting traditional knowledge within a globalizing intellectual property system may be sui generis, this isnot the first iteration of this conflict. Indeed, many view implementation ofTRIPS as nothing more than the newest sub-chapter in the on-going saga ofdispossessing indigenous peoples from their lands and their resources. Whilesuch a view may be understandable, it actually understates the problem.
TRIPS works yet another wrong because it is not only a continuation ofhistorical disregard for indigenous land rights, it is an entirely new form ofdispossession — this time of knowledge itself.
Protecting traditional knowledge will therefore involve more than bringing a new form of knowledge within the scope of intellectual property law. If thatwas all that was at stake, this problem would be fairly easy to resolve; newareas become subject to patent protection all the time. For example,intellectual property law has recently expanded to include living organisms,66and various financial instruments,67 within the scope of patentable subjectmatters. Indeed, the definition of intellectual property in the WIPOConvention itself casts a broad net and specifically includes languagedesigned to extend protection beyond the listed categories of intellectualproperty, to all the fruits of “intellectual activity in the industrial, scientific,literary or artistic fields.”68 This definition would certainly be broad enoughto permit the formal recognition of traditional knowledge under the rubric of"intellectual property." However, in order for property laws to truly protect traditional knowledge and the interests of indigenous peoples, the international community (andeach national community) must engage in a fundamental rethinking of what 65. For example, in the Awas-Tigni case, the Inter-American Court of Human Rights accepted that the international human right to property embraces the communal propertyregimes of indigenous peoples as defined by their own customs and traditions. Mayagna(Sumo) Awas Tingni Community v. Nicaragua, 2003 Inter-Am. Ct. H.R. (ser. C) No. 79(judgement on merits and reparations); see also James Anaya, Indigenous Peoples’Participatory Rights in Relation to Decisions About Natural Resource Extraction: The MoreFundamental Issue of What Rights Indigenous Peoples Have in Land and Resources, 22 ARIZ.
J. INT’L & COMP. L. 7, 13 (2004).
66. Diamond v. Chakrabarty, 447 U.S. 303 (1980).
67. See Paul E. Schaafsma, A Gathering Storm in the Financial Industry, 9 STAN. J.L. BUS.
& FIN. 176 (2004) (discussing financial instrument patents).
68. Convention Establishing the World Intellectual Property Organization, art. 2(viii), July 14, 1967, 21 U.S.T. 1770, 828 U.N.T.S. 3.
constitutes property. This rethinking must include the recognition ofcollective rights and rights that can be extended to communities rather thanindividuals or states. This is no small task. Even the attempt to conceptualizesuch rights is difficult, colliding as it does with the individual/state dichotomythat is the dominant paradigm of the Westphalian system.
Because this paradigm does not fit with most indigenous groups’ own conception of their rights regarding their cultural knowledge, it is hard toimagine how it might be adapted to meet their needs. Indigenous groups thusface an unpalatable choice: either remake their traditional knowledge in theimage of the rights claimed and recognized within the dominant society69 andbreak down the essence of their traditional culture into distinct sticks ofproperty, or deny themselves access to existing intellectual propertyprotections. The Thammasat Resolution recognized this reality, and drawingon the wording of TRIPS Article 27.3 sought to carve out a new space forindigenous peoples — recognition of the sui generis nature of traditionalknowledge.70 IV. Some Striking Historical Parallels The international dialogue about TRIPS, CBD and traditional knowledge is in many ways a replay of earlier discussions about indigenous propertyrights in the context of colonialism. The root problem is definitional: whatexactly is considered property for purposes of these legal regimes? TRIPSseems to have revived a modern version of the Las Casa — Sepulvida 1550debate that had tremendous repercussions for whether or not the peoples ofthe New World would be treated as owning their land.71 These debates arosebecause the land claims that stemmed from the so-called “Age ofExploration” had a fatal flaw: the “newly-discovered” lands were alreadyinhabited. Thus, a central question arose, who owned these lands, the 69. See, e.g., Barsh, supra note 6 (discussing this dilemma and decrying it as “cognitive 70. Thammasat Resolution, supra note 10.
71. For an in-depth discussion on the Valladolid Debate of 1550 between Las Casas and Sepulveda, including a discussion of Vitoria’s and Las Casas’ position, see LEWIS HANKE, THESPANISH STRUGGLE FOR JUSTICE IN THE CONQUEST OF AMERICA (2002). Although the centralquestions of the debate were whether the occupants of the newly discovered lands wereendowed with souls and the legitimacy of waging war against the Indians, a clear corollary tothese issues was the question of whether the Indians had property rights that Spanish colonistshad to respect. Where Sepulveda argued that the natives of the New World were not human,and therefore possessed no rights, de Las Casas made the case that they were endowed with thesame natural rights that all humans possess. Id. European “discoverers” or the native inhabitants? In the rush to issuebiotechnology patents over the past few decades, and in the expansiveinterpretations the United States and other Western courts have given thesepatents, and most particularly in the TRIPS agreement effort to enshrine thesestandards globally, there is a very real danger of recreating the DiscoveryDoctrine with a “new world” of genetic resources and other forms oftraditional knowledge.
During the “Age of Discovery” the property question was whether the kinds of uses to which the “native peoples” put their land amounted toownership or to a property right. Conveniently enough for “the discoverers”the answer was almost always no. Perhaps most famously, in Johnson v.
M’Intosh,72 the United States Supreme Court proclaimed that the PainkashawIndians were deemed to be mere inhabitants rather than owners of their land.73Indeed, according to property theories recognized at the time, JusticeMarshall concluded that the various Indian nations had no ownership rightsto land either individually, collectively, or as a nation, but instead held a rightof mere occupancy.74 This rather startling conclusion rested on the belief thatthe tribes did not occupy their lands in a fashion that prevented itsappropriation by farmers for agriculture.75 He asserted that “[a]ll theproprietary rights of civilized nations on this continent are founded on thisprinciple.”76 Any other result, Justice Marshall wrote, would be “to leave thecountry a wilderness."77 After Johnson v. M’Intosh, it was settled law in theUnited States that Indian nations and individuals did not have claim to thekind of property interests in their lands that European settlers routinelyexpected to have in theirs. According to Justice Marshall, the difference wasattributable to the differing uses to which the two groups put their land.78However, since farming Indian communities fared no better than hunter-gatherers, it seems likely that the portion of Marshall’s decision discussingracial and religious absolutes was more the true reason. In Australia, thispoint was carried to its extreme with the doctrine of terra nullius, whichrecognized no aboriginal rights to land.
72. 21 U.S. (8 Wheat.) 543, 590 (1823).
73. Id. at 591. 74. Id. at 588.
75. Id. at 590-92.
76. Id. at 570.
77. Id. at 590.
78. Id. This same vision of what kinds of activities count as productive use and are thus entitled to legal protection, as opposed to those that are characterized asmerely an aspect of “the natural,” is repeated today in the TRIPS discussionsof what qualifies as “an inventive step” for purposes of intellectual propertyprotection. There is an unpleasant dichotomy between defining the productsof laboratory research as intellectual property subject to the full panoply ofprotections afforded by TRIPS and formal domestic law, while characterizingthe uses and experimentation of indigenous peoples as “traditionalknowledge” excluded from these protections.79 Once again, the uses to whichindigenous peoples put their resources are defined as outside the scope oflegally protected property interests. The property choices embedded inTRIPS thus mean that international law once again confers and distributesproperty rights in a fashion that systematically dispossesses indigenouspeople.
Even granting that, unlike the original Discovery Doctrine, TRIPS has no invidious intent to specifically dispossess indigenous peoples, the TRIPSAgreement’s insistence that patent rights be recognized, with the prerequisitesof novelty and individual authorship, excludes indigenous peoples from theintellectual property rights system80 much like the way those same groupswere systematically denied property rights to their land during the periods ofdiscovery and colonialism.81 As such, the TRIPS definitions of what is andis not property for purposes of intellectual property protection raises thequestion of whether the Agreement is merely repackaging the discreditedDiscovery Doctrine in new garb. Many argue that the central problems that indigenous groups face are rooted in a lack of economic and political power, rather than in a lack ofintellectual property rights in their heritage.82 According to this view, 79. Russell Barsh has made the argument that the term traditional knowledge is part of the problem, implying as it does something static and antique that has been handed down throughtime without critical evaluation. He argues that “[w]hat the international community needs toprotect is ‘indigenous science.’” WORLD INTELLECTUAL PROP. ORG., INTELLECTUAL PROPERTYNEEDS AND EXPECTATIONS OF TRADITIONAL KNOWLEDGE HOLDERS: WIPO REPORT ON FACT-FINDING MISSIONS ON INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE 116, 130 n.3(2001); see also Vandana Shiva, The Politics of Knowledge at the CBD, http://www.twnside.
org.sg/title/cbd-cn.htm (last visited Jan. 19, 2007). 80. See, e.g., ECOSOC, Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, supra note 22, ¶ 32 (recognizing that patents on cultural and intellectualproperty “are not only inadequate for the protection of indigenous peoples’ heritage butinherently unsuitable”).
81. Id. 82. See Michael H. Davis, Some Realism About Indigenism, 11 CARDOZO J. INT’L & COMP.
intellectual property is about exploiting knowledge for profit and facilitatinginnovation. Thus, resorting to intellectual property rules to protect andpreserve indigenous knowledge is a mistake.83 While economic and politicaldisadvantages certainly compound the plight of indigenous peoples, to makethis argument is to ignore the insidious and pervasive effect of propertyregimes drawn to exclude the resources and wealth of indigenous peoples andto miss the centrality of the definitional moment to the entire intellectualproperty endeavor (what is or is not property).
It is this latter decision, that biodiversity and traditional knowledge form part of the public domain, that requires exploration. Much as the DiscoveryDoctrine depended on the conclusion that indigenous peoples did not “own”their lands in a fashion that conveyed a property right under western law, sotoo the exploitation of biodiversity requires the determination that thebiodiversity itself, as well as traditional knowledge about that biodiversity,are a commons open to all. Only when this knowledge is part of the vastpublic domain from which “inventors” can draw, will it be possible to create“owned” products by exploiting that knowledge. That the resources of theindigenous peoples are public domain is a necessary prerequisite to thesuccess of the regime for western inventors. In short, in order to benefit fromintellectual property schemes, “inventors” have a real interest in ensuring thattraditional knowledge remains part of that public domain. Once again,powerful forces seeking property rights have construed existing indigenoususes not to convey any ownership interest in property that is of interest tooutsiders.
After all, knowledge is generally not considered property and its non- proprietary characteristics serve as an important social function facilitatingthe advancement of knowledge, technology and the standard of living insociety. Intellectual property rights are an exception to this general rule. Thestate creates and enforces intangible rights that would not otherwise exist. Byrequiring that states grant patents (or sui generis protections) to the productsof agricultural biotechnology, for example, while leaving the traditional landraces84 from which biotech products are developed in the public domain,TRIPS makes very specific choices between what is ownable as property andwhat is not. These choices are premised on an assumption that patents tracka bright line between what has always existed and what is made; between 83. Id.
84. Land races are varieties of crop plants that have been developed over time by farmers, and are often well-adapted to local environmental conditions. evolution and invention; between the natural and the created.85 Under sucha vision, the natural world is a backdrop — a commons from which all arefree to draw.
It is a convenient dichotomy but a totally false one. For example, agricultural plants produced through biotechnology or through sponsoredselective breeding in a laboratory can be patented. Wild relatives cannot.
But, neither can the land races developed by traditional farmers, even thoughthose land races are just as much a product of human invention as are thelaboratory generated plants. While the latter are property entitled to a fullpanoply of protections, the former are considered part of the global commonsfrom which the latter may be derived.
Far from natural, those land races and traditional medicines are the work of countless nameless farmers and indigenous healers whose labor andingenuity developed these products to maximize certain traits and minimizeothers. In fact, they are products of the very same selective breeding that inthe laboratory setting gives rise to a patentable property right. Yet, underintellectual property law, as it has been globalized through TRIPS, the veryfact that these works were produced by countless, nameless farmers,gatherers and healers means that they have not, and indeed cannot, give riseto any property rights. Instead, their work product is treated as a globalcommons, the common heritage of humanity.
One dramatic effect of colonization was the conversion of the biological and natural resources of the colony into wealth for the colonizer. Colonizerscreated a legal system designed to ensure their access, on favorable terms, toprized resources, such as fish, fur, spices, rubber, and silk. Like theintellectual property rights protected under TRIPS, this earlier, historicalcolonization was also built on the fiction of res nullius — the unowned thing.
Now that newly developed technologies enable more pervasive and profitableexploitation of biological and genetic diversity, we again see a carefulcrafting of res nullius that advantages newcomers to the resource at theexpense of traditional users.
Only when the contours of property have been drawn to exclude traditionally farmed crops, and traditional medicines as unownable, can these 85. See Barsh, supra note 6, at 18 (discussing the tendency of Roman and Western societies to define other nations as outside the domain of culture and explaining that “[a]s part of nature,the lands of other societies could be appropriated without moral or legal scruple”).
resources serve as the fodder for patentable innovations. The inputs neededfor biotechnology innovation — the germplasm of existing plants, and thetraditional knowledge of indigenous peoples — must be an unownedcommons in order for the experimentation that underlies the advances ofbiotechnology to be permissible and capable of generating lucrative patents.
The identities of the dispossessed and the beneficiaries under this regime only underscore the power dynamic that underlies seemingly “neutral”designations of what must be considered property under the global tradingsystem. The same machinery of rationalization that once created palatableexplanations for why aboriginal inhabitants did not “own” their land, nowlumbers into action to explain why traditional knowledge and land races arenot ownable, while hybrids, or lab distillations of their salient traits are.
Despite much formalism that obscures the contingent nature of property, the standards for what will be deemed property, and thus entitled to musterthe full powers of the state to its defense, do not exist a priori. Instead, thesestandards are created. They exist only in dialogue with a social and politicaldynamic, and an underlying value structure. As such, they can bereconsidered when necessary. This essay suggests it is necessary.
It should never be forgotten that during colonial periods these same property lines were drawn within a racial caste vision that systematicallydevalued claims of the non-white, the non-European and the non-Christian.86Those lines were considered as “obvious” and “natural” as the intellectualproperty rights enshrined in TRIPS are claimed to be today. To draw linesthat, once again, a priori exclude those same populations, albeit on moreseemingly neutral grounds than “uncivilized” or “non-Christian,” ought toraise some flags.
Is the TRIPS requirement, that all member states recognize a patent on a gene that embodies a trait that has been safeguarded for centuries bytraditional farmers or indigenous peoples as the one valid claim of ownership,really different from Pope Alexander’s papal bull allocating possession oflands not inhabited by Christians between Portugal and Spain in 1493?87 Is 86. This was a pivotal question in the de Las Casas-Sepulveda Valladolid debate. See 87. Two months after Columbus returned from his voyage of discovery, on May 4, 1493, Pope Alexander VI issued his Papal Bull Inter Caetera. See The Bull Inter Caetera,http://www.nativeweb.org/pages/legal/indig-inter-caetera. html (last visited Jan. 21, 2007). Thissingular document purported to grant the royal families of Spain all and singular countries inthe Western and Eastern Hemispheres and islands hitherto discovered and to be discovered“together with all their dominions, cities, camps, places, villages, and all rights, jurisdictions,and appurtenances” of the same. Id. Read in light of earlier Papal issuances, this Bull divided the presumption that compounds used as traditional medicine are natural andtherefore not susceptible to property claims any different from the 19thCentury characterization of Australian aborigines as living in a “state ofnature” and thus incapable of appropriating land as property?88 What is thedifference between deeming Australia, a land that had been inhabited formillennia, to be “terrus nullius” and deeming genetic resources that havebeen cultivated and used for millennia to be “res nullius?” Vattel’seighteenth century pronouncement that unsettled habitation (meaning nofarming) cannot be accounted as true and legal possession, and thereforeEuropeans might lawfully settle lands of the New World,89 applies as readilyto traditional medicines and biodiversity as it did centuries ago to the landsof North America and Australia.
These justifications for colonialism have rightly been rejected as sophistry designed to conceal policies based on expediency and self-interest. Thelinkages between these intellectual property rights and past colonialexpropriation of unused land90 are too clear to be ignored. Explicitlyacknowledging the relationship might reframe the question. It might lead usto the conclusion that these underlying resources were already owned, andthus not “res nullius” — the unowned thing. As such, these resources wouldno longer be acquirable through labor and no longer susceptible to beingreduced to private property for instrumental social reasons.
Under such circumstances, these biological resources, and the traditional knowledge of their use would no longer serve as a reservoir in which to dipfreely in search of ownable, patentable products. Conversely, what if theproducts created by such drawings from the common reservoir retained theircommon characteristic, rather than proprietary property? What if suchadvances were considered yet another iteration of information open tocollective access — an addition to the global commons of knowledge?Depending on how property is defined, these outcomes are entirely possible.
Already there are stirrings in that direction. Seizing on the language of Article 27.3, and reading it through the lens of Articles 7 and 8, theThammasat Declaration avowed in part: “‘[s]ui generis’ perfectly describes the world between Spain and Portugal.
88. It took until the latter part of the last century for the idea of terra nullius to be officially renounced. See Mabo v. Queensland II (1992) 175 C.L.R. 1 (Austl.). Similarly, in WesternSahara, Advisory Opinion, 1975 I.C.J. 12, ¶¶ 76-86 (Oct. 16), the International Court of Justiceunanimously rejected the doctrine of terra nullius when it concluded that the Western Sahara,at the time of Spanish 1884 colonization was not terra nullius.
89. EMMERICH DE VATTEL, THE LAW OF NATIONS (1758).
90. See, e.g., Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823).
the rights and systems we are struggling to defend - our ‘own kind’ of rightsand systems. We recognize our sui generis rights to exist independently ofthe IPR-based sui generis systems promoted by the TRIPS Agreement.”91Similarly, the World Intellectual Property Organization has been exploringthe potential for a sui generis means of protecting traditional knowledge.92 Two possibilities come to mind: a negative and a positive interpretation.
Under the negative interpretation, traditional knowledge would remain partof the global commons, but so would works derived from that knowledge.
Or, interpreted positively, the international community could redefineproperty so that indigenous knowledge is not categorically excluded.
Volumes have been written advocating some variation of these twoalternatives. Regardless of which path the international community decidesto pursue, now is the time to do it. The mad scramble for riches mined frombiodiversity is just beginning. Claims are being staked daily to ideas,products and processes. Before this claiming process cements itself into anestablished ownership regime there is a window of opportunity, perhapsalready rapidly closing, to define what can be owned in this context and whatactivities will amount to ownership. If we do not seize the moment, we maybe like those who, having failed to learn from the past, are condemned torepeat it.93 91. Thammasat Resolution, supra note 10.
92. WIPO, Revised Objectives, supra note 64, at 40.
93. 1 GEORGE SANTAYANA, THE LIFE OF REASON 284 (Charles Scribner’s Sons 1954)

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