Intellectual property, indigenous knowledge, and biodiversity

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BIOPIRACY

Intellectual Property, Indigenous Knowledge, andBiodiversity�

George Martin and Saskia Vermeylen

Through several thousand years of Western history, intellectual property rights haveexpanded to materialize abstract ideas so that individuals can gain private ownership ofthem.1 This expansion is increasingly problematic today, as it is being applied to arange of radically new ideas and life forms emerging from biogenetic science. As phrasedby Parry, “such development reveals the absolute fragility of distinctions between intel-lectual and physical property, tangible and intangible resources, nature and culture.”2

This amounts to a boundary crisis among the purviews of science, international develop-ment, and biodiversity conservation. The crisis permeates global cultures in struggles overgenetically modified organisms and stem-cell research in developed countries, as well asconflict among developed and developing countries—and the indigenous peoples ofboth—over the ownership and use of nature and its knowledge.

Newly aggressive profit-seeking by multinational corporations acting with the sup-port of nation states is provoking this boundary crisis. Non-governmental, non-profitorganizations provide some resistance, but indigenous peoples have little or no influencein these transactions. Indigenous peoples stand in the way of a full globalization ofneoliberal markets and their attendant cultural homogenization. They are confrontingneo-colonialism—a private appropriation of their ancient collective knowledge and useof nature.3 Its principal instrument is the universalization of Western intellectual prop-erty law, the application of which threatens the social and cultural integrity of indigenouspeoples, as well as the conservation of the global biodiversity commons.

Nature has always been a treasure trove of human remedies; today, nearly one-fourthof prescribed medicines are derived from only 40 plants. Advances in biogenetics and the

�We acknowledge Roland Clift and Walter Wehrmeyer for their comments.1P. Drahos, A Philosophy of Intellectual Property (Hants, U.K.: Darmouth Publishing Company, 1996).2B. Parry, “Cultures of Knowledge: Investigating Intellectual Property Rights and Relations in the Pacific,”

Antipode, 34, 2002, p. 679.3W. Pretorius, “TRIPS and Developing Countries: How Level is the Playing Field?” in P. Drahos and R. Mayne

(eds.), Global Intellectual Property Rights: Knowledge, Access and Development (Basingstoke, U.K.: Palgrave

Macmillan, 2002).

CAPITALISM NATURE SOCIALISM VOLUME 16 NUMBER 3 (SEPTEMBER 2005)

ISSN 1045-5752 print/ISSN 1548-3290 online/05/030027-22

# 2005 The Center for Political Ecology www.cnsjournal.org

DOI: 10.1080/10455750500208748

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global marketing of drugs derived from indigenous usage have multiplied the potentialcommercial value of flora.4 Advances in ethnobotany and pharmacognosy (medicalbotany) have produced a heady brew for giant pharmaceutical multinational corpor-ations. However, as flora increase in commercial value, over-exploitation is likely tomake them scarce and worsen the already existing crisis in species extinctions and habitatloss.

The growing appropriation of the knowledge of natural medicinals raises a numberof political, economic, environmental, and ethical issues in intellectual property law. Forinstance, can private property rights over biogenetic ideas and forms be justified, and howshould society balance public versus private control over the intellectual commons ofnature?5 These questions are more acute in the context of traditional knowledge. Areintellectual property rights compatible with the traditional knowledge of economicallyand culturally vulnerable groups? Is it possible to commodify and commercializetraditional knowledge without posing a threat to the social structures that sustain theknowledge, and upon which the livelihoods of indigenous peoples depend?6

This emerging web of intellectual property, traditional knowledge, and the commo-dification of nature is a tangled one, indeed. It raises profound issues, all the more sobecause path-determining decisions are being made now. Here, we address a numberof relevant parameters for these decisions: the past and future of the intellectual com-mons, the functioning of international institutions that regulate intellectual property,the tensions between intellectual property and human rights, and the problems involvedin the use of intellectual property to conserve biodiversity. We conclude with a case studyof benefit sharing involving the San peoples of the Kalahari and their hoodia plant.

The Historical Context

Since the 1980s, the disposition of the knowledge of nature in the hands of indigen-ous peoples has become an international political issue, as pharmaceutical corporationshave more aggressively sought flora with useful properties that can be privatized throughintellectual property law.7 Intellectual property itself has a long history in Western cul-ture. It can be traced back to classical Roman law, and specifically to the writings ofGaius. Gaius divided law into categories relating either to persons, actions, or things.He then subdivided them into corporeals that were existent and tangible, e.g., landand gold, and incorporeals that were non-existent and subsistent, e.g., usufruct and

4In recent decades, the drug industry has moved from an emphasis on research to one on marketing. A watershed

in this transformation was the Bayh-Dole Act of 1980 in the U.S., which allowed publicly funded researchers to

patent and license their discoveries in the private sector. Such changes in the drug industry have played a role—as

yet unspecified—in the growing appropriation of indigenous knowledge. See Stephen S. Hall, “The Drug

Lords,” The New York Times Book Review, November 14, 2004.5D.B. Resnik, “A Pluralistic Account of Intellectual Property,” Journal of Business Ethics, 46, 2003.6S.P. Mulligan, “For Whose Benefit? Limits to Sharing Benefits in the Bioprospecting ‘Regime,’” EnvironmentalPolitics, 8, 1999.7Michael Brown, Who Owns Native Culture? (Cambridge, MA: Harvard University Press, 2003), p. 4.

28 GEORGE MARTIN AND SASKIA VERMEYLEN

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inheritance.8 Incorporeal things were “super-imposed by the mind into the corporealworld.”9 This Roman categorization of corporeals and incorporeals is rooted in theStoic notion of incorporeals.

For the Stoics, four things were considered to be incorporeal: time, space, the void,and lekta; the latter embodying the meaning of words. In the context of intellectual prop-erty law, it is the notion of lekta that demystifies the boundary between corporeals andincorporeals. The Stoics made a clear distinction between the physical form of communi-cation, words (corporeals), and their meaning (incorporeals). Meaning could only be tan-gible when it was communicated. This Stoic belief that the meaning of words can onlyemerge when it is physically represented set the path for the development of intellectualproperty rights.

If one line can be identified in the long history of intellectual property, it is the pro-cess of accreting new categories of incorporeals, which need (in order to give themexpression) formal recognition as a new class of property.10 Drahos argues that this evol-ution shows that property law increasingly has become dematerialized, which has led tothe belief that more and more abstractions can become the property of individuals,including the ideas and writings of inventors and writers.11 Once the law recognizedproperty rights for these abstractions, the concept of materiality that governed the prop-erty relations of the marketplace was applied.

Contemporary intellectual property is also rooted in the Enlightenment philosophi-cal belief that society thrives on progress.12 To achieve progress, society must stimulateinnovation by guaranteeing that creators can benefit materially from their work.13 Thisguarantee took the form of monopoly ownership rights as a reward for placing infor-mation in the public domain. However, a time limit was set on ownership. Rights, inthe form of patents, were bounded by sunset provisions so that further progress wouldnot be hindered. In this way the linkage between invention and social progress becameembedded in law. However, the existence of monopoly rights over ideas could be guar-anteed only by sovereign protection: “the usual elements of the concept of property asapplied to material things—occupation, possession, control, appropriation, restitution,and so forth—are largely inapplicable to creations of the intellect, especially withoutdirect state intervention.”14

In the landmark 1980 case, Diamond versus Chakrabarty, the U.S. Supreme Courtruled “that a genetically modified strain of bacteria capable of degrading components ofcrude oil and thus useful in cleansing oil spills was patentable as a new and useful

8Parry, op. cit.9Drahos, op. cit., p. 17.10Parry, op. cit.11Drahos, op. cit.12W. Van Caenegem, “Intellectual Property Law and the Idea of Progress,” Intellectual Property Quarterly,3, 2003.13T. Greaves, “IPR, A Current Survey.” In T. Greaves (ed.), Intellectual Property Rights for Indigenous Peoples,A Sourcebook (Oklahoma City: Society for Applied Anthropology, 1994).14S.B. Brush, “A Non-Market Approach to Protecting Biological Resources,” in Greaves (ed.), ibid., p. 133.

INTELLECTUAL PROPERTY 29

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manufacture or composition of matter.”15 This decision marked a clear break with pastrulings that life forms were products of nature and could not be patented, because theydid not fulfil the three patent criteria: novelty, utility, and non-obviousness.16 WhenChakrabarty first applied for patent protection in 1972, his application was rejected bya lower court on the basis of the natural product doctrine. He appealed against thisdecision and won. The Court argued that the essential criterion for granting patentswas not the distinction between living and non-living things, but between products ofnature and human inventions. The microorganism that Chakrabarty produced was, inthe eyes of the law, not a product of nature but a human invention and thus subject topatent protection.

Critics argued that the Court had based its decision mainly on economic values andthat it refused to consider the central ethical concern: whether or not life itself should bepatentable. The Court was influenced by the idea that the economy would be boosted bystimulating inventive activities. Chief Justice Warren Burger argued that ingenuity shouldreceive encouragement.

This landmark decision made the biotechnology industry possible; in its wake, moreand more patents for biotech inventions were granted, and utility patents were awarded tonew plant varieties. Eventually, in 1987, the U.S. Patent and Trademarks Office extendedthe scope of patents to include non-naturally occurring, non-human, multi-cellular livingorganisms, or animals. By 1996, the U.S. Patent Office had granted nine patents forgenetically engineered animals.

After the Supreme Court’s decision, Chakrabarty admitted that he did not inventsomething new but had just shuffled the genes.17 Thus, although the fact remains thattheoretically it is possible only to patent inventions and not discoveries, in reality notmuch must be added to transform raw material into a new product. Simple processesof isolation, purification, shuffling, and adding a few genes are considered to be unnaturalenough to pass the criteria of novelty for the purposes of patent protection.18

The Chakrabarty case is significant, because it granted private and exclusive owner-ship over a living organism previously held in the commons.19 It showed that the law doesnot impose boundaries on the human potential for generating new knowledge.20 While aproduct of nature such as a plant is generally not patentable, the purified, isolated, or

15A.R. Chapman, “A Human Rights Perspective on Intellectual Property, Scientific Progress, and Access to the

Benefits of Science,” paper presented at the Traditional Knowledge and Cultural Expressions Program, Geneva,

1998, p. 16.16N. Zerbe, “Contested Ownership: TRIPS, CBD, and Implications for Southern African Biodiversity,” Perspec-tives on Global Development and Technology, 1, 2002.17A.T. Mushita and C.B. Thompson, “Patenting Biodiversity? Rejecting WTO/TRIPS in Southern Africa,”

Global Environmental Politics, 2, 2002.18G. Stenton, “Biopiracy Within the Pharmaceutical Industry: A Stark Illustration of How Abusive, Manipu-

lative and Perverse the Patenting Process Can Be Towards Countries of the South,” European IntellectualProperty Review, 26, 2004.19Mushita and Thompson, op. cit.20Van Caenegem, op. cit.


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altered compounds of a plant are, because they fulfil the requirements of new, non-obvious, and useful.21

However, these criteria do not apply to the traditional plant knowledge of indigen-ous peoples, because it is difficult to prove that traditional knowledge fulfils the require-ments of novel, useful, and non-obvious. It fails the novelty test, since indigenous peoplehave been using their cures for centuries. Courts measure an invention’s utility—its capa-bility of providing benefit to humanity—by Western standards of market efficiency,which often don’t exist in indigenous cultures. The criteria of non-obviousness is simi-larly problematic for indigenous peoples, because their knowledge is based in millenniaof usage, and it is almost impossible to determine at what point in time it was acquiredor developed and thus became “obvious” to the community.

Thus, while the Western concept of intellectual property imposes a condition ofmateriality on abstractions, non-Western abstractions are by definition excluded frompatentability. This has created a situation where indigenous peoples find it nearly imposs-ible to protect their traditional medicines through patents, while pharmaceutical compa-nies justify their patents of the same medicines on the basis that they have invested moneyto refine the original material through clinical trials and chemical analysis.22 This biasesthe patenting system; cases like Chakrabarty reveal that the Western legal system uses itscultural interpretation to determine patentability.23

The ruling that the microorganisms Chakrabarty tried to patent “were not nature’shandiwork, but his own”24 indicates that the Court was charmed by Locke’s labor theorythat people can claim ownership over products they have removed from nature and towhich they have added value through their labor. That the Court was inspired by Locke’stheory confirms that intellectual property rights follow a Western tradition. And consist-ent with Western tradition, intellectual property rights are granted to individuals and notto collectives. Crops and medicinal plants—which have been used by uncounted gener-ations of indigenous peoples—are excluded from protection because no single inventorcan be identified.

The application of Locke’s proposition is illustrated in the case of the Urueu-Wau-Wau, a tribe of the Amazonian state of Rondonia in Brazil threatened with extinction. Itsuse of “tiki uba,” an anti-coagulant, was published in a magazine. Based on this infor-mation, the Merck Corporation found that the plant was useful in heart surgery andpatented it, without paying any compensation to the tribe.25 Merck had the legal rightto do this, because it had added value through labor. However, despite its legality, thepatenting without compensation was immoral and unjust, because it did not improvethe situation of the vulnerable group upon whose folk knowledge the medicine was

21G. Rodriguez Stevenson, “Trade Secrets: The Secret to Protecting Indigenous Ethnobiological (Medicinal)

Knowledge,” New York University Journal of International Law and Politics, 32, 2000.22Stenton, op. cit.23Parry, op. cit.24J.M. Meyer, “On Nature, Property and Biotechnology,” The Journal of Political Philosophy, 8, 2000, p. 159.25K. Plenderleith, Indigenous Knowledge and Ethics (New York: Routledge, 2004).


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based. This case illustrates that while the range of objects that can be materialized expandscontinuously, the expansion is self-serving and protectionist. “Extending patentability [isonly allowed] to those intangible objects and phenomena that form the basis for pro-ductivity in the post-industrial information age, but . . .[that] only a select number ofcountries have the technology to develop or exploit.”26

All of this challenges the fairness of the current intellectual property regime. One ofthe most cited negative consequences of the ownership of information is the exploitationof poor countries and indigenous peoples.27 Current intellectual property law adds to theassets of pharmaceutical companies at the expense of the traditional knowledge and econ-omic enhancement of indigenous peoples.28 This suggests that something may be wrongwith the concept of ownership over information.

The Ownership of Traditional Knowledge

Western pharmaceutical corporations are increasingly looking at indigenous know-ledge—which is considered part of the public domain, freely available for anybody touse—as a cheap source of new products, especially as the costs of putting new drugson the market escalate.29 These “bioprospectors” explore natural resources to find activecompounds for pharmaceutical development, viewing it as a “win-win-win” project.30

They argue that bioprospecting encourages the discovery of new drugs, stimulates econ-omic development in poor countries that are rich in natural resources, and promotes theconservation of biodiversity. Opponents take a sharply different view and see this as “bio-piracy”31—legally sanctioned plundering of natural resources and related indigenousknowledge.32 This appropriation of traditional knowledge is tremendously profitablefor the pharmaceutical companies, but only a fraction of the benefits flow back to itsholders.33

In most cases, local knowledge is collected, recorded, and placed in the publicdomain by bioprospectors without the prior informed consent of indigenous peoples.34

The Bellagio Declaration, a statement put forward in 1993 by a group of lawyers,

26Parry, op. cit., pp. 686–687.27B. Martin, “Against Intellectual Property,” Philosophy and Social Action, 21, 1995.28G. Dutfield, “The Public and Private Domains: Intellectual Property Rights in Traditional Knowledge,”

Science Communication, 21, 2000.29S. Sahai, “Indigenous Knowledge and its Protection in India,” in Christophe Bellmann, Graham Dutfield and

Ricardo Melendez-Ortiz (eds.), Trading in Knowledge: Development Perspectives on TRIPS, Trade and Sustain-ability (London: Earthscan, 2003).30C. Takeshita, “Bioprospecting and Its Discontents: Indigenous Resistances as Legitimate Politics,” Alterna-tives, 26, 2001.31V. Shiva, Biopiracy (Boston: South End Press, 1997); V. Shiva, Protect or Plunder? (London: Zed, 2001).32For an informative discussion of biopiracy and the North’s “ecological debt” to the South, see Joan Martinez-

Alier, “International Biopiracy versus the Value of Local Knowledge,” Capitalism Nature Socialism, 11, 2000.33D.A. Posey and G. Dutfield, Beyond Intellectual Property (Ottawa: International Development Research Cen-

ter, 1996).34G. Dutfield, Intellectual Property Rights, Trade and Biodiversity: Seeds and Plant Varieties (London: Earthscan,

2002).


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academics, and activists, describes the unfairness of Western intellectual property regimes:“Increasingly, traditional knowledge, folklore, genetic material and native medical know-ledge flow out of their countries of origin unprotected by intellectual property, whileworks from developed countries flow in, well protected by international intellectual prop-erty agreements, backed by the threat of trade sanctions.”35 In response, demand is grow-ing that traditional knowledge be protected by international legal measures that takeprecedence over intellectual property law.36

Currently, intellectual property is considered inadequate and inappropriate for theprotection of traditional knowledge for several reasons:

. it recognizes individual and not collective rights;

. it requires a specific act of invention;

. it simplifies ownership regimes;

. it stimulates commercialization;

. it acknowledges only market values;

. it is subject to manipulation by powerful economic actors;

. it is difficult to monitor and enforce; and

. it is expensive, complicated, and time-consuming.37

Current intellectual property laws threaten both the cultural integrity of indigenous peoplesas well as their territorial and resource rights.38 Consequently, awareness is growing thatconventional intellectual property cannot be applied to traditional knowledge in a justway.39 Yet, both national and international law define and categorize traditional knowledgewithin the Western concept of intellectual property,40 which creates categories of traditionalknowledge, practices, and innovations that are alien to indigenous peoples.41

35D.A. Posey and G. Dutfield, “Plants, Patents and Traditional Knowledge: Ethical Concerns of Indigenous and

Traditional Peoples,” in G. Van Overwalle (ed.), Patent Law, Ethics and Biotechnology (Brussels: Bruylant,

1998), p. 114.36W. Weeraworawit, “International Legal Protection for Genetic Resources, Traditional Knowledge and

Folklore: Challenges for the Intellectual Property System,” in Bellmann, et. al. (eds.), op. cit.37D.A. Posey, “Commodification of the Sacred Through Intellectual Property Rights,” Journal of Ethnopharma-cology, 83, 2002.38T. Simpson and V. Jackson, “Effective Protection for Indigenous Cultural Knowledge: A Challenge for the

Next Millennium,” Indigenous Affairs, 3, 1998.39Pretorius, op. cit.40B. Tobin, “Redefining Perspectives in the Search for Protection of Traditional Knowledge: A Case Study from

Peru,” Review of European Community and International Environmental Law, 10, 2001.41An alternative indigenous definition offers a more unified concept of knowledge. According to Amazon

peoples, knowledge is the result of a cumulative and collaborative process throughout the existence of a

group and its practices. Innovations are recent insights applied to new problems and in this respect are additions

to collective knowledge. See Tobin, op. cit.


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Intellectual property, embedded as it is in the Western proprietary model, reflectseconomic rationalism in the process of granting property rights. Regardless of whetheror not knowledge has been developed for use in a particular local context, under the intel-lectual property regime, as long as its fundamental features can be codified and written ina technical form, it can be used anywhere. In contrast, in traditional societies, knowledgeis often based on an unwritten, collective sharing system. Moreover, traditional econo-mies do not revolve around wealth maximization.42 Economic life is part of the social,political, and ritual life of the community.

The practice of using exclusive property rights as an instrument to maximize wealthis a practice that is rooted in the development of Western industrial capitalism and phi-losophically justified as a “marketplace of ideas.” This central tenet of neoliberalism—thebelief that ideas, even when grown in a social context, can be individualized—gives indi-viduals property rights over those ideas in the market.43

Such an economic justification of intellectual property is narrow, rigid, and providesno moral justification for the ownership of ideas and knowledge.44 It is narrow becauseintellectual property maximizes economic utility and says little about social utility; it isrigid because it posits the market as the only method for the distribution of ideas; andit is amoral because it gives authority to the economic rationalism of markets, whichthreaten the well-being and even survival of whole indigenous communities and societies.In reality, knowledge is neither exclusive nor scarce. The capitalist economic model, inorder to maximize wealth, transforms knowledge into separable and transferable com-modities so that it becomes scarce and exclusive.45

Some challenge whether or not knowledge in general can be considered property,because knowledge can only exist in an environment where ideas are shared, debated,and transformed.46,47 Knowledge is not static; it evolves and increases when it is con-sumed and shared. Those who oppose knowledge-based intellectual property arguethat the Western notion is based on contradictory concepts of exclusive property rightsand freedom of thought. Private property enhances one’s freedom at the expense ofanother’s. Private intellectual property restricts the methods of acquiring, using, andexpressing ideas. According to Mill, restricting the free flow of ideas restricts individualgrowth, and development hinders technological innovation.48 As touched upon pre-viously, turning knowledge into property requires transforming it into separable andtransferable items—ideas become things, incorporeals become corporeals, and corporealsbecome marketable commodities. Thus, patents represent capital’s appropriation of the

42A. Zerda-Sarmiento and C. Forero-Pineda, “Intellectual Property Rights Over Ethnic Communities’ Know-

ledge,” International Social Science Journal, 54, 2002.43Mushita and Thompson, op. cit.44Martin, op. cit.; May, op. cit.45Mushita and Thompson, op. cit.46Ibid.47Zerbe, op. cit.48E. Hettinger, “Justifying Intellectual Property,” Philosophy and Public Affairs, 18, 1989.


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knowledge commons in order to accumulate wealth,49 a takings that began withEuropean colonization of America.

European Expansion and the Fate of Indigenous Property

When European settlers established their claims in America, aboriginals were livingthere with indigenous systems of property and established societal institutions and tra-ditions.50 Some theorists tried to justify the establishment of European systems of prop-erty despite knowledge that there were Indian Nations with their own systems.

Locke’s terra nullius argument, in the Second of his Two Treatises of Government,misinterprets the aboriginal systems of property and political organization but exemplifiesthis thinking. Locke first argues that aboriginal people—who lack an established systemof property and limit their activity to hunting and gathering—are in a pre-political stageof nature. Conversely, European society represents the most advanced and civilized stagebecause of its established legal system of property, political society, and commercialmarket-oriented agriculture and industry.51

Locke asserted that aboriginal people have property rights over only the fruits of theirlabor, such as the fish they catch and the berries they pick, and not over the land itself.Consequently, anyone can appropriate and settle on aboriginal land without consent aslong as the land is uncultivated, or “vacant” (in other words, land used for huntingand gathering), and there is enough good land left in the commons. If the aboriginalswant to defend their property, which they have mistakenly considered theirs for millen-nia, that is a violation of natural law, for which they may be punished and killed.

Locke justified colonial expropriation by claiming that aboriginals are better off withthe establishment of a commercial system of private property. He argued that theEuropean economic system of surplus production and profit creation is superior to theaboriginal system of hunting and gathering for fulfilling needs, because the Europeansystem uses the land more productively, produces a greater quantity of conveniences,and leads to greater opportunities for work and labor by expanding the division of labor.

To explain why the Europeans have property rights systems and institutions like gov-ernment while the aboriginals lack them, Locke said aboriginals have no need for them attheir level of economic development. They have no desire to expand their possessions,because they have not been introduced to the system of money and markets, which

49S. Gudeman, “Sketches, Qualms, and Other Thoughts on Intellectual Property Rights.” In S.B. Brush and

D. Stabinsky (eds.), Valuing Local Knowledge: Indigenous People and Intellectual Property Rights (Washington,

DC: Island Press, 1996); C. May, “Thinking, Buying, Selling: Intellectual Property Rights in Political Econ-

omy,” New Political Economy, 3, 1998.50J. Tully, “Aboriginal Property and Western Theory: Recovering a Middle Ground,” Social Philosophy andPolicy, 11, 1994.51John Locke, Two Treatises of Government, (ed.) Peter Laslett, (New York: Cambridge University Press, 1963);

Tully, op. cit.


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leads to disputes over property and requires institutionalized political and propertysystems for their resolution.

Other Europeans who actually observed and studied the Indian nations came to adifferent conclusion. They recognized that the four criteria of nationhood in internationallaw were present in those societies. There was a permanent population, a form of govern-ment, a recognized occupation of territory over time, and the ability to enter intorelations with other governments.52 From the aboriginal point of view, the European set-tlers appropriated land that was part of their nations. The land was not “owned” in theWestern sense, but it was under aboriginal occupation and jurisdiction.

Prior to Locke, there is evidence in the writings of Vitoria (cc. 1486–1546) and LasCasas (1474–1566) that aboriginals were recognized as comprising indigenous societieswith distinct political entities and territorial rights.53 Vitoria and Las Casas were membersof the Spanish School of the 16th century, which considered the Spanish presence in theAmericas and the subjugation of the Indians. Las Casas was a great defender of the rightsof Indians, and the Spanish School became the foundation of a particular legal traditionthat is recognized as one of the first schools of thought on indigenous rights.

Contrary to Locke, both Vitoria and Las Casas believed in the universality of humanrights and the equality of humans. Las Casas’ views reflected his concern with the materialwelfare and physical survival of the Indians. For him, indigenous rights included materialsecurity, cultural integrity, and political autonomy, comparable to the modern concept ofself-determination. He devoted much of his life to the protection of Indians and the res-toration of their former (pre-colonial) status. In recognizing that the Indians were equalto the Spanish, Las Casas denied terra nullius. He argued that labelling Indians as barbar-ians in effect created terra nullius.

Vitoria’s focus was more theoretical, and he developed a model that juxtaposed therights of the Spanish and the Indians. Like Las Casas, Vitoria recognized the sovereigntyof the Indians. In De Indis, he analyzed the society and economy of the Indians and con-cluded that prior to the arrival of the Spaniards they had private ownership and property.

Rousseau also rejected Locke’s proposition of unlimited property rights forEuropeans, because it excluded most people from holding property and denied the prin-ciple of natural rights. Rousseau observed that the growth of artificial wants changed theoriginal condition of humankind and led to a system of unequal private property rights:

The first person who, fencing off a plot of ground, took it into his head to say this

is mine and found people simple enough to believe him, was the true founder ofcivil society. What crimes, wars, murders, what miseries and horrors would thehuman race have been spared by someone who, uprooting the stakes or filling

52Tully, ibid.53G.C. Marks, “Indigenous Peoples in International Law: The Significance of Francisco De Vitoria and Barto-

lome De Las Casas,” in J.S. Anaya (ed.), International Law and Indigenous Peoples (Hants, U.K.: Darmouth,

2003).


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in the ditch, had shouted to his fellow man: Beware of listening to this impostor;you are lost if you forget that the fruits belong to all and the earth belongs to noone.54

Rousseau’s ideas, along with those of the Spanish School and Locke, are reflected indifferent aspects of today’s international agreements regulating the application of intellec-tual property rights.

The Trade Related Aspects of Intellectual Property Rights (TRIPS)55 under theGeneral Agreements on Tariffs and Trade (GATT) and the Convention on BiologicalDiversity (CBD)56 impose international norms on developing countries to promotetrade in biogenetic resources and human knowledge.57 TRIPS and CBD assert thebenefits of the privatization of biogenetic resources based on the assumption that privateproperty rights drive the most efficient and sustainable use of biological resources. Thisassumption reflects the belief of both Locke and Rousseau that property rights are bene-ficial.58 However, Locke and Rousseau disagreed over the extent of those rights. This dis-agreement is reflected in a basic difference between CBD and TRIPS. CBD recognizes thestatus of indigenous peoples as custodians over biological resources, which reflectsRousseau’s emphasis on the importance of community. In contrast, TRIPS does notrecognize the status of indigenous peoples; it reflects Locke’s perspective of terra nullius.

While TRIPS rests on Lockean notions of unlimited property enforced throughstronger intellectual property rights, CBD recognizes the importance of communityrights through the nomination of indigenous communities to provide a foundation forbiological conservation.59 In this respect, CBD reflects Rousseau’s attempt to reconcilethe needs of the community and the rights of the individual. Though CBD privatizescontrol over biogenetic resources in a more egalitarian manner than TRIPS, it supportsa system of private property as the best way to guarantee an efficient allocation of biodi-versity and biogenetic resources. It excludes any other form of property rights, includingcommon property. CBD and TRIPS both champion commercialization and privatiza-tion of the intellectual and biogenetic commons. The only significant difference is thatCBD includes provisions for benefit sharing in the hope that indigenous peoples canmaintain some control over their knowledge and commons, or at the very least can benefitfrom its appropriation.

54Cited in C.B. Macpherson, Property: Mainstream and Critical Positions (Toronto: University of Toronto Press,

1978), p. 31. Although this statement appears contemptuous of the concept of private property, Rousseau did

believe in property rights. But, he saw those rights as limited to the amount of property a man could work on by

himself.55Countries that wish to enjoy the benefits of World Trade Organization membership are obliged to comply

with TRIPS.56The CBD came into being during the Earth Summit in Rio de Janeiro in 1992 and entered into force in 1993.57Posey and Dutfield, 1996, op. cit.; T. Simpson, Indigenous Heritage and Self-Determination (Copenhagen:

IWGIA, 1997).58Zerbe, op. cit.59Ibid.


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At this point in time, humanity is facing the choice of whether or not to allocateexclusive or communitarian rights over newly discovered biogenetic resources of nature,including the knowledge of how to utilize them. CBD and TRIPS create a private prop-erty regime to manage and control the use of these resources. Just as the Supreme Court inthe Chakrabarty case was inspired by Locke’s individualistic labor theory, private mon-opoly rights prevail over community interests in both TRIPS and CBD. TRIPS is a con-firmation that intellectual property is rooted in a neoliberal tradition. CBD justifiesintellectual property as a way to avoid a “tragedy of the commons,” which is based ina utilitarian perspective.

The Utilitarian Rationale for Intellectual Property

Utilitarian arguments, especially biodiversity conservation, are also used to justifyexpanding intellectual property rights to include traditional knowledge.60 Indigenouspeoples, with their knowledge about nature’s resources, are recognized as important cus-todians of the planet’s biological resources. Thus, following utilitarian thinking, indigen-ous peoples should be given incentives to preserve biodiversity.

The importance that CBD attaches to intellectual property is reflected in the fact thatit can be used as a tool to allocate resource rights. Theorists such as Coase and Demsetzregard private property as a superior instrument, because it promotes exclusivity andtransferability, which, according to capitalist doctrine, leads to the most efficient resourceallocation.61 Coase argues that it is in the interest of both the producers and users ofbiological resources to negotiate in order to internalize their value.

According to the theory set out by Demsetz and Coase, as long as biologicalresources are a public good, society will underinvest in their conservation. Thecommon-heritage treatment of biological resources makes them externalities to

production cost accounting. The appropriate response to the increased valueand ease of identifying biological resources is to create new legal means (e.g., intel-lectual property) or contracts to internalize these qualities.62

In order to deal with the issues of mutually profitable access to biological resourcesand biodiversity conservation, CBD promotes, according to Coase, “the exclusive andtransferable rights to genetic resources, species and, if possible, ecosystems to allow thecreation of markets guaranteeing their efficient allocation.”63 CBD achieves this by reiter-ating the sovereignty of states over their biological resources; promoting the preservationof knowledge, innovation, and practices of indigenous and local communities embodying

60R.A. Sedjo, “Property Rights, Genetic Resources, and Biotechnical Change,” Journal of Law and Economics,35, 1992.61R.H. Coase, “The Problem of Social Cost,” The Journal of Law & Economics, 3, 1960; H. Demsetz, “Toward a

Theory of Property Rights,” American Economic Review, 57, 1967.62S.B. Brush, “Is Common Heritage Outmoded?” in Brush and Stabinsky (eds.), 1996, op. cit., p. 158.63V. Boisvert and A. Caron, “The Convention on Biological Diversity: An Institutionalist Perspective on the

Debate,” Journal of Economic Issues, 36, 2002, p. 152.


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traditional lifestyles; and formally extending the scope of intellectual property to includelife forms.

On the one hand, CBD wants to ensure the maintenance of traditions, and it createsincentives to innovate and favor conservation. On the other hand, it advocates marketregulation, which implies appropriation and cultural homogenization. CBD tries to com-bine biodiversity conservation with genetic resource commodification. In order to resolvethis contradiction, it introduces the concept of bilateral market contracts between theholders of traditional knowledge (e.g., states, local communities, indigenous peoples)and the users of biological resources (e.g., pharmaceutical companies) to enable an opti-mal allocation of resources and to regulate an equitable sharing of the benefits resultingfrom their preservation.

But this is problematic, not least because one party to this contract—the local cus-todians (i.e., the indigenous peoples)—are not recognized as equal partners in the bar-gaining. No international instrument is currently in place to grant intellectual propertyrights to indigenous peoples.64 On the contrary, current practice shows that stateswant to keep sovereignty over biogenetic resources and prevent indigenous peoplesfrom participating in the financial benefits that result from their appropriation bythird parties. The INBio contract in Costa Rica provides one example of this practice.65

In 1991, Costa Rica’s National Biodiversity Institute (INBio) signed a contract thatallowed the Merck Corporation to appropriate natural medicines in exchange for com-pensation to the government of Costa Rica, bypassing the indigenous communitiesfrom which knowledge about these medicines came. In such ways the expansion of intel-lectual property aggravates global inequality. This is confirmed by the U.K. Commissionon Intellectual Property Rights, which questioned whether or not the current inter-national intellectual property regime is in the interests of the poor,66 given that lessthan 0.001 percent of the profits from drugs that came from traditional plants havegone back to indigenous peoples.67

The Coasian model reaffirms the weak status of indigenous peoples in negotiationsover biogenetic resources. In the real world, bargaining nearly always takes place betweentwo powerful actors, the nation state and the multinational corporation, and excludes ormarginalizes the weak actor, indigenous people.68 The other utilitarian argument for anintellectual property system—that it most efficiently allocates the return of benefits to theproducers—can only work if all actors are within the market system and are driven by acost-benefit analysis.

The argument that efficient property rights reduce externalities, allow for bargaining,and avoid tragedies of the commons works only under limited circumstances. Market

64Brush, 1996, op. cit.65Boisvert and Caron, op. cit.66CIPR, “Integrating Intellectual Property Rights and Development Policies” (London: Commission on Intel-

lectual Property Rights, 2002).67Posey and Dutfield 1996, op. cit.68Brush, 1996, op. cit.


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efficiency is not self-regulating. An equal and fair distribution in the market is bestachieved when it is proactively linked to democratic control.69 Fair use of the global com-mons under an intellectual property regime can only occur in a society that guarantees alevel playing field for all interest groups, where all parties to the bargaining process areequally well-resourced, well-informed, and well-represented.

Thus, intellectual property rights cannot in good faith be justified on the basis ofeither utilitarian or ethical arguments. Using intellectual property regimes to stimulatebiodiversity conservation protects the economically strong at the expense of the weak.In assessing the morality of intellectual property regimes, one other question is worth con-sideration: whether or not human rights could be used to guide the reform of intellectualproperty to make it a fairer system.70

Tensions between Human Rights and Intellectual Property

The tension between intellectual property and human rights is increasingly recog-nized as an important issue in the development of new international law standards.71

For many years, human rights and intellectual property developed separately from eachother. But observation of the effects of intellectual property regimes has prompted view-points to change. Since the 1990s, human rights observers and policymakers have increas-ingly recognized that the rights of indigenous peoples should receive more attention.There is also more widespread concern that linking trade to intellectual property inTRIPS will impact human rights and restrict the initiatives countries can take to protectand promote human rights.72 And there is increasing acknowledgement that the recenttrend of turning creative work, cultural heritage, and scientific knowledge into privateproperty has implications for human rights.73

Coombe argues that the use of intellectual property to advance the objectives of CBDhighlights the problem of state sovereignty in the international human rights arena.74

From a human rights perspective, the protection of indigenous peoples’ traditionalknowledge through intellectual property requires that states recognize their obligationstowards indigenous peoples. Consequently, CBD has been criticized for not requiringthe participation of indigenous peoples in decisions about access to their resources andknowledge.

The UN Sub-Commission of the Human Rights Commission on the Protection andPromotion of Human Rights argues that there is a conflict between the realization of

69P. Drahos, “Negotiating Intellectual Property Rights: Between Coercion and Dialogue,” in Drahos and

Mayne (eds.), op. cit.70Drahos, 1996, op. cit.71L.R. Helfer, “Human Rights and Intellectual Property: Conflict or Coexistence?” Minnesota IntellectualProperty Review, Fall, 2003; Tobin, op. cit.72R.J. Coombe, “Intellectual Property, Human Rights & Sovereignty,” Indiana Journal of Global Legal Studies,6, 1998.73A.R. Chapman, “The Human Rights Implications of Intellectual Property Protection,” Journal ofInternational Economic Law, 5, 2002.74Coombe, op. cit.


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TRIPS and the protection of economic, social, and cultural rights.75 For the Sub-Commission, human rights law is more important than intellectual property law. In2000, it adopted a resolution that deals with this matter and noted that: “Since theimplementation of the TRIPS Agreement does not adequately reflect the fundamentalnature and indivisibility of all human rights, including the right of everyone to enjoythe benefits of scientific progress and its applications, the right to health, the right tofood, and the right to self-determination, there are apparent conflicts between the intel-lectual property rights regime embodied in the TRIPS Agreement, on the one hand, andinternational human rights law, on the other.”76 Thus, the Sub-Commission stated thatthe current intellectual property regime favors the interests of multinationals at theexpense of the development of poor countries.77

In 2001, the UN Committee on Economic, Social and Cultural Rights (CESCR)issued a statement on intellectual property and human rights. Its key point was thatboth international trade and intellectual property regulation, including TRIPS, mustabide by international human rights law.78 Furthermore, the Committee emphasizedthat intellectual property regimes must promote and protect all human rights, includingthose in the International Covenant on Economic, Social and Cultural Rights (ICESCR),which calls for equality of all persons and their equal standing before the law; the right ofeveryone to be consulted and participate in significant decision-making processes thataffect them; and the need for accessible, transparent, and effective accountability mech-anisms. The Committee also noted that a human rights approach to intellectual propertymust focus on the needs of the most disadvantaged and marginalized communities andinclude self-determination.

But CESCR does not reject intellectual property. Employing the utilitarian argu-ment, it legitimizes intellectual property as instrumental because it is a means by whichstates seek to provide an incentive to stimulate innovations and creativity, and it protectscorporate interests and investments. In contrast, the Committee sees human rights as fun-damental, because they are derived from the dignity of human beings. The Committeealso acknowledges that because countries are in a different state of development, itwould be wrong to apply uniform intellectual property rules to them. For some countriesthe crucial issue is facilitating access, while for others it might be more important toprotect technology.

In sum, a human rights approach could provide new goals for intellectual propertyregimes. In addition to maximizing private economic benefits, it could have a social func-tion of improving the general welfare. But in order for intellectual property to change, itfirst must be consistent with international human rights frameworks. In this respect,Article 15 of ICESCR can be a proxy: any form or level of intellectual property protectionmust facilitate and promote cultural participation and scientific progress so that all

75Helfer, op. cit.; Tobin, op. cit.76UN, “Human Rights and Intellectual Property,” Statement by the Committee on Economic, Social and

Cultural Rights, November 26, 2001, p. 7.77Chapman, 2002, op. cit.78Ibid.


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members of society benefit.79 The right of everyone to enjoy the benefits of scientific pro-gress and its applications consists of three components: a right of access to beneficialscientific and technological developments; a right of choice in determining prioritiesand making decisions about major scientific and technological developments; and aright to be protected from possible harmful effects of scientific and technological deve-lopment, on both individual and collective levels.

A human rights approach to intellectual property, based on Article 15, demandsfrom states a sensitivity and consideration for the poor, disadvantaged minorities,women, rural residents, and indigenous peoples, who are absent from the decision-making process. The right of self-determination is part of ICESCR and should includethe right to participate in societal decision-making about the development of scienceand technology.80 In order for intellectual property patents to be consistent withhuman rights, states need to take on board the following considerations: stressing thehuman dignity in international human rights instruments and the norms defined therein;promoting scientific progress and public access to its benefits; respecting the freedomindispensable for scientific research and creative activity; and encouraging the develop-ment of international contacts and cooperation in the scientific and cultural fields.81

Unfortunately, Article 15 is one of the most neglected provisions within the inter-national human rights framework. Its implementation and monitoring has been difficultfor various conceptual and methodological reasons. First, economic, social, and culturalrights are less accepted or understood than are the civil and political rights stipulated inthe International Covenant on Civil and Political Rights. Second, in contrast with civiland political rights, ICESCR rights (with the exception of labor rights) are not part ofdomestic or international jurisprudence. The provisions in Article 15 were not consideredhuman rights when the UN Declaration on Human Rights was promulgated in 1948.

In order to reduce the tension between human rights and intellectual property rights,as a first step, some balance must be struck between private and public interests. However,economic globalization and the increasing privatization of science have made this balancemore difficult to achieve. Commercialization now plays a dominant role in science andhas changed intellectual property from a tool to provide incentives to inventors and crea-tors into an economic mechanism that encourages investment.

Neoliberal globalization is a disincentive to creating an intellectual property regimealigned within a human rights framework because of the values that it promotes.82 Ahuman rights approach would evaluate science according to its ability to promotehuman dignity and the common good. Such values are meaningless in a context wherescience emphasizes profitability and economic competitiveness. Globalization alsoreduces the regulatory and redistributive role of the state, which is problematic for theadvancement of human rights, because enforcement of human rights imposes reciprocal

79Ibid., and Chapman, 1998, op. cit.80Chapman, 1998, op. cit.81Coombe, op. cit.82Chapman, 1998, op. cit.


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duties and obligations on states. The realization of human rights in general, and econ-omic, social, and cultural rights in particular, demands an effective and strong state. How-ever, under pressures from neoliberal globalization and its erosion of the welfare state,government is increasingly perceived as a mechanism to create conditions for privateactors to fulfil their goals, rather than as an entity to help ensure reasonable living stan-dards for most of its citizens.

International law has not yet obliged states to implement sui generis intellectual pro-tection for traditional knowledge. So far, only a few examples of this have taken place,e.g., in the Philippines and the Andean Community—Bolivia, Colombia, Ecuador,Peru, and Venezuela.83 In these countries, access to biogenetic resources and traditionalknowledge is now dependent on the consent of the indigenous communities.

Indigenous peoples have differing views on what action to take in order to protecttheir traditional knowledge. While some indigenous peoples call for special legislationto protect indigenous rights, others favor a purely customary law solution. Traditionalproprietary systems vary among indigenous peoples, and some have their own custom-based intellectual property system.84 Based on an anthropological study done by theOxford Working Group on Traditional Resource Rights, Dutfield listed indigenous var-iants of intellectual property.85 Some indigenous communities value their knowledge asprivate property, which can be sold or traded, within cultural bounds, for other goods.

Benefit-sharing agreements may be another option for indigenous peoples. CBDdemands equity for them, and in recent years pharmaceutical companies have increasinglyaccepted the idea that they must compensate indigenous people. While such distributiveagreements are an improvement, there are questions about their social consequences.

The San and Hoodia

The San are one of the most ancient populations on the planet. Remains of theirancestors date back some 120,000 years in their present homelands. Today there arenearly 80,000 San living in Namibia, Botswana, and South Africa, with smaller numbersremaining in Angola, Zambia, and Zimbabwe. Only a very small number of San groupsstill live their traditional hunting and gathering life. The vast majority live in extremepoverty in villages, practicing a mixed economy, or attached to Bantu villages and cattleposts, or working on commercial farms and ranches, or in government resettlementcamps.86

The San peoples of the Kalahari desert have chewed the succulent plant, hoodia, formillennia on hunting trips as an appetite suppressant and thirst quencher. A patent was

83Tobin, op. cit.84Dutfield, 2002, op. cit.; Timmermans, op. cit.85Dutfield, 2000, op. cit.86See J. Suzman, An Introduction to the Regional Assessment of the Status of the San in Southern Africa (Windhoek:

Legal Assistance Centre, 2001).


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awarded to South Africa’s Council for Scientific Industrial Research (CSIR) in 1998without San knowledge. After some campaigning, the San struck a deal that allowsthem to benefit from a diet pill extracted from hoodia that was to be marketed by thePfizer Corporation. Pfizer has since pulled out, and Phylopharm, Ltd. is now workingwith large food marketers (Kraft and Nestle) to license the product.87 Under the termsof the agreement, the CSIR will pay the San 8 percent of all payments it receives fromits licensee, as well as 6 percent of all royalties once the drug is commercialized.

The hoodia case has attracted international attention for several reasons. First, theappetite suppressant is considered to have the potential to become the first “blockbuster”drug derived from an African plant. It may be the first drug with a potential to “cure”obesity.88 Second, the San have been engaged in a long struggle to have their rights recog-nized by southern African governments.89 The hoodia benefit-sharing agreement with anarm of the government of South Africa is seen as a major step in their struggle for humanrights and social justice.

However, the agreement raises a number of questions. Is it fair to the San? What areits implications for the practice of bioprospecting under CBD? How does it relate to theproblem of indigenous peoples lacking concepts of ownership and property rights? Wasthere a better alternative for the San? While it will take some time to answer these ques-tions, Wynberg has already identified some problems with the agreement.90 First, there isno effective legislation or institution powerful enough to enforce the conditions of theagreement. The major potential guarantor, the government of South Africa, has playeda weak role in the process. Second, the agreement failed to get prior informed consentfrom the San. For Wynberg, this failure raises fundamental questions:

Who qualifies as the rightful community or group from whom consent should

be obtained? Can knowledge be attributed to a single group or individual? Isthe privatization of traditional knowledge through intellectual property rightsnot contrary to the belief of many communities that such knowledge is collectively

held for the benefit of the broader community? Can bioprospecting, in fact,deliver benefits and social justice?91

The benefit-sharing agreement between the San and the CISR has become an importanttest of whether or not intellectual property rights can be used to advance the developmentof indigenous peoples while at the same time conserving their culture and their know-ledge of nature.

87D. Firn, “Phylopharm Pins Hopes on the New Hoodia Diet,” Financial Times, June 17, 2004; D.J. Stephenson,

The Patenting of P57 and Intellectual Property Rights of the San Peoples of Southern Africa (Boulder: First Peoples

Worldwide, 2003).88S. Laird and R. Wynberg, “Institutional Policies for Biodiversity Research,” in S. Laird (ed.), Biodiversity andTraditional Knowledge: Equitable Partnership in Practice (London: Earthscan, 2002).89R.K. Hitchcock, “We are the First People: Land, Natural Resources and Identity in the Central Kalahari,

Botswana,” Journal of Southern African Studies, 28, 2002, pp. 797–824.90R. Wynberg, “Bioprospecting Delivers Limited Benefits in South Africa,” European Intellectual PropertyReview, 26, 2004, pp. 239–243.91Ibid., p. 241.


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Some indigenous peoples are against any form of commercialization of biogeneticresources and traditional knowledge and therefore are also opposed to any developmentof sui generis legislation for its protection. According to Coombe, indigenous peoples inthe North and indigenous peoples of the South are developing diverging positions aboutintellectual property rights.92 This division can be explained on the basis of the differentsocial and political contexts in which groups live. The claims of indigenous peoples in theNorth are increasingly recognized in national and international law. For them, intellec-tual property rights are an integral part of their claims of self-determination. However,the indigenous peoples of Asia and Africa are still struggling for recognition. Becauselegal recognition of their sovereign rights over resources and territory seems unlikely,they have opted for a different strategy. They are not keen to link intellectual propertyrights to self-determination rights; instead, they take a pragmatic approach (such asbenefit sharing) and see short-term benefits from the use of intellectual property as atool to alleviate poverty.

The case study of the San is a reflection of the central debate about the current stateof indigenous peoples around the world: economic development vis-a-vis self-determi-nation. Like many native peoples subjected to Western expansion, the San are reclaimingand re-ordering ways of knowing that were driven underground during centuries ofcolonization.93 After being evicted from mining areas, national parks, and conservationareas, the San began in the 1990s to reclaim their land, culture, and identity. Unlikemany minority indigenous groups, they have organized themselves as an internationalmovement for human rights and social justice.

The benefit-sharing agreement between the San and CISR represents the product ofa new generation of indigenous elites who are willing to make deals with powerful statesand multinational corporations. Some indigenous academics have argued that this dealmaking carries a great risk—that indigenous peoples will become alienated from theirvalues and swept away in the markets of the Western world.94 Other case exampleshave illustrated that such agreements can contribute to animosities within native groups.When the Kani peoples of the State of Kerala in South India entered into a benefit-sharing agreement for the development of Jeevani (from the fruit of the arogyapaachaplant), it divided them into two opposing groups. The problem of how to share benefitswith those opposed to agreements remains unresolved.95 After recognition of their landclaim in 1999, the # khomani San in South Africa became divided between traditionalistsand Westernizers. An ongoing case study of the San experience promises to reveal insightsinto such divisions and into the decision-making processes within their groups.96

The San have already had a taste of such animosities. They are stereotypically pro-jected to be Stone Age hunter-gatherers (the “bushmen”). Activists and lawyers workingon their behalf recognize that the San claims for land conceal the truth about who they are

92Coombe, op. cit.93L.T. Smith, Decolonizing Methodologies, Research and Indigenous Peoples (London: Zed, 1999).94Ibid.95S.P. Mulligan, op. cit.96Saskia Vermeylen is doing this study as her Ph.D dissertation at the University of Surrey.


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today, after centuries of colonization and apartheid.97 Ultimately, an analysis of the Sanexperience and other such struggles may answer the question of whether or not intellec-tual property rights can be adapted as a tool for indigenous peoples that serves the inter-ests of their economic development and the preservation of their culture. For the largerworld, the San experience can shed light on the role of indigenous peoples in the ongoingstruggles to preserve biodiversity.

Conclusion

It is problematic that an intangible subject such as traditional knowledge can betransformed into a tangible one through intellectual property rights. The mechanismsthat control the expansion of intellectual property rights allow only those subjects thatfulfil certain criteria. These criteria are based on a Western concept of what defines know-ledge, innovation, and creativity. They are then applied within neoliberal markets. In thiscontext, intellectual property guarantees monopoly rights to powerful pharmaceuticalmultinational corporations and promotes inequality.

Historically, there has been a divergence between the interests of developed anddeveloping countries in terms of patent protection. The framework of historically weakinternational intellectual property protection often has been used as a tool by developingnations. For example, when the U.S. was still a young country, it refused to respect inter-national intellectual property rights on the basis that it was entitled to benefit freely fromforeign works, because it was deemed necessary for the nation’s social and economicdevelopment.98

It is claimed that a key social objective of intellectual property legislation is to balanceprivate and public interests to reward innovation while simultaneously ensuring that thepublic maintains access to useful information.99 However, the current intellectual prop-erty regime shifts this balance away from the public interest. Rights have become aninstrument to secure an exclusivity of information and to maximize the profits thatflow to their owners. Thus, intellectual property has become an institution that protectsvested economic interests.100

Monopoly ownership of communally held resources is not only exploitative but alsoethically unjustifiable. Furthermore, utilitarian rationales for extending intellectual prop-erty to natural resources and traditional knowledge fail to provide equal participation to

97R. Sylvain, “Land, Water and Truth: San Identity and Global Indigenism,” American Anthropologist, 104,

2002, pp. 1074–1085; S. Robins, “NGOs, Bushmen and Double Vision: The # khomani San Land Claim

and the Cultural Policies of Community Development in the Kalahari,” Journal of Southern African Studies,27, 2001, pp. 833–853; S. Robins, “Whose Modernity? Indigenous Modernities and Land Claims after

Apartheid,” Development and Change, 34, 2003, pp. 265–285.98Zerbe, op. cit.99King and Eyzaguirre, op. cit.100H.M. Spector, “An Outline of a Theory Justifying Intellectual and Industrial Property Rights,” EuropeanIntellectual Property Review, 8, 1989.


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indigenous peoples. Commissions of the UN reaffirm this conclusion, arguing that thecurrent intellectual property framework not only advantages private interest at theexpense of the public interest, but that the expansion of private intellectual propertyinto new public domains is a potential threat to human rights.

The conservation of biodiversity is too vital to the wellbeing of life on the planet tobe left in the hands of private, profit-maximizing actors, or to be subject to private-public“partnerships.” This task requires active international regulation. In 2000, the UNadopted a supplement to the CBD, the Cartagena Protocol, which established a Biodiver-sity Clearinghouse to exchange information on living modified organisms. The idea is toprotect biodiversity from the risks posed by private biogenetic adaptations of life andindigenous knowledge. However, the enforcement strengths of such international agree-ments remain weak.101

Is there any future for intellectual property rights to be used as a tool to protect theknowledge of indigenous peoples? Some accept its current shortcomings but maintainthat agreements like TRIPS can be strengthened and augmented. For example, Downeswrites that intellectual property regimes, to be effective and legitimate, must be adapted to“diverse and far-flung constituencies.”102 He suggests, among other things, the use of geo-graphic trademarks for indigenous knowledge. However, our analysis indicates that tra-ditional knowledge and intellectual property rights are, at root, oppositional concepts.

Nevertheless, intellectual property rights are here. So, a precautionary path mandatesmore research and action to secure the best possible outcome for biodiversity and for indi-genous people within the intellectual property regime, as well as opposing its furtherexpansion. The latter is already becoming a reality: “Since Bellagio, a number of legalthinkers have called for a radical downsizing of global intellectual property rights.”103

The best point that Downes makes in his defense of agreements like TRIPS is his callto collect local case studies that involve benefit sharing of indigenous knowledge, presum-ably including such arrangements as the one between the San people and the South Afri-can government. The burden of proof lies with those who promote such agreements.Their case has not yet been demonstrated.

It is true that some indigenous peoples see value in applying intellectual propertyrights to their traditional knowledge. Anthropological research shows that it is incorrectto assume indigenous societies are not familiar with the concept of intellectual property.The obstacle to its application is that the norms indigenous peoples developed throughmillennia of social practice to control the flow of ideas are hard to reconcile with theWestern technologies spawned in the Industrial Revolution.104 Ultimately, it may be

101Jacqueline Switzer, Environmental Politics: Domestic and Global Dimensions (Belmont, CA: Wadsworth,

2004), pp. 334–335.102David Downes, “How Intellectual Property Could be a Tool to Protect Traditional Knowledge.” In

K. Gallagher and J. Werksman (eds.), The Earthscan Reader on International Trade and Sustainable Development(London: Earthscan, 2002), p. 398.103Brown, op. cit., p. 238.104Ibid., p. 89.


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the case that intellectual property per se is not the problem so much as bundling it withWestern neoliberal property rights and markets. These markets are not democratic. Thecapitalization of the pharmaceutical giants, who are pushing hard for more expansiveintellectual property laws that favor their interests, exceeds the Gross Domestic Productof most nations. This corporate economic power translates into political power. Forexample, Brown notes that “the close relation between financial power and intellectualproperty is evident in the periodic legislative rescues of Mickey Mouse: whenever theWalt Disney Company’s copyright on the familiar rodent is about to expire, it getsrenewed by the U.S. Congress.”105

To counter this power, indigenous peoples, who represent only 4 to 8 percent of thehuman population, have the messages of social justice and self-determination, coupledwith their more deserving claims to be conservators of biodiversity.106 These are potentarguments with many publics in the North and have been made prominent in the cam-paigns of Green parties and in the activism of environmental and anti-globalizationmobilizations.107

In conclusion, continuing the expansion of intellectual property law to incorporatethe knowledge of indigenous peoples has negative consequences for them and for biodi-versity conservation, largely because the law is housed in a Western economic and legalsystem dominated by developed states and their multinational corporations, both ofwhich operate from a neoliberal tradition. For the sake of the integrity of indigenoussocieties and biodiversity, the globalization of the Western intellectual property regimemust be opposed.

105Ibid., p. 245.106There may be another argument in the making for indigenous peoples. The Inuit of the Arctic have

announced their intention to get a ruling from the Inter-American Commission on Human Rights that the

U.S., through its contributions to global warming, is threatening their very existence. See Andrew C. Revkin,

“Eskimos Seek to Recast Global Warming as a Rights Issue,” New York Times, December 15, 2004, p. A3.107Greg Buckman, Globalization: Tame It or Scrap It? (London: Zed, 2004), pp. 132–133.


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Documents

Intellectual property, indigenous knowledge, and biodiversity