Traditional medicines play an important role in the provision of health care in many developing countries. The diffusion of traditional medicinal products is also significant in developed countries. The increasing commercial value of traditional medicines has led to a discussion on the need for intellectual property protection of these medicines. Moreover, a number of cases of 'biopiracy' -unauthorized use and/or appropriation, under contemporary intellectual property laws, of traditional (medicinal) knowledge and/or biological materials- have further focussed attention on the importance of protection of traditional medicines and medicinal knowledge. In the ensuing discussion, some have stressed the need to protect traditional medicine under existing or new forms of intellectual property right (IPR) protection, as a means to recognize, compensate and/or stimulate the creators and possessors of such knowledge. Others object to that possibility for ethical, economic or other reasons. Thus, at the national level, a careful assessment of the objectives and possible implications of IPR protection of traditional medicines should be made. Their establishment may provide a basis for the recognition of traditional and indigenous healers and communities. Nevertheless, due to its monopolistic nature, IPR protection may limit rather than increase access to the traditional medicines that are essential to millions of people in developing countries.
At the same time, international agreements, notably TRIPS, are 'standardizing' IPR legislation, thus reducing -but not entirely removing- the flexibility that countries have to design laws that are appropriate to their level of development and that are in line with national priorities. Yet this 'standard' approach is increasingly being criticized:
" The global regime of intellectual property rights requires a new look. The United States prevailed upon the world to toughen patent codes and cut down on intellectual piracy. But now transnational corporations and rich-country institutions are patenting everything from the human genome to rainforest biodiversity. The poor will be ripped off unless some sense and equity are introduced into this runaway process. "
Jeffrey Sachs, The Economist, 14 August 1999
This process of 'introducing some sense and equity' will require active involvement and participation of stakeholders in developing countries.
The issue of traditional medicine is deeply intertwined with the issue of access to genetic resources, for traditional medicine involves biological and genetic resources, and the knowledge of local and indigenous communities as to the therapeutic properties of these resources. In essence, when dealing with traditional medicine, one is dealing with issues related to biodiversity conservation, to protection, preservation and promotion of cultural heritage and to technology transfer.
This complex interplay of modern technologies, biological resources and the rights of communities calls for balanced policies. Unfortunately, the discussion on policy choices is at times obscured by a lack of clarity on the objectives to be pursued, and is further compounded by the fact that concepts and perspectives differ, that objectives are multiple and that some of the potential strategies are conflicting.
This report attempts to capture some of the complexities and confusion and to shed some light on them, in order to move the discussion forward.
However, the reader is warned: this report does not provide answers. Rather, it tries to bring the questions sharper in focus.