The chapter analyses Indigenous traditional knowledge and traditional ecologic knowledge in the context of international intellectual property instruments (IP). In so doing, the chapter studies the major international intellectual property law regimes such as the Agreement on Trade Related Aspects of Intellectual Property Rights and the Convention on Biological Diversity to prove that such instruments are ill suited to protect Indigenous peoples' knowledge and the biological resources in their custody. The New Zealand case Wai 262 shows in detail how international economic pressures often trump any aim to create national sui generis IP instruments to safeguard Indigenous knowledge.
TopIntroduction
It is today widely known that the General Agreement on Tariffs and Trade’s (GATT) negotiations did not formally include any discourse on Indigenous traditional knowledge (TK) and traditional cultural expressions (TCE). Consequently, Indigenous TK was not included in any debate that took place during the establishment of the World Trade Organisation (WTO) and the creation of the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) as multilateral treaty regulating trade and commerce among member states. As an international agreement, TRIPS was mainly negotiated by developed countries at the expense of developing countries and particularly the least developed nations. Thus, back in the 1990s TRIPS reflected aggressive trade politics of developed countries led by the USA and European Union (EU) in partnership with key international business players (Drahos, 2004).
Today, after 20 years, TRIPS is considered by many as an international instrument that promotes asymmetric economic unfairness. In this scenario, developing countries and Indigenous peoples are currently seeking equality and fair treatment. This chapter will, therefore, analyse the logic of the TRIPS Agreement to illustrate how today it uncomfortably sits in a changed world. Since its creation, many things have substantially changed; the world scenario has changed and the logic that brought to the creation and wording of such an Agreement today fails to include and protect categories of rising interest and concern such as traditional knowledge and traditional ecologic knowledge (TEK). Additionally, today more than yesterday, developing as well as the least developed countries struggle to accept the advice of the USA and the EU on how TRIPS provisions should be interpreted and applied, in total disregard to Indigenous peoples’ needs and expectations. The logic of commerce resides in trade harmonisation; but a harmonisation dictated by states with more economic and political power. Thus, today TRIPS fails to protect Indigenous TK and TEK and the discontentment of developing countries and least developing countries is increasingly influencing the general compliance with TRIPS. While there is consensus within WIPO (World Intellectual Property Organisation) and in the TRIPS Council to revise the Agreement to include those categories that were initially left out, such a revision seems currently unrealizable. This chapter analyses Aotearoa-New Zealand Wai 262 as a case study. The issues presented by Wai 262 are not only common to most of all Indigenous societies of the world, but the claim is clear and well presented, and the response of the Crown clearly shows how a state, instead of protecting the traditions of Indigenous peoples related to biodiversity and genetic resources, uses the TRIPS international treaty system as argumentation to justify the refutation to create national legislation (sui generis or not) which would effectively protect Indigenous TK and TEK.