Conocimiento en Culturas Etnias

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100 Alvaro Zerda-Sarmiento and Clemente Forero-Pineda

Institutions, property rights,and exchange

Several institutional systems interact inthe exchange of vernacular knowledge:ethnic community rules; national laws andeconomic system; customary practices of scientific laboratories and transnational cor-porations, and international regulations oragreements.

Within this institutional scenario manyinterests interact. Shamans play a key role inthe knowledge system of traditional communi-ties but they interact with the whole group

power structure. Traditional authorities of these groups and members of councils inter-vene in decisions concerning the knowledgeof the community. Potential defectors bringother (individual) interests into the scene thatin some situations affect negotiations andcreate conflict. In the na tiona l domain,governments, national firms, universities,research labs, and civic associations havetheir particular interests related to these ethnicknowledge transactions. Transnational cor-

porations, of ficial international agencies, andNGOs are the main international actors inthis scene.

Property rights are usually not welldefined prior to these exchanges. In the end,they evolve in conjunction with the inter-action of these individual and collective inter-ests. International agreements concerning themanagement of intellectual property; nationallaws concerning intellectual property, the pro-

tection of biodiversity and other issues, mayhave an impact on community knowledgesystems through these transactions. Theseinfluences may induce change in the com-munity. The evolution of social life in thecommunity will depend on how it filters,assimilates or modifies regulations and agree-ments, and how its members interpret them.This is usually done in terms of their owninstitutions. Ethnic knowledge transactions areconsequently complex. They involve the inter-

action of institutions, communities, individ-uals, and resources, and the way these socialand individual actors set rules in order tomanage and govern transactions and propertyrights over knowledge.

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A framework for analysis

The situations that arise in the exchange of vernacular knowledge between ethnic groupsand agents of modern society are deeply markedby information asymmetries:

1. asymmetries of information about the cul-tural environment of the other part in theexchange;

2. asymmetries of knowledge concerning howto negotiate with the other part;

3. asymmetries of information concerning thevalue standards that the other agent will useto offer an agreement;

4. asymmetries of information concerning the

effectiveness of the knowledge that mightbe exchanged;

5. asymmetries of information about commit-ment of the other part and about each other’senforcement system.

The consequences of these asymmetries aredif ficulties of communication, lack of trust,transactions that never occur and a negotiationclimate, that is prone to opportunistic behaviourand deception.

Two cases ought to be considered separ-ately. The first occurs when the ethnic groupcontrols the state; the second, when the ethnicgroup is suf ficiently small and lives within theboundaries of a national state that they do notcontrol. Our focus will be set on the secondsituation.

When a modern firm comes into contactwith an ethnic group and expresses interest inethnic knowledge, two institutional and culturalframeworks come into conflict. Stylised facts of

what occurs from that moment on may bederived from the analysis of cases that arereported below. Several possible outcomesmay occur.

1. Communication is broken and no knowledgeis transferred from one cultural system tothe other. In this case the cultural system of the ethnic group remains the same, but themodern world lost the opportunity to accessnew sources of knowledge that can be trans-

ferred in scientific terms and may come intomedicines to solve health problems. The eth-nic group also lost the opportunity of havinga contact with modern methods and pro-cedures that could strengthen its system of



101 Intellectual property rights over ethnic communities’ knowledge

innovation and enhance its living conditions,in order to maintain and develop its habitat.

2. An undue appropriation occurs, breaking therules of the ethnic group. The cultural systemof the ethnic group reacts and tends to closeto the external world. The modern worldmomentarily obtains the opportunity toaccess new sources of knowledge that canbe transferred in scientific terms and mayhelp develop medicines used to solve healthproblems. But the ethnic group does notreceive any compensation for the contri-bution it has given to humankind, and thereis no possibility that it can strengthen thesystem of innovation and enhance its con-

ditions of living, in order to maintain anddevelop its habitat. Moreover, the ethnicgroup might develop a rejection of anyfurther attempt at contact from the modernworld, whatever its nature. As a result, boththe ethnic group and modern society lose.

3. An agreement is reached concerning thetransfer of this knowledge. In this case, sev-eral possibilities may in turn occur:a. Interference of the ethnic knowledge sys-

tem by the external culture brings about

a disruption of ethnic culture. A stock and source of knowledge for humanity isdepleted and disappears.

b. Culture brought by external influence isfiltered and does not affect the ethnicgroup in a significant way.

c. A slow evolution through interactiontakes place leading to an equilibriumwhere exchange of knowledge takes placeand both cultures are enriched. The

essential traits of the ethnic group cultureare conserved, but cultural change never-theless occurs.

If there is an exchange agreement, theevolution of culture and institutions of the eth-nic group may take different paths:

1. The ethnic group may accept the rules andprocedures created, and the results expectedby the external agent are obtained.

2. The ethnic group accepts these rules but

introduces its own, and a hybridisation of institutions occurs.

3. The ethnic group does not accept such kindof institutions and the interchange is notpossible.

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In the next sections this framework isdeveloped. Actors and their knowledge relation-ships are presented. Some traits of the economicinstitutions of indigenous communities and howthey evolve when they come into contact withmodern societies are described. The relationshipbetween modern intellectual property institutionsand the knowledge of indigenous communitiesis discussed. Several cases of asymmetric agree-ments are presented. Various proposals set for-ward about communities’ compensation and itsmanagement are discussed. Finally, a conclusionis presented, drawing basic elements of an alter-native institutional framework.

Actors and relationships inthe exchange of knowledge

Many different agents intervene in the exchangeof vernacular knowledge. These agents may beclassified according to the cultural domainwhere they act.

Ethnic community domain

In most communities shamans are in chargeof cultivating and enforcing the protection of traditional knowledge. This gives them a specialstatus over the other members of the group inthe social order (Boyle 1996).

The community is also an actor. For cen-turies, communities have accumulated knowl-edge related to their habitat, and implementeddecisions related to its management through acollective process. This knowledge includes sev-eral aspects: (a) actual or potential use of plants,

animals, soils, or minerals; (b) species prep-aration and processing; (c) magistral formu-lations with several ingredients; (d) harvestingmethods, plants selection; (e) environment pro-tection, through resource protection and conser-vation methods (Bravo 1996).

Some members of the community maybreak away from its unity: these defectors mayabandon the community, take with themcommunal knowledge, and sell it to externalactors for private benefit.

National society domain

Some national states have developed rules tocontrol the access to communities’ knowledge




Javaro Indian in Ecuador showing plants traditionally ascribed with special powers, 1993. F. Ancellet/RAPHO

and have defined regulations about its use.Other states have done little or nothing to recog-nise and protect collective rights of indigenouscommunities. This has been at the origin of many conflicts between national states and com-munities for decades. The level of conflict hasgrown as indigenous political organisations

developed a notion of territoriality. Some Ama-zonian national states have become more reluc-tant to acknowledge that right, saying that onlythe nation-state can possess a territory (Smithand Wray 1995, p. 288).

National firms selling products for nationalmarkets often trade with indigenous knowledge.These transactions may comply or not to intel-lectual property norms. It is frequent that localbusinesses do not abide by national legislationrelated to biosecurity and quality. Very rarely

do local enterprises compensate the communi-ties’ contribution (Clad 1984).

National research laboratories, includingthose of universities, want limitless access tovernacular knowledge in order to develop their

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research projects. Often, they criticise existingprotection regulations such as those requiringprevious consent of the communities, or econ-omic retribution for research results (Drahos1997).

Herb doctors present themselves as mem-bers of some communities and use indigenous

knowledge for their own benefit. They takeadvantage of widespread ignorance surroundingthe curative or “magic” powers of indigenousmedicinal preparations.

International domain

Transnational corporations and research lab-

oratories use vernacular knowledge obtainedfrom plant and biological samples, or from theobservation of traditional indigenous practices.

They study them, develop them, in some casesclaim proprietary rights, and market productsderived from this knowledge. Communities con-tributing to the new knowledge seldom receiveany compensation (Brush and Stabinsky 1996).




Borders between enterprises and academicand scientific researchers have become ambigu-ous, especially in the field of pharmaceuticals.Collaboration schemes between pharmaceuticalcorporations and university laboratories oftenminimise differences in their interests and prac-tices (Tarzian et al. 2000). Nonetheless, thereare also cases in which university researchersdo their work independently from businessesand seek to establish scientific status within aMertonian ethic. In some cases, researchershave also promoted compensation and acknowl-edgement of communities that generated anddeveloped that knowledge (Ibid.).

Several non-governmental organisations

(NGOs) criticise industrial applications of tra-ditional knowledge because in many cases phar-maceutical companies that produce seeds andagrochemicals are practicing what they see as“massive and growing biopiracy againstindigenous and local communities” (Red delTercer Mundo 1996, p. 15). Biopiracy meansnon-consensual extraction of traditional knowl-edge or biological resources and/or proprietaryrights to “inventions” derived from that knowl-edge, without sharing benefits. Since the 1980s

several international organisations and ethniccommunities have demanded acknowledgementof rights over that knowledge (Red del TercerMundo 1996).

These claims of NGOs have found echoby of ficial international organisations. Claimsof NGOs have been collected in certain inter-national agreements such as TRIPs (TradeRelated Aspects of Intellectual Property Rights)in the World Trade Organization, and in the

Biodiversity Convention. These agreements takeinto account the possibility of protecting ver-nacular knowledge through property rights,although they leave to the member nations thedevelopment of a clear and precise regulation(Tewolde Berhan 1996).

Economic institutions ofethnic communities

National markets are institutional frameworksthat may validate commercial practices sur-rounding the exchange of vernacular knowledge.The role of community institutions at the locallevel is crucial to this process. Case analysis

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has shown that local communities filter andignore rules established by national states. Theymay modify their own rules, generating localinstitutions – rules-in-use – and activity patternsthat may diverge widely from the expectationsof policy designers. It seems reasonable toexpect that the respect for local institutions maycontribute to revert the trend of decay of ver-nacular knowledge.

Cultural systems and internal institutionalarrangements of ethnic groups are very diverse.The analysis may not be done simultaneouslyfor them all. For this reason, the next sectionaddresses indigenous economic institutions of Amazonian and Central American ethnic

groups, though some references are made toother groups.

Community economic systems

Economic life in indigenous societies of theAmazon region is the result of interactionbetween culture and the natural world. In thetraditional context of these communities, econ-omic life does not pursue wealth accumulation,nor does it seek to improve living standards of

individual actors. Also, it is not a separatesphere from the rest of social life. In fact, it ispart of a routine wholly connected to social,ritual, and political life. Within this conception,it is impossible to separate intellectual, cultural,and scientific property rights since they allbelong to a single entity, that of communitarianproperty (Calle 1999).

Indigenous communities do not possess anotion of individual private property over

resources or knowledge. Property has intangibleand spiritual manifestations. Nature constitutesa continuum with the self, with culture andrituals. This holistic version does not permitsegmenting parts so that knowledge can becomethe individual property of someone in the com-munity.

Production processes are ruled by necessityand not by the pursuit of a surplus to be realisedin exchange. Exchange processes, when theyoccur, are governed by similar motivations.

They do not seek to obtain any kind of advan-tage, but only to cover a specific need.

However, it is increasingly dif ficult forindigenous communities to isolate themselvesfrom the influence of the market economy that




surrounds them and seeks to influence themwith the imposition of its values and principles.Such is the case of some indigenous societiesin the Amazon region (Smith and Wray 1995).They have managed to configure a hybrid econ-omic system where traditional values and prac-tices coexist with market mechanisms. It is alsothe case of the Miskito communities of Nicara-gua or the Shuar of Melanesia, whose shamanshave converted their knowledge into a merchan-dise.

Exchange

Indigenous economies are essentially economiesof reciprocity. They are ruled by a principlethat can be interpreted in terms of a deferredexchange. Some observers have interpreted itas an economy of gift. Every society gives theiryouth a strong sense of values that compel themto share material goods. All members of societyare subject to a strong moral imperative thatcompels them to receive, thereby accepting anew relationship based on the acquired debt.The very essence of this economy – and whatmaintains the flow of goods and services

between givers and receivers – is the obligationto give something in reciprocity. Profit andwealth accumulation have not been incorporatedinto these economies of gift (Smith and Wray1995, p. 163).

Formal exchange adopts different forms,some of them within a kinship group and othersbetween members of different groups. In gen-eral terms, all Amazonian indigenous groupsproduce similar material goods and have accessto similar resources. Nonetheless, prepared food

is often the object of ceremonial exchange, asin the case of “chicha”, a cassava-basedbeverage (Ibid. 164).

The act of exchange itself is moreimportant than goods changing hands. This isexplained by the importance of social relation-ships between giver and taker. In this systemof free exchange, giving and receiving aremeant to ensure the af firmation of solidarity ties(Ibid. 166).

Elements of change towards hybridmodels

According to a study undertaken by the Ama-zonian organisation COICA, this type of

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exchange has always been present in indigenoussocieties. Technological innovation and newideas have circulated among their communities,overcoming barriers imposed by language, cul-ture, and politics, thanks to the existence of exchange networks (Smith and Wray 1995). Therhythm of change, which was initially slow andlimited by the rudimentary means of communi-cation, has increased dramatically in recenttimes, and enormous social efforts are made toassimilate change in ways that make sense interms of traditional values. These changes, fun-damentally caused by the relationship with themarket economy, have forced indigenous peopleto recreate and reorganise their society, thereby

redefining internal social relationships, as wellas production and distribution relationships,eventually affecting the system of values andbeliefs. The new situation affects the way com-munities and foreign actors may negotiateagreements related to vernacular knowledge.

One consequence of the transition processis the deterioration of the cultural and ideologi-cal system integrating the components of sociallife and articulating a global system of life(Smith and Wray 1995, p. 177).

One of the most important losses is thatof their traditional knowledge. In this aspect,public schools denying this knowledge encour-age their loss and result in a young indigenouspopulation less adapted to their local economiesand with few exploitable resources in their newmixed economy.

In the case of the new Amazonianeconomy, it tends to combine the reciprocalexchange with profit accumulation, ever more

frequently, by those who can manage. Recipro-cal exchange of production surplus and labourforce available for relatives now competes withthe necessity to sell surplus in exchange forcash (Ibid. 181).

The new indigenous economy

Amazonian indigenous groups have mobilisedquickly to establish ties with the market,pushed by their increasing “necessities” – as

the Bora Ampiyacua call their requirementsof market goods. Cattle rising, traditional pro-duction of hammocks, community-ownedtrucks, boats and shops with commercial pro-ducts, as well as the sale of exotic fruits, are




just some of the strategies undertaken inrecent times (Smith and Wray 1995, p. 224).

In the last two or three decades, indigen-ous organisations gave rise in practice to acollective mode of project design and oper-ation, an orientation that is apparently com-patible with the soc ia l func tion of theeconomy of gift. As a result, many of theeconomic initiatives among indigenous peopleare collective, meaning that the initiative isowned by a c ollec tive body with someelements of a formal institutional identity,such as a community, cooperative, or feder-ation. Nevertheless, there is confusion inmany present communities with respect to the

individual use of collective property. Thisconfusion is extremely complicated when thepresent community or community associationbecomes the owner of a market-orientedenterprise. The members of the majority of present communities do not have a greattradition of collective economic action at thatlevel: the insistence on such an action, to agreat extent, for ideological reasons, has ledto a widespread failure of collectiveenterprises.

Institutions

Intellectual and symbolic resources are animportant form of capital in the communities.They include all the knowledge of forests, soils,animals, and the manufacturing of necessaryinstruments for maintaining life in the com-munity. Among these are the healing knowledge

of the shaman, the specialist knowledge of songs, song-prayers, and dances. They alsoinclude women’s knowledge on child rearing,agriculture, and forms of art and social relation-ships.

These resources are extremely importantfor an indigenous people to be able to maintaintheir cultural coherence. At the same time, theseresources are very vulnerable, since they aretransmitted almost exclusively through oral orritual forms in indigenous languages. One threat

hanging over these resources is public educationand religious instruction promoted by the state,religious missions, or some combination of thetwo. Both tend to replace intellectual and sym-bolic indigenous resources with those of the

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dominant society, progressively impoverishingthe former. But additionally the asymmetricpower and information relationship between thecommunities and foreign actors is in itself another serious risk for the conservation anddevelopment of their knowledge system (Ibid.304).

Intellectual property rights andtraditional knowledge

International agreements such as the Agreementon Trade Related Aspects of Intellectual Pro-perty (TRIPs) of the World Trade Organization(WTO), or the Convention on Biodiversity

(CBD), contemplate the possibility of protectingvernacular knowledge through property rights.However they leave the creation of a definitiveset of norms on the subject to country initiatives(Drahos 1997).

In general, there are few analyses consider-ing intellectual property rights protection sys-tems as adequate for applying this type of knowledge. One option is to consider thatinstruments from modern legislation may beextended to configure a strategy of monetary

compensation to the communities in exchangefor profitable economic by-products stemmingfrom their knowledge (Greaves 1994, p. 5).These have been used in some cases.

Contracts Within the generally used instru-ments, contracts represent the simplest concept,since they have been used to provide access tospecific elements of cultural knowledge or toproducts under community control. They have

also been used to negotiate information orsubstance recollection under precise terms that,in principle, are objects of lawsuit in case of non-compliance, without the need to define newlegal instruments (Greaves 1994, p. 6). Box 1presents a collection of agreements that servedas a basis for this analysis.

The problem with this type of negotiation isthat the terms in which the contract is definedresult from the correlation of forces between theparts entering into negotiation. In this case, the

inbalance between pharmaceutical laboratories andindigenous communities is clear. The former havea wide experience in contracting processes, whilethe latter have little or no experience or knowl-edge of generally used strategies. Furthermore, the




BOX 1. Some cases of contracts between indigenous communities and modern institutions

• A Quichua community in Ecuador was compensated with the building of an airport in exchange for ashaman’s knowledge. The airport was also needed by the business itself (Shaman Pharmaceutics fromCalifornia) for the transport of tropical forest plants to its headquarters, where they were used in researchfor pain relief and diabetes medicines (Bravo 1997, p. 130). The same company planned to expand thistype of agreements to countries such as Colombia, Mexico, Ecuador, and Peru, claiming their projectfostered the recognition of intellectual property of ethnic groups (King 1994). Economic dif ficultiesexperienced by the company frustrated these initiatives.

• In 1992, Merck Laboratories signed a contract with the Biological Institute of Costa Rica (INBIO), bywhich services of collection and preparation of a great variety of plant and micro-organism biodiversitywere sold. The exact terms of the contract regarding economic retribution, amount of samples, and therole of indigenous communities, are kept in secret. Critics of the agreement consider that it will notguarantee a halt to deforestation and genetic erosion that implicates not only Costa Rica but alsoneighbouring countries that share genetic resources (Martinez Alier 1996, p. 121).

• The USA National Institute of Health launched in 1992 a cooperation programme with USAID tofinance projects of “medicine discovery” in developing countries, making use of the “wealth of knowledge

maintained in traditional cultures where medical potential may be most probably realized”. The rights of indigenous peoples would entirely depend on the terms of each contract signed with them or with thegovernment of the host country (Daes 1993, p. 24).

• Since 1985, the United States National Cancer Institute has operated a programme of plant collectionin tropical and subtropical regions for the discovery of medicines to be used against cancer and HIV. TheInstitute maintains a policy of signing collaboration contracts with countries or persons participating in theprogramme. One of its main experiences in this field is the association with the AWA Federation of Ecuador, through an agreement to collect and research plants to obtain new cures for cancer and AIDS.Contract includes delivery of results and efforts towards recognising royalities in the event of commercialachievements, as well as a fund to build health centres (Cragg et al. 1996, p. 85).

• In the 1970s, the University of Illinois started research on medicinal plants in biodiversity-rich tropicalcountries, with the possibility of developing medicines. Since 1990 the University of Illinois uses letters of

intention and letters of collection to formalise relationships with indigenous communities, as well ascontracts defining shares in royalities, in case of commercial results from research. Research on agentsagainst cancer, undertaken in conjunction with the National Cancer Institute, and the acquisition of plantsfor biological evaluation, with the participation of Glaxo Laboratories, have been two of its projects. Therecognition of intellectual property rights on the use of traditional medicine may go to the consultant whocollects the information, to the indigenous community, or to a medicine man, shaman, or any member of the community (Tarzian et al. 2000).

lab generally knows what it is looking for, and

foresees with a certain level of certainty the resultsto be obtained with the object it acquires. Theindigenous community completely ignores thisresult. Moreover, it does not have any referenceto measure its value. As a result, the communityoften sells its knowledge at an absurdly low price.

All these subjects put questions about thepertinence of contracts as an instrument toprotect indigenous rights. Reciprocity towardsthe communities is not clear, as it has to dowith the value of provided resources since the

paid price may well correspond to the work undertaken in the collection and sale of theprimary material, but not to a compensationfor the knowledge of the community and thefuture sales resulting from the agreement.

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Neither is it clear how to establish a compen-

sation to be paid in the medium term in theevent of product commercialisation, eventhough the communities do lose de facto controlover the information and genetic material theyprovide.

Cases of habitat defence There have been situ-ations where indigenous communities haveadopted positions defending their knowledgeand resources against attempts at biologicalprospection by pharmaceutical laboratories and

research labs.The Kuna of Panama, for example, have

developed programmes to manage their forestreserve and control scientific activities heldthere (Laird 1996, p. 150).




BOX 2. Patent conflicts over vernacular knowledge

• In 1994, two researchers from the University of Colorado obtained a patent over the “Apelawa” varietyof Quinua, a Peruvian indigenous ancestral crop. The patent over a product used to attack male sterilityallowed the development of hybrid varieties for larger crops, but did not recognise the place of origin orthe contribution of indigenous people. After pressure exerted through international campaigns, the ownersof the patent did not renew it (Jacanamijoy 1998, p. 5).

• Researchers from the University of Wisconsin obtained patents in the United States and Europe overan isolated protein of brazzein found in a West African berry with a sweetening power 500 times greaterthan sugar, used since ancestral times by natives of the region. The university says there are no plans toshare profits with the indigenous groups that initially discovered and took care of this resource (Grain2000, p. 6).

• In 1986, 1989, and 1992, patents were granted for a powder extracted from the toasted bark of tepezcohuite, or “the skin tree”, found in very small areas of Chiapas, where it has been used by theMayas for the treatment of skin bruises. Locals now have to compete with traders for access to the tree(Grain 2000, p. 10).

• In 1995 the University of Mississippi obtained a patent over curcuma, considered by India’s populationas a magic drug curing multiple ailments. Its root is employed in the treatment of muscle injuries,inflammations, and for healing wounds (Grain 2000).

In another case, in 1993 the Ngobe-guble(Guaimi) indigenous community of Panama,assisted by the RAFI organisation, preventedthe granting of patents over the cell line of anindigenous person who suffered from leukaemia(Weemaels 1996, p. 123).

In 1999, the COICA indigenous organis-ation had the U.S. Patent Of fice annull thepatent on Ayahuasca or yage, a sacred plant forAmazonian indigenous groups, which hadbeen granted to Loren Miller of California(Jacanamijoy 1998).

Patents Other cases have not shown successin the defence of indigenous rights, leading to

the configuration of what has been called“biopiracy”. Some actors like research institutes,universities, or laboratories have got patentsover pieces of knowledge extracted from theindigenous communities. Notwithstanding, thecommunities have received nothing in recip-rocity. Box 2 illustrates some of these cases.

Relationships between institutions

Modern institutions treat existing knowledge asprivate knowledge protected by intellectual pro-perty rights (IPR), or as public domain knowl-edge constituting an intellectual common pro-perty. The defenders of a strong IPR system

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claim that a legal system temporarily excludingknowledge from the public domain will resultin a long-term increase of the size of thatdomain. It is argued that this is due to the factthat IPR monopolies establish legal incentivesto create and innovate. Without these incentivesone would have less creation and innovation(Coombe 1998). It would be more appropriateto consider that there are other private domains,and that the shortcomings of the law withrespect to these domains are the real problemwith the IPR system. These domains correspondto the collective knowledge of indigenous com-munities, over which only the latter would haverights of use and exploitation.

In such a way, it is currently argued thatmoral theories of entitlement do not justifyindigenous community property rights over tra-ditional knowledge, and instead they refer to“public domain collective traditional knowl-edge”. However, taking into account the contextof each domain, it would have to be said thatnot all traditional knowledge is in the publicdomain. While some may be widely distributedand extensively documented, some may befound in a more specific location and main-

tained by a small group of people or by anindividual (for example, a shaman). Thesepeople have rights over this knowledge, asrecognised by more than 170 countries in theBiological Diversity Agreement.




There are varying schemes for managingresources and knowledge across different com-munities. In the majority of cases there havebeen two alternatives. In the one hand, theyhave often established community councils witha wide range of results in forest management,fundamentally due to differences in council size.The very small ones have faced disadvantagesin their efforts to generate human and otherresources to monitor and enforce local rules.

Larger size councils are capable of generat-ing better conditions in their efforts to monitoruse of forests in constant threat from exploi-tation by locals and outsiders (Gibson et al.

2000, p. 13). Evidence shows that resource

users who develop successful local institutionsprovide time and effort to monitor and enforcetheir own compliance of the rules they havecreated (ibid., 19).

As mentioned above, the literature picksup cases of traditional societies with individualproperty systems, such as the Shuar people, whosee shamanic knowledge as an “exchangeablemerchandise” that can be bought, sold, lent, andis subject to theft; the Miskito medicine menwho value their healing practices as “private

property”; or the indigenous people of Melane-sia who exchange or sell their secrets and/orknowledge for pigs, money, and other goods(Dutfield 1999, p. 8). Of course, one has toclarify that these observations extracted fromanthropological case studies cannot be generallyapplied to all indigenous communities. Here wewould encounter the issue of what belongs tothe shaman and what to the community. Thiswould then be a problem internal to the

community, but also derived from the level of legitimacy of an individual appropriation of asocially inherited knowledge.

In any case, it is clear that there is greattension in the relationship between moderninstitutions and the indigenous communities forthe protection of resources and knowledge. Sev-eral management strategies have been set for-ward in different scenarios and situations, to bediscussed in the next section.

Proposals

Knowledge developed by indigenous communi-ties is collective and represents a set of uses,

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customs, information, and ways of lifedeveloped by a given community; it is created,developed, and transformed collectively; thereare no individual inventors; it is intimately tiedto cultural and biological diversity, and it cannotbe dissociated from any of these two aspects.Besides, it expresses itself territorially (Pomboand Vasquez 1996, p. 207).

A proposal of communitarianintellectual rights

Some authors, like Vandana Shiva, have argued

that in consequence, these collective rights mustbe recognised and it is necessary to seek optionsfrom the perspective of the same actors whoare the intended recipients of these rights. Thiswould then generate an intellectual rights sys-tem that would become a real option for thecommunities in order to develop their own pro-ductive strategy from their own understandingof their university and in their own territory.

This will have to be a specific protectionsystem contemplating Communitarian Intellec-

tual Rights (CIR) basically with regards tobiodiversity-related knowledge (Shiva et al.

1997, pp. v, vi).Such a system should be capable of ident-

ifying a community and protecting its intellec-tual rights, for which it must count on a com-munity organisation that will establish linksboth with the mother society and with Trans-national Corporations, with the purpose of set-ting legal provisions and guaranteeing the

resulting royalties (Tewolde Berhan 1996, p.24).The protection must cover any achieve-

ment of the indigenous community that maypossibly be commercialised, be it innovationin germplasm, in knowledge and technologyof biodiversity, in any other technology, inart, music, or any other field that would obvi-ously be a novelty outside its community of origin. It is also suggested that, inasmuch asindigenous communities exist in perpetuity, it

would be appropriate that CIR should alsohave a perpetual duration from the momentthat the innovation is commercialised, thecommunity as a whole being the beneficiary(Ibid., 25).




Proposal from the Third WorldNetwork

In 1994 the Third World Network proposed a

model to subscribe a Charter of intellectualrights over vernacular knowledge, harmonisedwith article 27 (3b) of TRIPs and 8 (j) of the Convention on Biodiversity. This charterforesees protection over communitarian andshared knowledge, also using the concept of Communitarian Intellectual Rights, consultingthe value of this knowledge for the indigenouscommunities. According to this proposal, therequisites for originality in a patent structuremust refer to the accumulated knowledge pos-

sessed by the communities, which constitutesan “innovation” in the sense that it has not beenknown “outside of its world”. A trust wouldthen be set up, where the beneficiary would bethe community (its leaders) and the state wouldbe the trustee, with a registry of invention simi-lar to the copyright (Third World Network 1996).

This is a viewpoint that “necessarily fol-lows the route of the State as the central auth-ority through which the rights of indigenous

people and local communities are established,validated and vindicated” (Nijar 1996, p. 31)and recognises that a sui generis national legis-lation is necessary to adequately protectindigenous people and local communities’knowledge. For this purpose, a “Law of Com-munitarian Intellectual Rights” has been pro-posed, to operate in conjunction with a “Law of Biological Resource Collectors” and a “Contractbetween the collector and the government”.

This entails a model that af firms and legit-imises state property and control over all gen-etic and biological resources, something thatdemands a very fine af finity between the inter-ests of the communities related to theseresources – and of the knowledge derived fromthem – and the interests, availability, andcapacity of the states to defend them. These donot always coincide.

Research benefit rights

The concept of research benefit rights (RBR)has been put forward looking for a way tointegrate compensation and authorisation as the

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centre of a research process, not under the prin-ciples of an enterprise solely looking for com-mercial benefits (Khotari et al. 1997). Based onethical norms and rights authorised by indigen-ous people, RBR’s demand compensation forbenefits derived from a non-commercial process,such as research.

RBR’s seek to promote strategies that areethically and contractually achievable, soindigenous groups: may enjoy a fair partici-pation in the monetary and non-monetary bene-fits of research they have allowed in their com-munities; may have access and control over thefindings; may be recognised as the legitimateowners of their knowledge; and may have the

option to participate in all of the process(ibid., 144).

The practice of RBR would require an ethi-cal and contractual base with at least twoelements: the development of ethical principlesadhered to by research-financing organisations,and empowerment of indigenous people tonegotiate bilateral arrangements or contractsbetween themselves and external agents (ibid.,145). This has been the experience with a com-munity of Imbabura, in Ecuador (ibid., 141–

145).Therefore, the proposed scheme tends fun-

damentally towards conservation, more thantowards exploitation of traditional knowledge.At first glance this seems commendable, but themechanism of building relationships with thecommunities consists of a contract, the basis of which must be negotiated.

Rights over traditional resources

In 1990 the Global Coalition for Cultural Bio-diversity established a working group on intel-lectual property so that indigenous communities,scientific organisations and environmentalgroups jointly proposed a strategy for usingvernacular knowledge that involved local com-munities in conservation and developmentinitiatives (Posey and Dutfield 1996).

The coalition pointed to the dif ficulty

brought about by the variety of legal, scientific,and political terms that were hard to translateto ethnic groups and local communities. Itcoined the term “Rights over traditionalresources”, where “traditional” makes references




to practices, beliefs, customs, and cultural heri-tage of indigenous and local groups living inclose association to the land. The term“resource” is used in a wide sense, toencompass knowledge and technology, spiritualand aesthetic qualities, and tangible andintangible sources needed to fully ensure theirlifestyle for present and future generations.

Finally, the term “rights” refers to theinalienable guarantees of human existence andof collective entities needed to maintain theirown dignity, and that of their predecessors andoffspring. This term (or even better, thisprocess) fits well among international agree-ments as a basis for a sui generis protection

system, given the kind of knowledge contri-buted by indigenous communities.

One of the problems in the practicalimplementation of this approach is that it consti-tutes a “soft law”, and is not legally binding, andtherefore does not have mechanisms to guaranteeits enforcement in different countries. Further-more, the proposal is basically oriented to conser-vation and, to some extent, towards recognition.But it is less clear in the issue of compensationto indigenous groups. When it criticises and dis-

cards the term “property” as irrelevant, it doesnot propose a new one, something that bringsinto question the possibility of claiming someretribution for the generators, wardens, and devel-opers of resource-associated knowledge.

Guidelines for an alternativeregulatory framework

Two institutional and cultural systems clash inthe exchange of traditional ethnic knowledge.One is the modern technology market, whereinstitutions of individual property (over tangibleand intangible goods) are established and sup-ported by a legal framework. This system hasrelatively transparent information schemes andoperates on a global scale. The other is thesystem of local community knowledge, whereproperty over knowledge is either not defined

or collective; both the scope of its activitiesand the information available are local.

Tension builds in this clash, because mar-ket intellectual-property-rights institutions allowthe individual appropriation of knowledge

© UNESCO 2002.

belonging to the community. This appropriationis possible even when the (collective) ownersof the traditional ethnic community do notexpress their agreement or are not even awareof this appropriation. In the process of appropri-ation, the collaboration of some member of theethnic group is necessary. It can be accidental,elicited by misinformation or involve opportun-ism on the part of this agent. In either case, itends up disrupting the life of the group and itsknowledge system.

In the past two decades, transnationalcorporations, academic institutions, and inde-pendent research laboratories have either pat-ented vernacular knowledge or reached agree-

ments with ethnic groups. Several proposals of regulatory schemes have been advanced.

Several types of contracts have been pro-posed for prospecting the knowledge and theenvironment where the community lives. In allof them there are compensations to the group,that involve providing health centres, an airportor the elaboration of booklets instructing thepublic about these practices and their origin.Occasionally, these contracts grant the group aright to share the royalties of products derived

from their knowledge, but in no case knownhave these payments have actually been made.

Transnational corporations, laboratoriesand universities have also patented vernacularknowledge, with no community participation inthe process. In some instances, the protest of communities, backed by NGOs, has resultedeither in the cancellation of the patent by auth-orities or in abstention of using it on the partof the patent holder.

Proposals advanced by authors and NGOshave been oriented towards the recognition of collective intellectual property rights. Someinvolve the establishment of an internationalfund that would collect and redistribute the roy-alties derived from vernacular knowledge. Oneof these proposals advances the idea that eitherthe shaman or the community may be rewardedfor the knowledge they provide. However, onecharacteristic of information that has beenstressed in the literature is that once it is trans-

ferred there is no reversibility (Dasgupta andDavid 1987). For this reason, once the shamanhas transferred his knowledge, negotiationbetween the firm and the community will notoccur. An incentive towards defection of the




shaman would be embodied in such a scheme.Another proposal suggests that protection of property over indigenous knowledge may bedone in the context of TRIPs and CBD usingthe concept of Communitarian IntellectualRights, which would be treated as a specialkind of innovation. However, there is no cer-tainty that the rights of small ethnic groupswould be guaranteed by the national state sign-ing the TRIPs. Also the innovation wouldrequire the establishment of a special authoritygranting and enforcing sui generis protection.

On the basis of the analysis of this andprevious sections, a set of desirable character-istics of a management scheme for use by mod-

ern market firms of traditional ethnic knowledgecan be drawn:

1. Consent of the community is in all casesnecessary. Both the use of knowledge byfirms without the consent of ethnic groupsand the signature of macro agreements bynational governments with TransnationalCorporations should be avoided, unless theseagreements are accepted and incorporate eth-nic groups.

2. Some of these agreements hide the issue of knowledge, by referring only to the naturalresources involved, ignoring the knowledgeof the communities. An acceptable agree-ment should prevent this happening.

3. Consent should be informed consent. Onescheme to do this could be the creation of aWorld Council of Ethnic Groups that wouldensure that suf ficient information is given tothe group.

4. Based on the experience of certain contractssigned for knowledge and use of plants forvery specific purposes, like the discovery of medicines against cancer or HIV, specialclauses should anticipate serendipia, that is,the potential discovery of different uses forthe same knowledge and the plants associa-ted with it.

5. No incentives to social disruption of thecommunity should be allowed or introducedby the regulatory scheme. Allowing individ-

ual appropriation of this knowledge couldexclude the community from the agreements.The combination of social and individualrewards could be allowed but (a) it shouldgive the larger part to the community, and

© UNESCO 2002.

(b) a condition of prior negotiation andconsent with the community should beestablished.

6. The scheme should not induce competitionof neighbouring groups for the appropri-ation of knowledge about the same environ-ment. Whenever several communities shareknowledge, they should share benefits, inde-pendently from which group first signed theagreement. In larger agreements made bycountries (as in the case of Costa Rica’scontract with Merck), the same situationmay occur. The scheme should avoid com-petition for contracts among countries shar-ing environment and biodiversity.

7. In most indigenous communities there aredifferent authorities. One of them is thetraditional leadership (generally the councilof ancients), the other is the shaman, andthere might be a third “committee” or coun-cil of young members of the tribe who arein charge of dealing with national societyand external relations in general. Consensusof these authorities, some of which are col-legiate, is the only rule that preserves thesocial system of the group. Collegiate bod-

ies of government have the advantage of undertaking a deliberative process of dis-cussion leading to the construction of aunified view, despite the possibility of initial disagreements.

8. Non-consensual diffusion of knowledge inthe public domain does not extinguish thelegitimate titles of these groups, and wouldaccelerate the extinction of this source of knowledge.

9. Uncertainty about the value added to indus-try or agriculture, based on ethnic knowl-edge, is large. For this reason compen-sations should operate on a flow basis,depending upon market results of the useof ethnic knowledge. The theory andexperience of natural resources associationcontracts could be useful in devisingthese contracts.

10. Compensations should be oriented towardsthe survival of the members and the culture

of the ethnic group, and particularly to theconservation and development of its knowl-edge system.

11. The end result of certain episodes of sur-reptitious or unauthorised use of ethnic




knowledge has commonly been the aban-donment of this knowledge or the pro-ducts derived from it. It has been thecase for instance of the Apelawa patent,referred to in Box 1. Global welfaresuffers as a consequence of these epi-sodes. In all cases, a scheme for the pro-te ction of IPR of e thnic knowledgeshould deter this behaviour, and imposesanctions on it. This would make thescheme credible and enforce the fair useof these products, making them availableto all potential users, while compensatingadequately the ethnic group where knowl-edge originated.

Exchange between indigenous communitiesthat possess the knowledge and research com-munity and transnational corporations willing todevelop and exploit that knowledge is markedby a deep information asymmetry. As a result,modern intellectual property rights systems donot have the instruments that can protect tra-ditional communities or prevent vernacularknowledge and its system of innovation from

disappearing. Previous proposals have beenlocally oriented and fail to grasp differences ininformation, institutions, and culture of the twonegotiating parties. Nor do they anticipate theevolution paths that ethnic communities mayfollow as a result of these exchanges of tra-ditional knowledge.

The enforcement of indigenous com-munity rights over their knowledge andresources implies undertaking multiple

actions: guaranteeing the existence of theircollective territory, inasmuch as indigenousconcepts of property are an extension of terri-torial rights; strengthening their culture,viewed also as a defence strategy by itself;maintaining traditional customs, practices,housing, and food; strengthening guaranteesof food security; and supporting and strength-ening elders and traditional doctors as thereal repositories of culture, as maintained byPombo and Vasquez (1996, pp. 208–209).

The creation of an international groupformed by representatives of indigenous com-

© UNESCO 2002.

munities from different countries, would benecessary to draft a consensual agreementregulating bio-prospecting and use of ver-nacular knowledge. This agreement couldenvisage alternative models framing negoti-ations and enforcement mechanisms to regu-late the transfers of traditional knowledgefrom these communities to transnational cor-porations, research labs and universities,within the guidelines proposed above. Thisgeneral agreement should establish a balancebetween preservation and development of community knowledge systems and its use byscience and the market.

Negotiations may be dif ficult because,

despite the occurrence of cultural hybridisation,ethnic groups do not usually think in terms of profit or profit sharing. Traditional social controlmethods to level off the economic level of com-munity members (gossip, envies, witchcraft) andthe pressure for lending money continue to bestrong (Smith and Wray 1995, p. 182). Manypieces of vernacular knowledge that couldbecome important sources of innovation-basedprofit are generally shared with neighbouringcommunities.

The creation of a global fund managingmonetary results of commercial exploitation of knowledge and financing common interestendeavours is an important complementary mea-sure. It could also redistribute earnings amongethnic groups sharing partnership in this fund,for investment in health infrastructure, com-munity development, and education accordingto their own parameters. It could also reinforcelocal empowerment in various ways. A partici-

patory approach to research is needed, achievedthrough the creation of local research foun-dations dedicated to conservation of indigenousknowledge and culture. Indigenous groupsshould be involved in research and docu-mentation on their knowledge, history, and oralcultures. Higher education and scientificresearch programmes based on vernacularknowledge and offering training and researchopportunities to members of the communitiesthemselves would be another priority for this

fund, ensuring the exchange of knowledge forknowledge.




Note

1. The authors acknowledgethe valuable help of Luis

Fajardo in preparing theEnglish version, and comments

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