Written BY: Jocelyn Bosse
In the age of the internet, pirates are no longer the wench-loving, mead-drinking, cannon-firing individuals that we see in films. Instead, we continuously hear cable companies and advertisements warning us not to pirate movies, TV shows or music via illegal downloads.
Yet with all the public debate over internet pirates, another type of pirate has more or less escaped notice: the pirates of indigenous knowledge.
Broadly speaking, indigenous knowledge can be divided into three categories:
- Traditional Knowledge – including medicinal and other uses of plants or animals, knowledge of the seasons and dealing with extreme climatic events.
- Genetic Resources – the information in the DNA of indigenous peoples whose evolutionary history and different traits are of interest to biologists.
- Traditional Cultural Expressions – art, music and dance that expresses knowledge, history and identity.
Piracy of Traditional Knowledge
The prime target within traditional knowledge is the understanding of medicinal applications of plant material. Pharmaceutical companies have a lot to gain from extracting biologically active compounds and marketing them as drugs.
Neem Tree
Several lawsuits have revealed that researchers have not treated indigenous peoples ethically once they have obtained access to their knowledge. In India, the Neem Tree case became the key example of biopiracy: a pharmaceutical company trying to profit from traditional knowledge without giving any benefits to the traditional owners. US companies had patented compounds that were derived from the Neem tree, but after a 10-year battle with the European Patent Office, the patents were finally revoked.[1]
Smokebush plant
Cases have arisen in Australia of patenting traditional knowledge. In Western Australia, samples of smokebush were taken by US researchers and found to have benefits for HIV/AIDS treatment. The company Amrad obtained exclusive rights to the species for research, but never entered into a benefits sharing agreement with the Aboriginal community.[2]
The issue should not be confused: indigenous groups are not trying to prevent important medicines from becoming commercially available per se. The point of contention is that pharmaceutical companies are using the existing knowledge for their own financial gain, without giving appropriate compensation to the traditional owners.
For this reason, the 1992 Convention on Biological Diversity (CBD) made it clear that benefits arising from patented traditional knowledge should be shared appropriately.[3] The CBD did not provide adequate protection, so in 2010, the International Regime on Access and Benefit Sharing (IRABS) was established.[4] The IRABS demands the knowledge and informed consent of Indigenous peoples for their information to be used. In Australia, similar legislation exists through the Queensland Biodiversity Act 2004 (Qld) and the Environment Protection and Biodiversity Regulations 2000 (Cth), but the requirements for the benefits sharing remain quite vague.
Piracy of Genetic Resources
With the advent of the Human Genome Project and the field of genomics rapidly growing, biologists have taken a keen interest in the genetic resources of indigenous peoples around the world. Evolutionary biologists have great curiosity for comparing the genetic history of different groups, which can give insights into the combined history of the human race.
With all their enthusiasm, many researchers have not considered the rights of indigenous peoples before using their DNA. Australian Aboriginals were strongly opposed to being a part of the Human Genome Diversity Project, and a case involving Canadian First Nations peoples revealed that they were right to be wary. A group in British Colombia was told that their DNA samples would be used for health research, but instead was used for researching their ancestral origins without their consent.[5]
Issues of informed consent and ownership aside, there are also concerns over the patentability of information found during testing of indigenous genomes. Gene therapy has shown huge potential – both medically and commercially. Nonetheless, there is an understandable reluctance amongst indigenous peoples to allow Western scientists to seemingly ‘colonise’ their DNA by overriding their self-ownership with patents. As such, the use of genetic resources has been under major consideration by an ongoing Intergovernmental Committee at the World Intellectual Property Organisation (WIPO), with the hope of developing a unified regulation in the near future.
Piracy of Traditional Cultural Expressions
The artistic forms of knowledge have raised new concerns in the area of copyright law. In the Aboriginal community, ownership of art is markedly different from the Western concept. Whilst copyright law assigns rights to the individual creator for a fixed time period, Australian Indigenous peoples regard their artistic works as belonging to a certain group. The rights to recreate or perform that work belong to a tribal elder or certain individuals.
Australian judges have respected the different approaches to ownership, such as in the Bulun Bulun case. A traditional Indigenous artwork was reproduced on T-shirts being sold to tourists in the Northern Territory. Although the suit itself was settled outside of court, the judge noted:
“The `transaction' between them [Mr Bulun Bulun and the Ganalbingu people] out of which fiduciary relationship is said to arise is the use with permission by Mr Bulun Bulun of ritual knowledge of the Ganalbingu people, and the embodiment of that knowledge within the artistic work. That use has been permitted in accordance with the law and customs of the Ganalbingu people...”[6]
Indigenous peoples are now more aware of their rights. Despite the blunders of corporations and research teams, there is still hope for a future where information can be shared without infringing traditional knowledge. Today, Elder John Watson and his community are working with Griffith University researchers to commercialise the pain-relieving Marjarla plant.[7] Along with the imminent WIPO reforms, there is a good chance that the next decade will see many more agreements to share knowledge that can benefit indigenous peoples and the world.
[1] BBC News, India Wins Landmark Patent Battle (9 March 2005) <http://news.bbc.co.uk/2/hi/science/nature/4333627.stm>.
[2] Troy Coyle, The Great Indigenous Rip-Off (11 June 2003) Great Reporter <http://www.greatreporter.com/content/great-indigenous-rip>.
[3] Convention on Biological Diversity art 8(j).
[4] Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity
[5] Laura Arbour and Doris Cook, ‘DNA on Loan: Issues to Consider when Carrying Out Genetic Research with Aboriginal Families and Communities’ (2006) 9 Community Genetics 153, 154.
[6] Martin Hardie, ‘The Bulun Bulun Case: John Bulun Bulun & Anor v R&T Textiles Pty Ltd’ (1998) 4(16) Indigenous Law Bulletin 24.
[7] IP Australia, What About the Human Factor in Innovation? (24 July 2014) <http://www.ipaustralia.gov.au/about-us/news-and-media/you-tube-transcripts/traditional-knowledge/>.