Tony Bennett, Differing diversities - Council of Europe

Reasearch position paper 7extended to plant breeders’ rights applications (Bodeker, 2000: 12) and wouldentail the submission of evidence of prior informed consent from the country of originand the local community. 38 Further research needs to be done to determine ifsuch a requirement is compatible with the TRIPs Agreement (and preliminaryresearch indicates that it is, if characterised as an aspect of the novelty requirement)but such an amendment is widely urged. In 1997 the Indian government submitteda paper to the WTO’s Committee on Trade and Environment that criticised TRIPson the basis that patent applicants were not asked to make such disclosure.Facilitators of both the People’s Biodiversity Registers 39 and the Local InnovationsDatabase 40 initiatives in India argue that the documentation of community knowledgewill only be successful if intellectual property regimes are so modified.Other electronic databases and digital networks are being established in developingcountries with support by Council Parties and Council Party NGOs. 41 Suchdatabases may have consequences for the future potential of peoples to benefitfrom this cultivation activity. To the extent that such publication does create arecord in the public domain, it may operate so as to prevent the appropriation ofsuch knowledge and resources in patent claims and plant breeders’ rights assertedby others. Again, this will depend upon the willingness of patent offices to recognisethis as “prior art”. However, the option of local peoples profiting from suchknowledge as a trade secret may also be foreclosed by such publications. Furtherresearch needs to be done on the likely legal and cultural consequences of suchpublications before knowledge of a sensitive, sacred, or potentially proprietarycharacter is posted on the Internet. Protocols for local peoples’ prior informed consentto govern such postings need to be established.Traditional systems of medicine and local knowledge of plant genetic resourcesare especially diverse in India. In order to counter the general public devaluationof the traditional knowledge of those in marginalised communities and to ensurecompensation to communities and individuals for the commercialisation of suchknowledge, community knowledge databases are being created. Such decentraliseddatabases may serve a number of local cultural and ecological purposesand are networked to a national database that promotes the use of such knowledgefor the benefit of local communities. Access to the contents of such registers istherefore restricted to communities of origin who, it is anticipated, will be able tocharge fees to others, create tariffs, and negotiate contractual arrangements.Further research on the implications of various forms of confidentiality for localpeoples needs to be carried out. On the one hand, access restrictions no doubtlessen misappropriations. On the other hand, to the extent that such knowledge isacquired and used, the fact that such information was not in the public domaincould make any patent based upon it difficult to challenge because prior art inmany jurisdictions does not encompass private databases (Dutfield, 1999: 122).Ultimately, a global linkage of such databases might enable individual and collectiveinnovators to receive both acknowledgement and compensation for commercialapplications of their KIP while enabling small investors, entrepreneurs, andlocal innovators and communities to locate each other for the purposes of business183