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The impact of globalization on Indigenous Intellectual Property and Cultures

Aboriginal and Torres Strait Islander Social Justice

The impact of globalization
on Indigenous Intellectual Property and Cultures

Lecture by Professor Dr. Erica-Irene
A. Daes, 25 May 2004, Museum of Sydney, Sydney Australia.

Lecture co-hosted by HREOC
and Aboriginal and Torres Strait Islander Services

Honorable ATSIC Commissioner (Foley),
Honorable Aboriginal Torres Strait Islander Social Justice Commissioner,
Ladies and Gentlemen,

At the outset, I should like to express my grateful thanks to the honorable ATSIC Commissioner and to the Honorable Aboriginal Torres Strait Islander Social Justice Commissioner and through them to the Aboriginal and Torres Strait Islander Commission as well as to the Human Rights and Equal Opportunity Commission, for their kind invitation to visit the great and beautiful country Australia, in order to discuss certain issues related to the Aboriginal and Torres Strait Peoples. Within the framework of my visit, I have the honor to deliver the present lecture on: "The Impact of Globalization on Indigenous Peoples' Intellectual property and Cultures".

Indigenous peoples today stand at the crossroads of globalization. In many ways, indigenous peoples challenge the fundamental assumptions of globalization. They do not accept the assumption that humanity will benefit from the construction of a world culture of consumerism. Indigenous peoples are acutely aware, from their own tragic experience over the past 500 years, that consumer societies grow and prosper at the expense of other peoples and the environment. We must not forget that the United Nations Conference on Environment and Development - the Earth Summit in 1992 - was unable to agree on any significant transfer of wealth from the North to the South, because such a transfer would require higher prices and reduction in levels of consumption among the rich countries. Instead, the Earth Summit promised to boost growth and consumption in the South without taming consumption patterns in the North.

In the Andes and Southeast Asia, where the majority of the world's indigenous peoples live, flows of private foreign investments have increased by as much as 10.000 percent, judging from the statistics published by the World Bank and the International Monetary Fund. Certainly, this money is making some people in the North and in the South - very wealthy. But this growth has been at the expense of many important and highly diverse ecosystems, and the Indigenous peoples who live within them. Even national parks, biosphere reserves, and the lands set aside for Indigenous peoples have been opened to mining and logging-in particular in Latin America and Asia.

It seems that we have learned nothing from the human and ecological tragedies caused by the misguided development policies of the 1960s and 1970s.

Large scale development projects such as hydroelectric dams, transmigration programs, and the so called "Green Revolution" have not just displaced millions of people, leveled rainforests, emptied rivers and exterminated more of the world's biological diversity. These projects also set ethnic and social conflicts into motion that may haunt us for generations yet to come.

The very existence of the world Indigenous movement is a product of globalization, especially in the field of information technology, air travel, telephone and now the internet, have helped to link Indigenous peoples together worldwide, to increase the visibility of Indigenous peoples, and to amplify Indigenous peoples' collective voices. In many countries there are Aboriginal Peoples Television Networks, in Guyana Indigenous peoples even they have mapped their ancestral territories and asserted land claims using global positioning system (GPS) and remote sensing satellite technology. Indigenous peoples worldwide are using the globalization of communication of ideas in order, among others, to combat the globalization of reckless consumption.

All of us share a heavy historical responsibility for managing the next stage of globalization better than we managed previous stages of the process. In particular, I believe that we must continue to insist that the rules of the international marketplace are not only procedurally neutral, but substantively fair.

If it is true that the world is rapidly becoming a global village, then we have more reason and responsibility than ever to treat others with respect and reciprocity.

Ladies and Gentlemen,

I would like to turn, now, to the precise question of the impact of globalization on the intellectual property and cultures of Indigenous peoples.

As I have already argued, the globalization of trade and communications presents opportunities as well as challenges for Indigenous peoples - as indeed it does for all of us. Thus, globalization is creating two potentially opposing forces: the global marketing of goods and the global marketing of ideas. Indigenous peoples are rich in ideas and stories; it has always been their principal form of capital.

In this connection, I must emphasize that the optimistic forecast is entirely dependent on growing public access to communications technologies - access that is equitable and affordable by all. Communications channels must be supported and protected as global public utilities, or else the balance of global power will shift back again to the countries, companies, and individuals with the greatest stocks of money and ammunition!

Globalization presents us with a profound contradiction, however. It is creating a global market for dissemination of fresh ideas and new voices, while making it easier for one voice to drown out all the others. It is providing each of us with finger-tip access to the whole range of human cultural diversity while, at the same time, it is dissolving all cultures into a single supermarket with standard brands. It is making it possible for even the smallest society to earn a livelihood by selling its ideas, rather than selling its lands or forests. But it is also threatening the confidentiality of Indigenous peoples' most private and sacred knowledge.

Let us refer as an example the "digital divide" debate within the international community. Developing countries, as well as impoverished regions and minorities within industrialized countries, have argued that access to the internet has become a basic necessity that should be accessible and affordable to all. They reason that access to the internet can boost the educational and skill levels of their populations-and that lack of access to the internet is a greater competitive disadvantage for countries that already suffer severe poverty and indebtedness. I would like to suggest that, for Indigenous peoples, the major problem of the future will not be gaining access to the internet, but keeping their most private and sacred knowledge out of the internet.

Any one who has been following the legal battle over free distribution of recorded music over the internet - the Napster case - is aware that globalization of communication has made it far easier than ever for Indigenous peoples' sacred and special knowledge to be appropriated illicitly. At the touch of a finger, volumes of confidential material can be placed irreversibly in the global public domain - the global commons -, where it can then be transformed and commercially exploited by others.

In this regard, I have some reservations related to the promotion by the World Bank of the idea of a global database of Indigenous knowledge, and of its decision to develop an African regional prototype. Having financed some state projects that seized or destroyed Indigenous peoples lands, the World Bank will now use the funds to put Indigenous peoples' knowledge into the public domain.

Let us examine this initiative critically. If an element of a knowledge is sacred or confidential, how can disclosing it worldwide protect it? The proponents of a knowledge database evidently believe that it will put corporations on notice of prior art and priorities - and thereby deter corporations from seeking patents. But this is entirely wrong-headed. Indigenous peoples would have standing to bring prior art challenges whether or not they previously disclosed the contents of their knowledge. Nor would a global database overcome the most important obstacle that Indigenous peoples currently face when they discover an infringement of their traditional knowledge: they cannot secure or afford adequate legal representation in national courts - particularly if their dispute crosses national borders.

If the World Bank, the European Patent Office, or the World Intellectual Property Organization is serious about supporting the legal interests of Indigenous peoples, they should help pay for legal services, not build only databases.

There is another kind of initiative gaining support in the international community, and I would like to suggest, respectfully, that it is equally wrong-headed. It is the attempt to create, through diplomatic negotiations, a new category of intellectual property. Work on this approach is proceeding under the auspices of the Parties to the United Nations Convention on Biological Diversity, and (separately) under the auspices of the United Nations Food and Agriculture Organization, in connection with revising the International Undertaking on Plant Genetic Resources.

This approach was attempted once before, nearly 33 years ago. I refer to the 1971 amendment to the Bern Convention on copyright, which authorized states to adopt sui generis measures for the protection of national "folklore", and to the model legislation on folklore subsequently prepared by the World Intellectual Property Organization and UNESCO. Many scholars have already criticized specific elements of the model law, such as its definition of "folklore", as well as its general orientation of regarding folklore as property of the state, rather than of peoples or communities. It is not my intention here to debate the technical merits or demerits of the model law, but to draw your attention to the fact that it has become, de facto,
a strictly regional instrument. As the distinguished professor Paul Kuruk of Ghana has written in his article on: "Protecting folklore Under Modern Intellectual Property Regimes," published in the issue 769 (1999) of the American University Law Review, laws for the protection of national folklore are almost exclusively found in Africa - and African states are frustrated because it is nearly impossible for them to enforce such laws in the industrialized countries where most of the commercial producers and consumers of folklore actually live.

The Convention on Biological Diversity was a crucial step for the protection of intellectual property. It recognizes the need to "respect, preserve and maintain", the ecological knowledge of Indigenous peoples and local communities, and to ensure that the benefits of commercial applications are shared equitably. The Convention has been almost universally ratified, which enhances its importance as a legal foundation for future elaboration. In this connection, I should like to observe that if the Parties to the Convention and the International Undertaking are seriously concerned for the protection of Indigenous ecological and genetic knowledge, they should reflect carefully on the fate of the model folklore provisions. Let us assume, for 'the sake of argument, that World Intellectual Property Organization , Food and Agriculture Organization and other United Nations agencies eventually succeed in adopting a universal definition on Indigenous knowledge; they agree that states should adopt national laws for the protection of Indigenous knowledge; and confirm that national laws for the sui generis protection of Indigenous knowledge are compatible with the Trade-Related Aspects of Intellectual Property's Agreement (TRIPs Agreement). What would be the consequences for Indigenous peoples? First of all, Indigenous peoples would need to convince their national governments to draft and adopt national legislation. That will take some years; at present, such laws exist (to the best of my knowledge) in Costa Rica, Peru, and the Philippines, although it is gratifying that the Andean Pact countries as a whole are committed to such legislation.

But ninety five percent (95%) of the world's Indigenous peoples live in the developing countries, and legislation enacted by these countries is insufficient, by itself, to prevent the piracy of Indigenous knowledge by researchers and corporations in industrialized countries.

The real issue is not the problem of defining Indigenous cultural and intellectual property, nor of agreeing that the heritage of Indigenous peoples, should in principle, be protected by law, like other property. The real issue is enforcement, where disputes routinely cross international frontiers, and generally involve parties with vastly different levels of power, information and financial resources. Suppose, for example, that a German University professor obtains sensitive information from an Indigenous healer in Brazil, and subsequently obtains a patent or copyright in Germany. How will Indigenous people in Brazil learn about the infringement? Can they afford to take the necessary legal action in Germany? Can they rely on Brazilian state to represent their interests? And assuming that there is a relevant Brazilian legislation, will German courts enforce it? From a practical viewpoint, these are very serious problems which the international community has failed to address until now.

But let me return for a moment to the model folklore provisions. As I indicated a moment ago, the model law regards folklore as state property, not as Indigenous people's property. Not only does it mean that Indigenous peoples must rely on state officials to prevent infringements, and to give them their fair share of any royalties or compensation; it also means that the state determines through legislation, the standards and procedures under which Indigenous peoples may use, learn, and teach their own intellectual heritage. The same state-centered philosophy characterizes the aforesaid Convention on Biological diversity and the proposed revisions of the International Undertaking. In fact, many State parties to the Convention have adopted access and benefit-sharing laws that are very similar to the model folklore provisions, insofar as the State retains the authority to grant research, access, and use licenses affecting Indigenous peoples and their ancestral territories.

I find this approach difficult and worrisome. In my humble opinion, efforts by states and intergovernmental bodies to define Indigenous peoples rights and responsibilities in their own heritage are contrary to the principle of Indigenous self-determination.

It has been my honor, in my capacity as Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, to elaborate a United Nations study on the Protection of the Heritage of Indigenous People, which has already been published, translated in all official United Nations languages and disseminated all over the world. On the basis of this study, I drafted a set of Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples. My principles and guidelines emphasize, inter alia, the authority of Indigenous peoples themselves to license or veto research. The same principles and guidelines also affirm the applicability of customary law, as the ultimate determinant of rights and responsibilities in relation to Indigenous cultural and intellectual property.

The aforesaid guidelines and principles were supplemented and revised by a Seminar organized at the United Nations Office in Geneva from 28 February-1 March 2000. Two very distinguished Professors Mary Batista, who is an Indigenous person and Sigrified Wiessner, with deep knowledge of Indigenous issues and particular of the Indigenous aspirations and rights for the protection of Indigenous intellectual and cultural heritage, were chairing two drafting groups of the Seminar, one of the principles and the other on guidelines, which, carefully considered and revised to some extent my text. The approved principles, guidelines and the relevant report of the Seminar, was duly submitted to the aforesaid Sub-Commission. The Sub-Commission after a proper consideration, adopted it unanimously and transmitted it to the Commission for Human Rights for further action.

Unfortunately, it is still before the Commission for Human Rights for further consideration.

The World Intellectual Property Organization, has also organized an important seminar on the Protection of Intellectual Property of Indigenous Peoples, in 1999 and has meanwhile undertaken a study of customary intellectual property laws, which I believe reflects a more promising direction for future international discussion and action than attempts to negotiate universal substantive standards.

Two challenges for the United Nations System

Permit me to refer again to the issue of enforcement, which I believe merits the particular attention of Indigenous representatives and international lawyers who anticipate representing the interest of Indigenous communities. So far, our collective efforts to advance the rights and interests of Indigenous peoples have focused on standard-setting in the field of public international law. We have appealed to the community of states to respect and protect the Indigenous nations and peoples that live within their borders. In the fields of cultural protection and biopiracy, however, the key actors are not states, but private entities such as universities, museums and business corporations - and they are generally headquartered in countries other than the countries where their activities adversely impact Indigenous peoples.

Meanwhile, the underlying consensus-based and state-centered legal paradigm of the United Nations system is gradually yielding to a new paradigm, represented in different ways by the World Trade Organization and the International Criminal Court. Like its predecessor the League of Nations, the United Nations, evolved from particular historical conditions: the disintegration of empires and growth of a much larger, more diverse system of states. Respect for the sovereign equality and independence of states was axiomatic in both the League Covenant and the United Nations Charter.

We now live in a more complex political reality: a layer cake of states, regional and international intergovernmental organizations, and, increasingly, federal divisions of power within states. We also live in a world in which private entities - such as global corporations, private foundations, and even non-governmental organizations - are larger than certain states and enjoy increasingly free mobility. The old principles of sovereign equality and independence are not longer consistent with the world as it is, and gap between theory and reality will continue to grow wider.

This is particularly evident in the growth since 1945 of international compulsory jurisdiction. Although the UN Charter obliges member States to obey international law, including competent judgments of the World Court, it took more than thirty years to vindicate the authority of UN bodies to pronounce themselves on abuse of human rights and other matters that States insisted were strictly internal matters. The UN system proper still lacks any meaningful enforcement machinery, short of military intervention, which is plainly a matter of last resort in the most extreme cases. With the establishment of the World Trade Organization dispute settlement mechanism in 1994, however, we have something a little more like an international like an international court that can grant effective remedies to States and industries. Of course the competence of the World Trade Organization is limited to trade, industries and States. The Appellate Body of the World Trade Organization has nevertheless, authorized consideration of "third-party submission" by Non-Governmental Organizations. The North American Free Trade Agreement (NAFTA) already contains such a provision. Legal distinctions between States and other key actors are weakening, at least with regard to standing, and in principle we should welcome this trend - and insist that standing be available to a broad range of interested non-state parties including Indigenous peoples.

While the World Trade Organization is making trade issues more meaningfully justifiable and opening the door to NGOs participation, the International Criminal Court, is exploring the individual responsibility and the liability of non-state actors, at least within the broad and still poorly defined field of "crimes against humanity". It is a matter of a particular concern that the persistent crimes of some States and corporations against Indigenous peoples, such as the physical destruction of the ecosystems on which they depend for their livelihoods, or forced assimilation, are not defined as crimes against humanity in the International Criminal Court Statute.

The strongest new legal system to emerge is the World Trade Organization, but it is clear that rich countries are the main plaintiffs and also have the economic power to pay their fines and avoid complying with the spirit of World Trade Organizations rulings.

Ladies and Gentlemen,

With freedom comes responsibility, and with greater freedom of action of private entities, such as corporations and non-governmental organizations, must come greater direct responsibility for their actions. A largely symbolic step in this direction has been taken by the International Criminal Court, but this, Court has been justly accused of selectivity and a tendency to focus on low-level agents of politicians, generals and business leaders who profit the most from repression and civil strife. A new international legal system must be for everyone, not just for reach States and their industries.

The rule of law is conducive to justice, legal philosophers believe, because it is - at least consistent and does not discriminate among persons. Without explicit protection for vulnerable groups such as Indigenous peoples and, even more crucially, guarantees of genuine access to the judicial and political process for such groups, new national and international legal regimes will simply reinforce existing inequalities and injustices.

New international tribunals cannot hope to secure their credibility unless the same principles of individual responsibility and accountability apply to each country's powerful business corporations and, I wish to stress this point, to intergovernmental organizations themselves. As the United Nations undertakes a growing number of peace-building missions, it must assume more direct liability for its own actions.

In connection with the issue of re-creating international law, I should like to state that my experiences in the United Nations system over more than forty years have made me hopeful but very skeptical. I am hopeful that we are moving closer toward hard international law, by creating I mean law that is enforceable. I remain unconvinced that we are moving toward an international legal regime that is truly equitable and truly just, however. For the time being, States remain in control of the machinery - and I mean the wealthiest and most powerful States. Corporations may be gaining some standing as well. Least developing States, communities, including Indigenous peoples largely remains outside the doors.

There is an alternative to struggling to open the doors of public international legal processes to wider standards and participation. The alternative I submit, is strengthening private international law.

The globalization of the rule of law, if I may use that phrase, depends foremost on the quality of national legal systems and cooperative relationships between judicial systems of neighboring States. Only by this means will we break down the boundaries that have existed between public and private international law, and develop a world legal regime in which international standards are truly enforceable.

For example, in the United States, there have been a number of interesting cases since the 1970s involving trans-boundary tort liability. Recent decisions not only deal with classic human rights issues such as torture ?and forced labor, but also with destructive mining of Indigenous peoples territories". The defendants are individuals and corporations - precisely the kinds of non-state actors that the International Criminal Tribunal should but generally cannot realistically prosecute.

In the final analysis, then, the fate of international law will depend on the growth of competent, consistent, and effective national court systems - a culture of international judicial courage and neutrality, in an international political environment of clear respect for law.

What does this all have to do with the intellectual property of Indigenous peoples? I submit that we need more than a strong international consensus that Indigenous peoples are the owners of their own intellectual and cultural heritage. Indeed, continued efforts to define and codify the nature of Indigenous peoples' intellectual property rights would be counterproductive, and incompatible with these peoples' right to self-determination. The crucial missing elements - the challenges to which I believe we should direct our creative energy as lawyers or human rights activists in our countries - are: First strengthening the trans-boundary jurisdiction of national courts to enforce private international law; and second international respect for the customary intellectual property laws of Indigenous peoples, as a matter of choice-of-laws.

Thank you very much for your kind attention,

Erica-Irene A. Daes