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[wg-c] FYI South-North Development Monitor (SUNS) #4545
It being Armistice Day, I'm using my two-per-day letters to teach, or at
least leave in the DNSO record two attempts to do so.
The first one (this), is from one of the lists in which the participants
share a central concern over the flaws in, and efforts to reform, the
legal systems affecting intellectual property, culture, agriculture and
medicine. The theoretical perspective and real-life situation is "south"
which incidently encompases all Indians, even those in North America.
While IPR (yea, nea, or otherwise) isn't core to the wg-c charter, and
the doctrine of marks appears at present to be the only right the ICANN
VI-B(3)(b)(7) Constituency need consider (but see WIPO RFC 3 et seq for
another conception of scope), or the subject matter of a UDRP, this is a
major motivation for our seeking community approval for a TLD. This is
also one of the compelling reasons for seeking to find a basis for the
registry access model (role of registrars) to have effective constraints,
and of necessity, the shared registry model (no universal custodian).
This is also one of the compelling reasons for our position that social
policy, specifically a trust doctrine, not private right, specifically
a property doctrine, defines the nature of registry data.
Another reason for sharing this is to demonstrate that "intellectual
property in cyberspace" is only a modest part of a larger tension
between systems. We tend to look at our issues as fundamental, not a
sideshow. Some have taken this natual failing to unnatural extreames,
particularly during the IANA-to-ICANN transition.
The real issue, or at least the one we think is more real than pokey.com,
is the conflict between Article 8(j) of the CBD and Article 27.3.(b) of
the TRIPS Agreement. True, the language of both is meatishly adigital,
but that is the one area where our vision is sharper than that of the
respective legal partisans of indigenous/statist or individual/corporate
rights.
<>"We believe there is a serious conflict on the rights and obligations of
<>member-states between the two treaties, particularly between Article 8 (j)
<>of the CBD and Article 27.3.(b) of the TRIPS Agreement. Article 8 (j) calls
<>on governments to respect, preserve, and maintain knowledge, innovations,
<>and practices of indigenous and local communities in biodiversity
<>conservation and encourage equitable sharing of benefits arising from the
<>utilization of such knowledge.
<>
<>"On the other hand, Article 27.3.(b) of TRIPS legitimizes private property
<>rights in the form of intellectual property over life and processes entailed
<>in modifying life forms. But these are rights for individuals, corporations,
<>and states, not for indigenous peoples and local communities. Governments
<>are asked to change their national intellectual property rights laws to
<>allow for patenting of micro-organisms and non-biological and
<>micro-biological processes."
There are other reasons to arrive at the conclusion that the public trust
model is better than the private property model for registry data. There
are other reasons to conclude that the responsible custodian model is a
better model than the for-profit model, and coincidently, that shared
access is vastly better than the merged registy/registrar model.
The IAHC had their reasons and came to these conclusions two years ago.
Our reasons are distinct, but the conclusions we came to on these central
questions before wg-c are consistent with theirs.
We can describe systems which favorize capitalization, the mutation of
public right to private right, and maximal asset exploitation, but the
hay days of high colonialism ended in the 60's. We can't stop the early
access European and Europeanized Internet users from choosing to be the
objects of neo-colonialism, but we don't want to share that experience
again.
Enjoy,
Eric
---
------- Forwarded Message
Date: Tue, 09 Nov 1999 11:32:08 -0800
To: triballaw@niec.net
From: "Preston D. Hardison" <prestonh@home.com>
Subject: TWN: Indigenous People Criticize WIPO Approach
Message-Id: <19991109200053.KIXA13750.mail.rdc1.wa.home.com@C931275-A>
Reply-To: triballaw@niec.net
X-Comment: Nevada Indian Environmental Coalition
From: "Dionne Stout,Tamara [NCR]" <Tamara.DionneStout@EC.GC.CA>
Subject: IPR: Indigenous Peoples Criticize WIPO Approach
Date: Tue, 9 Nov 1999 09:45:54 -0500
______________________________________________________
TITLE: Indigenous People Criticise WIPO Approach
AUTHOR: Martin Khor
PUBLICATION: South-North Development Monitor (SUNS) #4545
DATE: 5 November 1999
SOURCE: Third World Network, Geneva
URL: http://www.twnside.org.sg/ The SUNS Bulletin is edited by Mr
Chakravarty Raghavan (suns@igc.apc.org).
________________________________________________________
SUNS #4545 Friday 5 November 1999
INDIGENOUS PEOPLE CRITICISE WIPO APPROACH
Geneva, 3 Oct (Martin Khor) -- Leaders of indigenous people's organisations
attending a WIPO Roundtable meeting on intellectual property and traditional
knowledge have criticised the WIPO approach in attempting to impose an
intellectual property rights regime on traditional knowledge.
They called on WIPO, governments and other multilateral organisations to
explore other ways to protect and promote indigenous and traditional
knowledge outside of the traditional IPR regime.
Several indigenous people's representatives who participated in the WIPO
roundtable in Geneva (1-2 November) were critical of many of the papers
presented and of what they perceived to be WIPO's attempt to co-opt
indigenous knowledge into the global patent and IPR system. They spoke up
often at the meeting to voice their viewpoints.
More than a hundred indigenous people's organisations separately issued a
statement calling on governments to amend the TRIPS Agreement, Article 27.3
(b), to mandatorily ban the patenting of all life-forms, all naturally
occurring processes, and of traditional knowledge on the use of biological
resources.
Near the end of the WIPO Roundtable, the Indigenous Peoples Caucus,
representing the indigenous peoples present at the meeting, issued a
Statement that was orally presented by Victoria Tauli-Corpuz of the Tebtebba
Foundation, an international indigenous people's research centre based in
the Philippines.
"We are concerned over the way in which this present Roundtable is
organized," said Tauli-Corpuz. "It seems that this was primarily organized
to reinforce the mandate of WIPO to promote and implement the dominant
intellectual property rights regime and to assert that intellectual property
rights is the only viable path to protect traditional knowledge.
"However, we have heard many interventions from this meeting saying that
intellectual property rights as embodied in the existing international
conventions and the TRIPS of WTO may not be the adequate and appropriate
mechanisms to protect indigenous and traditional knowledge."
Tauli-Corpuz said that WIPO, governments and other international
organisations should "maintain an open mind and be more daring in exploring
ways and means to protect and promote indigenous and traditional knowledge
outside of the dominant IPR regimes.
"WIPO should not insist in imposing that the IPR regime it is implementing,
particularly patents, is what should be used to protect traditional
knowledge. Other forms of protection should be explored and developed in
partnership with indigenous peoples and other traditional knowledge holders.
"Any effort to negotiate a multilateral framework to protect indigenous and
traditional knowledge should consider indigenous practices and customary
laws used to protect and nurture indigenous knowledge in the local,
national, and regional levels."
Tauli-Corpuz reiterated the call of indigenous peoples all over the world
against patenting of life-forms and life-creating processes, referring to
the statement of over a hundred indigenous people's groups opposing
patenting of life in TRIPS, which she said was consistent with several
proposals put forward by developing countries during the WTO preparatory
process for Seattle.
Tauli-Corpuz said the indigenous people took exception to a statement at the
Roundtable by a representative of a European transnational corporation that
there is no incompatibility between the CBD and the TRIPS Agreement.
"We believe there is a serious conflict on the rights and obligations of
member-states between the two treaties, particularly between Article 8 (j)
of the CBD and Article 27.3.(b) of the TRIPS Agreement. Article 8 (j) calls
on governments to respect, preserve, and maintain knowledge, innovations,
and practices of indigenous and local communities in biodiversity
conservation and encourage equitable sharing of benefits arising from the
utilization of such knowledge.
"On the other hand, Article 27.3.(b) of TRIPS legitimizes private property
rights in the form of intellectual property over life and processes entailed
in modifying life forms. But these are rights for individuals, corporations,
and states, not for indigenous peoples and local communities. Governments
are asked to change their national intellectual property rights laws to
allow for patenting of micro-organisms and non-biological and
micro-biological processes."
Tauli-Corpuz added that many developing country governments recognize this
incompatibility and in fact they already tabled proposals on this which can
be found in the Revised Draft of the WTO Ministerial Text.
She referred to a paragraph of the draft stating that Article 27.3.(b)
should be amended to take into account the CBD and the need to clarify that
all living organisms and their parts cannot be patented; and to ensure the
protection of innovations of indigenous and local farming communities and
the continuation of traditional farming practices.
She also reiterated that any discussion on traditional and indigenous
knowledge should always refer to the articles on the Draft Declaration on
the Rights of Indigenous Peoples, particularly Articles 24, 25, 26, and 29
which clearly established that rights to indigenous knowledge, innovations,
and practices (referred to as intellectual and cultural heritage) cannot be
discussed in isolation from indigenous peoples' rights to their territories
and resources.
"We see a problem in the fact, that while on one hand the UN is evolving
international standards for the protection of indigenous peoples and efforts
are made to protect traditional knowledge through the CBD and FAO
International Undertaking; on the other hand, there are other international
agreements like the WTO Agreements which are undermining these."
The statement called on WIPO to undertake studies on the most appropriate
means of recognizing and protecting traditional knowledge, medicinal plants,
seeds, and expressions of folklore of indigenous peoples and local
communities.
On WIPO's technical assistance, the statement proposed that indigenous
peoples who are the knowledge-holders should become the main trainers and
that indigenous peoples organizations and communities should be provided
resources from WIPO to undertake their own capacity-building efforts to
protect and promote their knowledge.
"Prior Informed Consent should be the common thread among all the proposals
being brought forth to protect indigenous knowledge, whether these are
intellectual or non-intellectual property rights protection. PIC is defined
to mean that indigenous peoples and local communities will be consulted,
informed and their full consent obtained before any appropriation or
research of their knowledge is undertaken," the statement added.
"There should be a list of all the knowledge, genetic resources, medicinal
plants, seeds, etc. which have been stolen from indigenous peoples and some
form of indemnification may be given to those who own and developed this
knowledge. This can be put into a fund which will help further build
indigenous peoples' capacities. The arts and artifacts which were also
stolen should be repatriated back to the original owners.
"We call on the WIPO to create a mechanism within its structures which will
allow for more meaningful participation of indigenous peoples. Other
specialized of the UN are already undertaking dialogues with indigenous
peoples towards the formulation of policy guidelines on indigenous peoples.
Since WIPO claims it is the body which has a key role in traditional
knowledge then it should also formulate its own guidelines."
__________________________________________
Indigenous Peoples' Secretariat (Canada)
on the Convention on Biological Diversity
Place Vincent Massey, 9th Floor
351 St. Joseph Blvd.
Hull, PQ K1A 0H3 Canada
Tel: 819.953.5819
Fax: 819.953.1765
tamara.dionnestout@ec.gc.ca
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