International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity, and Traditional Medicine

Description

In the past, efforts to reconcile the western concept of intellectual property with indigenous knowledge have not taken into account the schism between this knowledge and western scientific forms. As knowledge assumes increasing importance in the quest for self-determination, cultural survival, and economic empowerment, the gulf between indigenous and western scientific knowledge assumes a new meaning. In International Law and Indigenous Knowledge, Chidi Oguamanam argues that the crisis of legitimacy indigenous knowledge poses for the intellectual property system compels a re-thinking of the concept of intellectual property itself. Drawing on interdisciplinary research, International Law and Indigenous Knowledge takes as its framework the legal doctrinal methodology, focusing on international legal and policy developments regarding the protection of indigenous knowledge. Using traditional medicine and biodiversity to illustrate his thesis, Oguamanam argues that recent international legal and policy developments in the direction of a cross-cultural approach to intellectual property rights are desirable trends. Such developments come closer to addressing the rift between western and non-western knowledge systems as well as the crisis of legitimacy in the conventional intellectual property system. Contents Preface Acknowledgments Abbreviations 1 General Introduction and Overview Knowledge: The New Frontier of the Indigenous Question Intellectual Property and the Search for Equity Traditional Knowledge of Plant-Based Therapy and the Socio-Cultural Imperative Traditional and Western Scientific Knowledge Systems Science as a Site of Contest Indigenous/Traditional Knowledge Traditional Knowledge of Plant-Based Therapy Applicability of Intellectual Property Rights to Traditional Knowledge Overview 2 Conceptual Perspectives on Biodiversity, Traditional Knowledge, Intellectual Property, and the Protection of Indigenous Peoples in International Law Biodiversity Defining and Understanding the Concept The Essence of Plant Biodiversity Bioresources: Global ‘Assets’ in Southern Borders Biodiversity in Crisis The Diversity of Biodiversity Benefits Biodiversity: Two Concepts of Values Traditional/Indigenous Knowledge Systems Colonialism and Epistemic Conflict Therapeutic Uses of Plants: A Glimpse of Indigenous Epistemic Holism Indigenous Knowledge as Marginalized Knowledge Intellectual Property Rights The Concept of Intellectual Property International Law Relating to Indigenous Peoples The Indigenous Question in International Law: A Historical Perspective Indigenous Activism State Practice: Sanctioning Indigenous Claims International Law on Indigenous Peoples: Publicists’ Perspectives 3 International Law and Traditional Knowledge of Plant-Based Therapy Indigenous Knowledge as Part of International Law on Indigenous Peoples General Conceptual Analysis Indigenous Knowledge in the Fourth and Third Worlds Indigenous Knowledge under the United Nations Framework Indigenous Knowledge under the ILO Convention No. 169 (1989) The Rio Declaration and Agenda 21 Indigenous Knowledge and the Convention on Biological Diversity The United Nations Draft Declaration on the Rights of Indigenous Peoples United Nations Bodies: WIPO, UNESCO, and UNDP Draft Principles and Guidelines on Indigenous Heritage OAS Draft Declaration on the Rights of Indigenous Peoples Other Initiatives Regional Trends The Protection of Traditional Therapeutic Knowledge Traditional Therapy under the ILO Convention No. 169 (1989) Traditional Therapy under the United Nations Draft Declaration Traditional Therapy under the OAS Draft Declaration Traditional Therapeutic Knowledge under the WHO WHO Policy on Traditional Medicine State Practice and Traditional Medicine Industrialized Countries Developing Countries Perspective on the Worldwide Status of Traditional Medicine The WHO and Traditional Medicine: Of Timidity and Scientific Hegemony Summary 4 The Sociocultural Context of Traditional Knowledge of Plant-Based Therapy Traditional Therapy and Western Biomedicine: The Paradigmatic Divergence Between the Biomedical and the Psychosocial Theories of Illness The Central Role of Plants in Traditional Therapy Plant Therapy: Some Biblical Insight Plants under Unani Medical Tradition Plant Medicine in Ayurveda Plants in Traditional Chinese Medicine Plant Medicine in Native American Therapeutic Traditions Plant Medicine in Humoral Therapy in Latin America Plants in African Therapeutic Systems Summary Traditional Therapeutic Systems: Beyond Active Substances The Social Position of Traditional Healers Power and Environment: The Healer and the Sick Two Kinds of Therapeutic Environment The Performance of Healing Words as Performance Transcendental Dimension Multivalence of Traditional Therapeutic Methods The Scientific Question and Situational Logic Summary 5 Intellectual Property Rights and Traditional Knowledge of Plant-Based Therapy: The Filtration of Indigenous Knowledge Intellectual Property Rights in the Context of Traditional Medicine Intellectual Property Rights and Traditional Medicine in Key Instruments Intellectual Property Rights and Traditional Medicine under the WHO and the WIPO Intellectual Property Rights and Traditional (Medicinal) Knowledge: The Demand of Indigenous Non-Governmental Organizations The Intellectual Property Debate Conceptual Objections The Communality Argument Legal Personality The Public Domain / Common Heritage Argument Other Considerations of a Practical Nature Patents and Traditional Knowledge of Plant-Based Therapy: Investigating the Trade-offs The Nature of Patents Plants as Patentable Subject Matter Tests of Patentability and Products of Nature Rhetoric The Case for Patentability of TKPT Patentability of TKPT: The Epistemic Cul-de-sac Biopiracy Patents: Beyond Economic Considerations Beyond Patenting: Folkloric Protection for TKPT Intellectual Property at the Periphery: Geographical Indications Patenting TKPT: Some Reflections On Self-Determination On Medical Pluralism 6 Toward a Cross-cultural Dialogue on Intellectual Property Rights Appraising the Discussion Indigenous Knowledge: Economic Reward versus Cultural Integrity Access Regimes Article 8(j): Beyond Access to Cultural Integrity Indigenous Knowledge: Legal Empowerment from Within The CBD and WIPO: Embracing the Cross-cultural Dialogue The COP and Ad Hoc Working Group on Article 8(j) The WIPO’s GIPI Program and the Inter-governmental Committee Knowledge Protection outside the Regime of Conventional Intellectual Property Rights The Cross-cultural Approach as a Framework Notes Bibliography Index A B C D E F G H I J K L M N O P Q R S T U V W Y Z