ETHICAL CHALLENGES TO INTELLECTUAL PROPERTY RIGHTS FOR INDIGENOUS PEOPLES

Intellectual property rights (IPR) is becoming in vogue these days. For a long time, IPR has been much of a cause celebre among intellectuals, corporate lawyers and show-business personalities. More recently, research and development (R &D) scientists and software engineers have joined the bandwagon when the ownership of the knowledge in their heads or the "product" they developed began to be seen as a priced commodity and become a contested property. Yet of more recent and immediate concern today is the potential loss of control and dispossession over the traditional knowledge of the indigenous people or the 'little societies' of marginalized peoples around the world. These may include the artistic, medicinal and ethnobotanical traditions that can potentially contribute to the commodities of the world economy.

Historically, this indigenous knowledge was scorned by the world of industrial societies but today has become intensely and commercially attractive. Everywhere throughout the underdeveloped nations of the world, indigenous societies find themselves in the middle of this sudden resurgence of interest. Their rich cultural heritage has been poked, probed and examined as never before. Their blood samples have been thoroughly investigated and their DNA mapped and sequenced to the minutest detail. The western industrial world, whether pharmaceutical or foodstuffs or crafts or music industry, has been quick in gathering these knowledge, converting them to products and selling them. Each time that happens, the heritage itself dies a little, and with it its people. Such rapid loss and extensive exploitation of the cultural knowledge of indigenous people have raised some serious ethical questions.

Foremost on this issue is the equitable sharing of profits arising from the applications of this indigenous knowledge. The intellectual creations of gifted individuals in these 'little societies' are often forfeited and go uncompensated. Even if there has been any attempt to accord a fair deal in the acquisition of these knowledge through universally accepted copyrights, patents or trademarks, it becomes problematic because indigenous knowledge is usually the intellectual legacy of a whole society accumulated over time by countless, nameless ordinary people. In other words, indigenous knowledge often has no individually identified creators or owners.

Since the early 1990's, we have witnessed a tremendous burgeoning of interest in the intellectual property rights (IPR) for indigenous people that refers to the rights claimed by indigenous people over their traditional cultural knowledge. Indeed the IPR for indigenous peoples has become a 'hot potato' issue. Driven by the complexity of the issue, the "civilized nations of the world" initially considered the matter too dangerous to tackle because it may place them at the losing end. Proper recognition of such rights may turn out to be economically disadvantageous to their own industries that are becoming increasingly dependent on the rich natural resources of the third world together with the indigenous knowledge of exploiting these resources. At the same time, indigenous societies, indigenous leaders and advocates for indigenous rights began to find means of gaining some measures of control over this worsening exploitation of their indigenous resources and cultural knowledge.

In due process, it must be recognized that the arena of IPR for indigenous people is divided into two platforms occupied by opposing interest groups: those who are seeking a usable and legal basis for indigenous IPR and those within the indigenous societies who are seeking to protect their traditional knowledge. Both sides of the arena must be able to effectively address the issues pertaining to access to and control over the cultural knowledge that are potentially useful through its applications. Careful considerations must be accorded to the extent and mechanism by which parts of that cultural knowledge are shared equitably with those intending to gain from the applications of this knowledge. Foremost on the negotiation table would undoubtedly be the quantum and means that would constitute a just and meaningful compensation for sharing that knowledge. This very point in question has been addressed at the international level and stipulated conceptually in the Agenda 21 of the Convention on Biological Diversity at Rio de Janeiro in 1994. At the national level, our commitment in tackling this issue has also been clearly indicated in the Malaysian National Policy on Biological Diversity unveiled in April 1998.

The scope of concern in debating IPR for indigenous people moves far beyond the question of economic returns and just compensation for sharing their knowledge with outsiders. From the viewpoint of indigenous societies, their concern encompasses non-materialistic issues as well. These include protection of sacred lands, preserving spiritual wisdom and ceremonies, according spiritual and religious respect to physical components in their environment and preserving sacred and 'pure' knowledge that should never succumb to the pressures of 'selling out' in the game of capita