[ffm-report-comments] Comment from Mr. Brendan Tobin, ADN, Peru.

Unfortunately, I have been unable to dedicate time to preparing detailed comments on the WIPO report, but I have read it with interest, and hope to make more detailed comments in the future. For now I would like to make some general comments on the reports conclusions, and to direct you to a forthcoming publication which discusses the issue of protection of traditional knowledge, and most particularly the lessons to be learnt from the Peruvian experience in more detail. Although it is clear that in certain limited circumstances IPR, such as copyright may be of utility in assisting in the protection of artistic works, there is almost universal consensus that existing IPR regimes are inappropriate vehicles for the protection of collective traditional knowledge relating to plants and animals. The conclusions of the report and the utilization of these to substantiate the proposed work program for wider promotion of IPR regimes amongst indigenous peoples, at least in so far as they relate to protection of TK relating to biological resources is, therefore, on rather shaky ground. And it is questionable what value is to be obtained by dedicating efforts to promote wider knowledge of existing inappropriate IPR regimes, unless this is coupled with a well prepared participatory process involving dissemination of information including information on alternative sui generis and customary law proposals, with a view to assisting in the building of indigenous peoples capacity to develop their own proposals for the means for protection of TK. To do this would require the development of a program in close cooperation with indigenous peoples, including those which staunchly oppose IPR as a means for protection of their knowledge. If the Peruvian experience has taught us anything it is that only a fully informed participatory process, which succeeds in fully engaging indigenous peoples, can effectively ensure development of a proposal which responds to indigenous peoples needs and priorities, and not only to their perceived interests. Furthermore it is clear that any regime is not to be developed on the basis of a balancing of rights over knowledge with commercial interests, but rather on the consolidation of rights taking into consideration relevant third party interests. Accordingly, the role of the State, and of international bodies such as WIPO and the WTO, must be to facilitate indigenous peoples in their search for appropriate mechanisms for protection of their rights. Furthermore it is to be questioned to what extent the protection of traditional knowledge can in fact be effectively secured by the control of scientific and commercial use of such knowledge. And although this is an issue of no little concern, it must be viewed within the framework of a wider concern to protect and strengthen traditional knowledge and innovation systems, for the protection of the cultural integrity, food security, health, and spiritual well-being, of large sectors of the world's population. And it is clear that as the erosion of TK arises more from lack of interest in the youth, education, health and religious programs which denigrate and marginalize TK, changing land practices etc, there is need for IPR legisasltion to be part of a wider package of measures to protect and strengthen traditional knowledge and innovation systems. It is to be hoped that the forthcoming first Session of the Intergovernmental committee will have the opportunity to receive information from indigenous peoples and other organizations, and those with practical experience in this area. So that experiences such as that of Peru may prove to be informed lessons, in which both the strengths and weaknesses of the experience can serve to assist in future policy and legislative development. Since 1993 at the first ICCBD meeting I have been promoting the idea for the establishment of a small task force drawn from the various poles of thought on IPR to prepare a study on the most frequently asked questions regarding the relationship between IPR and the realisation of the CBD's objectives, in order to resolve misconceptions and grey areas and enhance informed debate. I continued to promote this idea in all fora relating to the CBD since and have on occasions had long and sometimes impassioned debates with WIPO staff, on this issue, arguing that there is a need to "demystify" IPR, in order to escape the polarised battle of words and ignorance which has stymied issues for the last eight years of CBD discussions on the topic. Language which I see is mirrored in the WIPO report, making me wonder if we were speaking the same language. That hope was unfortunately dashed when I read the claim that the Ayahuasca and Tumeric Patents were signs of bad patents and not of bad patent regimes. Surely it is the regime, as it is perceived by the world, i.e. all that which enables the granting of IPR (and not the technical regime encapsulated in the word of the law) which is seen as enabling the granting of the bad patent. The use of a legalistic defence of this nature, while adequate in a court of law, is for many more aggravating than convincing. Better it would be to recognize that there have been some significant problems with implementation of existing regimes, which bring into question the adequacy of application and grant procedures to screen against the granting of bad patents, i.e. recognising the need for changes to safeguard rights. Changes such as those now incorporated in recent Andean community legislation requiring evidence of PIC for grant of patents, something termed certificates of origin, in the original proposal of elements for an access regime, (IUCN/SPDA) which informed the preparation of Decision 391. Many of these ideas, and some consideration of the Peruvian process, and the WIPO report's conclusions as well as a proposal for a comprehensive international regime for the protection of traditional knowledge based upon customary law and practice and involving legislation in both provider and user countries as well as of umbrella international regulations are included in: Redefining Perspectives in the Search for Protection of Traditional Knowledge - A Case Study from Peru - Brendan Tobin - RECIEL 10 (1) 2001, ISSN 0962 8797, at page 47, published by Blackwell publishers. (IN PRINT APRIL 2001) This article also considers the need for both internal and external actions to protect traditional knowledge, internal by the communities and external with state involvement. I trust the paper will prove of interest and I look forward to hearing your comments on this paper, and to fruitful exchanges as we advance in the search for appropriate processes and measures which will enhance the realisation of indigenous peoples rights and needs over their traditional knowledge. I believe the ideas in the paper may be of interest to participants at the forthcoming meeting, and would be pleased to see it distributed were that possible. Please receive my best wishes for your meeting, and hope that in the future we may have an opportunity to discuss these matters more closely. I would of course be very interested to receive information regarding the Intergovernmental committee sessions, distributed papers and conclusions. please note my email while I am travelling is: brendantobin@yahoo.co.uk Yours sincerely, Brendan Tobin Coordiantor Association for the Defense of Natural Rights ADN Lima PERU brendantobin@yahoo.co.uk End of comment