The Role of Intellectual Property Rights in Protecting Traditional Ecological Knowledge in International Law

Written by Soojin Kim

Edited by Luca Viscapi

Soojin is an undergraduate student at Sciences Po studying Political Humanities and Law. Her academic interests include law and human rights.

“...The traditional knowledge systems of indigenous and local communities fed, healed, and clothed the world.”

Gurdial Singh Nijar, renowned Malaysian jurist who led international negotiations in Malaysia and developing countries, securing the Nagoya Protocol on Genetic Resources and Benefit Sharing.

Created in 2000, the United Nations Permanent Forum on Indigenous Issues (UNPFII) aims to address economic, social, environmental, and cultural issues pertaining to indigenous peoples [1]. As specified by the UNPFII, the UN defines Traditional Knowledge (TK) as “the knowledge, innovations and practices of indigenous peoples”. Acknowledging the long history and rich culture associated with TK, the UN frames Traditional Ecological Knowledge (TEK) as “the source for the traditional use and management of lands, territories and resources, with indigenous agricultural practices that care for the earth, without depleting the resources” [2]. In light of climate change, practices relating to sustainable land use, biodiversity preservation, and overall resource management should look in the direction of TEK for its understudied and underprotected value. 

TK systems belonging to indigenous communities have long histories and tremendous potential, in particular connection to food, medicine, forestry, and other facets of life. TEK represents a viable knowledge system that was the basis of traditional and developing societies and remains so for indigenous peoples around the world today. Yet, despite indigenous peoples’ innumerable contributions to biodiversity, cultural heritage, and knowledge production, they are subject to marginalization. Preserving TEK with sufficient legal protections will undoubtedly have far-reaching applications for climate change mitigation, food security, and biodiversity conservation. 

Over the past three decades, international law has made significant strides in recognizing TEK through customary instruments. Today, there are over 5,000 indigenous groups around the world, comprising 476 million people [3]. Endowed with geographical, linguistic, and cultural diversity, indigenous peoples require a holistic approach to how they are defined within the international legal framework. This article will argue for the need for a multifaceted evolution in TEK protections, focusing on public international law and Intellectual Property (IP) law. The international legal framework for TEK protections remains weak and porous, and TEK is still insufficiently enshrined under modern IP law. While international law formally recognizes TEK, IP law struggles to effectively protect it, and this gap needs to be bridged with creative solutions. Hence, this article will examine how IP mechanisms can be used to cement existing indigenous rights protections enshrined in international law, and whether new solutions are needed entirely.

History of the Integration of TEK into International Law and Persisting Limitations

Significant international legal instruments exist that recognize and codify the need to protect indigenous rights, with specific regard to TEK. The primary relevant UN provisions are the UNDRIP, which emphasizes the protection of indigenous peoples’ rights to their traditional knowledge (Article 31) [4], and the Convention on Biological Diversity (CBD). The CBD recognizes the close ties that indigenous peoples have to their local biological resources and the contributions that TK can make to sustainable biological diversity (Article 8(j)) [5]. 

The CBD was adopted in 1992 and specifically repudiated the concept of the ‘common heritage of mankind’, the principle in international law universalizing biological resources as freely and equally available to all, in the context of TEK. While the CBD was designed to legally recognize the important contributions of TEK to biodiversity conservation, the protection of TEK was, in reality, described solely through ambiguous language like ‘promote’ or ‘encourage’ without concrete implementation measures [6]. Implementation was also left subject to national legislation, reflecting a broader, longstanding tension between international law and national legal systems, surrounding the lack of uniformity and enforceability that comes with a consent-based international legal order. 

Furthermore, international legal instruments–whether it be the UNDRIP, the CBD, or even the ILO Convention 169 on Indigenous and Tribal Peoples–suffer from a lack of clarity when it comes to definitional constructs and linguistically indeterminate terms: ‘informed consent’, ‘consultation’, and ‘good faith’, amongst others. The concept of ‘free, prior, and informed consent’ (FPIC) has been formally recognized in international law to ensure indigenous peoples have the right to decide whether to grant consent regarding projects or policies that affect them, such as using their TEK. This is highlighted in Articles 11, 19, 31, and 32 of the UNDRIP and Articles 6 and 15 of the ILO Convention 169. However, the concept of FPIC lacks precise applicability in practice and suffers from a lack of enforcement, as there is no global enforcement mechanism outlining how states or corporations should obtain consent. 

This issue was highlighted in the Maya ICBG bioprospecting controversy, which took place in 1999-2000. The International Cooperative Biodiversity Group (ICBG), a bioprospecting and research cooperative led by a prominent American ethnobiologist named Dr. Brent Berlin, attempted to document the biodiversity of Chiapas, Mexico and the ethnobotanical knowledge of the indigenous Maya people to determine the potential applicability of medicinal properties that could be commercialized [7]. However, the project became subject to criticism by indigenous activists and Mexican scholars who questioned the lack of transparency regarding how following the obtainment of prior informed consent, the indigenous knowledge would be patented by Berlin and his researchers as well as by foreign pharmaceutical companies interested in developing medicinal products. They condemned both the legal-ethical ambiguities surrounding this process and the lack of formal recognition of how the commercialization of the indigenous Maya people would necessarily entail the community’s exploitation. Yet, the researchers held that there was no forced privatization of the Maya’s TEK since Traditional Knowledge is inherently part of the public domain–an explicit denial of the cultural heritage of the Maya people. Though the project was scrapped and the ICBG was closed in 2001, it nonetheless revealed the fine, dangerous line between bioprospecting and biopiracy, and the need to crystallize their respective regulatory frameworks. 

Yet, the same issues continue to cloud the clarity of the concept of ‘consultation’ under international law. Article 6 of the ILO Convention 169 requires that indigenous peoples must be formally consulted on issues that affect them. Article 6.1(a) provides that the peoples concerned must be consulted through their representative institutions [8]. Article 6.1(b) provides that the government must ensure that the peoples can freely participate and 6.1(c) mandates the government to “provide the resources necessary for this purpose” [9]. This is furthered by the jurisprudence of the Inter-American Court of Human (IACtHR), which has clarified through cases like Saramaka People v Suriname that consultation necessitates an equal dialogue between the indigenous community and the party asking for consent, not just a post-decision heads-up. Nevertheless, because no standardized method for FPIC exists nor a uniform definition of consultation that is sufficiently enforced, state governments and private corporations often get away with misinforming indigenous groups and misappropriating their TK with little legal accountability.

The following section will shed light on how IP rights can thus bridge the gap between the linguistic indeterminacy of the aforementioned legal concepts and the pathway toward a stronger international legal framework of TEK protections, and to what extent this is possible. 

The Core Concepts of IP Law and the Shortcomings of Existing IP Frameworks

In accordance with the World Intellectual Property Organization (WIPO), Intellectual Property (IP) refers to creations of the mind, whether they are inventions, designs, symbols, or names, amongst others. IP is usually legally protected in the form of patents, copyrights, or trademarks, all of which serve to entitle IP holders to formal recognition or financial benefits. A patent refers to “an exclusive right granted for an invention” [10]. A patent owner can then decide if and how their invention can be used by others. Secondly, copyright refers to the legal right a creator has over their literary and artistic works. Finally, a trademark symbolizes a distinctive good or service.

Modern IP law was born in the 15th century, with the first formal patent system established in Venice in 1474 to grant exclusive property rights to inventors for 10 years at a time. The 1883 Paris Convention established international standards for patents, trademarks, and industrial designs, and the 1886 Berne Convention prioritized international copyright protection for literary and artistic works. 

The globalization of IP law at the turn of the 21st century coincided with fledgling developments in TEK integration into international law. WIPO was founded in 1967 as a specialized UN agency to harmonize IP laws at the international level. Its creation laid the foundation for TEK to gradually enter international discussions on how to best integrate into the existing international legal system. In 1982, the WIPO Intergovernmental Committee on Traditional Knowledge was created to lead discussions on TEK and IP rights, honing down on the gradual recognition of TEK in IP law. In 1995, the World Trade Organization (WTO) created the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement to establish global standards for IP protection. Certain provisions, notably Article 27.3b, deal with the patentability of plant and animal inventions derived from Traditional Knowledge [11].

This formal recognition of TEK in international IP law established a solid foundation for granting IP rights to TEK holders. For example, indigenous peoples can patent innovations derived from their TEK, be it a plant-based medicinal product or a forestry management method. However, many TEK-based innovations are already in the public domain, making them ineligible for patents. Moreover, patents have limited durations, which may conflict with the practices of many indigenous communities whose possession of TEK is more likely to be intergenerational. Further shortcomings of patents as a reliable IP right for TEK holders stem from major definitional faults in primary legal instruments like TRIPS, which centers on individual rights over communal rights and excludes mandatory disclosure for patent applicants who may continue to misappropriate TEK. This major oversight exacerbates biopiracy, wherein actors such as pharmaceutical corporations or biotech companies patent biological resources used by indigenous peoples without FPIC, consultation, or compensation. Therefore, the porous and ambiguous patent criteria in IP law in actuality deny recognition to indigenous innovations rooted in inter-communal and inter-generational contexts because the limited duration of patents is incompatible with the intergenerational dimension of TEK, inadvertently upholding a weak and inadequate legal regime of IP rights for indigenous peoples [12].

Perhaps trademarks are a form of IP right that would prove more feasible to implement in practice, as they often come in the form of tangible, documented certifications for authentic TEK-derived products, such as medicinal plants or agricultural products. This has been effective in communities like Māori iwi (tribes) in New Zealand, as their trademark system prevents their mātauranga, or TK, from being commercially exploited or misused through offensive trademarks or patents [13]. However, trademarks require consistent enforcement to watch for any infringements or misuse, which is heavily dependent on the enforcement measures of the national legal system, and thus again risks a lack of universality within the global IP regime for TEK holders. Coupled with the fact that the written, documentation-based nature of copyright clashes with the usually oral expression of TEK, this demonstrates how traditional IP rights are insufficient and incapable of adapting to the cultural practices surrounding TEK.

Bridging the Gap: Potential Solutions

IP developments must therefore reconcile the disconnect between current IP frameworks and the needs of TEK holders.

Sui Generis Systems

Latin for “of its own kind”, sui generis measures refer to modifying the existing IP framework to establish distinct systems. Essentially, a parallel IP system is put in place to specialize in a certain subject matter, in this case, TEK. For example, China already has a team of patent examiners specializing in Traditional Chinese Medicine [14].

The possibility of sui generis systems was codified in the TRIPS Agreement, where Article 27(3)(b) posits that member states of the WTO can use a sui generis system, encouraging states to implement specialized protection regimes for TK. Some countries have sui generis systems already, namely Costa Rica, the Philippines, Peru, Thailand, and Venezuela. In Thailand, for example, the Thai Traditional Medicinal Intelligence Act breaks down TEK protection into three categories: one that is national and hence belongs to the national Ministry for Public Health, one that is private and belongs to indigenous individuals, and the last that comprises the public domain and is thus free for all to use [15]. By adding specific provisions for how TEK can be maximized in its commercial benefits towards scientific research and public health while retaining ownership rights to indigenous peoples, governments can proactively take steps to safeguard the contributions and knowledge of indigenous peoples. The more national sui generis mechanisms are put in place, the more likely a de facto universal customary norm implementing distinct, specialized protection regimes for TEK will emerge, from which the international community can benefit. 

Databases

Another promising development has been the universalization of information on TEK into digital databases. For example, India has established a Traditional Knowledge Digital Library consisting of hundreds of thousands of traditional Indian medicine formulations [16]. Having a digital database on which indigenous peoples, international organizations like the WIPO and WTO, and patent applicants ranging from corporations to governments can all rely upon will facilitate the creation of a global standard for the minimization of the misappropriation of TEK. 

Notable WIPO Progress

As recently as May of 2024, WIPO member states adopted a new Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge [17], a pioneering international legal instrument at this junction. Following ratification by 15 parties, the Treaty will establish a new international legal requirement on patent disclosures [18]. If a patent applicant’s invention is based on genetic resources, comprising anything from medicinal plants to crops to animal breeds, and/or TK, they will be required to disclose the country of origin or source of the resource. Recognizing the progress of major international organizations like the WIPO in further specifying IP rights for TEK holders marks a positive step forward in reconciling the individualistic, property ownership-based essence of IP with the diverse needs of TEK holders. 

Effectively protecting TEK within the international framework of IP rights necessitates evolution. Addressing the marginalization and the vulnerability of indigenous peoples will facilitate a symbiotic relationship between indigenous communities and the rest of the world, from an ecological, legal, and rights-based standpoint. To ensure a more inclusive and flexible body of legal protections for TEK, IP law must evolve in ways as creative as the multitude of TEK it seeks to protect, and must continue to work in conjunction with relevant fields within international law, namely human rights law, to tackle the core issues underlying TEK protection: protecting indigenous peoples before indigenous rights.

Bibliography

[1] “Backgrounder - Traditional Knowledge.” n.d. https://social.desa.un.org/sites/default/files/migrated/19/2019/04/Traditional-Knowledge-backgrounder-FINAL.pdf.

[2] Secretariat of the Convention on Biological Diversity. n.d. “Convention Text.” https://www.cbd.int/convention/articles/?a=cbd-08.

[3] Amnesty International. 2024. “Indigenous Peoples - Amnesty International.” September 30, 2024. https://www.amnesty.org/en/what-we-do/indigenous-peoples/.

[4] “United Nations Declaration on the Rights of Indigenous Peoples | Division for Inclusive Social Development (DISD).” n.d. https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html.

[5] Secretariat of the Convention on Biological Diversity. n.d. “Convention Text.” https://www.cbd.int/convention/articles/?a=cbd-08.

[6] Nijar, G. S. 2013. “Traditional Knowledge Systems, International Law and National Challenges: Marginalization or Emancipation?” European Journal of International Law 24 (4): 1205–21. https://doi.org/10.1093/ejil/cht077.

[7] Shebitz, Daniela, and Angela Oviedo. 2018. “Learning From the Past: Reflecting on the Maya-ICBG Controversy in the Classroom.” Ethnobiology Letters 9 (1): 59–66. https://doi.org/10.14237/ebl.9.1.2018.1095.

[8] Phillips, James S. 2015. “The Rights of Indigenous Peoples Under International Law.” Global Bioethics 26 (2): 120–27. https://doi.org/10.1080/11287462.2015.1036514.

[9] Phillips, James S. 2015. “The Rights of Indigenous Peoples Under International Law.” Global Bioethics 26 (2): 120–27. https://doi.org/10.1080/11287462.2015.1036514.

[10] “What Is Intellectual Property (IP)?” n.d. About-Ip. https://www.wipo.int/about-ip/en/.

[11] “WTO | Intellectual Property (TRIPS) - Reviews, Article 27.3b, Traditional Knowledge, Biodiversity.” n.d. https://www.wto.org/english/tratop_e/trips_e/art27_3b_e.htm.

[12] Nijar, G. S. 2013. “Traditional Knowledge Systems, International Law and National Challenges: Marginalization or Emancipation?” European Journal of International Law 24 (4): 1205–21. https://doi.org/10.1093/ejil/cht077.

[13] Ministry of Business, Innovation and Employment. n.d. “Māori IP.” Intellectual Property Office of New Zealand. https://www.iponz.govt.nz/get-ip/maori-ip/#:~:text=New%20Zealand's%20patent%20and%20trade,or%20contrary%20to%20M%C4%81ori%20values.

[14] Department of Trade and Industry. n.d. “The Protection of Indigenous Knowledge Through the Intellectual Property System.” A Policy Framework. https://static.pmg.org.za/docs/080505trade-policy.pdf.

[15] OseiTutu, Janewa. 2011. “Emerging Scholars Series: A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law.” Marquette Intellectual Property Law Review 15 (1). https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1169&context=iplr.

[16] OseiTutu, Janewa. 2011. “Emerging Scholars Series: A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law.” Marquette Intellectual Property Law Review 15 (1). https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1169&context=iplr.

[17] “WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.” n.d. https://www.wipo.int/pressroom/en/articles/2024/article_0007.html.

[18] Diplomatic Conference to Conclude an International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources. 2024. “WIPO TREATY ON INTELLECTUAL PROPERTY, GENETIC RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE.” Diplomatic Conference to Conclude an International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated With Genetic Resources. https://www.wipo.int/edocs/mdocs/tk/en/gratk_dc/gratk_dc_7.pdf.