Since its inception, the TRIPS Agreement, which imposes uniform standards for intellectual property protection on all WTO Member Countries, has attracted considerable attention from public health experts and consumer groups, many of whom fear that implementing TRIPS may entail price increases for pharmaceuticals; this, in turn, is bound to reduce people's access to the medicines they need, notably in developing countries. So far, much of the discussion -and of the commotion- has focussed on modern medicines.
From a developing country's perspective, when looking into the issue of intellectual property rights for allopathic or 'modern' medicines, the objectives are clear, and the strategies that can be used to achieve those objectives are -by and large- known -though their implementation may be difficult.
The same cannot be said with regard to traditional medicines. When looking at intellectual property protection for traditional medicine(s), it turns out that the objectives are multiple and diverse, that the priorities are not clear and that the strategies which could be deployed may interfere with each other, as well as with the prioritization of the objectives. This is further aggravated by differences in stakeholders' underlying concepts on ownership of knowledge and by uncertain or paradoxical effects of some potentially useful strategies.
This report provides an overview and discussion of the key issues, conflicts and challenges to be confronted when one attempts to understand and develop solutions with regard to the protection and development of traditional systems of medicine and their interface with the 'western' intellectual property rights system.
While it shows that, in general, the options existing under the current systems of intellectual property rights do not match with the needs for protection of traditional medicine, it also points at possible modifications and at ways to devise new forms of intellectual property that may better suit the diverse needs of those who seek to protect traditional medicines and traditional medicinal knowledge. Yet this is not to suggest that such protection is necessarily the preferred option. In fact, the inherent contradiction between ensuring access to medicines and providing for (intellectual property) protection in order to enhance their further development resurfaces in the context of traditional medicine.
Moreover, traditional medicine usually concerns biological resources and the knowledge of local and indigenous peoples and/or healers regarding their medicinal use. Thus, traditional medicine is interlinked with biodiversity conservation and with indigenous people's rights over their knowledge and resources. At this multi-faceted interface, complex ethical questions arise.
Recently, a number of 'high-profile' cases of misappropriation of biological resources and/or the associated knowledge have highlighted the need and stressed the urgency of addressing this issue; mechanisms need to be developed to ensure that knowledge and resources are not used without full, informed consent of their holders, and ways have to be found to ensure equitable sharing of benefits - that is, to actually implement many of the principles which are already laid down in the Convention on Biological Diversity.
Thus, policymakers and stakeholders should address the multiple and multi-layered issues and questions, and make a choice, or, preferably perhaps, develop and fine-tune a range of solutions in order to address and balance the various objectives and interests.
This report -like the workshop on which it is based- aims to contribute to the debate by shedding some light on the inevitable contradictions and by sharpening the understanding of the questions to be asked. It does not, however, pretend to provide all the answers...
Outline of the report
After an introduction, this report in fact consists of three main sections. The first section is describing 'the scene', with chapter 2 providing information on the importance of traditional medicine and describing the phenomena of bioprospecting and biopiracy. Chapter 3 summarizes, in a nutshell, two crucial and relevant international agreements. Chapter 4 then depicts some of the problems one is likely to encounter when applying conventional intellectual property rules to a field of knowledge for which they were not designed.
The second section forms the essence or core of the report. It discusses (in chapter 5) concepts, objectives, strategies and the contradictions between them. Chapter 6 describes some of the strategies, notably -but not exclusively- for the protection of traditional medicine, in greater detail. This chapter furthermore indicates that such protection is an option -not necessarily the preferred option- and highlights the multidimensional dilemmas, which the choice for or against protection engenders. Thereafter, chapter 7 attempts to indicate a possible way forward.
The next section or chapter (no. 8) provides concrete examples of relevant laws and regulations in different parts of the world, and serves to illustrate how some of the issues and principles discussed can actually be translated and put into practice.
Finally, in chapter 9, the workshop's recommendations are presented.