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 documentACKNOWLEDGEMENTS
View the documentLIST OF ABBREVIATIONS AND ACRONYMS
View the documentLIST OF RESOURCE PERSONS
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
Close this folderV. CONCEPTS, OBJECTIVES AND CONFLICTS
View the document5.1 Concepts on ownership of knowledge
View the document5.2 Objectives and conflicts
Open this folder and view contentsVI. OPTIONS AND CHOICES
Open this folder and view contentsVII. POLICIES AND STRATEGIES
Open this folder and view contentsVIII. EXAMPLES
View the documentWORKSHOP RECOMMENDATIONS
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
 

5.2 Objectives and conflicts

A discussion on policy choices and options furthermore tends to be complicated by the fact that the objectives are not always clear. At times, it seems, efforts are made to achieve a number of objectives simultaneously, but without articulating -or even distinguishing- them clearly. Moreover, while the various objectives do not seem to be mutually exclusive, some of the strategies that can be deployed to achieve them are incompatible, thereby further blurring the debate.

Commonly encountered objectives are:

Safeguard access to -and promote the wider use of- traditional medicine(s). This can be achieved by making effective remedies widely known and available, including by publishing and actively promoting them; it can further be supported by ensuring the continued functioning of traditional medicine systems and by improving quality.

Prevent 'piracy' (or monopolization) of biological assets or knowledge by those who are not the holders of those resources and/or such knowledge - piracy can be prevented by bringing such knowledge in the public domain, notably by documenting and publishing18 it (see also paragraph 6.3).

18 See footnote 7.

Keep traditional (medicinal) knowledge systems alive - this would, among others, imply the need to respect the rights of and provide incentives for the holders of traditional medicinal know-how, but may conflict with publication strategies (see paragraph 6.3). Impact on access is ambivalent - in itself, stimulating the growth of traditional systems of medicine will most likely have a positive effect, but incentives may entail price increases, thereby reducing access.

Conserve biodiversity and avoid overexploitation; this is important to help safeguarding access to existing traditional medicines. It also is one aspect of encouraging the further development of traditional medicine.

Create incentives for the continued development of traditional medicine and of a traditional medicine-based industry, in order to obtain economic benefits; this is, in general, facilitated by granting exclusive rights over such knowledge and/or resources. If not carefully managed, it may increase the risk of overexploitation.

Ensure equitable benefit sharing in case of commercialization of traditional medicine and traditional medicinal knowledge.

Stimulate national scientific research, based on resources, leads and discoveries already present in the country. Scientific and academic interest in publishing may however interfere with the interests of traditional healers/communities and industry.

Needless to say, all these objectives are valid; however, as pointed out above, some of the main strategies that can be used to achieve these objectives are conflicting. One of the key differences relates to whether or not traditional medicinal know-how should be published. Likewise, there are diverging views on how to provide incentives for traditional healers to continue developing new knowledge, which mechanisms to put in place to ensure that healers and communities can reap the benefits of their resources and knowledge, whether this would interfere with access to traditional medicines, and when benefit sharing can be considered 'fair'.

Interests and perspectives

These and other contradictions however show that the issues are profoundly interlinked, and highlight the need to find a balance between the various strategies and objectives - but also between the legitimate interests of different stakeholders, since, while there may be some overlap, interests vary among individual healers and herbalists, their communities and society at large.

Moreover, the alignment of interests depends on one's perspective. Taking the example of the sharing of benefits resulting from the development and commercialization of traditional medicine, and concentrating on just three groups of stakeholders -indigenous communities, national industry and foreign companies-national policymakers may be inclined to combine the interests of the community and national industry, while sharply distinguishing these 'national' interests from that of foreign companies. Yet from the perspective of the community, it is hardly relevant whether their resources and know-how are being developed, disclosed and/or exploited by a national or a foreign organization.

The situation is further compounded by the fact that, whereas industry normally has ways and means to make its views known to policy- and decision makers, other interested parties, notably indigenous communities and healers, may lack the means and channels for communication. Often, effective community participation is further complicated by a lack of mutual understanding (the concept of IPR may be alien to community members; similarly, policy makers may lack awareness about indigenous systems of protection) and a lack of trust.

Box 9 Contrasting values19

19 Based on a communication from Maui Solomon.

The values and knowledge that indigenous cultures have developed over many millennia have taught them to respect what Maori people in Aotearoa/New Zealand call the mauri or life force of all living beings. Indigenous peoples see themselves as part of the natural world, not as dominant over it. Many indigenous peoples regard themselves as directly related by kinship to the land, the sky, animal life, waters and so on. When one sees oneself in this context, one is required to observe certain obligations and responsibilities, as in any family relationship. Obligations of respect and reciprocity are very important to maintaining a balance in this relationship. So a traditional Maori healer must first ask permission from Tana Mahuta, the God of the Forest, before selecting and taking certain plants for medicinal purposes. The proper karakia or prayer must be said and koha or gifts should be made to reciprocate. As with traditional healers the world over, the true Rongoa Maori (traditional medicinal healers) regard their healing powers as a gift from the Creator (passed down from one generation to the next); it is therefore a very tapu or sacred thing. For this reason they will not charge for their services; this would detract from the curative powers associated with the healing process. Often it is up to the recipient of the healing to decide what gift exchange will be made in return.

When one compares this approach with that of bioprospectors who are essentially seeking knowledge of plants from which bioactive compounds may be later identified and patented and converted into commercially saleable pharmaceuticals, the contrast between the two systems and the underlying values could not be greater.

Complications

Questions also arise with regard to the allocation of rights and benefits, notably now to deal with the fact that several communities (or healers) may share the same knowledge and that it may not always be clear, to outsiders, who exactly belongs to a community, or how benefits can be delivered.

Traditional versus modern

There also are tensions at a different level: where the main interest of developing countries with regard to IPR and (modern) pharmaceuticals is to ensure that they can use TRIPS' safeguards", and are not required to provide for higher standards and levels of protection, in order to (i) ensure access and (ii) maintain their local industry, their interest may be different in the case of traditional medicines. Moreover, even if the principal objective in both cases would be ensuring people's continued access to either modern or traditional medicines, for modern medicines, the strategies to achieve this are well-known - even though it may not be (politically) feasible to implement them. In the context of traditional medicine, it is not quite as clear what the optimum strategies are; this is further complicated by the fact that some of the possible strategies contradict those needed to safeguard access to pharmaceuticals.

20 Notably compulsory licensing, parallel import and the so-called Bolar provision

Thus, when trying to balance and fine-tune objectives and strategies, policymakers may have to opt for flexible approaches, comprising multiple options and allowing for discretionary decision-making.

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