WIPO sponsors traditional knowledge conference

In October 2011 the World Intellectual Property Organisation (WIPO) and Ono Academic College, Israel, sponsored a three-day conference on traditional knowledge. "Traditional knowledge" generally refers to folk knowledge, folk medicine and the cultural expressions of regional, indigenous or local communities. However, the subject matter also relates to the possible property rights of indigenous peoples in unique genetic resources found in plants and animals from their locale. The conference brought together representatives from a number of developing countries, as well as some US and Israeli academics.

The main programme was opened by Professor Shuba Ghosh of the University of Wisconsin, who explained what traditional knowledge is. Dr Shlomit Ravid, the coordinator of the event from Ono, gave a second general lecture and posed a number of questions. She suggested that traditional knowledge cannot be considered as property per se, but can perhaps be considered as a type of quasi-intellectual property. Each speaker was followed by a respondent. Several respondents presented their work to protect or capitalise on their national traditional knowledge resources.

The programme appeared to favour the agenda of the developing world representatives  to create some sort of property rights for biodiversity and local genetic resources. The Western academics were sympathetic to a greater or lesser extent, without any real dissent.

Wend Wendland, director of WIPO's Traditional Knowledge Division, explained that WIPO has a 12-month timeframe in which to create a treaty, and that this conference was perhaps the most significant IP development since the Agreement on Trade-Related Aspects of IP Rights, which was negotiated by the World Trade Organisation in the mid-1990s. Unfortunately, no philosophical basis was presented to justify the new right. Traditional IP rights attempt to strike a balance between the creator and the public domain, with both the patent system and copyright designed to reward creativity. The result is an incentive to create and expand human knowledge and cultural expression. The traditional knowledge incentive appears to be a combination of a drive to conserve folk knowledge against a pervasive global culture of lowest common denominator films and music from the United States and other Western countries, and an attempt to split revenues between product developers (often pharmaceutical companies) and the local communities for products based on extracts or behaviour from plants or animals native to the developing world.

Given the ambiguous nature of the subject, several of the participants voiced interesting views. For example, Dr Nicholas Bramble of Yale University noted that Vincristine, which is used in cancer chemotherapy, is extracted from the Madagascar periwinkle. Bramble explained that the plant's beneficial properties have been known in folk medicine for hundreds of years. Unfortunately, the people of Madagascar have received nothing from Eli Lilly and have caused irreversible ecological damage trying to earn a living. Bramble's position is based on an assumption that the people of Madagascar have rights to financial compensation for research into plants that were used in their traditional folk medicine. He stated a hypothetic causative link between the lack of compensation and the ecological damage to Madagascar. Eli Lilly discovered the bone marrow suppressive properties in experiments on mice with leukaemia; it can be assumed that the population of Madagascar had no traditional knowledge of leukaemia or bone marrow.

One of the most interesting presentations was by Dr Sheila Foster of Fordham University, who gave insights into land use decisions in urban contexts. Her insights related to maximising limited resources and to the value of providing property rights to such resources so that they are managed properly. However, since traditional knowledge and biodiversity are not analogous restricted resources, the case for providing property rights to ensure better usage and conservation is less than tenuous.

In the concluding session on the second day, Dr Moshe Tritel of JMB, Factor & Co discussed the position of patent law in regard to medical treatments and traditional knowledge. Tritel described the rationale for the current patent system and explained how a patent provides protection for the contribution of the inventor over that previously known, if not previously revealed, and awards no previous contribution to the development of this incremental addition. He suggested that IP law is not the place to address historic grievances. Unsurprisingly, representatives from Ecuador and Tanzania disagreed. Advocate Eliamani Laltaika of Tanzania gave an excellent and impassioned response. He noted that the geographic source of plants or animals whose extracts or behaviour is used in developing a product should be acknowledged in the patent specification. This idea was rejected by Tritel as placing additional burdens on inventors.

Some speakers pointed to the success of various developing countries in amending their IP laws to require incorporating such sources. However, this fails to address the issue, since many Western corporations do not file in developing countries due to the lack of commercial justification for doing so. If an international treaty with more substance than the drafts currently available from WIPO receives widespread ratification, it could change the IP world significantly.