Benefit Sharing Under the Convention on Biological Diversity
Article: Moran, K. (2004). Benefit Sharing under the convention of biological diversity. In M. Riley (Ed). Indigenous Intellectual Property (153-172).
Discussion by Alissa :
"The distinction between Western notions of appropriation of knowledge and traditional indigenous practices of knowledge "gifting," lead to a discussion of beneficiaries to property rights and patents. In the U.S. and other "westernized" nations, there is a fundamental notion of invention or property rights being owned by one individual. There are minor exceptions to this in so far that there are patents issued for two people who are co-inventors, but for the most part, royalties are granted to individuals. In the case of indigenous knowledge, where a community or a group of healers are the carriers of valuable knowledge, there must be different guidelines for appropriating royalties.
In Katy Moran's (2004) article, "Benefit Sharing Under the Convention on Biological Diversity," she discusses three different scenarios in which there were agreements made between governments, companies, and indigenous communities to ensure that financial resources were being "fairly" distributed.
The first case discussed is about the Kanis in southern India. The Kanis used a plant they called, "arogyapacha," for energy which they gathered from the jungle in their homeland. In 1987, the Tropical Botanic Garden and Research Institute, (TBGRI), was founded and held a conference in the forest near Kani communities. During this conference knowledge of the "agrogypacha" plant was announced. Shortly thereafter, they were approached by the Aryavaidya Pharmacy Coimbatore, an Indian company, to use the plant in a formula called "Jeevani," that is said to boost the immune system. There was a deal drawn up between the three entities, the Kani, TBGRI and the pharmaceutical company. It was agreed that TGBRI would share 50% of the licensing fee and 2% of royalties with the Kani. This was the first agreement of its kind where indigenous parties had been represented in a patent agreement, so there were some obvious problems that arose thereafter.
One problem quickly realized was that arogyapacha only retained it's medicinal properties when grown in the forests on the Kani homeland. This problem was resolved by Aryavaidya hiring members of the Kani community to cultivate the plant in the forests. This actually benefited the community by creating jobs and profits. However, the other problem with the agreement rose from within the Kani community; many members felt misrepresented under the original agreement as it had been drawn up between only a small number of Kani representatives without consulting the community, (about 17,000 people).
To remedy this issue there was a trust formed by an NGO, of about 500 Kani community members. However, ..."some critics feel this number falls far short of adequate representation of the Kani" (2004, p.156). But, "In March 1999, Science reported that the first payment of $21,000 would be made and shared by the community and the institute"(2004, p.156).
Although, there were contractual and technical difficulties for securing benefits to the Kani, it was a monumental step in defining intellectual property rights for indigenous communities.
The next case discussed in the article concerns the Saramaka Maroons, the Suriname government, The International Biodiversity Group, and the Bristol-Myers Squibb Pharmaceutical Research Institute.
The indigenous community of the Saramaka Maroons is composed of the ancestors of escaped slaves. Though they are not native to Suriname, the Maroons have lived in the jungle for nearly 300 hundred years, have their own language and are geographically and socially isolated from the main population of Suriname. The homeland of the Maroons is the most virgin area of rain forest left in the world and is potentially home to many species of plants and animals with medicinal properties. For this reason, bioprospecting, (looking for biological resources with pharmaceutical properties) is a draw in this particular area. To protect the property rights of the Maroon community a statement of understanding was established ensuring, "...a benefit-sharing plan with a US$60,000 total advance payment from Bristol-Myers Squibb Pharmaceutical Research Institute into the Forest Peoples Fund (FPF), with addtional contributions of $20,000 a year as the ICBG is renewed"(2004, p.159). This agreement was established before prospecting began as to ensure that some profits were earmarked for the Maroon community. The money allocated to the fund is specified to be used for, "...projects involving community development, biodiversity conservation and health care. If any products are commercialized from ethnobotancial collections, 50% of Suriname's share of any future royalties will go to the FPF and the other 50% will go to various ICBG partners in Suriname"(2004, p.160).
The last situation mentioned in the article takes place in Nigeria. In this situation, there is a high rate of deforestation in the Nigeria and to combat this, protect biodiversity and help lift people from poverty, NGO's working in alliance with local people and the government are developing ways to promote indigenous knowledge for local use and outside profit. One agreement established was with Shaman Pharmaceuticals who, "Full-fulling company policy, immediate and medium term-benefits,...totaling over $200,000 have been distributed through programs to the various stakeholders in the collaboration as the expeditions occur. The company regularly reports laboratory results to participating communities, and general literature on the project is published with both Nigerian and U.S. authors"(2004, p.163).
In this way, local communities benefit from profit sharing, but also from the new medical knowledge that is being generated by the companies.
These are several examples of how agreements are made that include indigenous communities in the profits of indigenous knowledge and property. However, there is still an issue regarding sovereignty that is not directly mentioned in these situations, but an issue to be addressed. In all of these cases indigenous people benefited through agreement that was proffered through another organization or a trust, inevitably removing the community one step from the financial transactions. In the next section I will examine several articles that address the rights of indigenous people and the preservation of culture in an increasingly globalized society." (http://apruess.blogspot.com/2009/07/common-property-rights-and-profit.html)