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The Problem with Patents

Traditional Knowledge and International IP Law
staff writer FEIFEI JIANG

ith attractive pinkish-white flowers and lush green foliage, the Madagascar rosy periwinkle appears atfirstto be an iniKiciious, decorative plant. Belying its appearance, the plant has incredibly potent qualities. In the early 1950s, the pharmaceutical giant F.li Lilly <k (>)nipany hegan conducting research on the periwinkle, until then grown largely hy poverty-stricken indigenous communities. Inspired by its use traditional medicine, researchers at Eli Lilly eventually isolated two extractsvin bias tine and vincristine. Both extracts have become powerful drugs, one to treat childhood leukemia, and the other to treat Hodgkins' Disease. Together, these drugs generate over US$20() million in revenue for Eli Lilly each year, no part of which is seen or even heard of hy the people of Madagascar.

from an original plant sample, might have a completelely different purpose than the original status ofthe plant in tnuiitional knowledge. At the ver}' least, however, benefit-sharing agreements l)etw een drug patent-holders and source countries is not only a moral issue in terms of uniform protection of rights, but at a more fundamental level, is necessarx' for protecting and promoting tlie livelihoods ofthe worlds poor.

The story of Eli Lilly and the rosy periwinkle is one example that relevant NGOs label as "biopiracy," a term used to describe the appropriation, by outside f"()rces, ot legal rights over indigenous knowledge. This type of traditional knowledge (TK), including but not limited to native lore about plants by Eli Lilly. and animals, is scantily protected under existing international intellectual property (IP) regimes. Furthermore, indigenous communities tend to be located in poorer countries in tlie "Global Soutli," where governments cannot easily afford to reguiate or protect local rights to indigenous biodiversitj'. In order to protect the rights ot the governments and peoples of tliese countries, the current system must be adapted, with new laws created that recognize value of traditional knowledge. The question arises, however, of whether or not knowledge about indigenous biodiversity can be considered intellectual proj>erty; The end product, a compound developed
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International Standards: The West and the Rest The current basis for international intellectual property law resides in a treaty signed by \VTO member states, the Agreement on Trade-Relatcti Aspects of Intellectual Propert)- Rights (TRJPS). The TRIPS agreement is a basic framework that protects the intellectual property rights of individuals and corporations across W T O nations. However, the standarils of TRTPS stem from those of richer, developet! nations. Pushed through the W T O by the US, European countries, and japan, the agreement as a whole is generally viewed by atlvocates of developing countries as a forcetl concession to the developed world. Though fought and tlehated tor a Floating periwinkle blossoms.The rosy periwinkle blossom is nadecade, by the beginning tive to Madagascar and has been used in pharmaceutical products
of 2005, all developing

countries were bound to comply to TRIPS intellectual property standards. The agreement, thus far, has mostly sen'ud tt) protect the interests of large, multinational corporations based in the developed world. Particularly with regard to prescription drugs, TRIPS has protected large pharmaceutical countries to the detriment of the citizens of poorer nations, who in many cases have the most need for such drugs but are the least able to afford them. The irony, then, comes full circle. In some cases, such as that ot the rosy periwinkle, the indigenous people who provided the initial source of knowledge

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about a medicine are among the least likely to benefit from the resulting drugs, much less even hear about them or reap any monetr)' benefits at all. Though in recent years, the issue of protecting traditional knowledge has risen in prominence among lawyers und activists alike, no effective legal niechanisms yet exist that proactively provide support for holders of TK. The 1^92 C!onvention on Biological Diversity is the one treaty that came close to recognizing the rights of traditional knowledge holders by declaring that "traditional lifestyles" must be protected. However, there are no effective enforcement measures built into the treat\', and, notably, the United States still refuses to sign. In fact, the issue of traditional knowledge is often treated as just another bargaining chip by developing countries in international trade discussions. This type of general disrespect tor TK from developed countries and developing country governments alike often stems from the inabiiit\' of indigenous people to fight for the effective protection ot traditional knowledge. pulsory licensing unless circumstances are beyond dire. Ironically, legal scholar \1ctoria Spier estimates that around 121 patented drugs globally are made from plants, 74 percent of which were "discovered pursuing claims from native fables." Hypocritically, pharmaceutical c(tmpanies profiting from TK often protest against patent-hrcaking by nations where they might have obtained the plants or inspirations for some of their patented drugs. On the other hand, activists hope that increased recognition of intellectual property rights will help to eliminate biopiracy and patent pirating in general. However, this admirable goal seems far in the future for many poor and developing nations. According to economists, it woukl cost a poor country roughly US$2 million just to build a basic infrastructure for administering intellectual property rights. With many other more pressing development needs at present, it is unlikely the governments ot poor countries will be able to dedicate resources for an intellectual property regime, something tliat is generally identified with the economies o much more developed Western nations.

A Paradox for the Poor

Furthermore, a major hurdle that protectors of traditional knowledge must overcome is the question of authorEven if the entorcement of intellectual property rights ship. Because current standards of property' are Western seems detrimental to the development of poor countries, ideas, based upon individual ownership, it becomes diflicult TRIPS appears here to stay. In the context of this realit}', to fit traditional knowledge into international standards. experts have pondered how today's intellectual property Traditional knowledge, typically, is knowledge that has been rights can be made to work for developing nations. in a conununity for generations. An "owner" or "inventor" Many academics are optimistic about the answer to this cannot be determined, since Western standards ot ownership question. UC Davis Law Professor Madhavi Sunder cites do not necessarily conform to more community-oriented the example of one Indian farmer in Kerala who patented TK. Oftentimes knowledge is collectively shared and o\\ ncd, his own method of planting nihher trees to produce higher and even more often knowledge is passed down orali\; with yields, protecting his ideas when others tried to use them. It no documentation of an original inventcir. In addition, it individuals in indigenous communities are educated on how is unclear if TK has a status as "intellectual propert)'^" or to work within the TRTPS framework to protect their knowledge, the current regime could aid people in the Global South as opposed to harming them. There are, then, two sides of the coin to this forced acceptance of international intellectual property' rights by poor countries. One major area of concern is the right of access to affordable drugsespecially the important ones which fight epidemics such as AIDS and malaria, drugs that are currently covered by patents owned by large pharmaceutical companies. Though TRTPS provides an exception for compulsory licensing, wherein poor countries unable to afford crucial drugs to fight diseases may produce generic versions of drugs locally, Western countries, spurred by the outciy from pharmaceutical companies, President of Brazil Luiz Inacio Lula da Silva speaks at a ceremony in 2007 after signing are putting pressure on other a decree authorizing Brazil to import a generic version of an AIDS drug, even though governments to not revert to comMerck currently holds the patent for the drug.
Phocos Courtesy Reuters Fnll :(I()S I [ A R \ ' A R D I N T I-. R N A T I ( ) N A I. R K V I K

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whether it should be treated as a more general form of property, and should be compensated accordingly. F.ven with all ot the hurdles activists view an international IP framework as potentially beneficial not just for the holders of traditional knowledge, but also to innovators in botli developed and developing countries. protect traditional knowledge, it also created an obstacle that impedes possessors of TK from gaining status as owners of intellectual property. Even it holders of TK receive compensation for the use of their traditions and work, they must also be recognized, in their own right, as holders of legitimate intellectual property. Current lines of redress for T K holders wrongfully affected by lack of intellectual propert)' protection are defensive measures that do not establish ownership of TK. Possessors of TK may file claims and lawsuits against Western corporations that may have appropriated their knowledge without consent, compensation, or acknowledgement of any rights that the traditional knowledge holders may have had. However, in such cases, the plaintiff or plaintiffs must provide evidence of "prior art," in most cases some sort of documentation that the knowledge existed prior to the patent holder's appropriation of it. Because traditions are often passed down orally, or are generally accepted within indigenous cultures as communal knowledge, it is often difticult to provide evidence that fits the exacting standards of the courtroijm. In an effort to aid poor countries in the fight against biopiracy, NGOs all over the world are working with local people to create documentation for innovations and traditional knowledge. This documentation aims to protect local people from pirating companies, especially in the United States where only paper documents, and not oral evidence, are considered "prior art." However, these lawsuits and eftbrts at documentation are only defensive and preventa-

Finding Solutions
T he Convention on Biological Diversity (CBD), drafted in 1992, attempts to recognize and formalize the value of traditional knowledge, and to ensure that holders of traditional knowledge are compensated accordingly. According to UN estimates, poor countries lose US$5 billion in royalties each year due to the unauthorized outside use of traditional knowledge. In fact, if poor countries saw even a fraction of that money, it could go a long way towards both development and creating a standard legal infrastructure to protect traditional knowledge in the future. The CBD does not go far enough to achieve this goal. Though it recognizes the existence ot traditional knowledge, it does not expressly define T K as something original, or createdsomething that would detinitively fall under the category of intellectual property. The CBD describes possessors of traditional knowledge as "resource managers." The effect is that poor people may be seen as the guardians of valuable information, but not as authors of knowledge in their own right. They are the possessors of raw material, which might be refined and marketed, and patented, by others. VVTiile the CBD's goal was to legitimize and

Sampling the South

The National Cancer Institute's Natural Products Collection Sites Around the World, 1985-1995
Since the l960's, the National Cancer Institute (NCI) has funded a Natural Products research program, culling samples from biodiversity-rich countries around the world. It is clear from this map that the vast majority of these source countries are in the southern hemisphere. The NCI's Letter of Collection has become a guiding example of an agreement that benefits all parties involved. It mandates that if any Western company develops a sample taken from the NCI repository,the developer must reach a benefit-sharing agreement to suitably compensate the source country.

Bronwyn Parry

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cive measures. In order to fully protect such innovation, traditional knowledge must be legally considered, from the outset, as valid intellectual property. Though the current problems facing the protection of traditional knowledge are mostly international ones, the solutions to these problems must begin in developing countries themselves. If poor countries had laws recognizing traditional knowledge, an international framework protecting IP in individual countries would be more politically viable. In addition to national legislation protecting traditional knowledge, which does exist in several develi)ping countries, corresponding national infrastructure and legitimate enforcement mechanisms are needed. If developing countries must work within the TRIPS framework to recoup the losses created by biopirac>s they must start by building the capacity to protect IP rights at home. international IP regime would not be easy to implement; however, even one new clause in the TRIPS agreement recognizing IP rights and IP law in poor countries would be a step in the right direction.

Redefining Standards
At the intersection of the realms of traditional knowledge and intellectual propert)' law, echoes of Western colonialism still disturbingly resound. Possessors of traditional

The Big Change Alternatives

With enough political solidaruy and initiative from developing countries, a new structure for international intellectual property law could be inijilcnientedone that would give individual countries more autonomy in determining IP rights. In fact, Hanard Law profesChancellor of Germany Angela Merkel speaks at the UN Convention on Biological sor William Fisher suggests one Diversity in May 2008.The UN conference aimed to address some of the issues sursuch structure in which IP rights rounding the use and preservation of traditional knowledge. would be detennined by the laws of knowledge are not seen as authors of that knowledge, but an individual nation. Furthermore, any entity using IP who is instead as passive guardians. But are they not productive not in compliance with these laws would forfeit their patent, inventors also? They have modihed their protlucts and given trademark, or copyright rights tor any consequent product. In them meaningtraditional knowledge is not raw or passive this way, compliance could be ensured in a powerful way, not knowledge. Legal scholars such as Madhavi Sunder and by any direct monetary punishment, but instead in the forfeiWilliam Fisher instead describe it as something dynamic; ture of lucrative and exclusive intellecuial property rights. it is knowledge that has been transformed by indigenous Another interesting and promising solution may lie in peoples and is still changing and evolving with continued geographical imlications (GIs). The Geographical Indication interaction. of Goods Act of 1999 gives protection to any product that is linked to a specific region and produced using a specific Traditional knowledge that indigenous conuiiunities process; Champagne, Florida oranges, and Feta cheese are have developed over centuries of practice nnist be inc(trp(ijust a few examples. However, most GIs are for established rated and accepted in some way into the international intelWestern products. Though Western nations, and makers of lectual property regime. Possessors of traditional knowledge existing GTs are vehemently opposed to the idea, GI status should have pro-active means by which to protect their could be expanded across W T O member states to protect interests instead of the existing defensive measures. Whether traditional knowledge in an unconventional way. For exit is by defining traditional knowledge in a Gl-like context, ample, in the case of the rosy periwinkle, the plant, native by strengthening and reinforcing the CBD, or by revising imly to Madagascar, was being used for its medicinal qualities TRIPS itself, the international community shoulil recognize by the natives to the island. Had the rosy periwinkle been the importance and value of traditional knowledge as intelestablished as a GI, then Fli Lilly might have had to give lectual propert\. Tn fact, recognizing the rights of poor and the people of Madagascar just compensation for the use of indigenous peoples would be a significant and crucial step their intellectual property. forward in the economic development of the third world, where T K is a valuable natural resource. 03 Admittedly, given the obstacles, any new model of an
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