Genetic resources, traditional knowledge, and folklore

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(The Guide - a.g. – b.v. - 2013)

by anne gut and

bruno vitale


send all correspondence relative to this document to:

"J'écrirai ici mes pensées sans ordre, et non pas peut-être dans une confusion sans dessein: c'est le véritable ordre, et qui marquera toujours mon objet par le désordre même. Je ferais trop d'honneur à mon sujet, si je le traitais avec ordre, puisque je veux montrer qu'il en est incapable."
Pascal: Pensée, no.373 (1669)

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We were helped and encouraged in our task

- by their work and/or by their correspondence, by:

Susana Barria - New Trade Union Initiative (NTUI), Delhi
Ellen Desmet - Katholieke Universiteit - Leuven
Mireille Jeanprêtre - Yverdon
Benny Müller - IPIB - Bern
Andreas Rahmatian - School of Law - University of Glasgow
Rebecca Resinski - Hendrix College - Conway (USA)

as well as by:

the United Nations Library, Geneva, and
the WHO Library, Geneva
which enabled us to use regularly their facilities

and by:

the WIPO Hearquarters, Geneva,
that kindly invited us, as observers, to a number of their GRTKF Inter governmental meetings in Geneva


Chapter 0 - Introduction to the Guide
Chapter 1 - The present situation: IPRs on one side, TK on the other side
- Introduction to Chapter 1
- Section 1.a - Generalities on IPRs (TRIPS)
- Section 1.b - Generalities on TK, protection of TK, promotion of TK

Chapter 2 - Origins and motivations at the roots of WHO's involvement in traditional medical knowledge (TMK)
- Introduction to Chapter 2
- Section 2.a - Origins of WHO's involvement and subsequent actions and initiatives

Chapter 3 - TMK in all of its glory and obscurities
- Introduction to Chapter 3
- Section 3.a - TMK in the under-developing countries (UDCountries)
- Section 3.b - TMK in the self-defined-developed countries (SDDCountries)

Chapter 4 - Loss of control on the TMK methodological paradigms
- Introduction to Chapter 4
- Section 4.a - Role, responsibility and contradictions of WHO

Chapter 5 - From TMK to GRTKF and perhaps GRTKFR
- Introduction to Chapter 5
- Section 5.a - Entrance of GR
- Section 5.b - Entrance of F
- Section 5.c - Does/should/could GRTKF embed Rituals (R)?

Chapter 6 - Alternatives to IPRs?
- Introduction to Chapter 6
- Section 6.a - 'sui generis'?
- Section 6.b - Transcending IPRs?

Chapter 7 - Conclusions
List of cards
Chapter 0 - Introduction to the Guide

To our readers/fellow-travellers:

- we want to help you, entering and running through a vast Labyrinth, the huge and ill defined Genetic Resources and Traditional Knowledge and Folklore (GRTKF) space (the Maze, in what follows, for short), to find a useful and interesting exploratory path throughout it, and to find a satisfactory way out of it, at the end;
- the trip that we propose is not of the kind: 'you will find here everything you always wanted to know about ...'; it will not be a easy, non contradictory, self-satisfactory, satisfying trip; we shall go a little rambling, back and forth, trough sidelines; letting ourselves often captured by curiosity, surprise, wonder; ready to laugh - mostly on ourselves - and sometimes scream of indignation;
- we hope you (and we) shall not come out unscathed

As for us:

We plunged unexpectedly into the Maze a few years ago, when we were following a more or less twisted path while researching on 'Intellectual property and access to medicines' (which led to the publication of Onori et al (2006) ) and later on 'Development and health in poor countries; Role of International Organisations and of Switzerland' (which led to the publication of Briand et al (2010) ). It was while exploring the Maze (and with no guide!) that we found that the main force behind Big Pharma's power and inside the interplay between 'intellectual property rights' and 'access to essential drugs' was not - as we did expect - into the decisional frames of WHO or even WTO (because of TRIPS), but of WIPO and UPOV, that we had previously ignored.
This led us to the exploration of Traditional Medical Knowledge (TMK), as an ingredient intensely present when health in poor countries was discussed, and then naturally we went from TMK to TK, and then from TK to the whole GRTKF WIPO's program!
From 2011 to the present, we have been regularly invited by WIPO's Headquarters in Geneva, as 'observers', to the general meetings of the Intergovernmental Committee on Genetic Resources, Intellectual Property and Folklore, for which we are most thankful.

We have to start, as several WHO's publications do, from:

"All reasonable precautions have been taken [by us] to verify the information contained in this publication. However, the published material is being distributed without warranty of any kind, either expressed or implied. The responsibility for the interpretation and use of the material lies with the reader. In no event shall [we] be liable for damages arising from its use".

A few things more on what we try to do consistently, or on what we consistently try not to do:

- we have left always the quotations - in particular, in the many cards that, as you will see, interleave the text - in their original language
- we have tried, when possible, to avoid the standard, academic (aha! this is just what we try not to be, 'academic'!) quotes, sort of: "see also Kompiolvuowsky (1739)"; when we quote, we try to give some juice, at least a smell of what the author wanted to say; and, in the cards, we leave in the original language
- you will not find, either in the Maze or in this Guide, only purely, academic, scholarly papers; most of the items we shall visit are, of course, in the Maze, but some of them are just slag from our school days, bits of newspapers, scraps of advertisements, 'ossi di seppia', ...; please don't be afraid of them; sometimes, they can be wiser than the most academic paper
- as there have been several different choices for 'traditional medical practices', we have used only TMK (and consequently changed to TMK the TM, TM/CAM, ... in the quoted texts) - but we have left TCM for Traditional Chinese Medicine, because of the added geographic information

We do not want to imply that the only way to visit and to explore the Maze is ours; there are quite a number of comprehensive publications, treating all or at least a large number of topics typical of the GRTKF space, as for instance:

- B.Bachner: Intellectual property rights and China; The modernization of traditional knowledge. Utrecht: Eleven, 2009.
- General guidelines for methodologies on research and evaluation of traditional medicine. Geneva: WHO, 2000.
- Silke von Lewinski (ed.): Indigenous heritage and intellectual property; Genetic resources, traditional knowledge and folklore. Austin: Wolters Kluwer, 2008.
- D.A.Posey and G.Dutfield: Beyond intellectual property; Toward traditional resource rights for Indigenous peoples and local communities. Ottawa: International Development Research Centre, 199- 6.
- Tzen Wong and G.Dutfield (eds.): Intellectual property and human development; Current trends and future scenarios. Cambridge (UK): Cambridge UP, 2011.

but we immodestly believe that the exploratory trip that we propose will be more amusing and, being less serious, more intensely useful.

And now we are ready to plunge into the Maze:

- first, who are 'We'? who are 'They'?

Please go to the card Kipling (1904):


0. ['We' and 'They'; card-Kipling (1904)]
We and They
Father, Mother, and Me 
Sister and Auntie say
All the people like us are We,
And every one else is They.

And They live over the sea,

While We live over the way, 
But - would you believe it? - They look upon We 
As only a sort of They!
We eat pork and beef 
With cow-horn-handled knives.
They who gobble Their rice off a leaf, 
Are horrified out of Their lives;

And They who live up a tree,

And feast on grubs and clay,
(Isn't it scandalous?) look upon We
As a simply disgusting They!
We shoot birds with a gun.
They stick lions with spears.
Their full-dress is un-.
We dress up to Our ears.

They like Their friends for tea.

We like Our friends to stay;
And, after all that, They look upon We 
As an utterly ignorant They!
We eat kitcheny food.
We have doors that latch.
They drink milk or blood,
Under an open thatch.

We have Doctors to fee.

They have Wizards to pay. 
And (impudent heathen!) They look upon We 
As a quite impossible They!
All good people agree
And all good people say,
All nice people, like Us, are We
And every one else is They:

But if you cross over the sea,

Instead of over the way,
You may end by (think of it!) looking on We
As only a sort of They!
R.Kipling (1904)

Is it clear that we (namely, the authors of this Guide and perhaps many of our readers/fellow-travellers) are 'We'.

When we read: "The region is known for having some of the world's most stringent laws on abortion, particularly Chile, El Salvador and Nicaragua, which have bans on the procedure", we react, and hope for change: then we are 'We' - we are not smoothing down our reaction by thinking: 'but they ['They'!] could have a number of sound religious, ritual, mystical reasons for this, reasons that we should have to try and understand or, at least, respect'. Even if we are no better; we too, in our world, can read: "After Margaret Thatcher died in April, a spirit medium in Japan interviewed her and drew forth her advice on fixing the economy" (Graeme Wood, on the International Herald Tribune, June 8 2013, p.7); but then we smile, and cannot help but thinking: 'another swindler, even in Japan!' (as of course we put Japan people, with us, among 'We')
We are aware that we (as 'We') should learn and adapt our reactions to a better, more mature, more comprehensive way of dealing with the presumed differences between 'We' and 'They'. To use an almost forgotten, if perhaps more and more necessary word: a more 'dialectical' way of thinking: becoming capable of integrating some of 'Their' life experience and historical experience with 'Ours'. But those readers/fellow-travellers that will follow us in the Maze will find that the task is enormous, as bad faith and economical interests both sides seem to dominate the landscape, and a 'dialectical' approach, if necessary, is extreemely hard to elaborate.
But when we find in the Maze, in its TMK sub-space:
"It is difficult to trace a line of demarcation between scientific knowledge and magic. This stems from the importance, in a traditional oral culture such as that of the Yoruba, given to the notion of an incantation (ofò) spoken during the preparation or application of the medicinal formulae (oògùn). ... It is the knowledge of the ofò which is essential, as it contains the 'power-to-alter' the formula's pharmacological effects."

Fatumbi-Verger (1995), passim,

then, we are supposed not to smile, and surely not to think of 'swindlers', but on the contrary to bow to some sort of TMK that could deserve some sort of 'sui generis' (see Ch.6 below) Intellectual Property Rights (IPRs for short) for some sort of protection and promotion; only because Yoruba people are 'They'!
If you think seriously about this split world of 'We' and 'They' we live in, and we think in, then you will better understand and accept the deeply pertinent definition by Rahamatian of the whole GRTKF WIPO program, as a program tarnished by neo-colonial thinking, or as a 'neo-colonial device'; please go to the card Rahmatian (2009):


0. [critical approaches to the WIPO GRTKF projet; card-Rahmatian (2009)]

"Article 7 of TRIPS claims that the protection and enforcement of intellectual property rights (especially patents) are important prerequisites to 'the promotion of technological innovation and to the transfer and dissemination of technology. This is rather astonishing and tends to suggest a contradiction in terms. As intellectual property rights

are property rights that confer exclusive private rights to intellectual resources and the knowledge they contain, the promotion and transfer of technological innovation is solely dependent on the willingness of the intellectual property rights owner to part with these resources, and if there is an imbalance between intellectual property-producers countries and countries that are mostly users of intellectual property, the economically powerful intellectual property producers, strengthened by the safeguard of their intellectual property rights, will dictate the terms of the transfer. (p.52)
Another potentially neo-colonial device [after TRIPS] is the attempt to turn back the clock and seeking the protection of a cultural past of indigenous communities against future economic and cultural development. This is really the essence of the idea of the 'protection of traditional cultural expressions', in most cases by no means an ill-spirited concept, but misguided. It is a modern version of the construction of otherness, as it is known from colonial times, although currently not directed at defining the 'other' also as inferior. But once this intellectual segregation and stereotyping of a traditional 'character' and culture has been made, it is difficult to see why that next step should not follow suit. Furthermore, this 'protection' of 'tradition' against exploitation serves Western economic interests far more than one would assume. ... This definition admittedly originates from Western thinking, but so does any protection scheme.
The conventional argument is that traditional cultural expressions form the basis of an indigenous community's cultural identity. ... Traditional cultural expressions or expressions of 'folklore' (these terms seem largely interchangeable) are increasingly in danger of being commercially exploited by Western businesses on a global scale. ... The problem with this approach is, high-minded as it may often be, that in the context of artistic expressions any legally enforceable protection creates the artistic 'tradition' it purports to safeguard. (p.60)
Creative movements are frozen into an artificial static tradition through their protection, and artefacts that apparently embody this tradition are regarded as 'authentic' and such that 'must be salvaged'. ... These ethnic communities often live in reserves. The indigenous rulers would be given a power that they did not originally have and that they would be able to use against the actual interests of individual members of the community. (p.62)
This idea [the protection of the 'tradition'] reflects colonial features. The protection of the 'tradition' (essentially a Western construct) in fact creates this tradition and serves Western interests, and is to be administered by organs of the indigenous community in a kind of indirect rule." (p.64)
Rahmatian (2009), passim

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