Sunday, July 5, 2009

Cases of Intellectual Property and Profit Sharing

So far, I have discussed the nuances of Western views of knowledge in the context of knowledge as a commodity. I have compared that with a general indigenous view of knowledge, where knowledge is a gift. In this section I will examine several cases where these differing philosophies were reconciled for commercial practices.
In the U.S. and other "westernized" nations, there is a fundamental notion of invention or property rights being owned by one individual. There are minor exceptions to this in so far that patents are granted for two people who are co-inventors, but for the most part, royalties are issued to individuals. In the case of indigenous knowledge, where a community or a group of healers are the possessors of valuable knowledge, there must be different guidelines for appropriating royalties.
In Katy Moran's (2004) article, "Benefit Sharing Under the Convention on Biological Diversity," she discusses three different scenarios in which there were agreements made between governments, companies, and indigenous communities to ensure that financial resources were being "fairly" distributed. The first case involves the Kanis in southern India. The Kanis used a plant they called, "arogyapacha," for energy which they gathered from the jungle in their homeland. In 1987, the Tropical Botanic Garden and Research Institute, (TBGRI), was founded and held a conference in the forest near a Kani community. During this conference knowledge of the "arogyapacha" plant was announced. Shortly thereafter, the Kani were approached by the Aryavaidya Pharmacy Coimbatore, an Indian company, to use the plant in a formula called "Jeevani.". A deal drawn up between the three entities, the Kani, TBGRI and the pharmaceutical company. It was agreed that TGBRI would share 50% of the licensing fee and 2% of royalties with the Kani. This was the first agreement of its kind where indigenous parties had been represented in a patent agreement, and several problems arose in the aftermath.

One problem quickly realized was arogyapacha only retained its medicinal properties when grown in the forests on the Kani homeland. This problem was resolved by Aryavaidya hiring members of the Kani community to cultivate the plant in the forests. This arrangement benefited the community by creating jobs and profits. However, there were growing tensions in Kani community as many people felt underrepresented by the original negotiation.
To remedy this issue there was a trust formed by an NGO, of about 500 Kani community members. However, ..."some critics feel this number falls far short of adequate representation of the Kani" (2004, p.156). But, "In March 1999, Science reported that the first payment of $21,000 would be made and shared by the community and the institute"(2004, p.156).
Although, there were contractual and technical difficulties for securing benefits to the Kani, it was, nevertheless, a monumental step in defining intellectual property rights for indigenous communities.

The next case discussed in the article concerns the Saramaka Maroons, the Suriname government, The International Biodiversity Group, and the Bristol-Myers Squibb Pharmaceutical Research Institute. The indigenous community of the Saramaka Maroons is composed of ancestors of escaped slaves. Though they are not native to Suriname, the Maroons have lived in the jungle for nearly 300 hundred years, have their own language and are geographically and socially isolated from the main population of Suriname. The homeland of the Maroons is the most virgin area of rain forest left in the world and is home to many species of plants and animals of potencial medicinal value. For this reason, bioprospecting, (looking for biological resources with pharmaceutical properties) is a draw in this particular area. To protect the property rights of the Maroon community a statement of understanding was established ensuring, "...a benefit-sharing plan with a US$60,000 total advance payment from Bristol-Myers Squibb Pharmaceutical Research Institute into the Forest Peoples Fund (FPF), with additional contributions of $20,000 a year as the ICBG is renewed"(2004, p.159). This agreement was established before prospecting began to ensure some profits were earmarked for the Maroon community. The money allocated to the fund is specified to be used for, "...projects involving community development, biodiversity conservation and health care. If any products are commercialized from ethnobotancial collections, 50% of Suriname's share of any future royalties will go to the FPF and the other 50% will go to various ICBG partners in Suriname"(2004, p.160).
Nigeria is the final location discussed
. Due to the high rate of deforestation, the threat of deteriorating biodiversity and rampant poverty, NGO's are working in alliance with local people and the government to develop ways to promote indigenous knowledge for local use and outside profit. One agreement with Shaman Pharmaceuticals states, [while], "Full-fulling company policy, immediate and medium term-benefits,...totaling over $200,000 have been distributed through programs to the various stakeholders in the collaboration as the expeditions occur. The company regularly reports laboratory results to participating communities, and general literature on the project is published with both Nigerian and U.S. authors"(2004, p.163).
In this way, local communities benefit from profit sharing, but also from medical knowledge generated by the company and communities.
These cases show how indigenous communities have been represented in several cases. The positive aspect in each of these cases is indigenous communities are included in business profits. However "successful" these cases may be though, there are still many issues to be negotiated regarding the rights of indigenous communities and intellectual property.
In the final section of the blog I will summarize the points addressed thus far and briefly analyze the current situation of indigenous property rights today.

References

Moran, K. (2004). Benefit sharing under the convention of biological diversity. In M. Riley (Ed). Indigenous Intellectual Property (153-172).
United Kingdom: AltaMira Press.

1 comment:

  1. As someone who has an undergraduate degree in History, I am always interested in the origin of ideas and was therefore, happy that I was assigned to review this blog. Prior to reading the blog and viewing the presentation, I had little knowledge of intellectual property and indigenous knowledge.

    After reading about this issue, I immediately thought of the Native Americans in this country. I did a lot of research on them as an undergrad and was appalled at how much they were exploited. The Native Americans made many contributions to this world, such as knowledge of hunting, farming, and fishing, natural medicines, and the construction of homes. However, many in the Western world sought to profit from them without giving credit to where the knowledge and ideas originated. Clearly, this happens everywhere and not just in the Western world.

    It was great to read that in some instances like, for example, in India, Suriname, and Nigeria, agreements have been made which compensate the indigenous population, but this raises other questions. My first thought was that we know pharmaceutical companies are certainly making large profits, so are they adequately rewarding these populations? I suppose that something is better than nothing, but how will the indigenous people know if they are being treated fairly? Also, what happens if or when the people believe they are not being fairly compensated? I certainly agree with the Hunn’s view that much can be learned from indigenous populations without them being exploited.

    Nicole Lindsay

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