By Tiphaine Nunzia Caulier for Intellectual Property Watch
At a recent conference jointly organised by the Graduate Institute of International and Development Studies (IHEID, Geneva) and the Museum of Art and History of Geneva, academics tackled the question of the preservation of culture – in its natural and cultural dimension – against the risks of globalisation.
At the 22 February event, panellists offered criticisms of the evolution of the international system for the protection of cultural diversity in the form of protection of traditional knowledge and rights of indigenous people.
Firstly, many panellists addressed strong criticisms toward the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol). One panellist, using personal experience, explained some deficiencies of the system for the protection of the rights of indigenous communities. The event also gave an opportunity to panellists to discuss the definition of concepts attached to traditional knowledge and to discuss the finality of this protection where one academic saw a “commercial drift in the concept of culture.”
Regarding the Nagoya Protocol, Sandrine Maljean-Dubois, senior researcher at the French National Centre for Scientific Research (CNRS), qualified as “incomplete and inadequate” the issue of access to genetic resources and fair and equitable sharing of advantages deriving from their use. She also suggested that the Nagoya Protocol “undergo the competition of other forums and texts dealing with the same issue,” in the sense that many organisations deal with the themes addressed in the Nagoya Protocol.
“There is an overlap of forums and texts dealing with the themes of the Nagoya Protocol and there is a lack of coordination between the organisations involved which leads to mixed and unsatisfactory results,” she said.
Riccardo Pavoni, a professor at the University of Sienna, Italy, described the Nagoya Protocol as a “masterpiece of erratic treaty drafting,” containing what he called “contradictory and inconsistent drafting”. To him, the text is very weak in its approach towards trade and intellectual property issues.
In correspondence with Intellectual Property Watch, Pavoni said: “The Nagoya Protocol is absolutely neutral in relation to the issue of patentability of genetic material. The principle of sovereign rights over genetic resources may only allow states to ban the exploration and/or exportation of genetic resources found in their territories, but may not prevent a company from seeking patent protection in its home state or in other countries where such patents are granted.”
The core issue, he said, “is that of securing that genetic material has been accessed pursuant to the prior informed consent of the source country and that some form of benefit-sharing has been agreed upon with the same country.”
As a way forward, he proposed solutions to deal with this difficulty.
“It would be crucial to provide for the disclosure of origin of genetic resources as a requirement for patentability of such resources (and/or associated traditional knowledge),” Pavoni said. “And it would be crucial that this requirement be imposed by the so-called user (industrialized) countries.”
Pavoni said Nagoya Protocol negotiators “deliberately refrained from imposing such disclosure requirement, especially in article 17. The requirement is therefore only optional for Parties to the Nagoya protocol, hence the continuing battle happening at the World Trade Organisation (WTO) and at the World Intellectual Property Organisation (WIPO) to introduce a mandatory disclosure requirement.”
He further highlighted what he referred to as the “glaring inconclusiveness of article 4 of the Nagoya protocol in relation to its relationship with other agreements (i.e. the WTO agreements).”
Nagoya No Step Forward?
Meanwhile, in response to a question on the Nagoya Protocol from the audience, Geoffroy Filoche, researcher for a French research institute for development (IRD, Institut de recherches pour le développement) pointed out that regarding traditional knowledge, the Nagoya Protocol does not offer better protection than what the Convention on Biological Diversity (CBD) already does. For him, in this respect, the Nagoya Protocol is not a step forward.
Filoche also expressed his views on the concept of traditional knowledge and its current protection at the international level. He put forward the example of the exploitation of guaraná by the Satere-Mawe people, an indigenous community in Brazil, to highlight the insufficiency of the mechanism of exploitation of natural resources by indigenous peoples. In his case, the indigenous community could not keep the unique link with guaraná it used to have and could not use a legal system that seemed play in favour of the indigenous peoples.
He said that the Brazilian legal system is a priori favourable to the Indians as the 1988 Constitution recognises their rights to land and natural resources.
Based on his research jointly undertaken with Florence Pinton, professor at the Paris Institute of Technology for Life, Food and Environmental Sciences, he added in correspondence with Intellectual Property Watch that: “the 1990s could have seen the emergence of formal rights to guaraná for the Satere-Mawe people. The adoption of the CBD allowed the role of traditional agro-ecological practices and the importance of local knowledge relating to the preservation of genetic resources to be highlighted. (…) In Brazil, this system resulted in the implementation of Provisional Measure no. 2186-16 in 2001, according to which access to genetic resources must henceforth receive authorisation from the State, from communities and from landowners, and the benefits must be shared with the suppliers of the resource or related traditional knowledge.”
But this scope of the legal protection was not enough, he said, as “guaraná was considered to be a freely available raw material for agribusiness (sodas) long before the CBD was drawn up. This was well before the idea that the plant, as a genetic resource or variety, could come under national sovereignty or be appropriated by certain parties.”
Similarly, he said that “the fact that natural life forms cannot be patented in Brazil means that the use of guaraná cannot be the sole preserve of a single company. This explains the proliferation of guaraná-based sodas (for example Kuat, a Coca-Cola group brand) as well as brands using the Satere-Mawe or Maués names. Guaraná has thus gradually moved beyond the control of the Satere-Mawe people, becoming available to all.”
While panellists at the event pointed to the weakness of the Nagoya Protocol, which is supported by many academics. But many other academics, while acknowledging that the Nagoya Protocol is not perfect, see in it a step forward as this text creates a system that links the user and supplier countries. In that respect, Nagoya marks a difference with the previous situations.
Also at the conference, panellists analysed the current definition of traditional knowledge and the associated concepts.
Filoche referred to traditional knowledge as a “composite legal category”. To him, the construction of this concept is “at the crossroads of different ethical considerations.” While making this point, he joined the argument made Isabelle Schulte-Tenckhoff, professor at IHEID.
According to her, at the United Nations organisation level, there has been an amalgam in the way of dealing with concepts such as “indigenous”, “local communities”, and “cultural minority”. She said the definitions set by various UN entities and texts do not differentiate between groups that are in practice very different. In her view, the general UN definitions mainstream and oversimplify under the umbrellas of concepts such as “indigenous communities” and “traditional knowledge” realities that account to very different situations.
Lastly, Genevièvre Koubi, professor at the University of Paris VIII, denounced what she called the “commercial drift” of the concept of protection of diversity of cultures. She said that no UN organisations protect culture in itself, but rather the forms that culture takes.
Koubi said that in every UN agency dealing with traditional knowledge – including WIPO and the traditional knowledge division – it is the economical aspect of culture that prevails and diversity is only understood in the market context. It is the economical and trade values of cultures through the goods they can produce that is put forward at the expense of social considerations. Culture is therefore only understood as a strategy for development.
One could argue that the activities of the traditional knowledge division at WIPO at least partially contradict her theory. Some activities undertaken by this division, like the defensive protection missions where WIPO recognises on its website that “traditional knowledge genetic resources and traditional cultural expressions are economic assets of indigenous and local communities” do echo her theory.
But in the domain of protection of folklore, the protection is also heavily related to the enhancement of cultural diversity and to the preservation of cultural heritage.
Tiphaine Nunzia Caulier recently graduated with a Master in International Law from the Graduate Institute in Geneva and UCLA School of Law. Through her work experiences and academic interests she has specialized in international trade, intellectual property, and public health.