The “protection” of TRM may also aim at its preservation,52 requiring actions of very different nature, such as avoiding uses that may erode TRM, addressing problems that negatively affect the life or culture of the communities that hold it, and documenting the relevant knowledge.
52 Preservation is not actually a rationale in and of itself, but a proxy for other possible rationales, normally either cultural integrity or the value of use (personal communication by R. Lettington, 27.8.01).
Most medicinal plants are gathered from the wild.53 For instance, India and China reportedly harvest 90 per cent and 80 per cent of their medicinal plants respectively from uncultivated sources. A similar situation exists in Africa. Due to ever-expanding populations and the expansion of practices such as logging, the biodiversity-dependant communities are currently facing the degradation of the ecosystems on which they depend (Lettington, 2000, p.12). Wild populations of species like pygeum (Prunus Africana) and yohimbe (Pausinystalia yohimbe) are currently harvested in unsustainable and destructive ways in order to feed international markets. Around 200 medicinal plant species have been added to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) appendices (ten Kate and Laird, 1999, p. 102).
53 The use of the term ‘wild’ for these areas of collection, however, may be inappropriate, since such areas are cared for/conserved as part of the indigenous management system, though this may not be an obvious conservation effort to Western observers.
During the period 1990-1993, Africa lost 3.7 millions hectares of forest every year or an annual deforesting rate of 0.7 per cent (more than double the global average, which averages 0.3 per cent). African forest cover 520 millions hectares or close to 18 per cent of the area of the continent. Conservation of natural resources is crucial to an ecosystem capable of supporting the continued practice of TRM (Nelson-Harrison et al, 2002, p. 283). Direct measures to prevent overexploitation of medicinal plants and development of cultivation techniques to allow cultivation (and perhaps improvement) of the required plants (Pranoto, 2001, p. 3) may be crucial to the preservation of TRM.
Further, cultural erosion54 may be a powerful factor in the loss of TRM. As youth move to urban areas and education de-emphasizes the value of traditional culture and knowledge, TRM loses its heirs.55 Thus, it has been noted that in the Asian context:
“Urbanization and the advent of the nuclear family leading to the virtual disappearance of the grandmother, the mother-in-law, and the village elders, have led to a situation where common remedies which had been administered without any doctors for years have now become questionable for a new generation of Western-educated urban public exposed only to the allopathic system and allopathic drugs. The age-old practices of maintaining kitchen gardens and visits to the village grocer who stocked all the dried herbs have gone into disuse in the cities. Knowledge about which part of the plant is to be used, namely, the root, stem, bark or leaves, has been effaced. Yet, for centuries this had been the mainstay of entire populations, long before allopathy came on the scene, and continues to be so for tribal and village people in many developing countries even today” (Chandra, 2002, p. 138).
54 The crisis affecting the world’s diverse culture and languages is, according to some estimates, far greater than the biodiversity crisis. Around 90% of the 6000+ currently spoken languages (and the cultures expressed by them) may have gone extinct or face extinction in the next one hundred years (Oviedo, Gonzalez and Maffi, 2000, p. 6).
55 Personal communication by Bodeker, 13 August 2001.
An obvious action to preserve TRM knowledge is to document it. India has pioneered initiatives for the documentation of traditional knowledge, including TRM. It launched an ‘All India Coordinated Research Project on Ethnobiology’ (AICRPE) under the Man and the Biosphere Program in 1982. The overall objective of AICRPE was to make an in-depth study and analysis of the multidimensional perspectives of the life, culture, tradition and knowledge system of the tribal communities of India. Initially the project was administered under the Department of Science and Technology, but was later transferred to the Indian Ministry of Environment and Forests. It operated at 27 centers within India, utilized approximately 600 scientists drawn from botany, zoology, sociology, anthropology, ayurveda, chemistry and pharmacology and lasted for 16 years (1982-1998). The AICRPE project documented the use of over 10,000 wild plants used by tribal peoples to meet a variety of their needs (Pushpangadan 2002, p. 5).
The “Gene Campaign” project has also aimed at documenting the biodiversity and related knowledge of three tribal populations in India: the Munnars in South Bihar (in the Chotanagpur region); the Bhils of Madhya Pradesh; and the Tharus of the Terai region. Medicinal plants and related knowledge was sought and documented with the help of educated tribal youth. Elders in the village, medical practitioners and traditional healers were consulted in the collection and understanding of the information (Government of India, 2000).
Similar initiatives have been established in other countries. For example:
• In the Peoples Democratic Republic of Laos, the Traditional Medicines Resource Centre (TRMC) works with local healers to document details of all traditional medicine with a view to promoting a sharing of practices within Laos. The TRMC is also collaborating with the International Co-operative Biodiversity Group (ICBG) in efforts to discover prospective medicinal products. Any profits or royalties realized from plants and knowledge recovered during the collaboration will be shared with all the involved communities (Riley, 2000).
• In the Ivory Coast a TRM program was set up by Ministry of Health in 1978. In order to protect traditional medicinal knowledge and promote proper use of traditional medicine. This program conducted surveys of traditional health practitioners in 7 out of 19 regions of the Ivory Coast and has recorded more than 1,000 medicinal plants, used traditionally used by traditional health practitioners.
• In the United Arab Emirates, there is a long history in the use of traditional medicine. The Zayed Complex for Herbal Research & Traditional Medicine (ZCHRTM) was established in 1996. One of its basic missions is to collect, record and analyze the traditional medicine knowledge from traditional practitioners.
• The Government of Iran has, since 1990, supported the development of a national inventory of medicinal plants. Up to now, 2.500 flora of 8.000 plants have been listed, classified and divided into 20 volumes. The National Academy of Traditional Medicine in Iran and Islam was established in 1991. One of its objectives is to study the history of Iranian traditional medicine and preserve Iran’s traditional medicine.
While these efforts are valuable and should be continued, the question to be addressed here is what role can intellectual property play in preserving TRM. The Crucible Group has considered with some detail the arguments for and against a possible function of IPRs in the preservation of traditional knowledge. The Group identified general reasons that may, if the cause and effect assumptions within the arguments can be substantiated, justify a system of IPR protection as a means to ensure the preservation of such knowledge. According to one of such arguments,
“Vesting legally recognized ownership of knowledge in communities through sui generis IPRs will raise the profile of that knowledge and encourage respect for it both inside and outside the knowledge holding communities. This will make the learning and development of such knowledge a more attractive prospect for the younger members of such communities, thus perpetuating its existence.
The possibility of economic returns for the use of that knowledge by third parties acts as a further incentive for community members to respect their knowledge and continue to engage in practices in which that knowledge is used and generated.
Indigenous and local knowledge holders will be more willing to disclose otherwise secret knowledge once they know sui generis laws can give then control over how their knowledge gets used. In this way, IP laws encourage the disclosure, use and proliferation of knowledge that might otherwise be lost” (The Crucible Group, 2001).
The Group also noted, however, that merely using a law to make something into property that was previously part of the public domain
“does not suddenly save it, conserve it, make people respect it or want to use it…Fencing off their knowledge does nothing to protect it form being even more eroded, undermined, or ignored or at risk of being lost” (The Crucible Group, 2001).
Some indigenous people may find the suggestion that recognition through a Western system will mean that they have any more respect for and tendency to preserve their own traditional knowledge insulting. The inclination to preserve knowledge may well relate more to an understanding of and pride in their own culture and beliefs relating to ownership and distribution of knowledge than in acceptance within and validation by an alien framework. Communities may be more inclined to preserve and transmit their TRM knowledge to future generations if their rights are respected, for example, under mainstream recognition of their own customary laws, rather than through creating and applying new IPRs systems alien to their culture and beliefs.
IPRs may have little or no impact on the preservation of TRM knowledge, if other critical conditions are not met, such as the continuous interaction of the communities with the natural environment in which their cultures and lifestyles have developed and evolve. TRM is unique to a given culture or society and is developed as a result of the co-evolution and co-existence of both the indigenous cultures and their traditional practices of resource use and ecosystem management (Pushpangadan, 2002).
As mentioned above, TRM is not static, but continuously evolves through incremental innovation. Policies for the “preservation” of such knowledge should ensure the maintenance of the sources of such evolution. While commercial interests may provide incentives for that purpose in certain contexts, notably in the case of codified TRM systems, in other contexts, such as small communities or tribes, the key factor may be the protection of their cultural integrity, which may be threatened rather than enhanced by prospects (sometimes not realistic or achievable) of monetary returns.
In conclusion, the protection of TRM as a means for the preservation of relevant knowledge, requires as a fundamental condition the maintenance of the traditional lifestyles and cultures, and of the ecosystems where the TRM has developed and continues to evolve. It is likely that IPRs can do little, if anything, to effectively preserve TRM and the sources of materials used for the preparation of medicinal products, or to ensure that such knowledge continues to be improved over time, if such other conditions are not met. An excessive focus on IPRs may deviate attention from the most crucial factors on which the preservation of TRM depends.