Indigenous Knowledge and Biopiracy: The Need for a New System of International Intellectual Property Rights Law
By Riley Currie
Abstract
Indigenous peoples around the world have always held a connection to and rich knowledge about the land, despite ongoing colonial actions against their sovereignty and land rights. However, individual and corporate actors have continued to exploit some of the most biologically and culturally diverse places on the planet, harming Indigenous peoples via acts of biocolonialism and biopiracy. Biocolonialism and biopiracy are not only gross violations of intellectual property rights, but also pose an existential threat to Indigenous peoples and their knowledge. The protection of Indigenous intellectual property must be reframed as an international human rights issue. This requires a reexamination of intellectual property rights laws and their implementation internationally. Centuries of colonial violence cannot be undone, but the protection of Indigenous peoples and knowledge at the international level is a necessary remedy.
Keywords
international law, Indigenous rights, intellectual property, Indigenous knowledge, traditional knowledge, biocolonialism, biopiracy, Convention on Biological Diversity, United Nations Declaration on the Rights of Indigenous Peoples
“Wealth is not the fruit of labor but the result of organized, protected robbery.”
– Frantz Fanon, The Wretched of the Earth
Introduction
Indigenous peoples possess a common connection to and wealth of knowledge about their land, despite ongoing colonial violence and appropriation. As conversations about human rights, sustainability, and climate change rise to prominence in international discussion, the need to protect Indigenous peoples and Indigenous knowledge in the international legal system cannot be overlooked.
Unfortunately, the existing international intellectual property rights regime falls short in its attempts to protect Indigenous peoples and knowledge. Persistent misconceptions about the nature of Indigenous knowledge, including the idea that there is an inherent disconnect between “strictly definition-based” laws and “definition-defying” Indigenous knowledge, hinder the implementation of effective protection. Intellectual property rights for Indigenous people are also often perceived as legally entirely separate from land rights and land justice efforts. These misconceptions only divert attention away from the principle failure of the system: intellectual property laws, which rely on the Euro-American legal concepts of innovation, discovery, products, and processes, limit Indigenous intellectual property rights and allow opportunities for biopiracy and misappropriation. These holes in the current system constitute a violation of rights and demand a reexamination of intellectual property laws and their effects on Indigenous communities around the world.
Due to the complexity of the intersection of Indigenous knowledge and international intellectual property laws, this paper will take a preliminary look at the relationship between Indigenous knowledge and intellectual property rights, as well as the existing laws and their international implementations. The investigation of this relationship and the legal tension will concern two specific precedents which highlight the overdue need to preserve and protect Indigenous knowledge at the international level: the biopiracy of ayahuasca, a vine native to the Amazon Basin, and the biocolonialism of the University of Hawai’i’s kalo patents.
Indigenous Knowledge and Intellectual Property Rights
In general terms, Indigenous knowledge can be defined as “the system of knowledge developed and maintained by Indigenous and local communities and transmitted from generation to generation” (Stoianoff & Wright, 2018, pp. 75). According to a report by the World Intellectual Property Organization (WIPO; 2000), traditional knowledge refers to “tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations” (p. 25). Here, “tradition-based” refers to things which “have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; and are constantly evolving in response to a changing environment” (World Intellectual Property Organization, 2000, p. 25).
According to the World Trade Organization (n.d.), intellectual property rights “are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.” These rights are divided into two categories: copyright and rights related to copyright, and industrial property. Copyright refers to literary, artistic, performance, sound production, and broadcasting properties, with the “main social purpose . . . to encourage and reward creative work” (copyright section, para. 2). Industrial property, on the other hand, refers to two subcategories: properties “characterized as the protection of distinctive signs, in particular trademarks . . . and geographical indications” (industrial property section, bullet 1, para. 1) and properties “protected . . . to stimulate innovation, design and the creation of technology” (industrial property section, bullet 2, para. 1).
Biological properties in relation to Indigenous knowledge primarily fall under the first industrial property subcategory, as such properties “[originate] in a place where a given characteristic . . . is essentially attributable to its geographical origin” (industrial property section, bullet 1, para. 1). In general, intellectual property rights intend to simultaneously protect creators and consumers, ensuring fair use, but they rely on Euro-American concepts of property and ownership. Indigenous intellectual property is thus often perceived as incompatible with existing intellectual property rights and protections because contemporary systems of ownership (and ownership of rights, in particular) encourage the commodification and commercialization of knowledge and resources.
Indigenous intellectual property is thus often perceived as incompatible with existing intellectual property rights and protections because contemporary systems of ownership (and ownership of rights, in particular) encourage the commodification and commercialization of knowledge and resources.
The concept of “ownership” stems from the Euro-American concept of private property and, thus, private ownership; so the conception and the legal punishment of theft relies on the violation of private property. In the case of intellectual property rights, this violation is traditionally plagiarism or unfair use. Such a conceptualization of ownership, especially in regard to land, resources, and knowledge ownership, conflicts with those of many Indigenous communities. For Indigenous peoples around the world, the relationship between the people and the land is not one of owner and property. Indigenous knowledge is heavily rooted in communal land and a cultural connection to a place (Drahos & Frankel, 2012). For instance, the Māori people in New Zealand maintain a deep connection to the land which informs all facets of Māori culture. In a 2011 report, the New Zealand Waitangi Tribunal recognized that mātauranga Māori (Māori knowledge) “in its intangible values [is] intimately connected to Māori relationship with the land and the environment” (Drahos & Frankel, 2012, p. 2). According to the report:
Māori culture seeks to reflect rather than dominate its surroundings. . . . [T]he relationship between humans and taonga species is a definer of Māori culture itself. It is a preoccupation of the body of distinctive Māori knowledge that today we call mātauranga Māori. (as cited in Drahos & Frankel, 2012, p. 2)
Due to this difference in conceptual understanding of land, resources, and related knowledge, current international intellectual rights regimes will fail to effectively protect Indigenous knowledge.
Legal Instruments and History
International bodies have attempted to implement legal instruments to protect Indigenous intellectual property rights, the most prominent being the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Convention on Biological Diversity (CBD).
UNDRIP’s adoption began in 1982 when the United Nations Economic and Social Council (ECOSOC) established the Working Group on Indigenous Populations, intending to establish a set of standards that would protect Indigenous people (New Zealand Human Rights Commission, n.d.; Historical Overview, n.d.). The group submitted a first draft of a declaration on the rights of Indigenous peoples to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which was approved in 1994. After some revision, the United Nations Human Rights Council adopted the Declaration on the Rights of Indigenous Peoples in June 2006. “[A] comprehensive international human rights document on the rights of Indigenous peoples, [it] sets out the minimum standards for the survival, dignity, wellbeing, and rights of the world’s Indigenous peoples” (New Zealand Human Rights Commission, n.d.). In September 2007, a majority of 144 countries adopted UNDRIP. Eleven countries abstained, and four, notably, voted against UNDRIP: Australia, Canada, New Zealand, and the United States (though all four now share their support, along with Colombia and Samoa, two countries that originally abstained; Historical Overview, n.d.).
The Convention on Biological Diversity (CBD) went into effect in December 1993 (Introduction, 2012). The main objectives included “the conservation of biological diversity; the sustainable use of its components; and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources . . . by appropriate access and . . . appropriate transfer of relevant technologies” (Introduction, 2012). The CBD specifies the importance of recognizing Indigenous knowledge and its unique value regarding biodiversity and conservation. Article 8 of the Convention (United Nations, 1992) states that each party shall:
respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities . . . relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge . . . and encourage the equitable sharing of the benefits arising from the utilization of such knowledge.
Other laws also address Indigenous knowledge and intellectual property. Published by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and WIPO in 1976, the Tunis Model Law on Copyright for Developing Countries recognizes copyright in “works of national folklore” (section 6, p. 9). “Folklore” here overlaps somewhat in use and scope with Indigenous knowledge. The objective of the national folklore provision is to “prevent any improper exploitation and to permit adequate protection of the cultural heritage . . . which constitutes not only a potential for economic expansion, but also a cultural legacy intimately bound up with the individual character of each person” (section 6, p. 9). The overlap between national folklore, Indigenous knowledge, and intellectual property rights is relevant, but the Tunis Model Law on Copyright for Developing Countries remains unable to address biopiracy.
Despite good intentions, both UNDRIP and the CBD function more as acknowledgements of the problem of biocolonialism than solutions to it. As with all international legal documents, the functionality of international intellectual property laws depends on the decisions of powerful states to act on them, and unfortunately many powerful states have a vested interest in upholding colonial institutions. State-level laws and projects—such as the United States Native American Graves Protection and Repatriation Act and the Indian Arts and Crafts Act, as well as India’s Traditional Knowledge Digital Library—present partial, specific, and state-level solutions to the issue of Indigenous intellectual property rights (Oguamanam, 2008), but the international human rights system still fails to protect Indigenous knowledge.
Biocolonialism and Biopiracy
Existing systems of intellectual property laws not only fail to protect Indigenous knowledge but sometimes actively harm it. Intellectual property systems are often mobilized by individual and corporate actors to steal, privatize, and profit from Indigenous knowledge. Indigenous peoples have criticized the intellectual property system as “a legalized means for misappropriation of cultural property” (Kanehe, 2014, p. 333). Such “misappropriation” occurs via instances of biocolonialism and biopiracy.
Susan Hawthorne (2007) wrote that modern colonization is “born from a ‘knowledge-based economy,’ one that relies on privatization and patents, as well as the exploitation and appropriation of Indigenous knowledge” (p. 315). She describes this phenomenon as the latest permutation of colonization; in this sense, “biocolonialism” is the system in which neocolonialism occurs through means of controlling biological resources, and “biopiracy” is one such method of biocolonialism. Hope Shand (2004) defined biopiracy as “the privatization of genetic resources . . . or related knowledge” (p. 35), while Indigenous African legal scholar Ikechi Mgbeogi explained it as “the unauthorized commercial use of biological resources and . . . traditional knowledge, or the patenting of spurious inventions based on such knowledge, without compensation” (as cited in Kanehe, 2014, p. 335).
Natural phenomena were not patentable prior to 1980, but the United States Supreme Court ruled in Diamond v. Chakrabarty (1980) that patent law “provides for the issuance of a patent to a person who invents or discovers ‘any’ new and useful ‘manufacture’ or ‘composition of matter’” (syllabus section, para. 1). “Any” was intended to be interpreted widely; thus, Diamond v. Chakrabarty opened new avenues for biopiracy and the misuse of intellectual property rights around the world. For Indigenous communities in the Global South, whose livelihoods and cultures depend on biodiversity and biological resources, this system of biological commodification and privatization, and the opportunities for misappropriation afforded by Diamond v. Chakrabarty, pose and manifest as existential threats.
The Ayahuasca Patent
The ayahuasca patent case is in many ways the quintessential example of biopiracy. In the late 1980s, American scientist and entrepreneur Loren Miller patented a strain of the ayahuasca vine (Banisteriopsis caapi; Fecteau, 2001). The ayahuasca vine has been used by Indigenous people for hundreds of years as a religious symbol and medicinal herb. Miller had been given samples of a local ayahuasca vine by a tribe in Ecuador in 1974, which he brought back to the United States and cultivated, eventually developing a strain of the plant which was technically eligible for a patent. In his patent application for a plant he called “Da Vine,” Miller did not mention the Ecuadorian tribe, instead stating that he had obtained his samples from “a domestic garden in the Amazon rain-forest” (as cited in Fecteau, 2001, The Ayahuasca Patent section, Issuance of the Patent subsection, para. 2).
In 1994, the Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA) learned about Miller’s patent. Indigenous tribes in South America were (unsurprisingly) upset that an outsider claimed to have “discovered” a plant that had been part of their cultures for centuries. Antonio Jacanamijoy, the leader of a council which represented “more than 400 tribes and indigenous groups” (St. Louis Post-Dispatch, 1999, para. 3), said, “[our] ancestors learned the knowledge of this medicine and we are the owners of this knowledge” (as cited in para. 3). The case evolved into a matter of international concern when a threat against Miller from a tribe in Ecuador led to the United States canceling all aid to the tribal group.
Over a decade after Miller’s patent was obtained, in 1999, COICA and the Amazon Coalition worked with attorneys at the Center for International Environmental Law (CIEL) to obtain a rejection of the ayahuasca patent from the United States Patent and Trademark Office. They requested a reexamination, arguing that Miller’s “Da Vine” failed all requirements of United States plant patent law: it was not distinct or new, it is found uncultivated, and it “violated the Patent Act’s utility requirement because issuing a patent on a plant that is sacred to indigenous peoples violates notions of public policy and morality” (Fecteau, 2001, The Ayahuasca Patent section, PTO Re-Examination subsection, para. 2). Even with these considerations, the Patent and Trademark Office (PTO) granted the rejection only based on the fact that Miller’s Da Vine was indistinguishable from existing ayahuasca specimens in American herbarium collections. All of the most significant issues CIEL raised—all of which concerned Indigenous peoples’ knowledge and cultural preservation—were ignored.
Miller’s choice to exclude any mention of the Ecuadorian tribe from which he obtained the ayahuasca vine, the United States’ cancellation of aid to the group that threatened him, and the U.S. Supreme Court’s disregard for the violations against Indigenous intellectual property in their decision are glaring examples of biocolonialism—actions which sought to protect American bio-capital interests at the expense of Indigenous peoples.
Miller’s choice to exclude any mention of the Ecuadorian tribe from which he obtained the ayahuasca vine, the United States’ cancellation of aid to the group that threatened him, and the U.S. Supreme Court’s disregard for the violations against Indigenous intellectual property in their decision are glaring examples of biocolonialism—actions which sought to protect American bio-capital interests at the expense of Indigenous peoples. The Da Vine patent case was also a missed opportunity to create precedents that Indigenous peoples could use to combat and prevent further instances of biopiracy from taking place. It highlights the malicious nature of outsiders’ so-called “discoveries” of biological materials, not to mention the profit they make, and the harm perpetrated on Indigenous communities in the process.
Kalo and the University of Hawai’i
In 2005, the public learned and criticized that the University of Hawai’i had previously obtained three United States plant patents on varieties of the Hawaiian Maui Lehua, or kalo (also known as taro). The University argued that their patents were meant to protect the kalo from international actors and misappropriation. To validate their stance as representing the Hawaiian people, University researchers claimed that their hybridization of kalo was “the same as what Kānaka Maoli [Native Hawaiians] have always done” (Kanehe, 2014, p. 336) because Native Hawaiians have historically crossbred kalo. However, there’s a crucial distinction between the actions of the University and of the Kānaka Maoli: “Kānaka Maoli have never claimed an exclusive, monopolistic ownership over kalo” (Kanehe, 2014, p. 336). Hawaiian culture teaches that the first kalo is the elder sibling of the Hawaiian people; thus, Hawaiians have a cultural obligation to the kalo. As succinctly described by Kānaka Maoli activist Alapaʻi Hanapī, the ownership of kalo is “like slavery” (as cited in Goodyear-Ka‘öpua et al., 2008, p. 181).
Through a series of protests in 2006, Hawaiians expressed their objection to any patents on the plant, even ones granted to Native Hawaiians. Following these protests, the University of Hawai’i terminated the patents. Afterwards, Kānaka Maoli demanded that the University sign a moratorium on any genetic engineering of Hawaiian kalo, and the University eventually complied (Kanehe, 2014). However, despite this case and other such progress towards the regulation of genetic modification of Hawaiian crops, these small victories do not equal legal protection in the state legislature.
The University of Hawai’i kalo patents case supports Laurie Ann Whitt’s (1998) examination of how “western laws and bio-technoscience” (para. 1) contribute to biocolonialism:
if colonialism encompasses the interlocking array of policies and practices . . . that a dominant culture draws on to maintain and extend its control over other peoples and lands, biocolonialism emphasizes the role of science policy and of scientific practice within that array. (para. 2)
As one of the most biodiverse places on the planet, Hawai’i has been and continues to be the target of extreme and mainstream biocolonialism. “Hawaiʻi has had more plantings of experimental biotech crops than anywhere in the United States or the world, . . . making [the] islands an international and national sacrifice zone” (Kanehe, 2014, p. 331). The University of Hawai’i’s decision to obtain patents on the culturally significant and sacred kalo demonstrate a terrible irony for Indigenous communities around the world: Indigenous peoples are forced to bend their cultures to fit the parameters of a Euro-American intellectual property rights system in order to receive any protection. It is an irony that, in Le‘a Malia Kanehe’s (2014) words, “supports a foreign economic system, globalized capitalism, that encourages the commercialization of the sacred” (pp. 331–332).
The University of Hawai’i’s decision to obtain patents on the culturally significant and sacred kalo demonstrate a terrible irony for Indigenous communities around the world: Indigenous peoples are forced to bend their cultures to fit the parameters of a Euro-American intellectual property rights system in order to receive any protection.
Conclusion
Since the backlash to Miller’s ayahuasca patent attempt in the 1980s, there have been few meaningful changes to protections for Indigenous intellectual property. Nearly two decades later, Native Hawaiians fought against the same issue—against an academic institution that was meant to represent them. The ayahuasca and kalo cases are only select examples of the ways in which the international intellectual property rights system fails Indigenous peoples and Indigenous knowledge.
Even in the late 20th century, the United Nations Human Rights Commission had identified intellectual property as an obstacle to the rights of people in the Global South (Shand, 2004). A 2009 report by the United Nations Secretariat of the Permanent Forum on Indigenous Issues also identified those intellectual property laws that allowed patents of biological resources and methods of cultivating them as a “threat to the protection and promotion of Indigenous knowledge” (p. 20). The report stated that:
The dominant model for recognising and protecting knowledge and cultural expressions is the intellectual property rights regime . . . which is based on Western legal and economic parameters [and] emphasizes exclusivity and private ownership, reducing knowledge and cultural expressions to commodities that can be privately owned by an individual or a corporation. (p. 85)
Additionally, the United Nations Office of the High Commissioner for Human Rights (OHCHR; 2014) expressed that intellectual property regimes, although an important field of international law, have an impact on the “rights of Indigenous peoples and local communities” (Human rights impacted section, bullet 6).
The need to improve what constitutes Indigenous intellectual property rights is clear, but the implementation of those laws is, even theoretically, complicated. As Shand (2004) expressed while addressing the growing international recognition of a need to review patent regimes, “property ‘rights’ must not be allowed to trample human rights” (p. 36). Remedies for the effects of colonization that rely on the very colonial institutions at fault are hardly remedies at all.
Remedies for the effects of colonization that rely on the very colonial institutions at fault are hardly remedies at all.
The recognition preached by documents such as the United Nations report or the Convention on Biological Diversity (CBD) require an approach and legal framework of decolonization. Additionally, further research regarding the intersection of Indigenous knowledge and international intellectual property law must be done in order to reshape both international and local legal systems. Above all, it is crucial that Indigenous intellectual property rights be addressed as an international human rights issue.
The argument that Indigenous knowledge and systems of intellectual property rights are “too different” to ever reconcile remains. While there are often significant differences between Indigenous and Euro-American ideologies, these differences alone do not hinder the protection of Indigenous knowledge. Rather, the perceived schism between Indigenous knowledge and legal systems reflects ongoing efforts to maintain colonial systems of power, to discourage resistance and sustainability efforts, and to prevent Indigenous people from accessing the law. Psychiatrist and political philosopher Frantz Fanon wrote that colonization by itself occupies both a territory and a population; and so, resistance is neither personal nor incidental—it “emerges not simply in ‘man himself,’ but rather in life through its connection to land” (Clare, 2013, p. 62). For Indigenous communities around the globe, such resistance is paramount not only to their rights but to their survival.
The abolishment of colonial institutions is certainly necessary to ensure that Indigenous peoples thrive, but abolishment is a gradual process. One starting place is intellectual property rights. The protection of knowledge and culture is crucial to an anticolonial framework. Existing intellectual property rights regimes, among other legal and social systems, require reexamination, reframing, and restructuring to include Indigenous peoples in the policymaking process at national and international levels, especially in regard to policies which directly affect their land. Including Indigenous peoples and their perspectives in policy is necessary to progress and promote the protection and value of not just their knowledge, but their existence.
Definitions
Neocolonialism: “The economic and political policies by which a great power indirectly maintains or extends its influence over other areas or people” (Merriam-Webster, n.d.).
Global South: A term used to describe regions of the world that have been underdeveloped and subjected to colonization from the Global North. In the contemporary context of neoliberal globalization, the Global South is typically a site for resource extraction, while the Global North is primarily a site of resource consumption. These terms describe geopolitical power relationships rather than geographic relationships.
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Author
Riley Currie is a community journalist based in Bellingham, Washington. She is a Spring 2021 graduate of Western Washington University, where she's majoring in journalism and public relations with minors in philosophy and Holocaust/genocide studies. She's deeply involved in the Bellingham arts and music community, where she's worked in nonprofit outreach since the spring of 2019. She plans to pursue international law with an emphasis on Indigenous rights and sovereignty in the near future.