Tony Bennett, Differing diversities - Council of Europe

Reasearch position paper 7and innovations, they will have to identify individual inventors. This will pushunscrupulous indigenous individuals to claim ownership over potentially profitableindigenous knowledge which will cause the further disintegration of communal valuesand practices. It can also cause infighting between indigenous communities over whohas ownership over particular knowledge or innovation.The concept of exclusive ownership and alienability which is inherent in TRIPs willhave to be internalised and imbibed by indigenous peoples even if it goes against theirusual practice of making available such knowledge for the common good. The identityand survival of indigenous peoples as distinct peoples depends to a large extent on theage-old practice of common sharing of some resources, knowledge and skills which arenot alienable. With TRIPs, indigenous peoples will now have to think of how theirknowledge will be protected against so-called ‘biopirates’. Sharing of knowledgebecomes a dangerous proposition because it might be appropriated by those who havethe capacity to use the system to claim exclusive ownership over such knowledge andcommercialise it. Although typical, the assertion that corporations may claim exclusiveownership over knowledge appropriated from indigenous peoples is inaccurate. Onlythe particular application of such knowledge, providing that it is itself novel andinvolves an innovative step (or in patent parlance, is not obvious to a person of ordinaryskill in the art) will be protected. The patent holder does not gain thereby an exclusiverights to the common knowledge that underlies the particular technology, nor does thecommercial application preclude the continuance of prior non-commercial usages ofsuch knowledge. None the less, patents are being granted that should not be grantedbased upon a proper application of these legal principles, and threats to enjoin alternativeusages are often made by intellectual property holders even when they do notlegally have rights of the scope that they assert. The assumption by indigenous peoplesthat the legal claims made by intellectual property holders are valid ones that the westernlegal system supports is, however, part of the problem that needs to be addressed.”(Tauli-Corpuz, 1999)29. This form of creativity, it is argued, is likely to continue to be usurped, marginalised andeventually extinguished by plant breeders’ rights which do not respect indigenous creativity:“The Union for the Protection of Plant Varieties (UPOV) allows for breeders’ rights inrespect of plant varieties that are ‘improved’ modifications of farmers’ germplasms.UPOV 1991 extends the gap between source materials and improved varieties in termsof value and ownership rights attached to them. This revised instrument allows for bothbreeders’ rights and patents for plant varieties. Finally, the TRIPs Agreement under theWTO allows for patents over life forms and requires that plant varieties be protected bypatents or a sui generis system. In all of these instruments, the definitional constructspreclude recognition of innovations that are inter-generational, collective and for thesocial good – hallmarks of the way indigenous people create and innovate.” (Nijar,1999a)30. For a list of patent sites, see Newton, 2000. The British Library also offers access to thisinformation at (30.07.00).31. As Delgado and Becker (1998) write: “Computer technology has been taught in a mannerwhich makes indigenous peoples recall the way their languages work. Most of theselanguages work on an ‘agglutinative’ principle; a root word provides the base and aninfinite number of suffixes are added according to the situation. Computer technology,listservs, newsgroups, and websites work in this way as well.”32. The “Inkarri” information centre on indigenous issues, sponsored by the Basque countyof Vitoria-Gasteiz, illustrates this possibility. See (30.07.00).Similarly, a website functioning from Geneva has enabled a team of indigenous peoplesto concentrate on Andean issues. See (30.07.00).191