STATE OF THE WORLD's INDIGENOUs PEOpLEs - CINU

EMBARGOED UNTIL 14 January 2010STATE OF THE WORLD’S INDIGENOUS PEOPLESNot for distribution Cultural heritage, objects and expressions are managed and owned in accordance with customaryrules and codes of practice, and are usually not sold or alienated in ways that conventional IPRscan beIndigenous rights include all forms of traditional knowledge, such as intangible cultural productsand expressions, none of which are protected under conventional IPRs lawsIndigenous peoples’ knowledge is transmitted orally, and is therefore not subject to the samerequirements regarding material forms that pertain to conventional IPRs lawsIndigenous traditional knowledge is usually held by the owners and their descendents inperpetuity, rather than for a limited periodSource: Davis (1997).Yet, in many instances, indigenous peoples are compelled to turn to the (IPRs) regime to find ways to clarify andprotect their rights. Some indigenous peoples, typically artists and craftsmen, have used IPR legal systems toachieve copyright protection for tangible arts and crafts objects such as wood carvings, silver jewellery andsculptures, or have used trademarks to identify traditional art, food products and clothing. But on the whole,indigenous traditional knowledge and folklore usually do not meet the criteria of novelty and originality generallyrequired for work to be protected under IPRs legal systems. Intellectual property protection is of limited timeduration and does not apply to “old” creations already in the public domain (i.e., the indigenous community);moreover, it is normally impossible to identify individual creators behind traditional knowledge. 57 The IPRs regimetherefore leaves most indigenous traditional knowledge and folklore vulnerable to appropriation, privatization,monopolization and even biopiracy by outsiders.The Hoodia caseA celebrated case regarding the appropriation of indigenous traditional knowledge involves the Sanof southern Africa. In 1937, an anthropologist noticed that the San ate the Hoodia cactus to stave offhunger and thirst. Based on this knowledge, in 1995, the South African Council for Scientific and IndustrialResearch (CSIR) patented the Hoodia cactus’s appetite-suppressing element (P57). By 1998, revenuesfrom the licensing fee for developing and marketing P57 as a slimming drug had risen to US$32 million.When the San alleged biopiracy and threatened legal action in 2002, the CSIR agreed to share futureroyalties with the San.Source: Human Rights Report 2004.This has prompted organizations such as WIPO to identify the needs and expectations of traditional knowledgeholders and explore current and future possibilities of protecting traditional knowledge (TK), genetic resources(GR) and traditional cultural expressions (TCEs), or folklore.In 2000, an Intergovernmental Committee (IGC) on Intellectual Property, TK, GR and TCEs was established.Indigenous representatives participate in its meetings, 58 and the IGC is currently considering the protection57Åhrén (2002), 65.58WIPO created, in 2005, a fund that supports the participation of indigenous representatives.CULTURE | 75