Chidi Oguamanam

Localizing Intellectual Property in the Globalization Epoch: The Integration of Indigenous Knowledge

The search for appropriate modalities for the protection of indigenous or traditional knowledge is a subject of contemporary international law and policy discourse. As a primary mechanism for the allocation of rights over knowledge, Western or conventional intellectual property rights (IPRs) provide the conceptual platform in this ongoing inquiry. However, very serious concerns are raised in indigenous and scholarly circles about the suitability of conventional IPRs to the nature of traditional knowledge. There is almost a consensus that the inadequacy of conventional IPRs in relation to indigenous knowledge compels a look in the direction of a sui generis regime of rights for local knowledge protection. However, the sui generis proposals are drawn within the rubric of conventional IPRs. Protection of indigenous knowledge is always considered in relation to the conventional IP system. This is understandable, because in the global economy conventional IPRs are the primary and formal mechanism for the protection of rights over knowledge. However, little regard is given to the fact that virtually all cultures have their own knowledge-protection protocols or conventions. Fundamentally, such culture-specific protocols are designed to protect knowledge. In that sense, they are functionally akin to Western intellectual property frameworks. Giving due regard to cultural protocols on knowledge protection is different from evaluating such schemes only in terms of their relevance to the conventional IP system. The latter approach undermines the differences in the epistemological narratives between Western and non-Western ways of knowing. In virtually all cases, ways of knowing have correlation to the ways of protection, transmission, legitimization and evaluation of knowledge. An acceptable sui generis mechanism for the protection of local knowledge must be rooted in indigenous episteme. Western IPRs’ inability to address the epistemic dichotomy between Western and indigenous ways of knowing is at the root of its failure to meet indigenous peoples’ yearnings and aspirations for the preservation of their knowledge and its cultural integrity. This is the basis of the “crisis of legitimacy in the intellectual property system”. Spotlighting traditional medicine and the patent regime, this article first highlights elements of the debate surrounding the use of conventional IPRs for the protection of traditional knowledge. It underscores the acknowledged controversy and inadequacies of that approach, and draws attention to the ongoing effort to integrate indigenous knowledge-protection protocols into the IP project. In contrast to the hitherto one-sided focus on the conventional IP system, extant efforts look to draw in knowledge-protection schemes and protocols that exist within indigenous and non-Western customary practices and jurisprudence. These developments mark a more significant step toward a realistic approach to the protection of indigenous knowledge than is offered by the conventional IP system or sui generis options based on that system. This approach depicts a cross-cultural outlook on IPRs. The article then presents an overview of the trend at the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity (CBD). Finally, the article examines the perceived conflict between the centrifugal focus of the attempt to integrate customary regimes for knowledge protection into the IP discourse, and the phenomenon of globalization as symbolized by the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement. The fact that the thrust of the effort to integrate indigenous knowledge-protection protocols into the IP discourse emphasizes the local poses a potential conflict to the current globalization initiative, especially in the IP arena. Even though TRIPs is an attempt to globalize IP, it does not change the status of IP as a subject under national jurisdiction. The effort to integrate knowledge-protection regimes from indigenous and local communities into the IP legal scheme could well have global ramifications. In effecting the legal protection of traditional knowledge, national governments would indeed be within their legitimate powers, both under the TRIPs Agreement and their commitments to various international instruments on the protection of indigenous peoples. The need to integrate indigenous knowledge-protection protocols into IP discourse is a consequence of an indigenous renaissance and resistance that has yielded a logic of epistemological pluralism. Under this pluralism, indigenous holistic and subjective understanding of phenomena or ways of knowing compete for a space within knowledge-protection jurisprudence. This article argues that contrary to popular accounts, this competition is part of the globalization experience. The notion of integrating indigenous knowledge-protection protocols into the IP agenda does not necessarily conflict with the phenomenon of globalization, as many would think. Nonetheless, the integration project is at a nascent stage. It will surely raise a number of questions and concerns. Its relationship with globalization, with which this paper is concerned, is only one of the many issues that confront the cross-cultural momentum on IPRs.

Tension on the Farm Fields: The Death of Traditional Agriculture?

Taking into account the historic transitions and progressions in agricultural science, this article examines the emergence of the phenomenon of agricultural biotechnology. It identifies pivotal sites of tension between agricultural biotechnology and alternative approaches to agriculture. The article identifies two distinct sources of contemporary social tension around agricultural science. First, it identifies the epistemological fault line and examines how the latter is promoted by intellectual property. Second, it spotlights the gene-wandering syndrome—a byproduct of genetic modification—and evaluates its impact on the escalating tension in our agricultural communities. Drawing from recent court decisions in Canada, the article recognizes the present urgency for a better jurisprudence and practical regulatory policy on aspects of agricultural biotechnology to mediate current tensions in those communities. It argues that judicial and policy response must be predicated on recognition of agro-epistemic pluralism and an understanding of broader socioeconomic impact of agro-biotechnology on alternative forms of agriculture.

Breeding Apples for Oranges: Africa's Misplaced Priority Over Plant Breeders' Rights

In 2000, African countries expressed reservation over the adoption of UPOV Act of 1991 as a model of plant breeders’ rights (PBRs) for TRIPS-compliance. For the continent, an acceptable system of PBRs protection would include the protection of the rights of communities and associated indigenous knowledge, innovations, technologies and farming practices. One and half decades after, Africa has virtually reversed itself and embraced the UPOV-PBRs system notwithstanding the latters narrow focus on breeders and marginal reference to farmers. This Article critically explores the concerted sites of pressures, especially free trade and economic partnership agreements, and related policies through which Africa appears to have capitulated and upturned its policy position on PBRs. The continents present priority over the implementation of PBRs through various regional and national legal initiatives currently at the instance of African Intellectual Property Organization (OAPI), the African Regional Intellectual Property Organization (ARIPO), the Southern African Economic Community (SADC) and specific country initiatives are explored. The article highlights the basis for the incongruity of Africas newfound interest in the UPOV-PBRs system—a regime not designed for the farmer-centered tenor of African agriculture. It calls attention to the continued relevance of Africas 2000 Model Law, especially as it applies to PBRs and recommends reality assessment as an important step toward the formulation of IPRs system suited for stakeholders in African agriculture for the continents food security and food sovereignty.

Personalized medicine and complementary and alternative medicine: in search of common grounds.

OBJECTIVES As complementary and alternative medicine (CAM) continues to assume influence in medical care delivery, biomedical orthodoxy has contemporaneously experienced landmark technoscientific advances, tempting analysts to question the relevance of CAM to 21st century medical provision. This article focuses on one representation of contemporary advances in biomedicine, namely, the phenomenon of personalized medicine (PM) and the technoscientific contexts for its evolution. It examines whether biomedicines embrace of the PM concept widens the conceptual and philosophical gulf between it and CAM. DESIGN Focusing on genomics and its translation into PM, the article finds that presently, the gene-environment dynamic is an important aspect of genomics and PM. However, there is a lopsided emphasis in the gene-environment matrix that focuses on toxicogenomics (i.e., the effect of toxins and chemicals, including drugs on genes and genetic materials). This approach to genomics ignores the role of other environmental stressors, which constitute components of an individuals health experience critical to PM. CONCLUSIONS If this lopsided approach is addressed, in a counterintuitive way, PM has potential for engendering a confluence between biomedicine and CAM as a part of the paradox of the 21st century medical landscape.

Intellectual Property: The Promise and Risk of Human Rights

The intersection of intellectual property and human rights is a relatively new site in the search for balance in intellectual property law and policy. Although this intersection opens up intellectual property to a unique kind of interdisciplinary analysis, only the human rights system appears to have seized the opportunity, while its intellectual property rights counterpart remains reluctant to engage. There are, so far, different competing first impressions over the nature of the intersection between intellectual property and human rights. Despite empirical credence of the conflict narrative, the co-existence of complementary thesis of the intellectual property and human rights interface has greater prospects for a meaningful and balanced rapprochement between the two. This chapter argues for critical scrutiny of the human rights appeal of intellectual property rights in order to avoid its potential for being hijacked by stronger stakeholders at the expense of their weaker opponents for whom intellectual property rights have strong paradoxical ramifications.

Organic Farming in Nigeria in the Era of Agro-biotech and Biosafety

In accordance with global trend, Nigeria and the rest of Africa are gradually embracing genetically modified organisms. As well, Nigeria is coming to terms with the reality and ubiquity of applications of agro-biotechnology, including its prospects both for economic advancement and for diverse associated risks. Hitherto, majority of farmers in Nigeria were organic farmers by default, a status that is now undergoing rapid transition to conventional farming not only as a result of agro-biotechnology but also as a result of recent remarkable improvements over access to agro-chemical inputs. As Nigeria embraces agro-biotechnology and transitions into conventional agriculture, organic farming status will assume a new importance as a niche. To embrace the challenge and leverage on the opportunities of Nigeria’s agricultural transition, organic farming stakeholders would need to actively penetrate the presently fluid legal regulatory space to secure organic-farming friendly policy in the country.

Pressuring 'Suspect Orthodoxy': Traditional Knowledge and the Patent System

Europe invented the modern patent system. Fillipo Brunelleschi, the 14th-century avant-guard Venetian architect, laid the foundation for that system by securing the right to commercial exploitation of his invention through blackmail. Since then, the patent system and its reputation has been no stranger to controversy. After its consolidation, the modern patent system has resisted change except when change serves the interests of its architects and sponsors. On that basis, the recent history of the patent system reflects strategic accommodation of inventions in the realms of chemistry, life sciences (bio-technologies) and, lately, business methods and inventions in the information and communication technologies. These developments depict the convenient, albeit discriminatory malleability of the patent system.Historically, that plasticity of the patent system has not been invoked to accommodate traditional knowledge. When it comes to traditional knowledge, the patent system relapses into questionable orthodoxy as a rigid creation incapable of recognizing alternative forms of innovation outside the paradigm of western science and technology. How to deal with traditional knowledge remains a thorn in the side of the patent system. The subject of traditional knowledge is arguably the single most enduring source of pressure on the patent system through its nearly six-hundred-year history. This chapter links the patent system’s interface with traditional knowledge to the latter’s experience with and treatment in the history, philosophy and sociology of science. It argues that despite the patent system’s opposition to traditional knowledge, at both practical and theoretical levels, as a matter of current reality, traditional knowledge has defied that system without much notice being taken of this transformation. Indeed, traditional knowledge challenges the patent system to re-think the importance of epistemic pluralism and equity in innovation and knowledge production which that system has historically ignored.