Protecting Intellectual Property Rights and Traditional Ecological Knowledge: A Critical Look at Peru's Law 27811

By Hepburn, Michelle Hak | Human Organization, Spring 2020 | Go to article overview

Protecting Intellectual Property Rights and Traditional Ecological Knowledge: A Critical Look at Peru's Law 27811


Hepburn, Michelle Hak, Human Organization


In an effort to protect Indigenous rights and national patrimony, in 2002, Peru passed Law 27811: The Regime to Protect Collective Knowledge of Indigenous Peoples related to Biological Resources. Intellectual Property Rights (IPR) restrict the use of knowledge and products created by others. Researchers and transnational organizations use mainstream IPR systems-including patents and copyright-to secure profits, although sometimes patents are based on knowledge taken from Indigenous Peoples. Around the world, colonizers first took the land, and researchers continue to take the knowledge of Indigenous Peoples (LaDuke 2005; Shiva 2001; Tuhiwai Smith 2012). Although IPR was "woven into the general rights to territorial and resource sovereignty" in the 1990s (Varese 1996:136), Indigenous People began to separate IPR from land rights because it had more international traction (Muehlebach 2001). To defend against cultural appropriations, culture is often treated as property, which imposes limitations upon those seeking to protect their rights (Coombe 1998; Greene 2004).

Law 27811's objectives are outlined in Article 5:

1. To promote respect for and the protection, preservation, wider application and development of the collective knowledge of Indigenous Peoples;

2. To promote the fair and equitable distribution of the benefits derived from the use of that collective knowledge;

3. To promote the use of the knowledge for the benefit of the Indigenous Peoples and mankind in general;

4. To ensure that the use of the knowledge takes place with prior and informed consent of the Indigenous Peoples;

5. To promote the strengthening and development of the potential of the Indigenous Peoples and of the machinery traditionally used by them to share and distribute collectively generated benefits under the terms of this regime;

6. To avoid situations where patents are granted for inventions made or developed on the basis of collective knowledge of the Indigenous Peoples of Peru without any account being taken of that knowledge as prior art in the examination of the novelty and inventiveness of the said inventions.

Legal scholars see Law 27811 as a well-developed legal instrument to protect Peruvian Indigenous People's IPR (Clark, Lapeña, and Ruiz 2004; Taubman and Leistner 2008), but its impacts and its community-based implementation process has yet to be examined. Legal protections can be important symbolic recognition of Indigenous Peoples. Symbolic laws, however, do not change colonial relations between the state and Indigenous People and can reinforce state-imposed categories of recognition (Coulthard 2014; Drahos 2014). Analyzing the law's implementation and impacts is crucial to assess whether these types of protections are purely symbolic. Thus, I present a critical theoretical analysis of Law 27811 informed by my experience of its implementation and evaluating it through a decolonizing framework.

Decolonial scholars place the advent of modernity at the beginning of the colonization of the Americas (Asher 2013; Mignolo 2011; Quijano 2000). National power structures in the Americas were made possible because of the expropriation of people's territory, culture, and knowledge (Quijano 2000). The coloniality of power of Latin American states persists because there has not been a "process of decolonizing social, political, and cultural relations that maintain and reproduce social classification" (Quijano 2000:568). The emphasis is on "coloniality," which "refers to long-standing patterns of power that emerged as a result of colonialism, but that define culture, labor, intersubjective relations, and knowledge production" that remains today (MaldonadoTorres 2007:243). Similarly, Indigenous scholars from settler-colonial states argue state policies replicate colonial power structures and continue to subordinate Indigenous People (Coulthard 2014; Tuhiwai Smith 2012). It is important to evaluate the implicit assumptions that underly laws and policies such as Law 27811. …

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