Traditional Medicine And Intellectual Property Rights

Author

Gerard Bodeker, University of Oxford Medical School, UK & Mailman School of Public Health, Columbia University, USA. Green College, University of Oxford, Oxford OX2 6HG, UK

Proceeding

1st International Conference & Exhibition on Women's Health & Asian Traditional (WHAT) Medicine

Date

23/8/2005

Keyword

traditional medicine, Intellectual Property Rights

Abstract

The past decade and a half has seen a rising storm of international debate and legal challenge over the patenting of traditional knowledge (TK) and its products, such as grain species, traditional medicines, traditional art images, music and rituals. At the heart of this have been two conflicting forces: one has been the attempt from non-indigenous individuals and organisations to claim ownership of indigenous knowledge and commercial gain; the other has been from indigenous groups to fend off this trend and to either take ownership of such products themselves or to engage in partnership with fair sharing of benefits for the commercial development of their knowledge, products or processes. The Convention on Biological Diversity (CBD), and the World Trade Organisation's Trade related Aspects of Intellectual Property Systems (TRIPS) are the two international legal frameworks which govern intellectual property rights issues as pertaining to indigenous knowledge and these frameworks take opposing views on the legal protection provided by customary ownership. The CBD takes the view that if a product or process has existed in a culture for a long period of time, it is owned and hence protected under intellectual property law. By contrast, the view under TRIPS is that if it is not patented it is not owned. A set of mechanisms exist which provide some degree of protection of TK, including: Trade secrets; contracts for Benefit Sharing; protected database development as a form of prior art; placing TK knowledge in the public domain to prevent it being claimed as a novel invention by the private sector. These will be reviewed and issues in the protection and development of traditional medical knowledge will be highlighted in this presentation.