Trips, CBD and Traditional Medicines: Concepts and Questions. Report of an ASEAN Workshop on the TRIPS Agreement and Traditional Medicine, Jakarta, February 2001
(2001; 88 pages)
Table of Contents
View the documentEXECUTIVE SUMMARY
View the documentI. INTRODUCTION
Open this folder and view contentsII. CONTEXT
Open this folder and view contentsIII. KEY INTERNATIONAL AGREEMENTS
Open this folder and view contentsIV. IPR & TRADITIONAL MEDICINE: MISMATCH
Open this folder and view contentsV. CONCEPTS, OBJECTIVES AND CONFLICTS
Open this folder and view contentsVI. OPTIONS AND CHOICES
View the document7.1 Balancing...
View the document7.2 A way forward?
Open this folder and view contentsVIII. EXAMPLES
View the documentANNEX A - Workshop Agenda
View the documentANNEX B - Opening Remarks
View the documentANNEX C - Selected Articles of the Convention on Biological Diversity
View the documentANNEX D - List of Participants

7.2 A way forward?

Due to the complexity of the issues involved as well as differences in national situations and priorities, it is well beyond the scope of this report to make firm statements regarding optimal policies and strategies; yet based on the information presented and discussed during the workshop, some broad suggestions can be made, notably:

Access regulation

Regulating access to biological and genetic resources, and to the knowledge about its use, would seem to be an important starting point. It should comprise of two parts; the first part being to establish the authority of the traditional healers and communities over their knowledge and resources, and to explicitly grant them the right to decide if, how, when and on which conditions they are willing to share (part of) their resources and knowledge. The second step would be to formally regulate access, subject to approval (based on free, prior and informed consent) of the holders of those resources. Access regulation can be used to support multiple objectives, such as sharing benefits, preventing biopiracy and reinforcing communities' rights, since these can be imposed as conditions. Chapter 8 contains some examples of how this could be done.

Stakeholder involvement

It is crucial to involve all stakeholders -not just those with whom policy makers have pre-established relations- when devising solutions and drafting regulations. Evidence suggests that failure to do so is bound to result in the envisaged solutions and the options created -whether due to stakeholders lack of awareness or to mismatch with their actual needs- not being used, thus rendering them virtually useless.

Differential treatment

Using concept III (paragraph 5.1) as a basis, one can distinguish at least the following categories of knowledge, for which different strategies should probably be designed:

non-contemporary and ancient traditional knowledge which is in the public domain: the main strategy here should probably be disclosure, including incorporation in searchable databases, in order to avoid 'piracy' and in order to promote the awareness and use of these medicines, thereby increasing people's access to treatment;

contemporary and ancient traditional knowledge which is not in the public domain: communities concerned should be free to decide whether they want to keep their knowledge secret or whether they want to share it, and if so, on what conditions. Enabling policies should be put in place, for instance regarding communal ownership of IPR (including trade secrets), benefit sharing, prior informed consent etc.;

contemporary traditional and indigenous innovations: in order to try to provide incentives for individual healers, herbalists and other experts to innovate, modifications may have to be made to the IPR system, in order to make it more accessible (see paragraph 6.2). Individual innovators opposed to the principle of exclusive rights being granted over their innovations, could opt to keep them secret or, on the other hand, to publish them;

traditional knowledge that was unintentionally disclosed36: it should be considered to develop mechanisms to allow healers or communities to claw back their rights -at least in cases of relatively recent unintentional disclosure- for example via expanding the grace period.

36 Including unintentional and/or unjustified disclosure by third parties.

Obviously, this is but a rough sketch, further refinement is required37, and a large number of details remain to be addressed, including the sharing of benefits in case several communities possess the same knowledge, and prevention of 'false' claims by individuals not being the actual inventor. Furthermore, it may at times be difficult to differentiate between knowledge that is in the public domain and knowledge that is not. But this outline could probably be used as a starting point for the development of a national policy framework.

37 For example, it is in fact implicitly presumed here that ancient, inherited knowledge in the exclusive possession of an individual healer actually belongs to the community, with the individual healer being the guardian rather than the owner of this knowledge; therefore the healer may not have the sole right to make decisions regarding disclosure and/or to benefit economically from such knowledge. This, however, will not be true in all such cases and for all indigenous and traditional communities.

Regional cooperation

In view of the fact that the same biological and genetic resources may be found in different countries in the same geographical region, that traditional communities across national borders may possess the same knowledge about those resources, and that regional cooperation may reduce possibilities for circumvention of rules, such collaboration certainly seems worthwhile. It will furthermore strengthen the region's position in negotiations with other countries/regions and with potential bioprospectors.

The most advanced regional initiative is that of the Andean Community38 in South America, which adopted a "common system on access to genetic resources" in 1996; regional initiatives are also on the way in Africa and in the ASEAN region (see paragraphs 8.4 and 8.5).

38 The Andean Community countries are Bolivia, Colombia, Ecuador, Peru and Venezuela.

The practical examples in the next chapter may provide valuable insights regarding possible measures and strategies that can be used to address some of the issues and challenges appearing at the interface of intellectual property rights and traditional medicine(s).


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