Long ignored or spurned, the traditional knowledge of rural communities and indigenous peoples is now universally recognised. What is the best way of protecting and developing this resource and sharing its benefits? These issues, which have both an economic and an ethical dimension, have yet to be resolved.

Last July, traditional knowledge pushed its way into the spotlight during the WTO debate in Geneva, Switzerland. A group of countries from the South led by Brazil and India demanded that the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) should include a requirement for all patent applications to reveal the source of the biological resources (for example plants) behind the invention and, in certain cases, an obligation to identify the traditional knowledge that generated it. Should such details not be supplied, a patent could be withdrawn if it emerged that the information was obtained in an irregular fashion, for example without the full prior consent of the communities and without a fair distribution of any benefits that might accrue. This demand was vigorously opposed by Argentina, Canada, Japan and the USA, amongst others.

Two months earlier, in Bonn, Germany, the 9th Conference of the Parties to the Convention on Biological Diversity (CBD) had taken a few cautious steps towards a traceability system for genetic resources. Traceability would be demonstrated by a certificate of origin issued when a patent was registered (for a new medicine or cosmetic product, for example) or a new plant product developed (a new variety). But it will be 2010, the date set for the next CBD conference, before even the most basic accord can at last be reached on this thorny issue.

The benefits of biodiversity

More than 15 years after the 1992 Earth Summit held in Rio, Brazil, and the adoption of the Convention on Biological Diversity, the question of sharing the benefits of biodiversity and the know- ledge associated with it continue to prove divisive. Developing countries, which are the principal custodians of the planet's biological wealth, are determined to draw greater benefits from this treasure and are clashing with the countries of the North on the issue. These latter have been less blessed by Nature, but have the means to develop the resources, including biotechnologies that use plant and animal genes. To defend their rights in international arenas, 15 countries formed a Group of Like-Minded Megadiverse Countries in 2002: mostly from tropical regions, they are home to 70% of the world's biodiversity. Meanwhile, 43 Small Island Developing States (SIDS), rich in often unique plant and animal species, have joined forces to make their voices heard and protect their natural and intellectual heritage.

The economic stakes run into millions of euros. Sales of one medicine alone, Vinblastine, which is used to treat leukaemia and is synthesised from the Madagascar periwinkle (Cataranthus roseus), earn about €65 million per year.

The notion that natural resources will only be protected effectively if the community involved can benefit from it and in so doing improve its livelihood has begun to take hold in recent years. At the same time, the value of traditional knowledge, especially in relation to medicinal plants, is becoming more and more widely recognised. Out in the field, with support from environmental movements, local communities and indigenous peoples are becoming aware of the value of the wild and cultivated plants they have managed and protected for centuries, and the knowledge of which they are the custodians.

Major corporations in the industrialised countries are now regularly accused of biopiracy for failing to give fair remuneration in exchange for the traditional knowledge that enabled them to develop new products. In May 2008, the African Centre for Biosafety (ACB) and Swiss NGO the Berne Declaration went before the European Patent Office to contest two patents registered by German firm Schwabe. The complaint concerns a treatment for bronchitis, obtained from a variety of geranium (Pelargonium sidoides). This plant has been used since time immemorial by the South African community of Alice, in the Cape Province, and its leaders have asked the ACB to defend its rights.

A delicate division

Reaching an international agreement on the sharing of any benefits that might accrue from traditional knowledge is a long and delicate exercise. Negotiations involve a range of players with differing financial or moral interests (governments, pharmaceutical, agrifood, cosmetic or seed companies, rural, indigenous and scientific communities, NGOs). And they are also played out on several stages and in several international judicial arenas at the same time: the CBD, WTO, World Intellectual Property Organization (WIPO) and FAO for genetic resources linked to food and agriculture.

An offshoot of the CBD, a group has been specially set up to discuss Access and Benefit-Sharing (ABS). Its interminable and punctilious debates illustrate the difficulties involved in establishing international rules on this issue. In practical terms, the sharing of economic benefits produced for example from a medicine derived from traditional pharmacopoeia raises all sorts of questions. Who is the real custodian of knowledge about this plant: the healer or the community? Who is best suited to negotiating the contracts with foreign companies and collecting the proceeds: the groups themselves or the authorities of the countries where they live? In the latter case, how should the benefits be divided?

Few countries have, as the CBD requires, introduced specific legislation covering benefit-sharing. ACP States that have done so include the Central African Republic, Ethiopia, the Federated States of Micronesia, Guyana, Kenya, Niue, South Africa, Uganda and Zimbabwe.

For its part, the WIPO has, since 1997, had the task of studying the issue of providing official protection for the intellectual property rights (IPR) of the traditional knowledge held by local communities and indigenous peoples. Groups that are custodians of such knowledge need to be able to protect themselves against biopiracy, negotiate fair deals with firms or research centres and, on a more positive note, register patents for their own inventions. Existing IPRs, originally created by and for western countries, are not judicially adapted to the case of traditional knowledge. Groups and NGOs from both South and North are also opposed to the idea of using patents to protect knowledge which is an integral part of the culture and the very life of local communities.

Rules have not been adapted

International rules regarding patents do not currently allow a local community to exercise a collective right over its knowledge or to oppose its improper use or illicit appropriation. A community will have more difficulty than an indigenous people, which has been recognised as such, in preventing its knowledge from being exploited for industrial or commercial ends without receiving fair recompense. In 2000, the African Union reacted by adopting a text, known as the African Model, which makes access to biological resources subject to authorisation and to "prior informed consent".

Transparency and equity distinguish biopiracy from bioprospection. In the absence of clear national and international rules on sharing, some companies and research centres have adopted their own codes of conduct. The University of Berkeley, in the USA, and the government of Samoa in the Pacific will take equal shares of any royalties from sales of a treatment against AIDS developed from the genes of a tree native to Samoa, the mamala (Homalanthus nutans).

In 2010, when the international rules have been set in place and new countries have drawn up laws on benefit-sharing, the situation will be clearer for all. However, these good intentions will only become reality if local communities, especially those directly involved, are well informed of their rights. Conventions and laws can only provide a general framework and in the field, each case will require specific solutions. Their effectiveness and success will depend to a large degree on the determination of all parties concerned to reach a fair and equitable agreement.



 
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