Towards a common law concerning the protection of traditional knowledge
Dr Philippe Karpe,
Campus international de Baillarguet France
To read this article in French: 
For a few years now, the right of indigenous and traditional communities to
their knowledge, practices, creations and innovations has been recognised by
law. The Convention on Biological Diversity and the Commission of the
Cartagena's Agreement concerning the Common regime of access to genetic
resources provide international agreements on the subject, while countries such
as Costa Rica and Panama have passed internal laws, the latter adopted a
"Special Regime of Collective Rights of Intellectual Property of Indigenous
People for Protection of their Cultural Identity and their Traditional
Knowledge" in 2000.
This recognition constitutes an essential tool in the fight against biopiracy.
Biopiracy can be viewed as the acquisition of intellectual property owned by
indigenous and traditional communities without their assent or payment. The
perpetrators in particular target knowledge for use in the farming, the
cosmetics and pharmaceutical industries. Many examples of acts of biopiracy can
be quoted. Among these, one can notably recall the cases of Ayahuasca (Banisteriopsis),
of Rice Basmati, Quinoa (Chenopodium quinoa), Neem (Azadirachta indica)
and Enola (Phaseolus vulgaris).
The legal framework which serves to protect indigenous and traditional
knowledge is yet to be established. At first sight it would seem plausible that
with some adaptations, the common law of intellectual property could serve to
protect traditional knowledge.
Limitations of Intellectual Property Rights Law
However, if this were the case, there would be indeed some residual elements
of inadequacy. For example, traditional knowledge of ecology and management of
ecosystems which are considered ways of life are not protected under the current
common law of intellectual property rights. While intellectual property law is
revisable as seen in the case of the inclusion of laws on new plant varieties,
electronic commercial programmes and activities, some of its inadequacies as far
as traditional knowledge is concerned, may not be possible to amend.
For example, it would be absolutely impossible to exclude any recognition of
individual rights. At the heart of the issue is a conflict of culture. Opposing
visions and viewpoints on what constitutes traditional knowledge can make it
impossible for the current common law to protect the rights of the indigenous
and traditional communities.
A legal organization according to the proper law of each concerned
populations
Given the existence of cultural conflicts, it would seem plausible to make
the law applicable to the proper law of each of these populations.
The limit in the recognition of the proper law of each indigenous and
traditional community
However, an arrangement such as this would bring about the isolation of the
indigenous and traditional communities with regard to other populations. Should
two population groups with their own laws concerning traditional knowledge
interact, one group will undoubtedly benefit to the detriment of the other. This
is why we cannot subject the indigenous and traditional communities only to
their own law. We have to adapt the recognition of the proper law of each
indigenous and traditional community.
In order to maintain harmonious relationships between indigenous and
traditional communities and other populations, certain rules and clauses will
have to be incorporated and adopted.
In other words, it is essential to adopt proper rules and clauses to provide
a well-balanced settlement of the two existing conflicts in this matter: the one
of laws in a same space (a conflict of laws in a same space is a competition
between two or more different civil laws, penal laws, etc.) and the other of
values (a conflict of values is an opposition between two or more ideas of human
rights, environment, etc.).
The two principles governing the establishment of harmonious relations
between culturally different populations
By nature, the evident principle of superiority of a law on another one can
never guarantee a harmonious resolution of the existing conflicts of law
To obtain such a resolution, the only means seems to be to proceed to the
re-examination and the re-negotiation (in a way which can be progressive) of the
terms of the concerned opposite laws. This should allow opposite laws to be
brought together and finally to draw up a new law really shared by the various
interested populations (indigenous communities, traditional communities and
other populations).
In this way, and in conclusion, the protection of the specific right of the
indigenous and traditional communities on their creative works would not be
ensured either by the application of the positive common law of intellectual
property law, or by that of the proper laws of each of these populations. It
would be provided by a new and effective common law of the protection of the
creative works. It remains then to determine the content of this new and real
common law, as well as the conditions of its elaboration and adoption.
The commitment, pursuit and fulfillment of the establishment of a new and real
common law, which serves to protect the indigenous and traditional communities,
must require the participation of these groups. A strong principle of
partnership between all concerned groups including political groups is a key
factor in success.
The contents of emergent new and real common law
Elements of a new and common law concerning the protection of the traditional
knowledge are beginning to emerge; the recent elaboration of farmer's rights
provides an example: These rights are defined as being those "arising from
the past, present and future contribution of farmers in conserving, improving
and making available Plant Genetic Resources, particularly those in the centers of origin/diversity. These rights are vested in the International Community, as
trustees for present and future generations of farmers, for the purpose of
ensuring full benefits of farmers and supporting the continuation of their
contributions" (3rd paragraph of the resolution 5/89 adopted on November
29, 1989 by the Food and Agriculture Organization of the United Nations (F.A.O.)
More Information:
Philippe KARPE
Ph.D. in Public law - Political science - option: International public law
Researcher - Jurist
Cirad-forêt/programme forêts naturelles
Campus international de Baillarguet
34398 Montpellier Cedex 5 France
Phone : 33 4 67 59 39 39
Fax : 33 4 67 59 39 09
Adresse électronique : karpe@cirad.fr
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