Law

Who invented that? Legally recognizing indigenous contributions

The international justice system is failing indigenous and local people around the globe, says a UdeM law professor who is calling for an international treaty that would protect indigenous knowledge-holders. Konstantia Koutouki says that while worldwide protections exist for the corporate sector’s inventions and trademarks, the approximately 300 million native people around the world, as well as their rural poor counterparts, have few legal options if they find their culturally important traditional remedies or plants co-opted by a commercial entity. Prof. Koutouki says accords such as the World Trade Organization’s intellectual property agreement, Trips, trump the ‘toothless’ multilateral agreements designed to protect indigenous rights. While she says the closest thing to a protective mechanism for indigenous peoples is the Convention on Biological Diversity, it has no legal standing and, therefore, cannot force countries to protect their indigenous populations from unfair exploitation of their knowledge.

While the Convention speaks of the rights of indigenous peoples, Prof. Koutouki argues it is watered down by the fact that it also addresses a variety of other issues, from plant breeds to DNA strains. For Prof. Koutouki, one case in point that demonstrates the need for better protection of indigenous intellectual property is the neem seed, a natural astringent discovered and developed by traditional medical practitioners and farmers in India over the last 200 years. American and Japanese firms have taken out more than a dozen US patents for products that range from a neem-based toothpaste to an insecticide. Indian activists say the patents fail to recognize the efforts of their country in developing the medicinal and agricultural properties of the neem seed, leading them to protest at the WTO talks that implemented a ‘harmonization of property rights legislation.’ Protesters say that this measure opens the floodgates to exploitation. Neem’s commercialization has already made the seed unaffordable to many subsistence farmers.

Notwithstanding the rallies outside international trade talks, Prof. Koutouki says indigenous people hold little power against the pharmaceutical companies that have recognized the commercial value of some of their ‘commodities.’ She says indigenous people face many barriers to full participation in current structures. Many are isolated, illiterate or speak a different language than those negotiating the agreements. “There is no means for direct participation by indigenous peoples—only through their governments, with which they are more often than not in conflict.” Prof. Koutouki, who specializes in copyright, trademarks and patents, speaks five languages and grew up in a small mountainous village in Greece before arriving in Canada at the age of 12. Her interest in the intellectual property rights of indigenous peoples has prompted her to travel to many isolated communities, ranging from a fishing out port in Costa Rica to the high altitudes of Le Paz, Bolivia, to learn about local knowledge and observe reactions to patenting, as well as to explain some of the ways in which local techniques can be protected.

One example being used as a framework for an agreement, which has not had to use sanctions, is a 1991 contract between the pharmaceutical multinational pharmaceutical Merck and the government of Costa Rica. The country has been supplying Merck with plant, insect and micro-organism samples collected from Costa Rica's protected forests, while Merck has promised to pay royalties to the country’s National Biodiversity Institute (INBio) for any drugs developed from the biological samples provided. That is an agreement between a specific country and a corporation. Prof. Koutouki is pushing for a global agreement. She says the world is already losing native and local knowledge through assimilation, and she is calling on civil society to help build an accord that goes against the WTO push for uniformity. She says there has to be greater legal standing for those who hold the knowledge so that they can be recognized economically and socially for their contribution to some of the world’s products.