Tony Bennett, Differing diversities - Council of Europe

Reasearch position paper 7unique, traditional, local knowledge existing within and developed around the specificconditions of women and men indigenous to a particular geographic area”(Grenier, 1998), is collectively held and, until recently, was also predominantlycommunicated orally and from generation to generation. Such knowledge isdynamic and adaptive, socially shared and communicated, and usually recognisesan equilibrium among natural forms understood to form elements of a cosmos. Itembraces knowledge of location, movements, spatial relationships and temporalcycles, and is not restricted to knowledge of entities and their parts. “Nature” is lesslikely to be understood as something to be conserved and more likely to be understoodas an extension of society and an integral part of human interdependence.Just as indigenous peoples and local communities are increasingly under siege byforces of urbanisation, proletarianisation, linguistic assimilation, logging, mining,and large-scale development projects, they find that the genetic resources they manageand develop using their knowledges and technologies are of increasing value toothers. “Biopiracy” of genetic resources and traditional knowledge is believed to beon the rise. 6 For example, a survey conducted by the Indian Drug Manufacturers’Association found that of the 668 pharmaceutical patents filed in 1997, the vastmajority included the use of ayurvedic knowledge (traditional Indian medicinal systems)with minor modifications in methods of extraction and processing. 7 Researchto ascertain the use of indigenous and traditional knowledge innovations and practices(hereinafter ITKIP) in the intellectual properties granted to others is both difficultand expensive to accomplish given the limited information that most states provideto the public and the limited forms of disclosure required of most patentapplicants. States concerned with the preservation of cultural diversity should consideramending their intellectual property regimes to enable such research.Although claims concerning the biopiracy of traditional knowledge abound, it is notalways clear precisely how traditional knowledge practitioners are or will be precludedfrom continuing to engage in applying and developing such knowledge as aconsequence of these appropriations. Moreover, it is not at all evident that patentsbased upon ITKIP are, in fact, valid given that they generally involve an “obvious”technology applied to ITKIP that lacks the quality of novelty. None the less, it ismanifestly inappropriate for state regimes to put the onerous and expensive burdenof challenging the validity of such IPRs upon the impoverished and vulnerable holdersof such knowledge (or even upon the non-profit NGOs that support them).It is recommended that Council Parties undertake further research to consider:– means to amend intellectual property regimes to enable interested parties toascertain when and if intellectual property rights are being granted for worksand innovations that appropriate indigenous and traditional knowledge, innovations,and practices and are thereby invalid to the extent that such knowledge,innovations and practices are not novel and the uses made of them areobvious amongst those peoples or in those communities.171