The pharmaceutical industry and the right to culture of traditional knowledge holders

Abstract

This thesis examines the impact on traditional knowledge holders' right to culture of corporate appropriation of traditional knowledge for the purpose of developing new medicines. The questions addressed are: - Does the behaviour of pharmaceutical companies in relation to traditional knowledge infringe on the right to culture of original knowledge holders? - What regulation of bioprospecting and traditional knowledge exists in national and international law to inhibit such infringements? - Have pharmaceutical companies taken measures in order to prevent such infringements? The right to culture is examined as described in article 15 of the ICESCR and its interpretation in General Comment 17. It is established that traditional knowledge is covered by the right to culture in so far as the particular knowledge has a non-material value for the traditional knowledge holders. As a consequence, the right to culture recognises that traditional knowledge holders have both moral and material interests in their knowledge giving rise to a right to recognition as the creator of the particular production, a right to object to any modification, distortion etc. of the production and a right to material benefit from the use of the production. Meanwhile, the Western approach to knowledge is reflected in the intellectual property rights system and particularly in patents. The specific interests of traditional knowledge holders are often not taken into account when patents are awarded and it is questionable if it is even possible to grant patents for productions dependent on traditional knowledge. The perceptions of knowledge within the framework of the right to culture and within intellectual property rights system significantly diverge and they award rights to different sets of people, thus creating a conflict between traditional knowledge holders and patent holders. Traditional medicine plays a significant role in the search for new medicines. Furthermore, the pharmaceutical industry depends on patents in order to ensure return on investments. Individual companies are thus likely to seek patents on products based on traditional medicine. This thesis confirms that several of the potential uses of traditional medicine may infringe on the right to culture of the traditional knowledge holders. However, every case has to be assessed individually. International protection of traditional medicine is mainly affected by three different sets of norms: the Convention on Biological Diversity, the TRIPS agreement and WIPO's work on traditional knowledge as expressed in the draft provisions on traditional knowledge. However, none of these instruments provide a clear binding set of norms protecting traditional knowledge and hence there is no indirect international protection of the right to culture of traditional knowledge holders. On the regional level, an African Model Law has been adopted which exhibits some interesting features considering protection of the interests of traditional knowledge holders. Furthermore, the Andean Community has adopted two decisions providing a rudimentary system of protection for traditional knowledge directly related to genetic resources. However, as in the case of international regulation, there are no clear binding norms. Several interesting national legislations exist. This thesis examines the legislations in Costa Rica, Ethiopia, India, Peru, Philippines and South Africa. The legislations are very diverse ranging from State-centered Indian legislation to community consensus for access in the Philippines and representative powers of indigenous organizations in Peru. Generally, the national legislations centre on benefit sharing and the right to object to access and use of traditional knowledge, while the right to recognition as creator is more rarely addressed. Instead, such protection is primarily phrased within the ambit of patent law. Furthermore, the legislations are generally limited to national traditional knowledge thus not creating a general protection covering traditional knowledge from other countries. In this thesis, the lack of corporate responsibility under international law for violations of the right to culture is confirmed. Instead, the often suggested alternative agenda providing for voluntary initiatives to respect human rights is researched. The overview of general business and human rights instruments, industry initiatives and company positions does not suggest that measures are taken in order to respect the right to culture of traditional knowledge holders. General business and human rights instruments are either directly excluding the right to culture or too vague to provide an inclusion of the right. On the level of the pharmaceutical industry, initiatives are generally weak, contradictory and even directly ignoring interests of traditional knowledge holders to the benefit of corporations. Meanwhile, only five out of the ten largest pharmaceutical companies have taken a position on the matter. Out of the five, only three recognise that bioprospecting has an ethical or human rights dimension and two of these positions have sufficient inconsistencies to make it questionable whether they are at all efficient. In conclusion, pharmaceutical companies have not risen to the challenge of voluntary initiatives in relation to avoid infringements of the right to culture of traditional knowledge holders.

• author: Bengtsson, Malena
• supervisor: Radu Mares
• organization: Department of Law
• year: 2010
• type: H2 - Master's Degree (Two Years)
• subject: Law and Political Science
• keywords: International Human Rights Law and Intellectual Property Rights
• language: English
• id: 1555461
• date added to LUP: 2010-03-08 15:24:02
• date last changed: 2010-03-08 15:24:02