For millennia farmers have developed elements of biodiversity to feed, clothe and heal the world. To allow this creativity to flourish, and to remunerate inventions that are crucial to the preservation of biodiversity, the knowledge-systems of indigenous peoples and local communities have to be acknowledged.
However, under the TRIPS Agreement the criteria for inventions are formulated primarily by advanced industrial nations for industrial products. As a consequence, innovations are only recognized if they are of industrial use or trade-related. Indigenous peoples and local communities, on the other hand, create collectively, informally and over time. Their innovations are for the communal good. By the definition of the TRIPS requirements, the inter-generational, communal innovations of indigenous peoples and local communities are devalued and eclipsed.
These developments have prompted developing countries’ societies, and in particular Non-Governmental Organizations (NGOs), to shape an alternative and critical knowledge-system of developing countries’ communities and peoples (see box).

Conceptual framework for a Community Intellectual Rights Act Custodianship •  The local community is declared as the owner and steward of an innovation for past, present and future generations of the community. "Local community" refers to a group of people having a long-standing social organization that binds them together, including indigenous peoples, farmers’ communities and local populations.  Free exchange amongst communities •  Local communities should grant free access to each other’s inventions, as long as it is not used for commercial purposes. Use for commercial purposes •  Local inventions can be used for commercial purposes only with the written consent of the local community.  •  The local community receives a certain percentage of all revenues of commercial products that were based on the community’s invention. •  Local communities may opt to be remunerated in a non-monetary way if this is deemed in accordance with their customs. Collection and distribution of revenues •  Payments shall be made to the community or to an organization duly representing the community.  •  If no such organization exists, or if the innovation is commonly shared amongst all local communities, the state shall act as trustee for payments arising. •  Revenues received by the state should be spent on the protection, development and maintenance of the communities’ genetic resources. Proof of invention •  Local innovations are acknowledged by the duly constituted representatives of the local community.  •  Anyone who wishes to challenge this will bear the legal and evidentiary burden to do so. Co-ownership •  For innovations that are established in more than one community, co-stewardship and benefits shall be evenly shared amongst these communities.

The proposed objectives
The opening for these rights was provided by the key provisions in the CBD which asserted the central role of the knowledge and practices of indigenous and local communities in the conservation and sustainable utilization of biodiversity. Furthermore, the CBD emphasizes that Intellectual Property Rights (IPR) should not run counter to the objectives of the Convention. Therefore, it is important to develop alternative knowledge protection systems which protect the generated innovations. These systems should take into account the underlying ethos and traditional practices of communities which innovate communally, inter-generationally, in a spirit of free exchange, and largely for social and domestic purposes.
The key features of such a community intellectual rights system stand in stark contrast to the Western system of intellectual property regimes. The innovations to be protected by such a system will bear the following hallmarks:
•  collective as distinct from individual or corporatized ownership
•  utilization for domestic or social purposes and not for industrial application
•  free exchange and not restricted or even monopolistic control
The proposed system recognizes and protects the knowledge systems of indigenous peoples and local communities. Furthermore, it acknowledges and preserves the cultural and social life of traditional societies which embodies knowledge and practices supportive of biodiversity.

A sui generis system
Art. 27.3.(b) of TRIPS states that "members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof." As TRIPS sets minimum standards, there is no prohibition of providing for a higher or different form of protection. In the industrialized world, sui generis protective laws are accepted in areas not specifically referred to in TRIPS. For instance, shortly after the entry into force of the TRIPS Agreement, the European Union (EU) devised a new a sui generis right for the legal protection of databases. This has several implications.
•  Firstly, sui generis legislation for plant varieties may be determined by national legislation, provided only that the protection does not contravene the provisions of the TRIPS Agreement. By this, more elaborate provisions may be engrafted onto any such law which could include the requirements of other international treaties such as the CBD. Obligations such as seeking the Prior Informed Consent (PIC) of indigenous and local communities could be included. Another requirement could be the mutually agreed terms between the resource-provider and resource-seeker. A further requirement could be the disclosure of the origin of the resource and the corresponding indigenous and local community knowledge relied upon. Farmers’ Rights which acknowledge the contribution of farmers in conserving, improving and making available plant genetic resources could be included. Exemptions which allow farmers the re-use and exchange of the seeds could be included as well.
•  Secondly, space to manoeuvre exists with regards to the TRIPS requirements on the principle of "National Treatment". Member states are obliged to grant to non-nationals the same advantages as to their own nationals. However, a sui generis system that puts emphasis on the place of invention could be in full compliance with the national treatment clause. At the same time, developing countries would have the possibility to discriminate positively in favour of inventions by local communities.
•  Thirdly, laws may be enacted according to TRIPS Art. 27.2. excluding patents on the grounds of ordre public or morality. TRIPS Art. 8 allows exclusion from patentability if it is deemed necessary in order to protect public health and nutrition, and to promote the public interest in sectors of vital importance to a country’s socio-economic and technological development. Countries of the South could protect the knowledge of indigenous peoples and local communities on the ground that it would be necessary to enhance their socio-economic and indigenous technological development.
Some of the critical elements which are the hallmark of indigenous knowledge referred to earlier could be incorporated in such a law. One basis for doing so relates to the concept of "invention" or "novelty". These terms are not defined in the TRIPS Agreement, yet they form the basis on which a claim for IPR rests. TRIPS leaves the definition to national governments. Innovations of communities in relation to biological resources and anything derived from them could be described as "inventions". Furthermore, the "ownership" of such innovations could be vested in the community as a whole. The nature of this ownership could be defined, and its content determined, by reference to the culture, practices and traditions of the community.
Generally, this would mean that the present members of the community would hold that right as custodians for its past, present and future members. This would necessarily mean, as well, that the invention and all that is derived from it could not become private property, but will remain in the community. Furthermore, to prevent usurpation, the law could state that any plant variety based on prior state-of-the-art is not novel and therefore could not be made the subject of an IPR claim.
The community will be accorded rights to their invention in plant breeding provided they can show that the invention is directly related to their efforts or related knowledge. By recognizing this right, as well as the knowledge system which spawns the innovations, plant breeding of indigenous peoples can be further stimulated. Commercial plant breeding will be affected in situations where plant varieties developed by indigenous communities are used in the development of new commercial varieties. In this case the ownership rights of the respective communities will have to be recognized and, when utilized, be paid for.
Gurdial Singh Nijar

Third World Network, 228 Macalister Road, 10400 Penang, Malaysia.
Phone (+60) 4 226 6728; Fax (+60) 4 226 4505; E-mail nij@pc.jaring.my

Sources
GRAIN (ed.) (1997), Signposts to Sui Generis Rights. Background discussion papers for the international seminar on sui generis rights. Bangkok, Thailand: BIOTHAI.

D. Leskien and M. Flitner (1997), "Intellectual Property Rights and Plant Genetic Resources: Options for a sui generis system." Issues in Genetic Resources, No. 6. Rome, Italy: IPGRI.

G.S. Nijar (1996), In Defence of Local Community Knowledge and Biodiversity. Third Network Paper 1. Penang, Malaysia: TWN.