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On the Arctic Circle, Santa Claus’ Village welcomes tourists from all over the world. Village employees dressed in fake Laplander — or, more properly, Saami — costumes pretend to be Santa’s helpers. Sometimes, says Piia Nuorgam, they hand out “religious tokens” and claim to perform “Lapp baptism” rites. Nuorgam is not amused. “It is disrespectful of our culture, and it has nothing to do with the Saami people,” contended Nuorgam, representing the Saami Council at a World Intellectual Property Organization meeting last December. An arresting figure in a royal blue dress with ornate carmine trim and a fringed red shawl, she spoke to an international assembly gathered to discuss the complexities of protecting traditional knowledge, genetic resources, and folklore. Nuorgam is worried about the loss of tourist income to genuine Saamis and the counterfeiting of their handicrafts, as well as the effect this all has on young Saamis: “Who wants to identify him or herself with a culture that is not only already fragile, but that is made to seem old-fashioned and ridiculous?” The Saami voice is just one among a growing multitude of indigenous peoples clamoring to find ways to protect their traditional cultures — and their unique forms of intellectual property — from unauthorized use. These cultures are coming under greater scrutiny from the industrialized world, not only for artistic and anthropological reasons, but also for their systems of knowledge unfamiliar to the West and the genetic resources of their local flora and fauna. For pharmaceutical companies, agribusinesses, textile manufacturers, and even the entertainment industry, tapping into these “new” sources of intellectual and genetic raw material can translate into big money. It’s not surprising, then, that one of the fastest-growing global controversies in IP law is whether to protect traditional knowledge, genetic resources, and folklore (TKGRF) through established IP regimes, and if so, how. Under WIPO’s aegis, delegates from more than 100 countries and 80 inter- and nongovernmental organizations have met semiannually over the last two years to discuss, sometimes heatedly, the need for legal protection, possibly including a new international treaty. The December meeting in Geneva was the fourth for the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore. The United States has sent representatives from the U.S. Patent and Trademark Office, the Copyright Office, the Library of Congress, the State and Interior departments, the U.S. Permanent Mission in Geneva, and a few Native American groups. The majority view at WIPO is that new law is urgently needed. The assault on TKGRF comes on several fronts. Many isolated ethnic communities developed unique art, music, and stories. Now their collective creations are being imitated and resold by outside commercial entities, often via unauthorized digital copying or music sampling. Researchers are improperly, albeit often unwittingly, misusing and disseminating works from written and oral traditions. Imitation textiles, jewelry, and artifacts are regularly passed off as the work of indigenous craftspeople by entrepreneurs who mass-produce poor-quality duplicates. When cheap knockoffs flood markets, the original artisans may cease working. Traditional skills, methods, and designs are being lost. Saoudata Aboubacrine and her sister, Talka, are typical of the energetic individuals who have gone looking for aid from the international legal community. The Aboubacrines helped found an organization, Tinhinan (literally, “nomadic women”), to promote social change and cultural integrity among nomadic Tuareg and Fulani communities in northern Burkina Faso, Mali, and Niger. Saoudata participates both in the WIPO conferences and at periodic United Nations meetings. “Our jewelry is being copied by the Japanese and the Senegalese and sold to the tourist market, and our music has been recorded and taken to be used in CDs for sale in Europe and America,” laments Saoudata, who wears her people’s long flowing costume with quantities of silver-colored jewelry of nomadic design. “We want legal protection for our cultural heritage, but our patent and copyright systems are not well-developed. . . . WIPO is really the only place we can go for help.” Meanwhile, bioprospecting by Western pharmaceutical companies and agribusiness is ravaging the holistic, often sacred, world of traditional medical knowledge and indigenous plants. New cures for devastating diseases beckon, but private industry is also lured by the profit potential of patents based on knowledge and genetic material gleaned from often unsophisticated communities. In recent years, the term biopiracyhas been coined to refer to the growing exploitation, and occasional outright theft, of human, plant, and other genetic material without the informed consent of its owners or traditional custodians. “Bioprospecting is being actively and aggressively pursued by industries around the globe,” says Eric Wilson, deputy director for the Office of American Indian Tribes at the U.S. Department of the Interior. And so, he adds, “The issue is upon us right now, how best and most appropriately to protect, share, and develop this knowledge.” Just how to do this is being debated in a number of international forums. Foremost are WIPO, the World Trade Organization, the UN Food and Agriculture Organization, the UN Working Group on Indigenous Peoples, UNESCO, and the membership of the Convention on Biological Diversity. The TKGRF dialogue is part of a larger debate about human rights, self-determination, and economic development. Among legal scholars and economists, there is increasing doubt about the long-held assumption that established IP regimes facilitate the transfer of technology and wealth from industrialized countries to less-industrialized ones. In fact, the limited evidence seems to suggest that IP laws actually inhibit such transfers and do much to reinforce existing income and development disparities. Small wonder that many less-developed nations are rethinking their entry into the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights. TRIPS set up guidelines and timetables for developing countries to implement national legislation establishing norms for IP protection. Developing countries agreed to these regimens as part of a larger trade package, in exchange for promised American and European Union reductions in agricultural export subsidies, phase-outs of textile import quotas, and trade concessions on tropical products. Some of the promised changes from the industrialized world have been forthcoming, but others have not. Now it is increasingly apparent that these new IP regimes, at least in the short run, protect only the interests of the current IP owners. And in the developing world, these consist overwhelmingly of foreign enterprises from the very countries that pressed for TRIPS. Given this climate, the debate over whether to extend IP protections to TKGRF — and especially the idea of creating sui generis laws outside familiar Western systems of IP law — takes on greater significance. Undoubtedly the most important single event in this area was the creation of the Convention on Biological Diversity in 1992. (The United States has signed the CBD, but the Senate has not ratified it.) The CBD seeks to conserve and preserve biological diversity and environmentally sustainable methods of development. In particular, Article 8j recognizes the vital importance of traditional knowledge and resources held by indigenous peoples, and it emphasizes the need for their active involvement. Obtaining prior informed consent from indigenous custodians before using their traditional knowledge or genetic resources is mandatory under the CBD, and users are required to share any resultant benefits with the source communities, including economic benefits arising from commercialization. At the December WIPO conference, delegates studied a recent survey of national legal protections for TKGRF and shared country presentations on new laws being written. They also discussed the database registry projects now under way. The purpose of such “defensive” databases is to record source ownership, to make this information available to patent examiners worldwide, and thus to combat usurpation of intellectual property by outsiders. The first major effort is being spearheaded by India, with WIPO assistance, and will eventually include all known texts on traditional Chinese and Ayurvedic (Indian) medicine, translated from local languages to ensure the greatest accessibility. Legal issues in the TKGRF area are complex. The sheer diversity of cultural traditions, types of protectable material, and groups of people involved is overwhelming. National IP regimes vary enormously. And many ethnic groups live in territory that overlaps several national, and thus legal, boundaries. A one-size-fits-all legal solution is far more likely to compound conflicts than to clarify issues. At least in the near term, disparities will likely increase as some countries begin to experiment and others do not. For instance, Panama has recently introduced collective ownership registration of copyrightlike rights in certain creations. Under this new system, the Kuna tribe has registered collective ownership of a traditional textile form known as the mola. New Zealand can restrict trademark registrations based on ethnic origin of mark design and authenticity of product origin, as appropriate. Only certain products, for example, will be entitled to carry a “Maori Made” or “Mainly Maori” mark. Trademarks will not be granted where their use is likely to offend a significant section of the community, thus precluding, say, a mark improperly incorporating use of a sacred Maori design. Nigeria has criminalized the intentional distortion of an expression of folklore and the misrepresentation of the source by a third party. And Tunisia now provides blanket copyright protection for works of national folklore, together with state collection of usage fees for public-domain cultural works and partial redistribution of these fees to the source communities. Some regional groups, such as the South American countries of the Andean Pact and the island nations of the South Pacific, have also taken a very assertive stance and developed extensive model laws. These often integrate traditional IP concepts with sui generis schemes. In the Andean Pact countries, a common legal regime on access to genetic resources became law in 1996. And some regional groups are lobbying hard for WIPO assistance in drafting aggressive protections. So the developing world is seeking creative solutions. But Western governments urge caution. One U.S. State Department official, while sympathetic to legitimate needs for TKGRF protection and anti-piracy efforts, points out that aggressive legislative efforts and politicized lobbying have resulted in an unintended moratorium on scientific inventory projects on various ecosystems in both the Andes and the Philippines. This is counterproductive for everyone, he argues, and it may unintentionally undermine the objectives of the Convention on Biological Diversity. More importantly, some foundational concepts in established IP regimes are directly at odds with the goals of indigenous groups, many of which seek perpetual and exclusive possession of their TKGRF. Copyright law, for example, requires the identification of specific authors and does not allow for the type of collective authorship common to folklore. The latter works are often not considered “original” in the copyright sense, since they are products of the cultural public domain. And some countries, including the United States, require fixation of a work before copyright law applies, which is problematic for storytelling and other oral traditions. Neither copyright nor patent law provide for permanent monopolies. Limited terms are meant to ensure a perpetual injection of new material into the public domain, thus spurring further innovation. Whether IP law functions effectively from this perspective today may be debatable. But outright monopolistic grants of unlimited duration to specified groups of people would undoubtedly deter the continuing evolution of the very cultures needing preservation, and might increase ethnic tensions and court logjams around the world. Under patent law, requirements of novelty and nonobviousness often prevent protection of centuries-old knowledge. And time limits on patenting innovations once they have been publicly used or sold would tend to operate against indigenous communities. On the other hand, trademark and trade secrets laws can theoretically give protection for unlimited time periods. But these protections have traditionally been defined on a strictly local basis, and the variation is thus considerable. Jeffrey Kushan, outside counsel to the D.C.-based Biotechnology Industry Organization and a partner in the D.C. office of Sidley Austin Brown & Wood, indicates that there is room for some compromise. Most BIO member companies, Kushan suggests, would go along with reasonable patent disclosure and benefits-sharing provisions in national legislation, so long as they are clear, unambiguous, and not likely to be arbitrarily or rapidly overturned. Kushan, who as a PTO official took part in the original CBD negotiations, explains that biotech companies need a stable legal environment before they will invest the kind of money needed to do serious research overseas. “There are legitimate concerns that can very likely be satisfactorily addressed among the parties if the rhetoric and emotions can just be toned down somehow,” he says. “But taking a meat ax to the patent system is not going to solve any problems.” In any case, Lila Feisee, BIO’s director of intellectual property, says that the industry needs better evidence as to how big a problem biopiracy really is. Even as governments and businesses debate the proper scope of TKGRF law, courts have already been struggling with the first legal disputes. The Australian judicial system has been a pioneer. One case, Bulun Bulun, et al. v. R&T Textiles Pty. Ltd.,involved the importation into Australia of printed fabric using unauthorized designs derived from a local Aboriginal artist’s painting “Magpie Geese and Water Lilies at the Waterhole.” The painter and his tribe sued the foreign textile manufacturer for copyright infringement in 1996. The significance of the case was the court’s willingness to look to customary Aboriginal law to determine the painter’s authority to use sacred designs belonging to the tribe and to define the relationship between the tribe and the painter. It then determined that under Australian law the painter had a fiduciary duty to the tribe to ensure that his artistic work was not exploited in a manner contrary to tribal law and custom. But because the painter had pursued the infringer, he had thereby discharged his fiduciary obligation to the tribe., and the tribe had no right to any further independent cause of action against the textile manufacturer. In M, Payunka, Marika and Others v. Indofurn Pty. Ltd.,an Australian judge in 1993 awarded collective damages to a group of Aboriginal artists for “cultural harm” caused by a Vietnamese carpet importer who had infringed their copyrighted designs. On the other hand, a 1991 case, Yumbulul v. Reserve Bank of Australia,addressed the juncture of customary law and copyright law in a case involving an Aboriginal work of art reproduced on Australian money. The court found that copyright law did not protect works that were communal in origin. Western patent offices have also stepped into the TKGRF debate. Several disputed patents have been issued to Westerners who claim to have “discovered” plant substances long used in traditional societies. In 1995, the U.S. Patent and Trademark Office issued a patent for turmeric, used for cooking and healing in India for thousands of years. The Indian Council for Scientific and Industrial Research opposed the patent, pointing to prior art in an ancient Sanskrit text and a 1953 Indian Medical Association paper. Eventually, the patent was revoked. An extract from another plant, neem, also used in Indian healing for centuries, has been patented for its storage stability properties by W.R. Grace & Co. in the United States. Although the Indian government filed a complaint with the PTO, this patent has not been revoked. However, a European patent held by the same company, using neem as an anti-fungal agent, was revoked six years after issuance by the European Patent Office. Revocation was based on testimony that an Indian agricultural business had been using the same substance for this purpose for several years prior to the filing of the EU application. Another U.S. patent that has not been revoked was granted to the International Plant Medicine Corp.’s Loren Miller for processing and commercialization of ayahuasca, a plant sacred to many Amazonian peoples. According to the Coordinating Secretariat of the Organizations of Indigenous Peoples From the Amazon, the variety that Miller “discovered” was in fact domesticated hundreds of years ago. Yet another case involves the isolation by Western scientists of a human gene conferring immunity to leukemia, which was found in a woman from the Pandilla tribe of the Americas. The filing of a patent application evoked a storm of international protest. Ultimately, the application was withdrawn, but the cell line, publicly deposited under the Budapest Treaty, has not been returned to the tribe. The fear is that the cell line may become generic property, eliminating any possibility for the tribe to share in the benefits of commercialization. Many more such disputes will surely follow if the prediction of one Indian representative is correct. V.K. Gupta, director of the National Institute of Science Communication and Information Resources in New Delhi, a key organization in the database registry project, says that his group is aware of 700 to 800 instances where the PTO has granted patents based on information that has long been public knowledge in India. The prior art, he says, lies mainly in traditional Sanskrit documentation of the sort now being translated into multiple languages for the database. But Linda Lourie, an attorney-adviser in the PTO’s Office of Legislative and International Affairs, says that TKGRF issues are less about IP law or patent procedures than about human rights and self-determination. She says that the U.S. patent system is basically fair and self-correcting, and notes that there is no time limit on third parties requesting re-examination based on prior art. The few errors made to date, she argues, have been due to examiners’ lack of access to foreign information, rather than any real defects in the system itself. “In over six million patents issued, if we’ve made a half-dozen errors, I’d say we’re doing pretty well,” offers Lourie. Even in the turmeric case, she asserts, no one received any undeserved financial windfall. Because approximately 75 percent of all patent applications are eventually granted, but only a fraction of those become commercially viable, she suggests that much noise is being made where no real harm has occurred. Indeed, the general stance of the U.S. government seems to be that this is not quite as big a deal as others contend. Both Lourie of the PTO and Wilson of the Interior Department point out that one major difference between U.S. and many foreign indigenous groups is that Native Americans own their land and are viewed as sovereign nations within the U.S. legal system. This, they say, gives Native Americans the ability to control access to and use of their traditional knowledge and culture in a way that many foreign groups cannot. This is an important advantage. Federal laws such as the Native American Graves Protection and Repatriation Act of 1990 and the Indian Arts and Crafts Act of 1990 may also provide some protection to U.S. indigenous groups. But many see these laws as insufficient and are working toward more meaningful protection. Maxine Hillary, a legislative associate in the D.C. office of the Navajo Nation, voices frustration that American Indian populations generally are not well-represented in global IP discussions. Many tribes in the Southwest, she says, were not aware of the WIPO conferences until very recently, and few are well-versed in IP law. Even for those who are, it’s hard enough to find money to address the basic economic needs of the tribes, much less to file patent applications or launch litigation or send representatives to meetings in Europe. Navajo and other American Indian groups suffer significant economic loss from unauthorized copying of their traditional designs. But Hillary sees the issue as bigger than that. “A far greater difficulty we have is that the nonindigenous world does not understand that much of our cultural expression is inextricably linked in a holistic way with our spiritual life,” says Hillary. “There is a propensity [among outsiders] to use terms like ‘myths’ or ‘dances’ for some of our cultural expressions, but these expressions actually have far deeper meaning . . . . [W]e would never presume, by the same token, to call the Bible a ‘myth.’ This is why we don’t want these things out there in the world for marketing. To us, they are sacred.” The Tulalip Tribes of Washington state are working on a partial solution to this problem. They are designing a database program to provide confidential registration and sharing of storytelling traditions, native-plant knowledge, and salmon fishery techniques. The database offers tiers of accessibility, so that information of different types can be afforded different levels of confidentiality. Sacred information could be restricted only to shamans and high tribal authorities. Tulalip representatives demonstrated the prototype at the third WIPO conference in June 2002. Part of the great difficulty in addressing TKGRF is that many of the concepts involved are not well understood by anyone outside indigenous societies. Much less are they easily reduced to a few succinct legal principles. Not surprisingly, one of the more subtle thinkers in the field is an Australian, Anthony Taubman, who heads the Traditional Knowledge Division at WIPO. In a December 2002 seminar sponsored by the American Association for the Advancement of Science, Taubman asked the audience to consider what separates traditional knowledge from known forms of IP. Does traditional knowledge form a completely different kind of knowledge system? If traditional knowledge is fundamentally different, observed Taubman, its legal management may need to be fundamentally different as well. Perhaps the participation of native elder populations, customary laws, and traditional dispute settlement mechanisms will need to be integrated systematically with more-familiar Western laws and enforcement methods. Whatever the ultimate — or even interim — solutions to the challenges of traditional knowledge, genetic resources, and folklore, it is evident that creative thought and novel ideas will be required from legal thinkers, policy makers, and indigenous owners alike. Nancy Kremers is a practicing intellectual property attorney and an adjunct professor at George Mason University School of Law. She is writing her thesis on traditional knowledge, genetic resources, and folklore to complete her LL.M. in IP law from the University of Houston. She can be reached at [email protected].

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