indigenous peoples’ innovation Intellectual Property Pathways to Development indigenous peoples’ innovation Intellectual Property Pathways to Development Edited by Peter Drahos and Susy Frankel Published by ANU E Press The Australian National University Canberra ACT 0200, Australia Email: [email protected] This title is also available online at http://epress.anu.edu.au National Library of Australia Cataloguing-in-Publication entry Title: Indigenous people’s innovation : intellectual property pathways to development / edited by Peter Drahos and Susy Frankel. ISBN: 9781921862779 (pbk.) 9781921862786 (ebook) Notes: Includes bibliographical references. Subjects: Ethnoscience. Traditional ecological knowledge. Intellectual property. Indigenous peoples--Legal status, laws, etc. Other Authors/Contributors: Drahos, Peter, 1955- Frankel, Susy. Dewey Number: 346.048 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design and layout by ANU E Press Printed by Griffin Press This edition © 2012 ANU E Press Contents Acknowledgements . .vii List of Acronyms . ix List of Contributors . xiii Preface: Indigenous Innovation: New Dialogues, New Pathways . xv Antony Taubman Director, Intellectual Property Division World Trade Organization 1 . Indigenous Peoples’ Innovation and Intellectual Property: The Issues . 1 Peter Drahos and Susy Frankel 2 . Ancient but New: Developing Locally Driven Enterprises Based on Traditional Medicines in Kuuku I’yu Northern Kaanju Homelands, Cape York, Queensland, Australia . 29 David J. Claudie, Susan J. Semple, Nicholas M. Smith and Bradley S. Simpson 3 . ‘It would be good to know where our food goes’: Information Equals Power? . 57 Jen Cleary 4 . Biopiracy and the Innovations of Indigenous Peoples and Local Communities . 77 Daniel F. Robinson 5 . Indigenous Cultural Heritage and Fair Trade: Voluntary Certification Standards in the Light of WIPO and WTO Law and Policy-making . 95 Christoph B. Graber and Jessica C. Lai 6 . Traditional Innovation and the Ongoing Debate on the Protection of Geographical Indications . 121 Daniel Gervais 7 . The Branding of Traditional Cultural Expressions: To Whose Benefit? . 147 Daphne Zografos Johnsson v 8. The Pacific Solution: The European Union’s Intellectual Property Rights Activism in Australia’s and New Zealand’s Sphere of Influence . 165 Michael Blakeney 9 . Do You Want it Gift Wrapped?: Protecting Traditional Knowledge in the Pacific Island Countries . 189 Miranda Forsyth Bibliography . 215 vi Acknowledgements The chapters in this volume were first presented at the conference ‘Intellectual Property, Trade and the Knowledge Assets of Indigenous Peoples: The Developmental Frontier’ in December 2010. That conference was hosted by the New Zealand Centre of International Economic Law (NZCIEL), at Victoria University of Wellington, New Zealand. The conference was organised in association with the Regulatory Institutions Network at The Australian National University. Susy Frankel is the Director of NZCIEL. NZCIEL acknowledges the support of the conference sponsors Henry Hughes, Patent and Trade Mark Attorneys, and the New Zealand Ministry of Economic Development. Peter Drahos and Luigi Palombi from the Regulatory Institutions Network acknowledge the support of The Australian Research Council (Discovery Grant: ‘The Sustainable Use of Australia’s Biodiversity: Transfer of Traditional Knowledge and Intellectual Property’). Peter Drahos and Susy Frankel would like to thank the two anonymous referees of the manuscript for their detailed and helpful comments on each of the chapters. Thanks also to Victoria University of Wellington students Lauren McManoman, Michelle Limenta and Anna Ker for editing assistance. vii List of Acronyms ABS Access and benefit sharing ACP African, Caribbean and Pacific AEK Aboriginal ecological knowledge AIPPI International Association for the Protection of Intellectual Property ALAI Association Littéraire et Artistique Internationale ARIPO African Regional Intellectual Property Organization CA Cultural authority CBD Convention on Biological Diversity CCD Convention on the Protection and Promotion of the Diversity of Cultural Expressions EC European Community EEC European Economic Community EPA Economic Partnership Agreements EPO European Patent Office ETC Action Group on Erosion Technology and Concentration EU European Union FAO Food and Agriculture Organization FLO Fairtrade Labelling Organizations International FTA Free Trade Agreement GATS General Agreement on Trade in Services GATT General Agreement on Tariffs and Trade GIs Geographical indications GRIN Genetic Resources Information Network I = P Information = Power ICH Indigenous cultural heritage IGC Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore INTA International Trademark Association IP Intellectual property IPA Indigenous protected area IPRs Intellectual property rights ITC International Trade Centre IWG Intersessional Working Group JPO Japanese Patent Office ix Indigenous Peoples’ Innovation LDCs Least developed countries MFN Most-favoured-nation treatment MSG Melanesian Spearhead Group NCC National Council of Chiefs NGO Non-governmental organization NIAAA National Indigenous Arts Advocacy Association NPR Non-product-related OCTA Office of the Chief Trade Adviser OECD Organisation for Economic Co-operation and Development OHIM Office for Harmonisation in the Internal Market PAR Participatory action research PACER Pacific Agreement on Closer Economic Relations PBR Plant breeding rights PCT Patent Cooperation Treaty PI Plant introduction PICNIC Prior informed consent or no informed consent PIFS Pacific Islands Forum Secretariat PPMs Processes and Production Methods PVP Plant Variety Protection SCM Agreement on Subsidies and Countervailing Measures SPC Secretariat of the Pacific Community TBT Agreement on Technical Barriers to Trade TCEs Traditional cultural expressions TGKP Traditional group knowledge and practice TK Traditional knowledge TKDL Traditional Knowledge Digital Library TKECABS Traditional Knowledge and Expressions of Culture TPP Trans Pacific Partnership Agreement TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 UN United Nations UNCTAD United Nations Conference on Trade and Development UNDP United Nations Development Programme UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNESCO United Nations Educational, Scientific and Cultural Organization USDA United States Department of Agriculture x List of Acronyms USPTO United States Patent and Trade Mark Office VCLT Vienna Convention on the Law of Treaties WIPO World Intellectual Property Organization WTO World Trade Organization xi List of Contributors Michael Blakeney is a Professor in the Law School of the University of Western Australia. David Claudie is the Chairman of the Chuulangun Aboriginal Corporation, PMB 30, Cairns Mail Centre, Cairns, QLD, 4871. Jen Cleary is the Senior Research Development Manager in The Centre for Regional Engagement at the University of South Australia, and a doctoral student in the School of Agriculture and Food Science (Agribusiness) at the University of Queensland. Peter Drahos is Professor in the Regulatory Institutions Network at The Australian National University and holds a Chair in Intellectual Property at Queen Mary, University of London. Susy Frankel is Professor of Law at Victoria University of Wellington, Director of the New Zealand Centre of International Economic Law and Chair of the New Zealand Copyright Tribunal. Miranda Forsyth is a Postdoctoral Fellow in the Regulatory Institutions Network at The Australian National University. Daniel Gervais is Professor of Law and Co-Director, Vanderbilt Intellectual Property Program, Vanderbilt University Law School, Nashville, Tennessee. Christoph Graber is Professor of Law and Head of i-call, the research centre for International Communications and Art Law Lucerne, and Director of lucernaiuris, the Institute for Research in the Fundaments of Law, School of Law, University of Lucerne, Switzerland. Jessica Lai is a PhD candidate and researcher at i-call, the research centre for International Communications and Art Law Lucerne, School of Law, University of Lucerne, Switzerland. Daniel Robinson is a Senior Lecturer in the Institute of Environmental Studies at the University of New South Wales. Susan Semple is a Research Fellow at the Sansom Institute, School of Pharmacy and Medical Sciences, University of South Australia. Bradley Simpson is a post-doctoral researcher at the Sansom Institute, School of Pharmacy and Medical Sciences, University of South Australia. xiii Indigenous Peoples’ Innovation Nicholas Smith is an ethnobotanist and runs Nelumbo Botaniks, PO Box 1295, Aldinga Beach, SA, 5173. Antony Taubman is Director, Intellectual Property Division, World Trade Organization. Daphne Zografos Johnsson is a Consultant, Traditional Knowledge Division, World Intellectual Property Organization. At the time of writing she was a Lecturer at the School of Law at the University of Reading, United Kingdom. xiv Preface Indigenous Innovation: New Dialogues, New Pathways Antony Taubman1 Director, Intellectual Property Division World Trade Organization The subject of this timely and stimulating volume is potentially confronting, and certainly provokes new