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Terry
Janke Australia possesses an extremely biologically diverse environment including rainforests, deserts and marine habitats. Indigenous Australians have inhabited the land and seas of Australia for thousands of years. In this time, Indigenous people have developed a close relationship with the environment. Such knowledge and nurturing has been the result of generations of skill and development, passed on through the years and continuously improving. This great body of Indigenous knowledge includes knowledge of sites and areas; the medicinal and nutritional values of a wide range of Australian plants and animals; land management practices and customs and traditions. This knowledge is now in demand by bioprospectors. It is heavily sought by medical researchers and pharmaceutical companies in their quest to discover new medicines and new products for commercial exploitation. Indigenous people report of wide scale looting of Indigenous knowledge and resources including plants, animals, hair, blood and genes. Indigenous Australians, and indigenous peoples worldwide are concerned that their knowledge is being appropriated without their consent or knowledge and for little or nothing in return. Of greater concern is the threats these interests pose to the continuance of Indigenous cultures. There are many different Indigenous Australian groups. Each particular group has ownership of rights over its particular cultural heritage which includes Indigenous knowledge and cultural resources. Despite these differences, the Our Culture: Our Future Report2 found that there were consistent principles underlying the ownership and control of Indigenous Cultural and Intellectual Property: 1. Communally Ownership and Attribution: Indigenous Cultural and Intellectual Property is collectively owned, socially based and evolving continuously. A great number of generations contribute to the ongoing creation of Indigenous cultural and intellectual property. Attribution as a group for this contribution is a cultural right. 2. Continuing Obligation under Indigenous Laws to maintain Cultural Integrity: Another common factor shared by Indigenous groups is that there are generally well defined laws within each group governing rights to use and deal with Indigenous cultural and intellectual property. These laws are based on positive obligations toward cultural knowledge and the need to ensure that the culture is maintained and protected so that it can be passed on to future generations. To ensure this, there is often an individual or group who is the custodian or caretaker of a particular item of heritage. The traditional custodians act as trustees, whose role it is to pass on the knowledge and ensure that its use conforms to the best interests of the community. This type of relationship was noted in Milpurrurru & Others v Indofurn3 where the court noted that the Indigenous Australian artist, Ms Banduk Marika had the authority to depict traditional, pre-existing designs in her artworks by virtue of her birth. Whilst she held this right, Ms Marika held the knowledge embodied in the work on trust for the rest of the clan. In the more recent case of Bulun Bulun & Anor v R & T Textiles,4 the court held that the Indigenous Australian artist, Johnny Bulun Bulun, owed fiduciary obligations to the traditional custodians of Ganalbingu culture, to preserve the integrity of their culture, and ritual knowledge. 3. Consent and Decision-making Procedures: Similarly, consent to share Indigenous cultural knowledge must be given by the group as a whole. Such consent is given through specific decision-making procedures, which differ depending on the nature of the particular cultural item. Consent procedures may differ from group to group. Furthermore, consent is not permanent and may be revoked.
2. Appropriation of Indigenous Knowledge 2.1 Medicinal Knowledge Indigenous resources have given rise to the development of new drugs. Three significant examples where Indigenous Australian knowledge of plants has been used in this way including Duboisia, a plant native to Queensland and northern New South Wales found to contain hyoscine which has been used as a sedative in treating motion sickness and as a truth serum;5 Smokebush, a plant from certain regions of Western Australia found to contain Conocurvone which destroys the HIV Virus in low concentrations;6 and Tree Bark, found in the Northern Territory and Western Australia was ‘discovered’ to possess analgesic properties 100 times more powerful than morphine.7 A major concern of Indigenous people is that their cultural knowledge of plants, animals and the environment is being used by scientists, medical researchers, nutritionists and pharmaceutical companies for commercial gain, often without their informed consent and without any benefits flowing back to them. Indigenous people have long been aware of the medical properties of plants in their local surrounds. Traditional knowledge is regarded as common heritage and not as a commodity to be patented for commercial exploitation, perhaps to the exclusion of traditional owners. As with many other aspects of Indigenous culture, knowledge of different plants and their healing properties is restricted to a particular class of people. Knowledge about the therapeutic properties of plants is passed on by word of mouth. Indigenous people get access to such knowledge when they have attained the appropriate level of initiation. Just as practitioners of western medicine must study medicine before they can practise it, so a certain degree of knowledge is required before a plant can be used safely in Indigenous society. 2.2 Nutritional knowledge Knowledge concerning the nutritional use of Indigenous resources has been extensively documented. Indigenous people are concerned that such information is often given to researchers and others without Indigenous people realising how this information might be exploited. The food industry itself increasingly recognises the value of Indigenous knowledge concerning the nutritional benefits of particular plants and animals. 2.3 Denial of access to Indigenous land and resources In relation to bioprospecting, Indigenous people noted concerns about the fact that the quest for species requires access to the land for screening activities. This has led governments to exercise rights over the land and to the denial of the rights of Indigenous people to their traditional lands. The process places Indigenous people in positions where they cannot manage and develop their inherited medicinal knowledge. Under state conservation and land laws, Indigenous people can be restricted access to their land and the plants growing there, while governments can freely license the rights to this land and the plants within its domain. 2.4 Patenting of Genes Indigenous peoples are concerned about their lack of control over the use of their genes and tissues in genetic testing and screening projects, such as the Human Genome Diversity Project (HGDP). Indigenous peoples feel that they are being exploited as their genes are used for research without their control or ownership and often without their knowledge or consent as a group.8 The Human Genome Diversity Project was launched by a consortium of scientists from North America and Europe which aims to map and sequence the composition of the human genome. The Project commenced in 1990 and involves the study of samples of blood, tissue and hair from hundreds of ethnic groups throughout the world. The Project has been dubbed ‘the Vampire Project’. Michael Dodson, Australia’s first Aboriginal and Torres Strait Islander Social Justice Commissioner, condemns the Human Genome Diversity Project, noting Indigenous people’s objections to the Project as follows: ‘Our core objection to the HGDP is not its potential to undermine our cosmology: that would hardly be something new; it happens in every aspect of our interaction with non-indigenous culture. It is the denial of our humanity, it is that the project would have our bodies the sites of exploitation as our lands have long been.’9 Reports of exploitation of Indigenous peoples’ genes are prevalent worldwide. Kimbrell reports that for decades the United States and other industrialised countries have been buying the blood of Third World countries and selling it on the open market.10 In 1989, researchers took blood samples from people from the Hagahai people of Papua New Guinea. A cell-line developed from the Hagahai might be valuable in diagnosing adult leukemia and chronic degenerative neurologic disease. The consent of these people was never obtained, nor were their traditions and values considered.
3. Patents and Monopoly Rights 3.1 What is a Patent? Patents protect ideas and their expression within new products and processes. Patents confer upon the inventor of a new process and/or product exclusive monopoly rights with regard to its economic exploitation for a period of time. In Australia, the term is 20 years.11 The rationale for granting patent rights is to provide a reward to the inventor for his or her initiative by granting them limited monopoly to exploit the invention for profit. In return, the inventor must disclose the details of the invention to the public. Patent rights, like other intellectual property rights were established to encourage human creativity by protecting the process and products of such activity. Within such rights systems, the rights-holder has an exclusive monopoly right to restrict the use of the information embodied within the subject matter. This right to use this information can be then sold and assigned, or particular uses can be ‘licensed’ to authorised users. 3.2 Patenting of Human Life Human beings, and the biological processes which make them, are not patentable inventions.12 However, after the High Court decision in Joos v Commissioner of Patent13, the Assistant Commissioner of Patents decided that objections directed to methods of treatment claims for humans were not to be taken in future. Currently in Australia methods or processes for the treatment of the human body of part of it are considered no differently from any other processes or methods.l4 Human genetic material such as genes and DNA may form the subject matter of inventions, and therefore be patented. The United States also permits claims to methods of treatments of humans and parts of human genetic material. The notion that human genetic material could be patented was legally confirmed in the 1980 US Supreme Court decision, Diamond v Chakrabarty.15 In 1971, microbiologist Ananda Mohan Chakrabarty, an employee of General Electric, developed bacteria that could digest oil. That same year, General Electric applied to the US Patent ad Trademark Office for a patent on Chakrabarty’s bacteria. After several years of review, the US Patent and Trademark Office rejected the application under the traditional legal doctrine that life forms are not patentable. The case was eventually appealed to the US Supreme Court, which ruled that the patent could be granted. According to the Supreme Court, the ‘relevant distinction [in patentability] is not between living and inanimate things, but whether living products could be seen as ‘human made inventions’.16 Shiva does not agree with the Supreme Court’s decision. She states quite adamantly: ‘Let us at least on one thing be straight: Anand Chakrabarty did not create a new form of life: he merely intervened in the normal processes by which strains of bacteria exchange genetic information, to produce a new strain with an altered metabolic pattern’.17 3.2.1 Patentability of Indigenous knowledge and resources Much Indigenous knowledge concerning agricultural, pharmaceutical and scientific practices is passed on through the generations, but does not meet the requirements of patent protection. 3.2.2 Manner of manufacture To be patentable, an invention must be a manner of manufacture.18 A good idea or a mere discovery is not patentable. The discovery of existing, naturally occurring substances cannot be patented unless there is some newly invented method of using the material, or some new adaptation of it to serve a new purpose.19 As Gray notes: ‘On this analysis, it is clear that the mere existence of genetic resources on land owned or formerly owned by Indigenous people will not give the indigenous people any intellectual property rights in those resources, should they turn out to have some scientific or commercial value. In order to gain patent protection or to prevent others from gaining it, the Indigenous people would have to ‘discover’ the resources, and put them to a new use with commercial significance.’20 Naturally occurring genetic material found on Indigenous land is potentially patentable under the Patents Act 1990, if a new use for that material can be identified. 3.2.3 Novelty An invention must be novel and involve an inventive step.21 An invention is generally considered novel and involving an inventive step when it is compared with the prior art base.22 Under this analysis, many Indigenous groups would be excluded from patenting traditional uses of genetic material and environmental resources because such knowledge is available in the ‘prior art base’. Blakeney notes that the practice of ethnobotanists and ethnopharmacologists publishing accounts of the uses of plants by Indigenous people has created a problem with Indigenous people being able to claim patents for their traditional medicinal remedies.23 This is because once published, such knowledge becomes public knowledge and therefore part of the prior art base. By publishing information themselves about the traditional uses of plants in leaflets and books, Indigenous people also risk being able to patent their traditional medicinal knowledge.24 Gray notes that Indigenous groups wishing to challenge the use of Indigenous genetic resources on the basis of lack of novelty, would have to prove their knowledge of that use as part of the ‘prior art base’.25 For instance, returning to the Smokebush example, while Indigenous people were aware that Smokebush had certain healing properties, they were not aware that it was a potential cure for AIDS. 3.2.4 Technical Knowledge In the patent system, claims for mechanical inventions concern the device itself and the methods of making and using that device. However, claims regarding biotechnological inventions usually apply to the novel compound, a process for producing that compound and sometimes the compound when produced by a particular process. Scientists are able to extract the pharmaceutical components of medicinal plants to a level by which the active ingredients can be isolated and defined. It is often this process or the pharmaceutical composition of the Indigenous resource which becomes the subject of patents.26 This process requires great technical knowledge and resources which Indigenous communities do not have readily available. 3.2.5 High cost of patenting inventions Blakeney estimates the cost of patenting an invention in Australia is about $14,000 and ranges from $5,000 to $23,000 in other countries.27 He notes that such a high cost to apply for and further enforce patent rights often precludes Indigenous communities from making use of patent law to legitimise their rights. 3.2.6 Challenging Patents Under the existing system, a patent application must be advertised in the Official Journal of Patents after it is accepted. Interested parties have three months to oppose granting of the patent on various grounds, including grounds of prior use. If this is proved, no patent will be granted. Furthermore, if a patent has already been granted, the Patents Act allows any person with information that may show a patent should not have been granted, to apply to court for an order to revoke the patent. Again, both these avenues require considerable legal and technical resources which Indigenous peoples do not possess.
4. International Agreements 4.1 TRIPS Agreement In 1994, the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) was completed bringing into existence the first multilateral trade negotiated agreement for trade in services and goods. As part of the GATT negotiations, an agreement was reached on the Trade Related Aspects of Intellectual Property Right (TRIPs). Article 27 provides that ‘patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.’ This would appear to include biotechnology and the patenting of lifeforms. TRlPs allows members to exclude from ‘patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.’28 Members may also exclude from patentability: a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals; b) plants and animals other than micro-organisms, and essentially biological processes for the protection of plants and animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by combination thereof...29 Mrs Erica Irene Daes, the United Nation’s Economic and Social Council’s Special-Rapporteur on the Sub-Commission on Prevention of Discrimination and Protection of Minorities is of the opinion that article 27 provides scope for member states to exclude from patentability ecological and medical knowledge of Indigenous peoples. Daes also suggests that States could implement principles and guidelines for the protection of Heritage of Indigenous Peoples.30 Many commentators consider that such international agreements serve the interests of multi-national corporations. Developing countries, whose territories contain a large amount of biodiversity are coming under increasing pressure to adopt TRIPs and introduce laws which allow patenting of genetic material. Kimbrell states: ‘The mounting intensity of the biopirate’s assault on Third World genetic resources can also be seen in the enormous pressures placed on governments by agricultural and drug companies to pass the General Agreement on Tariffs and Trade (GATT) and other international structures, including the Convention on Biological Diversity, that cement the right of private actors to patent the resources and indigenous knowledge of the Third World. The result is the ever-increasing use of patenting and licensing agreements by transnational corporations to secure a monopoly over valuable genetic materials that can be developed into profitable drugs and energy sources.’31 TRIPs has implications for biodiversity conservation and the environment. Shiva provides a list of the detrimental effects including: The spread of monocultures as corporations with Intellectual Property Rights attempt to maximise profits. Increased use of chemicals as biotechnology patents create an impetus for genetically engineering herbicide tolerant crops. Undermining of traditional communities biodiversity and hence a weakening of their capacity to conserve biodiversity.32 4.2 Convention of Biological Diversity The Convention of Biological Diversity was developed as a result of increasing recognition internationally of the importance of biological diversity as a global asset. The Convention contains several articles which recognise the close relationship Indigenous people have with their land and the resources therein.33 Article 8(j) of the Convention which is concerned with Indigenous people’s in-situ conservation, states that: ‘Each contracting party shall, as far as possible and as appropriate.... subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote the wider application with the approval and involvement of the holders of such knowledge, innovations and such practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices. Article 10© requests the protection and encouragement of customary use of sustainable resources in accordance with traditional customary practices that are compatible with conservation or sustainable use requirements. This convention came into force on 29 December 1993 after ratification by 30 countries.
5. Draft Declaration of the Rights of World Indigenous Peoples The Draft Declaration on the Rights of World Indigenous People is an international statement which embodies the aspiration of Indigenous peoples in all aspects of their lives. The Draft Declaration contains several provisions which deal with Indigenous peoples’ intellectual and cultural property rights. Article 42 states that the rights defined within it shall constitute the minimum standard for ‘the survival, dignity and well-being of the Indigenous peoples of the world’. Article 29 states that ‘Indigenous people are entitled to the recognition of full ownership, control and protection of their cultural and intellectual property.’ Article 30 states that ‘Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require that states obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources, pursuant to agreement with the Indigenous people concerned, just and fair compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.’
6. Developments in Australia 6.1 National Policy Objective 1.8 of the National Strategy for the Conservation of Australia’s Biological Diversity relates to the ‘Biological Diversity and Aboriginal and Torres Strait Islander Peoples.’ and provides that the Strategy will: ‘recognise and ensure the continuity of the contribution of the ethnobiological knowledge of Australia’s indigenous peoples to the conservation of Australia’s biological diversity’. According to Outcomes of a Workshop on Traditional Knowledge and Biodiversity, the Strategy only partially recognises the Indigenous interests in the use and management of Australia’s biodiversity. It fails to give ‘due recognition to indigenous rights in resources.’34 The Workshop recommended that the Australian Commonwealth Government should formally acknowledge the ownership of Australia’s biodiversity by Indigenous Australians. 6.2 Proposed Legislation In Australia, the draft Environment Protection and Biodiveristy Conservation Bill 1998 has been drafted primarily to provide for the protection of the environment; to promote ecologically sustainable development and conservation of biodiversity and to assist in the cooperative implementation of Australia’s international environmental responsibilities.35 However, according to a Submission to the Senate Committee reviewing the Bill made by the Aboriginal and Torres Strait Islander Commission (ATSIC), the Bill in its present form does not include any provisions implementing Articles 8(j) or 10© of the Convention of Biological Diversity. The ATSIC Submission states: ‘In its current form, the Bill is considerably flawed in the absence of any provisions specifically recognising and protecting fundamental principles of Indigenous people’s environmental rights and interests.’36 Furthermore, the Genetic Privacy and Non-discrimination Bill 1998 is currently before the Senate for consideration. The primary purposes of this Bill are to: establish an enforceable right to privacy of genetic information of an individual, by prescribing disclosure of such genetic information except with the authorisation of the individual, or in other limited circumstances; prevent any person from collecting a DNA sample from an individual for genetic analysis, or storing, or conducting a genetic analysis of such sample, except with the authorisation of the individual; and make discrimination based on genetic information unlawful.37
7. Respect, Informed Consent and Negotiation In the absence of effective legislation, Indigenous people are exploring other ways to enforce their rights through the promotion of respect, informed consent, negotiation and benefit sharing. 7.1 Informed Consent Indigenous peoples ask that all projects which seek to use or ascertain Indigenous knowledge and make use of Indigenous resources gain informed consent of the relevant Indigenous peoples. Mick Dodson discusses the significance of informed consent for Indigenous groups and the need for Indigenous people’s participation in research to be negotiated so that there are benefits for both parties.38 Dodson states that: ‘Consent is informed when it is given by a person who understands the purpose and nature of the study, what participation in the study requires a person to do and to risk, and that benefits are intended to result from the study.’39 For research focuses upon Indigenous peoples, informed consent of the people as a group is required as well as individuals within that group. This is because medical research on one member of the group will affect all members given that the physiological and genetic make-up is likely to be similar. Dodson states that one of the issues that a researcher will have to address is the identification and consultation with appropriate representatives of Indigenous people who are the focus of any research.40 Dodson urges genetic researches to identify the appropriate bodies such as land councils, medical services and small cooperatives at local and regional level.41 7.2 Negotiation of Indigenous people’s participation Indigenous people seek the right to negotiate on the terms of their participation in research projects. Dodson notes that for Indigenous peoples to participate in Research Projects, the researcher must recognise the ownership by the Indigenous group of their ‘intellectual property’. This means recognising and accepting that Indigenous people control the research project. This premise should underlie all negotiations for Indigenous people’s participation and sharing of benefits. What sort of benefits? Dodson considers that the nature of any benefits should be appropriate to the research project. He states, ‘it is desirable that the matter be discussed openly with the community, and that the distribution of any benefits to the participants should be raised with, and considered by, the Ethical Review Panel considering the research Proposal.’42 7.3 Ethical Research 7.3.1 Ethical Guidelines The development of ethical research guidelines may also assist in protecting Indigenous cultural and Intellectual Property. The Australian Science, Technology and Engineering Council had developed National Principles and Guidelines for the Ethical Conduct of Research in Protected and Environmentally Sensitive Areas which include a principle relating to cooperation with Indigenous Groups.43 The principles state that ‘It is important for a researcher to establish what Indigenous groups or individuals to contact with regard to getting permission or information. A list of strategies are suggested to researchers including negotiation of all aspects of research with traditional owners of protected areas and obtaining the informed consent of traditional owners before beginning or continuing any research in protected areas.44 The International Society of Ethnobiologists has drafted a code of ethics which includes principles as follows: 1. Principle of Prior Informed Consent This principle recognises that the prior informed consent of indigenous peoples and their communities must be obtained before any research is undertaken. 2. Principle of Compensation This principle recognises that indigenous peoples should be fairly remunerated or compensated for access and use of their knowledge and information. 3. Principle of Confidentiality This principle recognises indigenous peoples at their sole discretion have the right to exclude from publication and/or to be kept confidential any information concerning their culture, traditions, mythologies or spiritual beliefs and that such confidentiality will be observed by ethnobiologists, researchers and other potential users.45 7.3.2 Ethics Committees In Australia there already exist Ethics committees within research institutions which review and approve funding for research proposals. Dodson notes that whilst such Committees will review some proposals, not all ethical committees will be fully aware of the issues of concern to Indigenous peoples. Furthermore, if a project is initiated outside Australia and not associated with an Australian institution, it would not come under the scrutiny of these ethical committees.46 Dodson recommends the establishment of a National Indigenous Ethics Committee. The National Committee would be responsible for developing guidelines for the research including biomedical research. All Australian institutions would have to comply with the National Committee’s guidelines. The National Indigenous Ethics Committee could also have the task of approving all international research proposals.47 7.4 Legal Binding Agreements There is also scope for Indigenous people to protect their rights by entering into legally binding agreements with the various parties who seek to make use of their knowledge and resources. In Australia, for instance, Amrad Pty Ltd has signed an agreement with the Tiwi Land Council to allow it to undertake research on plants of the Tiwi Islands. The terms of the agreement are not publicly disclosed. On a larger scale, the Costa Rican government has established a quango, INBio, which is a research organisation composed of scientists working on development projects. In 1991, INBio signed an exclusive contractual agreement with the US Pharmaceutical company, Merck, under which Merck is awarded all rights to develop and manufacture any useful genetic resources discovered by INBio. INBio will provide Merck with chemical extracts from wild plants, insects and microorganisms. In return, Merck has paid an up front fee of around $US1 million for the exclusivity arrangement and has agreed to pay royalties upon any resultant commercial product. 7.5 Sui Generis Legislation Indigenous Australians seek sui generis legislation which protects all aspects of Indigenous Cultural and Intellectual Property.48 Based on consultations with Indigenous Australians, the Our Culture: Our Future Report recommended the enactment of a specific Act which recognises Indigenous cultural ownership of Indigenous cultural heritage and provide rights in that material which would go a long way towards improving current protection. However, any such legislation would need to address the following: The scope should be broad to protect all Indigenous Cultural and Intellectual Property including arts, biodiversity and cultural material. The legislation should provide protection for works that are intangible; there need not be a requirement of material form. Rights should exist in perpetuity - for any rights granted it should be ensured that there are no time limits on protection. The legislation should include provisions which: Prohibit the wilful distortion and destruction of cultural material: Prevent misrepresentations of the source of cultural material; Allow payments to Indigenous owners for the commercial use of their cultural material; Provide special protection for sacred and secret materials. The legislation should not inhibit the further cultural development of materials within their originating communities. That is, customary and traditional use should not be affected. Any established administration system should allow local, regional and state decision-making. Any dispute resolution measures should be culturally appropriate. Decision-making bodies should be made up of custodians, owners, specialists in Indigenous law and community elders. Confidentiality provisions should set out what can be disclosed to the public and what cannot be; for example, closed tribunal hearings. There should also be avenues to the Federal Court for determinations. Any systems of authorisation should include prior authorisation provisions and be based on respect, negotiation and free and informed consent. There should be fair dealing provisions only for traditional and customary use, research and study, and judicial proceedings. But judicial proceedings relating to sacred/secret material and culturally sensitive information should not be made public or used for other purposes.49 Conclusion The use of Indigenous cultural and intellectual property by government, industry and all those who seek to make use of Indigenous cultural knowledge and resources in other than its traditional or customary way, must be done with the full and informed consent of Indigenous peoples, where Indigenous people can freely negotiate terms of use. In Australia, whilst Indigenous people are seeking the establishment of sui generis legislation to protect their rights, they are also exploring a range of avenues as discussed above, to ensure that research on Indigenous environments, plants, animals, and Indigenous people is done with the respect and informed consent of Indigenous people with a view to sharing any derived benefits. P.S. Terri Janke is an Aboriginal Solicitor and Principal Consultant of Michael Frankel & Company, Sydney, Australia.50
Notes: 1 ‘Indigenous Australians’ refers to Aboriginal and Torres Strait Islander people, the original inhabitants of Australia. 2 Terri Janke, Our Culture: Our Future, Report on Australian Indigenous Intellectual and Cultural Property Rights, Michael Frankel & Company, May 1998 (unpublished) 3 (1995)30 IPR 209 4 (1998)41 IPR 513 5 Reported by Henrietta Fourmile, ‘Protecting Indigenous Intellectual Property Rights in Biodiversity’, Conference Paper presented 28 August 1995, p.4 6 Michael Blakeney, ‘Bioprospecting and the Protection of Traditional Medical Knowledge of Indigenous Peoples: An Australian Perspective’, [1997] 6 European Intellectual Property Reporter, pp.298-303 at 298. 7 John Merson, ABC Radio Program ‘Gene Prospecting’, The Science Show, 14 and 21 January 1995. 8 See Mick Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission, ‘Indigenous Social and Ethical Issues: Control of Research and Sharing the Benefits’, Address to the Scientific, Social and Ethical Issues Symposium, Tuesday, 22 July 1997. 9 ibid, p.3. 10 Andrew Kimbrell, ‘High-tech Piracy: From one-eyed swordsmen to scientists in rubber gloves, once again the earth’s riches are being looted’, http:// www.utne.com/ens/mt/15mtgeneskimbrell.html 11 Section 67, Patents Act 1990. 12 Section 18(2) Patents Act 1990. 13 (1972) 126 CLR 611 14 Paul Anthony Power, ‘Interaction Between Biotechnology and the Patent System’, Australian Intellectual Journal (1992) Vol 3, pp.2 14 -231 at 216 15 447 U.S. 303, 206 U.S.P.Q. 193 (1980). 16 As cited in Andrew Kimbrell, ‘High-tech Piracy: From one-eyed swordsmen to scientists in rubber gloves, once again the earth’s riches are being looted’, as reproduced at internet address http:// www.utne.com/ens/mt/15mtgeneskimbrell.html 17 Vandana Shiva, ‘Patents on life forms’ Playing Gods’. Third World Resurgence, No 57, pp.4-8 at page 5. 18 within the meaning of section 6 of the Statute of Monopolies . 19 National Research Development Corporation v Commissioner of Patents (1990) 102 CLR 252. 20 Stephen Gray, ‘Vampires Round the Campfire’, Alternative Law Journal Vol 22, No 2, April 1997, p.61. 21 Section 18(1) Patents Act 1990 (Australian Commonwealth). 22 Section 7(1) Patents Act 1990 (Australian Commonwealth). 23 Professor Michael Blakeney, ‘Bioprospecting and the Protection of Traditional Medical Knowledge’, Symposium on Intellectual Property Protection for the Arts and Cultural Expression of Aboriginal and Torres Strait Islander People, Brisbane, 28 September 1996, p.3. 24 While communities may own copyright in such publications, their rights to the information contained in the book does not amount to patent rights. 25 Stephen Gray, op cit, p.62. 26 Paul Anthony Power, ‘Interaction Between Biotechnology and the Patent System’, Australian Intellectual Property Journal, (1992) 3 pp. 214-231, at 217 27 Michael Blakeney, op cit, p 5. 28 Article(2) TRIPs Agreement. 29 Article 27(3). This provision is reviewable after a period of four years. 30 United Nation’s Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Supplementary Report of the Special-Rapporteur, Mrs Erica Irene Daes, submitted pursuant to Sub-Commission Resolution 1995/40 and Commission on Human Rights Resolution 1996/63. E/CN.4/Sub.2/1996/22. 24 June 1996 at p.11 31 Andrew Kimbrell, ‘High-tech Piracy: From one-eyed swordsmen to scientists in rubber gloves, once again the earth’s riches are being looted’, http:// www.utne.com/ens/mt/15mtgeneskimbrell.html 32 Vandana Shiva, ‘Tripping over Life’, in Third World Resurgence, vol 57, p.7 33 Article 8(j) - In-situ conservation; Article 10© - sustainable use of components of biological diversity; Article 15 - Access to genetic resources; Article 16 - Access to and transfer of technology; Article 17(2) - Exchange of information; Article 18(4) - Technical and Scientific cooperation and Article 19 - Handling of biotechnology and distribution of benefits. 34 Stephan Schinerer (ed), Outcomes of Workshop on Traditional Knowledge and Biodiversity hosted by Biodiversity Group, Environment Australia, October 1997. 35 Section 3, Environment Protection and Biodiversity Conservation Bill 1998. 36 ATSIC Submission to Senate Environment, Communications, Information Technology and the Arts Legislation Committee, March 1999. 37 1.6 of the Genetic Privacy and Non-discrimination Bill 1998 as introduced by Senator Natasha Stott Despoja, the Deputy Leader of the Australian Democrats, 11 March 1998. 38 Mick Dodson, op cit, pp.7-8 39 ibid, p.8 40 ibid, p.9 41 ibid, p.10 42 Michael Dodson, ‘Indigenous Social and Ethical Issues: Control of Research and Sharing Benefits’, address to the Scientific, Social and Ethical Issues Symposium, 22 July 1997. p.11 Source:
Media Development e-mail:
wacc@wacc.org.uk From: IDOC Internazionale, 99/ 3-4, July-December
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