Protection and Promotion of Traditional Medicine - Implications for Public Health in Developing Countries
(2002; 131 pages) View the PDF document
Table of Contents
View the documentThe South Centre
View the documentPREFACE
View the documentINTRODUCTION
Open this folder and view contentsI. INTELLECTUAL PROPERTY AND TRM
Open this folder and view contentsII. RATIONALE FOR PROTECTION
Open this folder and view contentsIII. APPLYING EXISTING IPRS
View the documentA. Defining Public Domain
View the documentB. Title
Open this folder and view contentsC. Applying Patent Laws
View the documentD. Utility Models
View the documentE. Designing a sui generis Regime
View the documentF. Enforcement
View the documentG. Misappropriation Regime
View the documentH. Investment Incentives
View the documentI. Benefit Sharing
View the documentJ. Customary law
View the documentV. IPRs AND PUBLIC HEALTH
View the documentVI. CONCLUSIONS
View the documentREFERENCES

B. Title

Another delicate issue is determining the attribution of rights, especially when certain knowledge is hold by more than one community. IPRs are conferred to individuals and legal entities (juridical or legal persons). Communities are not generally accorded such a legal status. It is difficult to identify not only the communities to whom certain knowldege should be attributed, but also who legitimately represents them (Greene, 2001, p. 32).

In some countries, organizational structures (often structures imported from the West) such as associations, corporations, councils and cooperatives have been formed in order to address the communities’ representation problem. Some legislation has sought to provide for the recognition of indigenous groups and communities in general - e.g. Australia’s Aboriginal Councils and Associations Act - or of land-owning groups in particular - e. g, Papua New Guinea’s Land Groups Incorporation Act. Attempts have also been made to tailor the legislation to the particular nature, functions and powers of the indigenous body concerned, as in the case of Anangu Pitjantjatjara, the corporate body established in South Australia to hold and manage the ancestral lands of the Pitjantjatjara people137 (Fingleton, 1998, p. 34).

137 A review of this law, however, found in 1996 that the Act gave almost no room for local cultural variation in corporate structures and decision-making processes, and in fact caused groups to lose control over their affairs (Fingleton, 1998, p. 33).

The issue of title-hood of TRM and representation poses complex legal and practical problems. It should be left to the local or indigenous communities to decide whether rights in the knowledge they hold are assigned to the community or to individual holders (e.g. healers). The answer may be different, for example, for African and Amer-indian cultural groups, depending on their spiritual and social conceptions. The same applies to the problem of representation. As noted by Fingleton,

“the more the legislative regime allows groups to incorporate their own cultural concepts and processes into their formal legal structures, the more likely those structures are to be effective in meeting their members’ needs and wishes. The recognizing law must, in other words, be culturally appropriate if it is to serve a useful purpose” (Fingleton, 1998, p.34).


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