The Problem with Patents: Traditional Knowledge and International IP Law

Article excerpt

With attractive pinkish-white flowers and lush green foliage, the Madagascar rosy periwinkle appears at first to be an innocuous, decorative plant. Belying its appearance, the plant has incredibly potent qualities. In the early 1950s, the pharmaceutical giant Eli Lilly & Company began conducting research on the periwinkle, until then grown largely by poverty-stricken indigenous communities. Inspired by its use traditional medicine, researchers at Eli Lilly eventually isolated two extracts--vinblastine and vincristine. Both extracts have become powerful drugs, one to treat childhood leukemia, and the other to treat Hodgkins' Disease. Together, these drugs generate over US$200 million in revenue for Eli Lilly each year, no part of which is seen or even heard of by the people of Madagascar.

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The story of Eli Lilly and the rosy periwinkle is one example that relevant NGOs label as "biopiracy," a term used to describe the appropriation, by outside forces, of legal rights over indigenous knowledge. This type of traditional knowledge (TK), including but not limited to native lore about plants and animals, is scantily protected under existing international intellectual property (IP) regimes. Furthermore, indigenous communities tend to be located in poorer countries in the "Global South," where governments cannot easily afford to regulate or protect local rights to indigenous biodiversity.

In order to protect the rights of the governments and peoples of these countries, the current system must be adapted, with new laws created that recognize value of traditional knowledge. The question arises, however, of whether or not knowledge about indigenous biodiversity can be considered intellectual property. The end product, a compound developed from an original plant sample, might have a completelely different purpose than the original status of the plant in traditional knowledge. At the very least, however, benefit-sharing agreements between drug patent-holders and source countries is not only a moral issue in terms of uniform protection of rights, but at a more fundamental level, is necessary for protecting and promoting the livelihoods of the world's poor.

International Standards: The West and the Rest

The current basis for international intellectual property law resides in a treaty signed by WTO member states, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS agreement is a basic framework that protects the intellectual property rights of individuals and corporations across WTO nations. However, the standards of TRIPS stem from those of richer, developed nations. Pushed through the WTO by the US, European countries, and Japan, the agreement as a whole is generally viewed by advocates of developing countries as a forced concession to the developed world. Though fought and debated for a decade, by the beginning of 2005, all developing countries were bound to comply to TRIPS intellectual property standards.

The agreement, thus far, has mostly served to protect the interests of large, multinational corporations based in the developed world. Particularly with regard to prescription drugs, TRIPS has protected large pharmaceutical countries to the detriment of the citizens of poorer nations, who in many cases have the most need for such drugs but are the least able to afford them. The irony, then, comes full circle. In some cases, such as that of the rosy periwinkle, the indigenous people who provided the initial source of knowledge about a medicine are among the least likely to benefit from the resulting drugs, much less even hear about them or reap any monetary benefits at all.

Though in recent years, the issue of protecting traditional knowledge has risen in prominence among lawyers and activists alike, no effective legal mechanisms yet exist that proactively provide support for holders of TK. The 1992 Convention on Biological Diversity is the one treaty that came close to recognizing the rights of traditional knowledge holders by declaring that "traditional lifestyles" must be protected. …