- Anil K Gupta, Ph.D.,
Coordinator, SRISTI (Society for Research and Initiatives for Sustainable Technologies and Institutions) and Professor, Indian Institute of Management, Ahmedabad 380015, India
( Email: firstname.lastname@example.org Fax: 91 79 427896); (and the Honey Bee network c/o IIM)
Ever since global attention focused on the fast eroding biodiversity, the concern for conservation was articulated by professionals, scholars, company executives, international organizations including donor agencies and of course, governments of various countries as was evident during and after the Rio conference.
Concurrent to the expression of these concerns has been a tendency from both radical and conservative groups to make legal rules about biodiversity and associated knowledge systems as the common property of a country or a whole global community. Such efforts have meant that the rights of individuals as well as specific communities get subsumed under larger social aggregations. The values and the processes involved in the production of knowledge in formal organized sector and informal colleges of peasants may be quite different in many cases (Gupta, 1991a). The production and reproduction of knowledge, its communication within the community and to outside professionals guided by scholarly motives or commercial concerns involves resolution of a large number of ethical and moral dilemma (Gupta, 1991b,c, 1993, 1994).
Ethical Dilemmas of prospecting biodiversity
How do we treat the oral traditions which are likely to die away if patterns of social interactions continue to change the way they are changing at present? What should be the incentive for scholars to document knowledge under such threats of erosion? What happens to the identity, authorship and proprietary rights of the individuals, families and the communities which share this knowledge in good faith with outsiders? How should a corporation, whether in public or private sector, national or multinational, view access to documented or undocumented knowledge? Does the act of documentation of such strategic knowledge deny the provider of information of any right in the value added products or income there from? Once the providers come to know of the asymmetry in the returns accruing from the knowledge they provided to outsiders, could they become secretive? Will such a tendency not prevent future generations from getting access to valuable knowledge that might get lost because of the social pressures, migration, economic deprivation, and lack of young people acquiring the traditional knowledge skills? How do we balance the rights of present generation to benefit from this knowledge and underlying diversity with the rights of future generations? How should the rights of countries that may have ignored the biodiverse regions and communities inhabiting these regions be compared with the rights of communities and individuals with in these countries to enter into contract with the outside agencies? The answers to these questions are not easy. The situation becomes even more complex once we include microbial, aquatic and avian diversity. The relationship between the human contribution and natural factors in maintaining or generating microbial diversity is not even properly understood.
Avian and aquatic diversity may transcend boundaries of several political nationalities, just as can plant biodiversity. The movement of animals, whether on land, water or in air from one region to another makes the claim and responsibility of different countries very complex. Fish found in waters of one country may go for spawning upstream in another country. If spawning grounds are not conserved, the fish diversity is unlikely to be conserved either. How should such inter country agreements be drawn up if industry based on such fish is in downstream country? Apart from the legal claims, respect and responsibility for life, particularly in its reproductive phase has been a part of culture and values of many societies. There are institutions which prevent people from fishing during the spawning period. Such institutions did not necessarily emerge to balance claims and counter claims of the conservator of biodiversity and its uses.
How should the society view its responsibility towards communities and individuals who have a taboo against receiving compensation? Do we exploit them because of their superior ethics, and accumulate wealth at our end (Gupta, 1991a)? If not, then what kind of moral and legal instruments and incentives can be generated which do not force people who conserve biodiversity to remain poor? The situation is complicated by the fact that the time and resources that a corporation may put in identifying and developing a product based on local biodiversity may be more easily computed. And thus this amount may appear very large. The value of the time and effort spent by a community in safeguarding local biodiversity by a combination of ethical and moral principles and institutional practices is difficult to work out. The opportunity cost of their time as evaluated by the market can obviously not be a proper indicator. In many cases, the contribution has been made over centuries.
Another issue is that biodiversity can reproduce differently with or without human intervention. To argue that claims of a society or a community accrues entirely on account of an ecohistorical or geomorphic reason without any conscious contribution of local knowledge system and its institutions ignores the selection pressure that human beings have put discriminatingly on a given biodiverse system. Whether it is through fires in the forest, restriction on fishing in certain seasons or regions or through conservation of certain weeds or utilization of certain wild plants, communities as well as knowledgeable individuals have contributed a great deal to the conservation of biodiversity. Similarly, contributions of a state cannot be ignored altogether. By imposing locational costs on the enterprises for which forest land under government possession may or may not be transferred, the cost of conservation is partly internalized by the enterprise and partly by the society through higher product costs.
The issue is not whether intellectual property rights fully capture the contribution of local communities and individuals, given the complexities of conservation. The issue is whether intellectual property rights (IPRs) of local innovators, communities, traditional herbalists, etc., do help the outsider users of this knowledge resolve their own moral and ethical dilemmas.
It is one thing to say that location advantages of local communities must not be given undue weight, but it is quite another to suggest that outsiders should follow different ethical principles while dealing with knowledge produced by their colleagues in labs and libraries and knowledge produced by people over time, individually or collectively. We need to consider our own accountability.
I have reviewed more fully some of the important studies and documents elsehwere (Gupta, 1994).. Here I will outline the principles which have been identified by various institutions and scholars. The implementation is still lacking in many countries.
Review of International Guidelines
a. Guidelines on the conservation of medicinal plants (WHO, IUCN, WWY, 1993)
WHO in collaboration with IUCN and WWF issued the guidelines in 1993 based on various earlier consultations. The guidelines aimed to conform to the principles of the Caring for the Earth document prepared by IUCN, UNEP and WWF in 1991. We should note that the earliest reference in this document was 1979 and 90% of the references were post 1985 and western in origin. The inference was obvious that there was nothing in the various religious, cultural and ethnic traditions of Hindus, Muslims, Masais, Buddhist, Inuits, Akwasasne, Zuni, Japanese, etc., which had anything to contribute to the evolution of global world view. The WWF guidelines emphasized among other issues, the following principles:
1. Each country to identify and support one or more institutions to plan, coordinate and implement ethnobotanical surveys.
2. The selected institution(s) should implement a nationwide programme of surveys of plants used by traditional societies for medicinal purpose.
3. The ethnobotanical data should be catalogued and analyzed but disseminated in such a way that data providers receive benefits from the commercialization of the product based on the information.
4. The Ministry of Health should incorporate proven traditional remedies into national programmes of primary health care.
5. The traditional health practitioners should group themselves into a national body.
6. National competence to classify and preserve plant samples must be increased.
7. The government should regulate the collection of medicinal plants from the wild.
8. The collection of the threatened species should be banned except for propagation purposes.
9. Government shall control trade and medicinal plants and their products.
The Chiang Mai Declaration To Save The Plants That Save Lives issued in 1988 was the basis of these guidelines, and it was certainly a step forward. However, the responsibility of international organisations and private national and multinational corporations which had drawn upon the indigenous knowledge for so long was not clearly defined. Similarly, no attempt was made to identify institutional mechanisms for ensuring compensation to the communities from whom resources may have been taken. A footnote acknowledged (p.14) that under the given laws, most communities did not have legal right to their traditional knowledge, and even, in most cases, the communities could not be identified in the legal sense.
Public Domain database: The only redeeming feature is that Dr. Farnsworth at University of Illinois, Chicago has made the NAPRALERT data base on medicinal plants accessible to developing country professionals without any cost. This service was developed through a tremendous effort and dedication is indeed praiseworthy. But a data base of published information can merely reduce transaction costs. It cannot correct basic imbalances in the relationships and responsibilities of providers and users of information. Even though commercial users are charged for the access to the data base supported partly by WHO, the resources aren't apparently substantial to lead to any compensatory models.
b. Ethics, Ethnobiological research and Biodiversity (Cunningham, (WWF) 1993)
This report recognised that monetary and non-monetary utilitarian values justified the conservation of biodiversity. The question of fair share of benefits for the providers of biodiversity with or without associated knowledge was raised. The guidelines developed for ethnobiological research underlined following principles or procedures:
1. Need for legislation at national or regional level to regulate the collection and export of biological material.
2. A strict code of professional ethics to ensure that research participants and members of local organisations are informed of the objective, commercial aspect and possible results of research; confidential information and request for anonymity is respected; equitable compensation for the assistance provided by the individuals; fair royalty payment to regional or national organisations and acceptance of national requirements for prospecting biodiversity.
3. The explorations should involve local people in screening. A commitment should be made to transfer technology, provide training in cataloguing and screening biodiversity with government assistance.
4. Supply agreements to be made with reputed organisations and not with individuals who could be guided by personal gains.
The report acknowledged that information obtained by the ethnobotanists through a relationship with local communities based on trust is used for the publications and commercialization. The respect for local rituals was often diluted. Despite the much higher success rate with ethnobotanical collections compared to random collections, corporations and governments had not pushed for any fundamental shift in the responsibility of ethnobotanists. Even this report did not acknowledge the unethical practice of claiming authorship for knowledge by the ethnobotanists who merely chronicled the information provided by others. These, 'others' remained nameless and faceless even if the community was acknowledged.
The Declaration of Belem in Brazil recognised the need for compensating the providers of knowledge and also the need for ethnobiologists to share the results of the research with native people in native language. I made a personal oral appeal to the President of this congress prior to the next congress (in Bad Ball, Germany, 1992) insisting that if the researchers did not share their knowledge with the providers, their papers would not be accepted for presentation in the next congress ( Gupta, 1992), but no resolution was passed by the international congress. We raised this issue again in the last congress on ethnobiology in November, 1994.
c. US National Cancer Institute guidelines
The US National Cancer Institute guidelines (1991) were more advanced than the Belem Declaration. It called for protection of IPRs, compensation for traditional knowledge, responsibility of multinational corporations and academics involved in the use of natural products and traditional knowledge to recognize the responsibility in compensation and provision of intermediate compensation till the final product was developed and profits earned. The amount involved was $2.7 million in 1986 and $3.8 million in 1991 in three five year contracts. Obviously this amount may appear abysmally low compared to the potential value of the information, and a very small share may have gone for actual payments to the people for improvement in their livelihood or for local infrastructural development.
d. Guidelines for Foreign Collectors
In another workshop in Australia, 1990 (WWF, 1993: 20) the guidelines for foreign collectors required collectors to: (a) arrange to work with local scientists and institutions, (b) respect regulations of the host country, (c) obtain official permission, (d) include travel expenses and the cost of other activities incurred by the host institutions, (e) leave behind a complete set of properly labelled duplicates before leaving the country, (f) inform the results in the country of origin, (g) not to exploit natural resources in an unauthorized manner, (h) not to violate sanctions against collection of endangered species, (i) send copies of the research papers and reports to the host institutions and collaborators after acknowledging their contribution etc. These guidelines did imply a much greater accountability on the part of expatriate researchers but the IPR and compensation issues were ignored.
e. UNEP guidelines for country studies on biological diversity
These guidelines of 1992 were developed to assist countries in assessing the status and value of their biodiversity are important reference points for any discussion on ethical and value issues but do not emphasize the responsibility of organisations collecting data towards the providers of knowledge and/or conservators of biodiversity, nor do they take care of the cultural values of the people which may be crucial for the conservation. The technical annexes to these guidelines included a detailed section on socioeconomic factors affecting biodiversity. There is an acknowledgement of the fact that property rights may vary across and within a resource (p. A-3) but these rights refer to physical resources. The cultural factors are incorporated here more as a description of factors influencing conservation rather than as a protocol governing relationships with the community. The section on economic value of biological resources and biodiversity (p. C-54) refers to different kinds of use values. Even here, the value contributed by the knowledge systems which in some cases may be retained for exclusive use of a small group may not be captured because of the prevalent norms of a community. There is a need for modifying the concept of existence values as well as option values. The existence values incorporate the ethical belief and presuppositions whereas option value refers to future uses possible through prospecting biodiversity. The existence value can be assigned only if the ethical and moral principles guiding the conservation are considered legitimate and consequential for national as well as international policies. The value that society is willing to pay to ensure future access may vary across different political and social regimes.
f. Amer. Society of Economic Botany Guidelines
The International Society of Economic Botany (Bawa, 1993) has developed draft guidelines on professional ethics. The guidelines clearly provide what we have been pleading for the last five years that the "members of the society for economic botany have responsibilities to those studied:
(a) They will communicate clearly and honestly to all informants, the objectives and possible consequences of ones' research. If the research has a commercial objective, they will make that explicit and will disclose what the commercial results might reasonably be expected to be.
(b) They will comply with all rules and limitations that informants or their institutions place on the research. They will not "trick" informants into revealing "secret" information. They will supply any reports or results that are requested.
(c) They will respect any request for confidence made by those providing data or materials, provided that the maintenance of such confidence does not compromise other ethical considerations.
(d) They will respect informants' right to anonymity and privacy when it is requested.
(e) When materials or information obtained from informants can reasonably be expected to have a commercial payoff, they will arrange with employers for equitable economic compensation for the informant(s) and will do all in their power to ensure that compensation is paid.
These guidelines are in some respects more precise and advanced than the Belem Declaration. However, it may be useful to clarify that the research results should be shared in local language and easily comprehensible written form regardless of request. These results can be deposited in local schools, counsel offices apart from posting these to some of the informants. When requested, these must go to all who request as per the guidelines.
The observation in the guidelines about responsibility of the economic botanists to do all in their power to ensure that the compensation is paid is one of the most forthright statements expressed by any professional body so far. The idea (4.B) that "they will not present as their own, the work of others", can be made more explicit to suggest that whenever informants do not prohibit, their identity will be acknowledged as a part of the research paper just as personal communications from fellow colleagues are acknowledged in academic writings.
g. Intellectual Property Rights (IPRs)
Yamin and Posey (1993) review the provisions of human right instruments, ILO Convention 169 and IPR Conventions prior to the recent round of GATT. They claim that the Belem Declaration establishes principles to guide "its members engaged in research and work with indigenous and local communities" for the first time. However, the ISE has not enforced its code of ethics.
Shelton (1993) reviewed the options for compensation for access to and use of traditional knowledge and biological resources for WWF. The author acknowledges that compensation could sustain local livelihood systems and thus contribute to ensuring cultural and biological diversity, but gives four reasons why the claims of local communities may be resisted or challenged:
(a) Traditional knowledge particularly about agriculture is supposed to be openly held and freely exchanged without any expectation of payment.
(b) The knowledge may have been inquired incrementally over the centuries by those who may be already dead.
(c) The property rights or system of compensation in `pre-capitalist societies' may lead to faster destruction of the marginal resources in order to produce "useful" resources.
(d) Some of the important uses of the plants identified by the outsiders may not be known to the local communities.
Shelton recognizes that identification of the original innovator may be difficult and thus ineligible for compensation. The author recommends the need for legislation at all levels to control the export of biological material. Licensing fees as a method of compensation with a mandatory percentage of revenue return to the indigenous communities is recommended for maintenance of their ecosystem and cultures.
The US Congressional Research Service Report (CRS report, 1993) provided a comprehensive review of the issues involved in prospecting biodiversity and compensation to local communities. The report recognizes that, "the requirements of US Patent Law that an invention be novel, non-obvious and not be a product of nature appear to be insuperable obstacles to any domestic protection of such knowledge." The Product of Nature Doctrine implies whether traditional knowledge about the medicinal use of plant and animal is described by Section 101 of the US Patent Law which states, "certain subject matter, including laws of nature, products of nature, printed matter, mathematical formulae or algorithms, and business methods, is not patentable" (Chisum, 1981 in CRS 1993:48). Human intervention in modifying a product's form has to be proved. The process of extracting a product may be considered patentable but not the product itself if it was same as found in nature. However, in Dennis v. Pitner (106 F.2D 142 - 7th Cir.1939 in CRS Report, 1993:49) the insecticidal properties of a powdered root were judged patentable. Later the patent was rejected on the ground that this had been known to the indigenous people for long time, not because it was natural. In another case the product and technique were known for producing an antibiotic from micro organisms, but the particular technique in question hadn't been used with the specific micro organisms to develop the specific antibiotic. The Report notes that the process patent was allowable but not the product patent since micro organism was a product of nature. However, later in 1978, four years after the first case, accepted the patentability of micro organism further reinforced by the Supreme Court decision in Diamond v. Chakrabarty (1980).
Recent decisions have diluted the Doctrine of Product of Nature a great deal. Seven principles have been suggested by Dozicevic (1987 in CRS Report, 1993:53):
i) The influence of public opinion in the interpretation of Section 101 cannot be disputed. The Chakrabarty case was apparently upheld because the organism was supposed to clean up the oil spills - an act which environmentalists opposed the patenting of life forms did not strongly protest.
ii) Chemical compounds which are known to exist in nature should be claimed as different from their natural surroundings. Thus, the same compound when synthesized became patentable though it may not have been any different from the one found in nature.
iii) Discovery of a product in nature may lead to an invention that could be claimed as original through careful drafting.
iv) Patentability of a compound can also be derived on the basis of its newness compared to the form in which it existing in nature.
v) The non-obviousness or the novelty should be proved for a product of nature to be patentable.
vi) The "first to induce a Product of Nature to possess a new characteristic regardless of the manner of inducement, is likely to have produced a patentable invention".
vii) The means through which a Product of Nature is derived or modified does not have much effect on its patentability. Although it might make the process patentable. The Report contends: If an indigenous people use a plant in its natural state because they discover that it has certain valuable properties, it may not be patentable. If they alter it substantially, for instance, brewing a tea from it or processing it in some manner to produce a medicinal substance, then the resultant product may be patentable subject matter. The difference would be that they have produced a non-obvious composition of matter derived from a Product of Nature by using their knowledge of the laws of nature. (Any such claim, of course, would still have to meet the patent laws requirement of novelty, utility and non-obviousness).
In the context of considerable controversy on patenting of neem products the Report suggests that mere knowledge of neem seed being effective pesticide is not patentable by anyone. Similarly, the method of scattering seeds for pesticidal purposes is also not a patentable process because this process has been known and thus cannot be called as non-obvious. However, patents have been granted for new use, extracting compounds in form different from found in nature and for laboratory synthesized derivative of azadirachtin. The Report acknowledges that the traditional knowledge did inspire the research and development which led to the patentable product and processes considered sufficiently novel and non-obvious.
The Report concludes that, "it appears doubtful that much protection exists under the existing national and international systems of laws relating to intellectual property" for traditional knowledge of indigenous people. The Paris Conventions and the Patent Cooperation Treaty do not contribute much to resolve this problem. It recommends laws to legitimize contracts of indigenous peoples with private concerns such as drug companies; a special international convention focussing on property rights in traditional knowledge under the auspices of UNEP or the UN working group on indigenous peoples; a subsidiary agreement to be negotiated under Biodiversity Convention requiring that a government having a particular genetic resource, by commercializing which it receives technology or royalty should pass on part of it to the indigenous people; making a code of ethics for informal agreement by all private and public organisations dealing with the indigenous peoples. Developed countries could condition foreign assistance to the developing countries on the creation of a mechanism to disperse royalties received from biotechnology agreements, such as the Merck - INBio Agreement to indigenous peoples. Finally, foreign assistance could be used to promote such agreements.
The CRC Report is comprehensive but limited. It is unfair on the creative and innovative potential and aptitude of indigenous people to ignore a large number of innovations and modifications, minor or substantial, and individually or collectively, over history.
The contemporary innovations whether for herbal pesticides, veterinary medicine, vegetative dyes may in many cases advance the frontiers of science and thereby fulfill the conditions of novelty, non-obviousness and utility apart from inventiveness, but most of these individuals or groups would not be in a position to design sophisticated claim forms for filing patent applications. Should knowledge of a local community that has not been reasonably accessible to outsiders, be considered a "prior art" and thus ineligible for protection?
The rights of any company or researcher using peoples' knowledge should not be considered superior to the rights of the people or prospectors who have provided the knowledge. Baenziger et al. (1993) raised the issue, "should protection of genetic inventions be allowed when the raw materials of the invention i.e. undeveloped germ plasm, was not the private property of the inventor?"
Thus, a company patenting a product derived from a natural source and used for the purpose for which people used it should be denied a product patent. Even the process patent should be so awarded that specific process for a specific purpose only gets protection. A compromise solution could be joint inventorship of the commercializable product involving royalty payments and intermediate compensation.
Even under TRIPS, Article 7 states: The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. The balance of rights and responsibilities of the owners of Intellectual Property Rights needs clarifications in the post Biodiversity Treaty situation.
The Global Biodiversity Forum held at the time of intergovernmental meeting on biodiversity in (ICBD) October 1993 felt that omission by the Convention on Biological Diversity (CBD)of the IPR's was unfortunate. Concern was expressed that CBD has failed to address ethical concerns involving in granting ownership over plants, animals and their components to the people. Another interpretation was that sovereign rights of governments granted under CBD may have actually weakened the legitimacy of their claim for rights to access northern Biotechnologies [see also Krattiger, A.F. et al., eds., Widening Perspectives on BIodiversity, IUCN 1994, for further views on the CBD and biodiversity issues].
Khalil et al. (1992) in a review of the conference proceedings on Property Rights, Biotechnology and Genetic Resources, argue that apart from code of conduct and state recognition of individual and community rights there was a need to develop new IPR mechanisms building upon the idea of 'corporate' community. Hecht and Cockborn (1989) in an appendix provide forest peoples' manifesto in the context of Amazonian development and insist the people living in the forest should be allowed the rights to participate in the public discussion of all government projects for forests inhabited by Indians and rubber tappers as well as other extractive populations through their representatives.
US National Science Foundation guidelines to apply for grants for research and education in science and engineering expect that the findings of the research and educational activities supported by NSF be promptly shared with other researchers in a reasonable period of time through publications with proper acknowledgment. However, they do not require that the research findings be shared with the providers of the data, or any legal rights.
Rafi has been a persistent campaigner on the subject of patent rights of people, and in general, Rafi has been opposed to any kind of patents on life forms, seeds etc. However, in a recent public debate on the subject held in Canada, Pat Mooney questioned the possibility of Third World people getting any advantage from the intellectual property rights regime and argued for continued free exchange of germ plasm. The author (Gupta) argued that such a view implied that the contemporary innovations in the developing world would not be able to pursue their claims in the current international intellectual property rights regime. While legal costs and complexity may be generally beyond the current capacity of local communities, it is not a reason for denying people their rights.
Baenziger et al. (1993) discussed material transfer agreements which have been proposed as tools to promote exchange of germplasm among different nations and parties. Also, are the restrictions sought on the sale of farmers saved seeds under the UPOV 1991 justified? Should all the farmers be punished, for transgressions of a few? The authors recommend that intellectual property laws for plants should be rewritten and should apply to all kinds of plant intellectual property.
Hamilton et al. (1994) review the issue of IPRs and refer to the comments made by Peter Day Chair of the Committee on Agriculture set up by National Research Council of US. Day while presenting the report on Managing Global Genetic Resources (1993), offers three solutions to resolve the North-South conflict:
(1) A new treaty should be negotiated which would define a compromise position on IPR as well as free flow of crop germplasm (CBD needs to be more widely ratified).
(2) An international payment system should be created linked to the seed sales whose proceeds could support genetic diversity conservation programmes (this is similar to the International Gene Fund recommended under FAO Undertaking on Plant Genetic Resources, 1993).
(3) To focus attention on increasing the capacity of developing countries to do research on plant breeding and other biological aspects rather than on legal arrangements. They note that American universities spent over $37 million on legal fees to claim the IPRs of which only $12 million was reimbursed through various licensing arrangements. This is out of $172 million as income from licensing of inventions (one has to think about the capabilities of developing countries to bear such costs to enforce their rights in developed countries). The authors seem to share the general disapproval of the very broad patent granted to Agracetus for transgenic cotton.
The Northern Affairs Programme of the Department of Indian and Northern Affairs of Canada developed some guidelines for responsible research. It provided that the conductor should address the issue of IPRs for the traditional ecological knowledge collected from indigenous people.
The Draft (Voluntary) International Code of Conduct for Plant Germ Plasm Collection and Transfer (1991) looked into the issue of the accountability of plant collectors and their ethical behaviour. The national governments were empowered to issue a license for collecting germplasm as per their legal requirements. The collectors were expected to "respect local customs, traditions, and values and should demonstrate a sense of gratitude and reciprocity towards local communities... The acquisition of germ plasm should not deplete the populations of the farmers' planting stocks or wild species... While collecting cultivated or wild genetic resources, it is desirable that farming communities and caretakers of such resources be informed about the purpose of the mission and about how and where they could request and obtain samples of the collected germ plasm... Duplicate set of all collections be deposited in the host country. But as a voluntary code, there is no mechanism for enforcing these guidelines. Neither is there any evidence of the code having influenced the behaviour of collectors in any significant manner since 1991.
Alcorn (1992) made several suggestions on the role of ethnobiologists and particularly pleaded that the others' knowledge should not be packaged as one's own work. She recalls the pioneering work of the Mexican ethnobiologists such as Toledo, Gomez - Pompa and Xolocotzl who asked the question about ethnobotany for whom.
The report on the State of the Peoples brought out by Cultural Survival (1983) includes a draft declaration on the rights of indigenous people. These rights pertain to all aspects of relationship between indigenous people, their culture, access to natural resources, their aspirations and their institutions. The collective intellectual property rights to the biodiversity and knowledge about it are also affirmed.
The guidelines on Community Based Public Health Research Principles and Application Procedures adopted by Detroit - Genesee County Community and University of Michigan, School of Public Health, (1994) recognised the right of community to be informed of the project objectives, procedures and findings in clear language, "respectful to the community and in ways which will be useful to the community". Any publication resulting from the research was expected to acknowledge the contribution prior to submission of material for publication and involvement of local collaborators as coauthors.
In some ways above guidelines in combination with the guidelines of the Society of Economic Botany do register an advance in our thinking. Chapman (1993) in the agenda note for a conference sponsored by American Association for the Advancement of Science asserted that intellectual property rights of the indigenous people were a collective right held by virtue of membership in the group. He refers to the revised draft (1993) of the Universal Declaration of Indigenous Rights of 1991 by the Working Group on indigenous population. The revised text had Article 29, "They have the right to special measures to control, develop and protect their sciences, technologies and cultural mechanisms, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, and visual and performing arts." This declaration of course has not been approved by many governments because the right of peoples might imply political independence.
Hamilton (1993) in a comprehensive study on ownership of plant genes focuses attention to some of the crucial issues in the debate on conservation of diversity and responsibility towards those in the Thiird World who actually conserve it. Many in the Third World question the validity of TRIPS provisions under GATT which did not provide any protection for unmodified plant genetic resources. On the other hand, the argument is that by putting a value on plant genetic resources, mechanisms for financing their conservation may more easily developed.
In my view, keeping the free access to germ plasm did not bring any benefit to the communities which conserved these resources so long. May be putting a value will. Hamilton questions whether Thomas Jefferson who wrote the first patent law of US would have permitted the person who "discovered" the plant or the scientists who "engineered" the gene to be granted a legal right to own it?
The guidelines developed by Pew Conservation Scholars accompanying this piece are product of collective effort of several scholars. These guidelines address in their present form only three of the seven issues that had been identified by the author for the discussion. However, author will welcome comments on these guidelines so that we could incorporate them while revising the same.
aff'd sub. nom. Diamond v. Chakrabarty, 447 U.S. 303 (1980).
Alcorn B. J. "Conservation of Cultural and Biological Diversity Frames of Discourse, Analysis and Action", Third International Congress Ethnobiology, Mexico City, Nov.10-14, 1992.
Baenziger, S.P.et al. (1993) Intellectual Property Rights: Protection of Plant Materials, Crop Science Society of America, American Society for Horticultural Science, ASA, SSSA, USDA, CSSA Special Publication Number 21, Wisconsin: CSSA.
Bozicevic, (1987) "Distinguishing "Products of Nature" from Products Derived from Nature", 69 J. Pat. & Trademark Off. Society 415.
Chapman R.A. (1993) Human Rights Implication of Indigenous People Intellectual Property Right: Agenda for an October 1993 Conference of AAAS: Amer. Ass. Adv. Science.
Chisum D. (1991) 1 Patents: A Treatise on the Law of Patentability, Validity and Infringement 1.02 and 1.03.
Congressional Research Service (US) report of April 16, 1993 entitled, Biotechnology, Indigenous Peoples and Intellectual Property Rights, by Axt, Lee and Ackerman (1993), - p. 13
Cunningham, A.B. Ethics, Ethnobiological Research, and Biodiversity, (Switzerland, World Wide Fund for Nature, 1993).
Dennis v. Pitner 106 F.2D 142 (7th Cir. 1939 in CRS Report, 1993:49) page 14.
Guidelines for Country Studies on Biological Diversity, United Nations Environment Programme, Kenya.
Gupta, A.K. (1991a) "Why does poverty persist in regions of high biodiversity? : a case for indigenous property right system", Int. conf. on Property Rights & Genetic Resources sponsored by IUCN, UNEP and ACTS at Kenya, June 10-16, 1991.
Gupta, A.K. (1991b) "Sustainability Through Biodiversity: Designing Crucible of Culture, Creativity and Conscience", International Conference on Biodiversity and Conservation held at Danish Parliament, Copenhagen, November 8, 1991. IIMA Working Paper No.1005.
Gupta, A.K. (1991c) "Biodiversity, Poverty and Intellectual Property Rights of Third World Peasants: A case for renegotiating global understanding", Project Design Workshop on Genetic Resources For Sustainable Agriculture, in M S Swaminathan, and S.Jana, eds., Biodiversity: Implications for Global Food Security (Swaminathan Research Foundation, Madras, Nov 22 - 23, 1991)
Gupta, A.K. "Biotechnology and Intellectual Property Rights: Protecting the interests of third world farmers and scientists", pp.31-56 in Commercialization of Biotechnologies for Agriculture and Aquaculture: Status and Constraints in India, U.K.Srivastava, S.Chandrasekhar, eds., (New Delhi, Oxford & IBH Publishing Co.Pvt.Ltd., 1993).
Gupta, A.K.Compensating Local Communities for Conserving Biodiversity: Shall We Save the Goose that Laid the Golden Eggs So Long, IIMA Working Paper No.1206, August 1994
Gupta, A.K. (1994) Ethical Issues in Prospecting Biodiversity, IIMA Working Paper No.1205, August 1994
Gupta, A.K. (1994) Dilemmas in Conservation of Biodiversity: Ethical, Equity and Moral Issues -- a review, October, 1994.
Hamilton D.N. (1993) "Who Owns Dinner: Evolving Legal Mechanisms for Ownership of Plant Genetic Resources", Tulsa Law Journal 28: 587.
Hamilton D., Neil, E. & Lellitt N. (1994). "Do We Need Legal and Legislative Remedies?" American Association for the Advance of Science (AAAS), February 22, 1994, San Francisco.
Hecht & Cockborn (1989) Forest Peoples' Manifesto: Platform of the National Rubber Tappers Council (Appendix).
Hussan, A. "Economic aspects of exploitation of medicinal plants", pp 125-140 in O. Akerele et al., eds., Conservation of Medicinal Plants (Cambridge University Press, 1991).
Khalil, H.M. et al. Biopolicy International: Property Rights, Biotechnology and Genetic Resources (Kenya, African Centre for Technology Studies, 1992).
Megarry V.C., in Tito v Waddell (No.2) (1977) 3 all E.R. 129 at 222 - a decision of the English Chancery Division Court.
Reid, V.W. et al. "Chapter One", A New Lease On Life (Washington, WRI, 1993).
Shelton, D. Fair Play, Fair Pay: Strengthening Local Livelihood Systems Through Compensation for Access to and Use of Traditional Knowledge and Biological Resources. Report was prepared under the auspices of the World Wide Fund for Nature.
Sittenfeld A. & Villers R. (1993). "Exploring and preserving biodiversity in the tropics: the Costa Rican case", Current Opinion in Biotechnology 4: 280-285.
Snell's Principles of Equity, 28th edition (1992) p. 192; Beatty v Guggenhelm Exploration Co; (1919) 225 N.Y. 380 at 386 (Cardozo J.)
WHO, IUCN & WWF Guidelines on The Conservation of Medicinal Plants, (Switzerland: The International Union for Conservation of Nature and Natural Resources (IUCN), 1993).
Yamin, F. & Posey, D. (1993) "Indigenous Peoples, Biotechnology and Intellectual Property Rights", Indigenous Peoples 2(2).