Indigenous intellectual property has over the years provoked a fierce debate between governments, first nation peoples and corporates about who should benefit most from the spoils of commercialized indigenous knowledge systems. As yet, the debate shows no signs of abating with a workable resolution for all.
Indigenous Peoples across the world have raised this issue again and again in several declarations that state a clear commitment to promote and protect indigenous knowledge systems from misappropriation and misuse.
Indigenous Peoples put forward the argument, amongst other key points, that knowledge of the use of certain plants for example have been developed over several generations and ask why should only the present generation benefit, they also question why some governments or corporates are reaping all the rewards of indigenous knowledge through patented products when the knowledge was born from the communities of Indigenous Peoples.
The difficulty in answering these questions, according to law experts, is that indigenous knowledge systems do not have a clearly devised timeline to the origin or source of the knowledge.
It still proves very difficult for proponents of indigenous intellectual property to trump corporates wanting to capitalize on indigenous knowledge systems, more especially within a western legal framework.
Apart from this legal hurdle, a second obstacle for some Indigenous Peoples is getting recognition of the concept of an indigenous knowledge system since they themselves are not recognized as Indigenous Peoples by their governments.
In South Africa, the trustee of the Indigenous Peoples of Africa Co-ordinating Committee (IPACC) and the national Khoi San councilCecil le Fleur explains that the first nation peoples are referred to as traditional leaders and as such they cannot access the rights afforded them under the 2007 United Nations Declaration on the Rights of Indigenous Peoples, which in article 11, addresses the rights of Indigenous Peoples to maintain and to further their own cultural practices and traditions, specifically their cultural and intellectual property.
One of South Africa's most well known indigenous herbs exported abroad, is the famously soothing Rooibos tea, known commercially as red bush tea.
Cecil le Fleur explained that while Khoi and San people's would like to see the recognition afforded them with regards to their knowledge systems he underscores the point that those knowledge systems, such as the broad use of indigenous herbs and plants, is for everyone.
“I don't think we must have the attitude of owning the plant. It is to at least give recognition to people who used the plant for centuries. If they (corporates) make a lot of money from that plant and don't plough back into first nation communities, then that is not fair. In a globalized world no-one can claim ownership of a plant nor land,” explained le Fleur.
Gino Cocchiaro is a lawyer with Natural Justice, a non-profit organization whose work is defined as the conservation and sustainable use of biodiversity through the self-determination of Indigenous Peoples and local communities.
He said that the argument for intellectual property rights being attached to Indigenous Peoples knowledge systems is not straightforward.
“With commonly held knowledge there may be difficulty in seeing through a successful patent claim. You can't put an Intellectual Property claim over knowledge that is collectively held. How do you protect knowledge?”
Cocchiaro said that the challenge now was to come up with a new legal framework to support and protect Indigenous knowledge systems.
Indigenous Peoples argue that Patents are limited in scope and do not recognize the fact that indigenous knowledge is collectively owned. Patents are commercially driven and have time frames that are not practical to indigenous knowledge systems.
Apart from these shortcomings, Indigenous Peoples can rarely afford to hire patent lawyers to fight on their behalf.
But there is another view on the issue of indigenous intellectual property rights that states that the issue will always remain on the margins, given the dominant system of knowledge production that mainly takes place in universities.
Historian Shamil Jeppe explains: “ Maybe it (indigenous knowledge systems) is impossible to recover under capitalism. It will always be a minority add-on.”
Jeppe asked: “When does something become indigenous? 50 years ago, 300 years ago? There's nothing original that didn't come from a seed elsewhere.”
As the debate rages on, it is clear that Indigenous Peoples are integral to the discussion. Given the history of persecution of Indigenous Peoples under colonialism, the fight to include Indigenous Peoples voices in the protection of indigenous knowledge systems is important and necessary to inform the way forward.