Document(s) 18 of 37

Traditional communities may have their own concepts of intellectual property and resource rights. However, industrializing countries are under political pressure to adopt the European and North American concepts of intellectual property, which, by guaranteeing the right of legal individuals to profit from their innovations, are widely believed to promote development. IPR laws have usually been inimical to the interests of indigenous communities, but there are ways in which these laws can serve the interests of these communities.

IPR laws exist in most countries of the world and Western concepts of IPR usually prevail in national laws. These concepts are based on the idea that innovation is the product of the genius of individuals. Such people, by sharing the fruits of their genius with society, are deemed to be deserving of economic rights granted by the state on behalf of society. These economic rights are collectively known as IPR. In the 20th century, modern societies are increasingly dominated economically by corporations that employ researchers and inventors. As a result, the IPR often go not to individuals but to the corporations, government agencies, or universities that employ them or fund their research.

Various IPR types exist, all of which may have a role to play in protecting indigenous knowledge and in helping indigenous peoples to market the products they decide to commercialize. Some of them may also be useful for the protection of cultural heritage and biodiversity.

However, IPR cannot adequately protect the knowledge and resources of indigenous peoples, nor are they a panacea for the lack of self-determination of indigenous peoples and the inequalities of wealth and power between local communities on one hand and governments and corporations on the other. Furthermore, not only do IPR have to be acquired by a process that can be difficult, time-consuming, and expensive, but they also have to be defended. Acquiring and defending IPR protection requires access to information, good legal advice, and financial resources, all of which may be beyond the reach of many indigenous peoples.

Although IPR laws vary from country to country, international treaties like the Paris and Berne Conventions give them a common basis. The recent TRIPs agreement of GATT will enhance the convergence of IPR national laws in the future (see Chapter 10). Most international conventions pertaining to IPR are administered by WIPO, a United Nations agency based in Switzerland (see Box 8.1).

The following categories are explained and discussed in this chapter: patents, petty patents or utility models, copyright, trademarks, unfair competition, industrial designs, trade secrets, plant breeders’ rights (PBR), geographic indications, such as appellations of origin, certification (not normally regarded as an IPR but dealt with here in view of its relevance).

Patents

A patent is a legal certificate that gives an inventor exclusive rights to prevent others from producing, using, selling, or importing the invention for a fixed period (usually 17–20 years). Legal action can be taken against those who infringe the patent by copying the invention or selling it without permission from the patent owner. Patents can be bought, sold, hired, or licenced. A patent application must satisfy the patent examiners that the 'invention" is

• Useful (have industrial application): ideas, theories, and scientific formulas are not sufficiently useful to be patentable;

Box 8.1

What is the World Intellectual Property Organization?

WIPO was established by a convention in 1967, although its origins can be traced to the Paris and Berne Conventions adopted in 1883 and 1886, respectively. WIPO’s primary objectives are to administer international treaties on intellectual property laws; to provide assistance to signatory nations in promulgating intellectual property laws; and to seek harmonization of national laws, aiming to 'promote the protection of intellectual property throughout the world." IPR laws are the laws that governments enact to make these international treaties part of national law. WIPO administers, inter alia, the following treaties concerning IPR:

• Paris Convention for the Protection of Industrial Property (1883);
• Berne Convention for the Protection of Literary and Artistic Works (1886);
• Madrid Agreement Concerning the International Registration of Trademarks (1891);
• Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1958);
• Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961) (see Chapter 10);
• Patent Cooperation Treaty (1970) (see also Chapter 2);
• Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purpose of Patent Procedure (1977) (see Chapter 2).

Negotiations that might lead to future international IPR agreements are held under the auspices of WIPO (34 Chemin des Colombettes, PO Box 18, Geneva 20, CH-1211, Switzerland).

• Novel: the invention should be recent and original, but perhaps most importantly it should not already be known (in the public domain). In most countries (except the USA) the patent is awarded to the first person to apply, regardless of whether this person was the first to invent;
• Nonobvious: not obvious to a person skilled in the technology and more inventive than mere discovery of what already exists in nature (such as a gene with no known function). The 'invention" must be disclosed to the patent examiners in a detailed way that would enable a skilled technician to make and use it. In the case of an invented process, the patent can cover a nonobvious way of making something already known (previously invented or discovered). In the case of an invented product, the nonobvious requirement does not require it to be made by a novel method.

Several kinds of patent may be granted (Lesser 1991, p. 14):

• Products: covers any use of the product including those as yet undiscovered. For example, a new drug patented as a cure for cancer may later be found to cure heart disease; the patent will cover this new use.
• Uses: covers a specific use only. Thus, it would cover the above drug only as a cure for cancer and not for any uses that are found later.
• Processes: protects the process when used with any product, but does not protect the invention when it can be manufactured by a different process.
• Products-by-process: covers only products made by the process described in the application. Therefore, it would cover the drug, but only when made by a specified process.

These should not be regarded necessarily as discrete categories of patent because broad patent claims may include several products, processes and uses.

Not all inventions that meet the above conditions can be protected by patent. In many countries, medicines and genetically modified organisms (plants, animals, or microorganisms containing a gene transferred artificially from another organism) cannot be patented at all. In part the differences in national patent laws are due to the fact that each country prefers to define what inventions may be patented in accordance with its perceived national interest.

It can easily take over 2 years to obtain a patent from the day that an application is filed and the invention is disclosed to the national patent office (the priority date). The patent office carries out a search to ensure that the invention really is new and nonobvious. When it is satisfied that this is so, the application is published and an in-depth examination follows. In the case of an invention derived from a natural product, the examination might include the obligation to describe the source and location of the natural product (Gollin 1993, p. 166) and demonstrate that the prior informed consent (see Chapter 4) of suppliers of resources and information was obtained. To obtain patents in other countries, it is usually necessary to file a different application in each country, preferably within 12 months of the priority date. However, a number of international agreements (such as the Patent Cooperation Treaty (PCT)) simplify this process by requiring a single international application to be prepared. In the case of the PCT, this application is then submitted to a receiving office from where it is distributed to national patent offices designated by the applicant. It is very important that inventors do not disclose their invention before applying, except in the strictest confidence. If they do, the patent might be invalidated.

Is indigenous knowledge patentable?

Three questions now arise:

1.     Can indigenous people patent their own knowledge?

A product patent cannot be obtained for a naturally occurring organism or a gene that has not been isolated. This rules out the patenting of much potentially useful indigenous knowledge relating to naturally occurring organisms. Nevertheless, some traditional medicinal or other preparations from natural substances could be regarded as patentable modifications or combinations (processes), and process patents may be obtainable for them.

However, this is possible only in the case of new inventions and as long as individual people can be cited as the 'inventors." To this extent, indigenous people may be able to patent a certain amount of their own knowledge. One major obstacle is that the process of acquiring a patent, which includes payments for filing, the examination, and the grant, is expensive and time-consuming.

Furthermore, the patent will need to be renewed annually. Indeed, the expense may be beyond the means of many communities.

2.     Can companies obtain patents based on indigenous knowledge?

This is certainly possible. Frequently, companies have investigated useful attributes of a biological substance known to a traditional community. Although normally a product patent cannot be obtained for a naturally occurring organism, chemical, or gene, in some industrial countries patents can be obtained for one that has been altered in some way. Therefore, after isolating the active principle of a substance, the company can modify it or use it in the design of a new synthetic compound that may be more stable or less toxic than the original substance. Such an 'invention" can then be patented by the company. Boxes 8.2, 8.3, and 8.4 describe three cases in which this has happened.

3.     What can be done if someone copies an invention without permission?

One of the biggest problems that would face an indigenous community with a legal personality (see Chapter 6) that obtained a patent is the danger of others infringing the patent by copying it. The community might not know about it, and even if it finds out, legal action can be very expensive. Whereas corporations have their own lawyers and financial resources to provide effective legal support, local communities rarely have such resources or advocates. Even if a case does go to court, the company may well succeed in convincing the court that its product, use or process is sufficiently different from the original to constitute an invention.

Are patents useful for local communities?

Some traditional knowledge is patentable, although the expense of a patent application may be prohibitive. Also, the indigenous group would have to prove that the invention was novel by convincing the patent examiners that it was the only group with the knowledge. This might be difficult and would probably be incompatible with the indigenous peoples’ practice of sharing knowledge. The cases cited above suggest that patent law is bound to favour companies rather than local communities.

An indigenous group could still contest the right of others to patent an invention based on information acquired from the group and used without its authorization (Gollin 1993, p. 167; also see neem case described in Box 8.2). Some NGOs, such as RAFI and Swissaid, have played a useful role by checking patent applications in various countries for cases in which indigenous peoples may have been exploited. In most countries (the United States is an exception) copies of patent applications can be seen by members of the public on application to national patent offices before the patent is awarded. (These NGOs discovered the applications based on the cell lines of indigenous peoples described in Chapter 2.) The very possibility of a challenge to a patent

Box 8.2

Neem — a traditional and modern biopesticide

Seeds of a species of neem tree (Azadirachta indica) have been ground and scattered on fields by Indian farmers for centuries to protect their crops from insect pests. However, the neem tree has many other uses: it appears to be effective against malaria and internal worms; the leaves are used to protect stored grain from pests and clothes from moths; neem oil is used to make candles, soap, a contraceptive, and can even fuel diesel engines; and 500 million Indians reportedly use neem to brush their teeth. Most of these discoveries were first made by members of Indian rural communities.

As a pesticide, neem has great potential as a cheap and environmentally friendly alternative to commercial synthetic pesticides. Two companies, W.R. Grace and Agrodyne, recently obtained patents in the United States for derivatives of neem developed in their laboratories, even though the insecticidal, human nontoxic, and biodegradeable properties of neem are far from novel and nonobvious to millions of Indian farmers.

Another patent has been granted in the USA for an extract of neem bark effective against certain types of cancer. W.R. Grace is now producing neem-based pesticides with an Indian company called PJ Margo at a new facility in India. They estimate that the global market for their product may reach $50 million annually by the year 2000 (AgBiotechnology News, February 1993, p. 4). Agrodyne Technologies now has US government approval to sell neem-based bio-insecticides and has applied for registration of its products in several European and Latin American countries.

These companies (and the Indian companies that also hold patents related to neem) stand to gain from the insights of Indian farmers. Nevertheless, the farmers are in a weak position to demand compensation, because the knowledge is widespread and in the public domain. India, too, has a weak claim because the tree is native also to neighbouring countries and is now grown around the world.

Recently, the patent held by W.R. Grace has been challenged in the United States courts on the basis that knowledge of neem as a pesticide was already in the public domain when the patent was granted. If the patent is revoked, many other patents that also relate closely to traditional knowledge could also be challenged with highly significant outcomes.

For information about the neem antipatent campaign, contact the Research Foundation for Science, Technology and Natural Resource Policy (see Resource Guide, India).

application would make companies more willing to consider compensating indigenous people in some way to avoid an expensive out-of-court settlement, a damaged reputation, or even a rejected patent application.

If an inventor is not interested in obtaining a patent but wishes to ensure that no one else can obtain one, he or she may publish a thorough description of how to practice the invention. In the United States, this is called 'defensive publication." The published material forms part of the prior art that a patent office is obliged to search; thus, after the date of publication, any patent claim for the same invention will be invalid. This might be a useful way for indigenous peoples to prevent others from patenting inventions derived from indigenous knowledge and resources.

Box 8.3

Ethiopian endod

Berries of the endod or African soapberry plant (Phytolacca dodecandra) have long been cultivated by Ethiopians, mainly for use as a detergent. In 1964, an Ethiopian scientist, Aklilu Lemma, discovered that snails carrying the fluke causing schistosomiasis, a disease that afflicts 200 million people and kills 200 000 people a year, were killed in streams where people used the soapberry to wash their clothes.

Lemma and Legesse Wolde-Yohannes of Addis Ababa University undertook the preparation of a low-cost molluscicide based on endod. With support from the Netherlands government, Wolde-Yohannes was able to identify the most efficacious endod variety, E-44, and toxicity studies were carried out. Unfortunately, Ethiopia does not have the capacity to conduct trials and toxicologic studies to the standards required for international recognition, and Lemma failed to secure financial backing for further research. Up to now the only molluscicidal product recommended by the World Health Organization is Bayluscide, which costs as much as $25 000 per tonne.

Subsequent research by Lemma in collaboration with a US biologist, Harold Lee, at the University of Toledo confirmed that endod was also effective against zebra mussels, and the name lemmatoxin was given to the active ingredient. Zebra mussels, accidentally introduced in the Great Lakes, now foul water intake systems, disrupt shipping, and threaten the fishing industry.

A few months after this discovery, the University of Toledo applied for a patent for its use as a control agent for the zebra mussel, with Lemma, Lee, and another scientist named as inventors. If a company is granted a licence by the university to market endod, the University will share the royalties with the three scientists. Ethiopia and the local people whose use of endod had attracted the attention of Lemma will receive no benefits and will still have to import Bayluscide. Ethiopia can only benefit by supplying the berries, but if it tries to raise the price, the companies that produce endod may find it cheaper to synthesize the active principle, thereby eliminating the market for berries.

For further information, contact RAFI (see Resource Guide, Canada).

In many cases, however, it is inappropriate. For example, Indian farmers would have had to isolate and name the active ingredients of neem, then publish the details to prevent companies from applying for patents. Also, publication might simply attract the attention of companies and provide them with a useful lead for a new product. (See also Table 1.)

Petty patents

Petty patents (also known as utility models) differ from conventional patents in several ways:

• The nonobvious requirement is far less stringent and may even be discarded in favour of a less demanding 'inventive step";
• The period of protection is shorter;

Box 8.4

Thaumatin — a natural sweetener from West Africa

Thaumatin is a natural sweetener derived from the berries of a shrub called the katemfe (Thaumatococcus daniellii), which grows in west and central African forests. The protein, which is about 2 000 times sweeter than sucrose, was discovered by researchers at the University of Ife, Nigeria. The berries had apparently been in use for centuries as a sweetener and flavour enhancer, although in some areas only the stalks and leaves are used and the berries are considered waste.

In recent years it has been used by food and confectionary industries in a number of countries, sometimes marketed as a low-calorie sweetener. It is also used as an animal feed. For several years, the British sugar company, Tate and Lyle, has marketed the product under the name Talin. As the plant will not bear fruit outside its natural surroundings, the company imports the fruit from its own plantations in Ghana, Côte d’Ivoire, Liberia, and Malaysia.

Because the method of extraction is expensive, a number of companies attempted to use recombinant DNA technology on the gene responsible for producing the thaumatin protein. Beatrice Foods obtained a patent in the USA for the process of cloning the gene in yeast. It has been estimated that the company could gain substantial royalties, amounting to $25 million.

Researchers from the Lucky Biotech Corporation and the University of California have received a US patent for all transgenic fruits, seeds, and vegetables containing the gene responsible for producing thaumatin. The competitive nature of biotechnological research into thaumatin indicates the potential value of the genetic information as perceived by the companies involved. In fact, the market for low-calorie sweeteners in the USA alone is estimated to be $900 million a year. It is highly likely that katemfe plantations will soon no longer be necessary; if so, the countries where katemfe is grown will not even be able to benefit from exporting the berries.

Source: Sasson (1989), Walgate (1990, p. 161), Myers (1993), Shand (1993, p. 1), A.A. Elujoba, Department of Pharmacy, Obafemi Awolowo University, Nigeria, 1994 (personal communication).

• The patent examination is either deferred or replaced by a registration system (as with trademarks).

Petty patents vary more than other IPR types because there are no international agreements or conventions covering them.

Can indigenous knowledge be protected through petty patents?

It is likely that some indigenous knowledge or know-how, particularly that related to medicinal preparations derived from plants, would meet the inventive step condition. Although a plant extract and the method used to obtain it may be 'obvious," it could still be novel, useful, and an inventive step beyond anything already in the public domain (Gollin 1993, p. 173). This point is reinforced when we consider medicines prepared by unique methods and from mixtures intended to achieve synergistic effects or to mitigate harmful side-effects. Significantly, Kenya recently passed a law that allows petty patents

for traditional medicinal knowledge ('herbal as well as nutritional formulations which give new effects" — The Industrial Property Act 1989).

Are petty patents useful for local communities?

Petty patents could become a useful tool to protect indigenous knowledge (Table 1). However, as yet only a few countries (such as Brazil, China, Germany, Japan, and Malaysia) accept them, and there are no international agreements, like the PCT, to simplify the effort of applying in several countries. Indigenous peoples might gain from efforts to increase international recognition of this IPR type. Uncovering and publicizing the actions of companies and institutions seeking to apply for patents based on information disclosed in foreign petty patent applications may also be worthwhile actions.

Copyright

Copyright gives authors legal protection for the following types of work:

• Literary works (such as books, film scripts, and even private correspondence);
• Dramatic and musical works (such as plays and music compositions recorded in the form of musical notation);
• Artistic works and works of applied art (such as paintings, ceramics, carvings);
• Maps and technical drawings;
• Photographic works;
• Motion pictures and sound recordings (such as movies, documentaries, and interviews);
• Computer programs and databases.

Copyright law is intended to protect authors by granting them exclusive rights to sell copies of their work in whatever tangible form (printed publication, sound recording, film, broadcast, etc.) is being used to convey their creative expressions to the public. Although registration is not usually necessary, it is advisable for authors to place their name on the work. However, legal protection covers the 'expression" of the ideas contained, not the ideas themselves, which are not actually required to be novel at all. Copyright gives owners exclusive rights, usually for the life of the author plus 50 years. In the case of sound recordings, copyright is usually conferred for 50 years and is available to the person or company responsible for making the recording. Copyright owners have the legal right to stop others from

• Copying or reproducing the work;
• Performing the work in public;
• Making a sound recording or motion picture of the work; and
• Broadcasting, translating, or adapting the work.

Others who wish to exploit copyright material in these ways must usually seek the permission of the copyright owner or an organization that represents copyright owners in a particular industry. Permission is likely to require payment of royalties. In some countries, copyright owners may have the legal rights to be identified on their work and to object to distortions of the work. These are known as moral rights and remain with the author even if the author transfers the copyright to somebody else.

Can indigenous peoples’ folklore be protected by copyright?

Indigenous peoples may be concerned about outsiders reproducing their arts, crafts, songs, and designs without permission and either neglect to acknowledge the source of the creativity or pass off works as genuine indigenous art when they are not. The main limitations of copyright as an IPR tool to protect indigenous culture are as follows:

• Copyrights are assigned to individuals or companies, whereas indigenous people are more likely to desire protection of the rights of the community or tribe, even in cases of recent individual authorship.
• The protection of folklore should ideally be in perpetuity.
• Among some indigenous groups, many expressions of folklore are not fixed but are passed on orally from generation to generation. This excludes such expressions from eligibility for copyright protection.

Is copyright useful for local communities?

Conventional copyright is limited in its usefulness as a tool for preventing the exploitation of folklore, although a number of countries have sought to incorporate folklore into their national copyright laws (see Table 1). In Australia, Aboriginal artists have successfully sued on the basis of copyright (see box 8.5). Copyright law is also being used by the Dene of Canada, as well as several other indigenous groups worldwide, to control documentation of their traditional knowledge (Greaves 1993, p. 7).

Trademarks

A trademark is a marketing tool that is often used to support a company’s claim that its products are 'authentic" or 'distinctive" compared with similar products from another trading entity. It consists of a distinctive design, word, or series of words, usually placed on the product label and perhaps displayed in advertisements. For example, Coca Cola is a trademark that can only be used on goods manufactured by the Coca Cola Company. A trademark does not have to be registered, but doing so enables owners to sue

Box 8.5

Bulun Bulun versus Nejlam Pty Ltd

Aboriginal art is now a major source of income for many communities in Australia. The art industry provides employment for thousands of people, including artists and employees of art centres where the works are sold. Many of these people are not indigenous. Retail sales amounted to more than AU $18 million in 1988 (1.315 Australian (AU) dollars = 1 US dollar), of which AU $7 million was received by the artists. According to Golvan (1992), 'The works of Aboriginal artists have become our national artistic symbols. It has become inconceivable for any major public building to be opened today which does not feature some Aboriginal art."

Unfortunately, there have been many cases of non-Aboriginal people producing distorted and trivialized versions of Aboriginal artworks. In 1989, John Bulun Bulun, who had discovered that a T-shirt manufacturer had printed shirts displaying an unauthorized reproduction of two of his paintings, sued for copyright infringement. The company and two shops that had sold the T-shirts agreed in court to withdraw them from sale. Later, 14 other artists brought claims against the same company. These cases were settled out of court with the artists receiving AU $150 000 in compensation and to cover their costs.

A positive outcome of this attempt by Aboriginal artists to use the law to protect their rights was that the practice of making unauthorized reproductions of Aboriginal designs on clothes came to an end. Nevertheless, it has not completely stopped people making and selling crude imitations of Aboriginal designs. The most important consequence is that these indigenous people have become aware that the law is not necessarily inimical to their interests but can even be used to further them. Their biggest obstacle, however, is securing the financial resources necessary to take a company to court.

Source: Golvan (1992), ECOSOC (1993, p. 35).

infringers and to licence use of the trademark. The Madrid Agreement Concerning the International Registration of Trademarks enables an applicant to obtain coverage in several countries with a single trademark application. About 30 countries have signed this agreement.

Can indigenous peoples’ cultural heritage be protected by trademarks?

Indigenous peoples’ handicrafts and artworks are desirable products in some countries, but reproductions made by nonindigenous people may undermine the market. If tribal names had trademark protection, people might prefer to buy goods bearing such names, perhaps at higher prices because they value authenticity. Also, imitators might be deterred by the possibility of legal action. The sale of reproductions passed off as genuine indigenous handicrafts is also a violation of the rights of consumers; thus, other legal instruments may be applicable, too.

Nowadays, many people choose to buy goods that appeal to their ethical values. A trademark can be designed to indicate that purchasing goods carrying the mark supports a good cause. The Body Shop registered the word 'rainforest" to help make it fashionable to buy the company’s tropical forest products (see Box 8.6). Many customers believe that by buying products with this mark they are helping to protect the forests. However, another company selling similar products risks trademark infringement if it uses the word 'rainforest" in advertising or on the product labels. This points to an opportunity for a company to encourage other companies to trade ethically. Such a company with a trademark has the right either to ignore infringements or to register users when it believes that this will further the cause of ethical marketing (C. Haynes, director, Rainforest Foods, London, UK, 1994, personal communication). In the absence of a trade association controlling the use of certification trademarks, a company could followthe example of Cultural Survival, which allows companies to use its trademark 'ForestFlavors" and the Rainforest Seal of Approval palm frond logo in exchange for a percentage on raw materials or sales (Snead 1992). The money is then used to support forestpeoples and the in situ conservation of the genetic base of the raw materials.

Better still, a trade association or indigenous alliance consisting of representativesof different communities selling similar products could register a trademark that couldbe used by all participating communities. This trademark could then become a kind ofcertification mark (see 'Certification," below).

Box 8.6

The quick and easy way to own a 'rainforest"

It is possible for traders to monopolize use of the word 'rainforest" to distinguishtheir products from similar ones on the market. The commercial advantage comesfrom its fashionable exotic and 'green" connotations (as long as the goods are notmade of mahogany).

Trademarks apply not to any goods but to classes of goods. Thus, if a companyregisters 'rainforest" for cosmetics, as The Body Shop has done, rival companies areforbidden to use the word to inform customers of the rainforest source of ingredients,except in the small print on a label or advertisement. Similarly, no confectionery company can place the words 'rainforest crunch" on product labels except the one thatalready owns this trademark, which is Ben and Jerry’s.

Although companies might claim to be the first to market tropical forest products ethically and would understandably not wish to see other companies that areunconcerned about sustainability and fair trade using the word, other ethical companies will also be prohibited from using the word 'rainforest" to sell similar products.This is perhaps not the best way to expand the sustainable and equitable trade intropical NTFPs.

Trademarks can be a useful tool to promote rainforest marketing, but monopolizing the use of trademarks that are successful at attracting buyers may be counterproductive.

Source: C. Haynes, Director, Rainforest Foods, London, UK, 1994 (personal communication)

In some countries, a trademark may be challenged in the courts if it insults an ethnic group. Indeed, legal action is being taken against the Washington Redskins footballteam for this reason (T. Greaves, Department of Sociology and Anthropology, BucknellUniversity, USA, 1994, personal communication).

Are trademarks useful for local communities?

Trademarks can not only help indigenous peoples wishing to commercialize certainproducts but can also support claims of 'unfair competition," defined in the ParisConvention as

• Acts of such a nature as to create confusion by any means whatsoever with theestablishment, the goods, or the industrial or commercial activities of acompetitor;
• False allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities of a competitor;
• Indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics,the suitability for their purpose, or the quantity of the goods.

However, legal action on the basis of unfair competition does not require thatgoods be already protected by trademark or other forms of legal protection (see Table 1).

Industrial designs

Industrial designs are defined in the Paris Convention as 'the ornamental or aestheticaspect of a useful article" and may consist of the shape, pattern, or colour of the article.For example, the pattern on an article of clothing or pottery could be protected. Thedesigns must be original and reproducible by industrial means. The period of protectionis not indefinite but may be for 5, 10, or 15 years up to a maximum of 25 years. Liketrademarks, registering a design is cheaper and less time-consuming than applying for apatent. It also gives owners the right to take legal action against infringers.

Trade secrets

Know-how is practical information that may give a person or company a competitiveadvantage. As long as it is known only to a few people, such information can be legallyrecognized and protected as a trade secret even though it fails to fulfill the criteria ofpatentability. A claim for protection of know-how as a trade secret requires that effortsbe made to prevent disclosure. Agreements between indigenous peoples and others torespect the confidential nature of information disclosed and strictly enforced accessrestrictions are examples of such efforts. Law makes the taking without permission of atrade secret an illegal act but not the discovery by proper means (by independent discovery), accidental or actual disclosure, or by reverse engineering.

Can traditional knowledge be protected as trade secrets?

The knowledge or know-how of an individual or the whole community might be protected as a trade secret as long as the information has commercial value and provides acompetitive advantage, whether or not the community itself wishes to profit from it (seeTable 1). If a company obtains such information by illicit means, legal action may beused to force the company to share its profits (Gollin 1993, p. 164).

Conceivably, a considerable amount of indigenous peoples’ knowledge could beprotected as trade secrets. Restricting access to their territories and exchanging information with outsiders through agreements that secure confidentiality or economic benefitswould be appropriate means to this end. Trade secret law can be used to facilitate thedrafting of contracts with companies that oblige 'recipients to obtain regular patent protection and to share royalties" (Axt et al. 1993).

It has been suggested that knowledge shared be all members of a community maynot qualify as a trade secret, but 'if a shaman or other individual has exclusive access toinformation because of his status in the group, that individual or the indigenous grouptogether probably has a trade secret" (Axt et al. 1993).

Plant breeders’ rights

The Union for the Protection of New Varieties of Plants (UPOV) Convention provides forrights commonly known as PBR. According to the latest 1991 revision of the convention,breeders are people who breed, discover, or develop crop varieties. PBR prevent otherbreeders from breeding and selling the same plant varieties. The convention has forceonly in its 20 member countries, all of which are developed countries except Argentina,South Africa, and Uruguay. A few developing countries have national forms of PBR.

To be eligible for protection, the plant variety must be

• Distinct (the most important requirement): distinguishable by one or morecharacteristics from any other variety whose existence is a matter of commonknowledge;
• Stable: remain true to its description after repeated reproduction or propagation;
• Uniform: homogeneous with regard to the particular feature of its sexual reproduction or vegetative propagation;
• Novel: not have been offered for sale or marketed, with the agreement of thebreeder or his successor in title, in the source country, or for longer than 4 yearsin any other country.

An application for plant variety protection requires a written description of thevariety and deposition of samples in the form of seeds, a dried plant, or a live plant forthe examination and conclusive demonstration of stability and homogeneity throughpropagation trials. Protection is for 15–20 years.

Until 1991, exclusive rights were given by the UPOV Convention to prevent thesale of the reproductive or vegetative propagating part of the plant and commercial production for the purpose of marketing the variety. However, the 1991 revision extendedprotection from the propagating part of the variety to the whole plant. It also made twoother important changes from the previous version regarding two exemptions:

• The research or breeders’ exemption allowed people to use a protected variety as an initial source of variation to create their own new varieties and then to market them as long as repeat use of the original variety was not needed.
• The farmers’ exemption, or privilege, permitted farmers to keep seed of a protected variety for use as seed in subsequent seasons, but not to sell it.

The 1991 UPOV revision eliminated the first of these and made the secondoptional rather than obligatory for signatory nations. The revision appears to be anattempt to make the protection as strong as that of a patent. So far, only the United Stateshas signed the new agreement, but several countries are drafting new legislation in linewith the 1991 convention.

Can indigenous peoples use PBR to protect their own plant varieties?

The UPOV Convention is of limited relevance because it has so few member states. In theory, it is certainly possible for indigenous peoples to obtain a plant variety certificate for some of their crop varieties, and possibly some nondomesticated plants that are utilized by them (Gollin 1993, p. 164), although the intravariety genetic diversity common to traditional cultivars might make many of these ineligible. Indeed, indigenous peoples actually prefer varieties that possess variability and adaptability and therefore breed for these qualities.

The community or group would presumably have to demonstrate that it was theonly one that had bred the cultivar or used the landrace. Fulfilling all the above legalrequirements is less expensive than applying for a patent, meaning that PBR could be auseful tool for indigenous peoples. However, carrying out the field trials and recordingresults to demonstrate to the examiners that the variety is eligible for a certificate mightbe difficult if not impossible to achieve (Table 1). This is one reason why it has beenmuch more common for professional breeders to breed new varieties based on landracesand obtain legal protection for these new varieties. Professional breeders also havegreater financial resources, legal experience, and scientific facilities. As long asprofessional breeders have such advantages over traditional farmer-breeders, the convention is more likely to undermine the rights of traditional communities than supportthem.

Table 1. Advantages and disadvantages of various IPR mechanisms for local communities.

Geographic indications andappellations of origin

Geographic indications 'identify a good as originating in the territory [of a member], ora region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin" (Article 22 of GATT-TRIPs). One well-known type of geographical indication is the appellation of origin.

Appellation of origin was originally a French geographic indication applying toproducts considered to be distinctive due to a combination of traditional know-how andhighly localized natural conditions (ECOSOC 1993, p. 35; for more information on

geographic indications, see Moran 1993). In France, a government agency validatesAppellation d’Origine Contrôlée (registered designations of origin), so that producers ofwines, cheeses, and other foodstuffs, whose goods are renowned for their distinctivequalities and geographic origins are protected from those who would undermine theirgood reputation by making similar, but false, claims (Bérard and Marchenay 1993). Forexample, wines from the Champagne region of France are protected this way; local producers acting collectively have prevented the use of the word 'Champagne" on bottles ofperfume, English wine, and German shampoo (Freedman 1994, p. 14).

In British trademark law, local manufacturers can set up their own association andregister a collective 'certification trademark," although the applicant association cannotitself trade in the product. The makers of a well-known British cheese, which must beproduced in or near the village where it originates (Stilton) according to a certain recipeand process, is protected in this way. The European Union has a register of products protected by geographic indications.

Although so far the use of this method has been confined mainly to certain foodstuffs, it could conceivably be extended to protect expressions of folklore (seeUnesco–WIPO model provisions, Chapter 9). This would most likely work if regionalassociations of indigenous peoples, with government recognition, set up their ownappellations of origin or certification-issuing entities (see also below).

Certification and labeling

Certification and labeling are used simply to make a claim about a product that may beof interest to the customer. Certification can be used in a way that protects the environment and ensures that resources, such as timber, are used in a sustainable manner. Forexample, wood may have a mark to certify that it came from a sustainably managed forest or a handicraft may be marked in some way to show that it is authentic. Tuna fishcans are often labeled 'dolphin friendly" to indicate that dolphins were not killed as aresult of the method used to catch the tuna. Certification means that claims are authenticated by an organization independent of the individual or company making or sellingthe product. This could be a regional association of indigenous peoples (as above).Sometimes imitators label their products in a misleading manner. Certification shouldhelp buyers distinguish between fakes and genuine products and can make it possiblefor traders to take legal action against others who use the mark without authorization.

In Canada, it has been claimed that labels such as 'handmade," 'handcrafted," and'authentic" that are not authenticated by an independent body confuse buyers and compete with products made and sold by indigenous peoples (Blundell 1993, p. 69). Inresponse, Canada has introduced official certification marks to authenticate indigenouspeoples’ works (Blundell 1993; ECOSOC 1993, pp. 34–35). For example, Inuit soapstone carvings are labeled with a mark certified by Indian and Northern Affairs Canada(Blundell 1993, p. 78). A certification scheme is also being developed in Australia toauthenticate Aboriginal products.

However, labeling has been unsuccessful in some US states in terms of promotingtrade in indigenous peoples’ products. This may be because customers are not aware ofthe marks or do not care whether the articles they purchase are genuine (Axt et al. 1993,p. 46). They may also be confused by the labels. These problems illustrate the difficulties likely to arise from the use of certification and geographic indications for manufactured goods and artwork. Nevertheless, they can be successful marketing strategies,especially if traders have a clear understanding of why people wish to buy their articles.

Certification is also being used as a means to encourage trade in sustainably harvested tropical timber. For example, an independent organization — the ForestStewardship Council (FSC) — consisting of foresters, timber traders, and environmental groups dedicated to sustainable forestry — has been set up with the authority to certify groups around the world who comply with principles it has drawn up. Among itsprinciples are that ownership of a forest must be clearly defined and the traditional rightsof indigenous people must be protected.

Conclusions

IPR laws are generally inappropriate and inadequate for defending the rights andresources of local communities. IPR protection is purely economic, whereas the interestsof indigenous peoples are only partly economic and linked to self-determination.Furthermore, cultural incompatibilities exist in that traditional knowledge is generallyshared and, even when it is not, the holders of restricted knowledge probably still do nothave the right to commercialize it for personal gain.

Various indigenous communities and ethnic groups that have occupied similarenvironments may possess the same, or similar, technical knowledge regarding a specificresource and its use. Therefore, payments to one community could engender conflictbetween indigenous groups and result in protracted legal battles. This potential conflictbetween groups calls into question the wisdom of using IPR mechanisms in attemptingto award retroactive payments for indigenous knowledge.

Furthermore, the lack of economic self-sufficiency of indigenous peoples and theunequal power relations between themselves and the corporate world would make itvery difficult for communities to defend their IPR. Preventing companies from infringing their IPR, for example, by applying for patents based on knowledge derived from,but not identical to, that of the community, presents serious difficulties because of thepotentially high cost of litigation.

Indigenous organizations, such as COICA, are becoming more aware of IPR issuesand understand that although use of the IPR types described above may under certaincircumstances be beneficial, it is necessary, as the title of this book suggests, to lookbeyond IPR and consider alternative systems of protection, compensation, and self-determination. The statement resulting from an international meeting organized inBolivia in September 1994 suggests numerous strategies for raising awareness of thepotential and the (much greater) limitations of existing IPR laws, and for creating andimplementing alternative systems (see Appendix 3 for the full statement).

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