Conceptions of property indigenous and modern

Vast differences exist between the property systems of Western countries and those of indigenous communities in developing countries. The property regimes of a number of industrialised countries are not homogeneous but are characterised by distinctive variations at the margin. Equally true, the regime structures of traditional communities in developing countries also reflect variations between them, and these distinctions are important to take into account when addressing conservation issues. In important respects, this diversity has played a critical role in the conservation of biodiversity in developing countries. Unfortunately, these variations are not considered by many policymakers in industrialised countries. Their aim has been to introduce centralised, homogeneous systems of property

3 Padoch et al. (1991: 326) observes: 'The consequences of exploiting a medicinal species depends on biological characteristics of the plants as well as on market forces and the activities of plant collection and management. Conversely, plant biology constrains the ways in which an exploited species can be managed as a renewable resource.

4 This issue is eloquently assessed by Lokubandara (1991).

the world over. They do not seem to realise that such efforts undermine conservation and accelerate biodestruction.

At the level of agricultural production, indigenous systems were initially characterised by diversity in food items and other plant resources, but the impact of the Green Revolution has intensified the pace of agricultural monoculturalisation to the peril of the developing countries. Genetic erosion has increasingly taken over what were hitherto diverse genetic systems. The transfer of such systems to the developing countries, says Vandana Shiva, has displaced the South's 'ecologically sounder, indigenous and age-old experiences of truly sustainable food cultivation, forest management and animal husbandry'.

The process of monoculturalisation will accelerate considerably in the years ahead as uniform patent systems are adopted by developing countries. One of the greatest dangers of this growing phenomenon to the developing countries is that the traditional knowledge systems will be exploited without due compensation to the indigenous population. I shall consider some concrete cases later where this has already happened.

One important distinction between the West's property system and that of indigenous communities in developing countries is that whereas that of the West is founded on the spirit of individualism, the former is grounded on notions of collective ownership. A second distinction is one of the relationship between what is secular and what is religious. In the West, the basic philosophy is 'Give unto Caesar what is Caesar's and unto God what is God's'. In traditional communities, the spiritual and the secular are fused into one. Also, nearly all resources in the West are subject to commercialisation and, in most cases, the profit motive overrides issues of conservation. In recent years, the power of the market has been extended. What were once public goods are now amenable to private ownership. Where property rights did not exist, it is now possible to create them. In a sense, resources are increasingly being subjected to a uniform system of rights. On the other hand, indigenous systems are sensitive to what can and what should not be artefacts of commerce.

In many traditional communities in Africa, knowledge about specific trades such as metal working were confined to certain families. The sources of iron ore, for instance, could generally be known by the public, but only a few (belonging to a specific subclan) would know with certainty where the raw material could be found. It was the responsibility of every member of the community to keep this source secret. A much larger belief helped to keep this social contract in force. One was that the information should not be let out in case it fell into enemy hands. The second rested on the belief that calamity would strike the person divulging the information, that dreadful things would happen to a close member of the family. It was widely believed in the whole clan that these skills were a gift from God and any person who accidentally came across the expertise could not use it without the express permission of their true owners. In other words, even if the knowledge were to fall into public hands, there was the general feeling that its use would cast a bad omen on the violator.

So it can be seen that knowledge had some sacredness around it. The traditional healers, for instance, were not wizards or witches, but medical practitioners who used the medium of psychoanalysis to treat patients. The knowledge they possessed was regarded as vested in them through supernatural means, and was used to mediate the living with the spiritual kingdom, that is, the departed dead and the gods. This was very specialised knowledge and those who possessed it were treated with great honour. It was treated as intellectual property. Despite the fact that the herbal knowledge was vested on a selected few, it was to be used for the benefit of the community. It was thus regarded as a community resource in that respect. Anybody falling sick or requiring medical attention was treated by the traditional doctor. It was the medicineman's duty to apply his supernatural gift to heal the sick. This was knowledge that the medicineman always protected. In turn, the community was under a social contract in one way or another to protect this resource.

The skill was to be passed over to a close member of the family; the traditional knowledge was not supposed to die with the healer. There were prescribed ways of handing down the knowledge. In almost every case, the traditional medical practitioner was surrounded by one or two helpers under his study, who were educated into the art. The skills included information about herbs, their sources, the manner of their use, methods of preparation, etc. It was forbidden for any unauthorised member of the community to know the source of these herbs or the process of concoction. As I have indicated above, a member of the community who stumbled onto this knowledge would not use it, or pass it, or even mention it to anybody. If the member behaved to the contrary, it was widely believed that evil spirits would deal with him directly or with members of his family. It was also widely understood that these dreadful repercussions could also befall other members of the community. As a result of this type of sanction, members of the community who happened to know something about this knowledge were expected to withhold it from themselves as well as members of other communities.

The protection of this knowledge was essential for conservation as a whole. Plants which were limited in supply were thus given protection as members of other communities knew nothing about their importance. In any case, protection was also effected through commands made by the healer. To ensure a sustained supply, the healer declared a large area in which a herb belonged as out of bounds. Now, it was fashionable to make such a declaration in order to protect what was otherwise only a small section of the total area under protection. Even though only a small area was covered by a particular herb, the declaration of a much larger area was seen as a necessary deception. The herbalist would send out instructions that such and such an area was to be left free of cultivation, farming or grazing animals. The elders would then declare the area as a conservation or protected area. Everything in that area would be left intact.

The authority of the medicineman was therefore binding. The system worked on the basis of trust, and also on the expectation that dangers exist for defaulters. Violaters were held responsible for any dreadful visitations on the community.

General herbalists were also prevalent but possessed no specialised knowledge of the kind vested in the special class of traditional healers. This group practised general therapy and made sure that all the herbs for commonplace ailments were within easy reach. In recent years, the pressures of modernisation and agricultural expansion have forced many homesteads to grow known herbs in their backyards. In other words, the growth of these plants is no longer left to nature. Concerted efforts are underway to conserve medicinal genetic resources.

In the Western tradition, some of the earliest justifications for introducing patents can be drawn from the dawn of history. Hegel is perhaps one of the earliest philosophers to note that creativity is idiosyncratic and reflects the individuality of the creative person (Hughes, 1988). Given that the products of creativity are a manifestation of individual peculiarity, ideas emanating from a creative person belong to that person (Braga, 1990). Whether this phenomenon could justify rewarding a creative genius is not so certain; what Hegal emphasised though is the link between creativity and the idiosyncracy of the ideas to the person advancing them.

Another perspective advanced to explain the rationale for rewarding inventors relates to the impact that non-protection would have on innovation. There is a view that if this is the case, then an economy would experience an underinvestment in research and development, and hence a limited turnover of innovations.

A further argument submitted to justify the protection of inventors is to give them an incentive to disclose their technological knowledge which might otherwise remain unknown and possibly lost for good if the inventor were to die (Braga, 1990: 18).

The only way to induce inventors to divulge their vital information and thus enable society to improve upon them in future is to grant them limited remunerative monopoly over their ideas and innovations.

Hughes (1988: 18) cites yet another claim for protection and institutionalisation of property rights. This emerges from the labour theory of value advanced in the seventeenth century by a British philosopher, John Locke. According to the theory,

. . . each individual owns property in himself, in this body. Since the body that has created property is owned by the individual, property itself, by simple logical extension, also belongs to the individual. In short, property is private because it has been created through personal labour, which in turn determines its economic value

(Abcarian and Masannat, 1970: 71-2).

It follows, therefore, that because it is labour that determines the value of a product or invention, the imperative to extend property rights to them stems largely from the premise that labour is irksome and embodied in the person himself. The proposition also assumes that an individual has a right over his own body, and what flows from this premise is that products and those derived from the use of labour are properties of the individual.

Paradoxically, medicinal plants and the tropical forests in general are a subject of major legislative change in industrialised countries, with no comparable legal innovations taking place in developing countries. Legal responses in industrialised countries are borne out of strategic, commercial and conservation reasons. At the strategic and commercial level, the relevance of biotechnology in generating innovations is recognised and measures for strengthening intellectual property protection are being forged. The impact of biotechnology and the enforcement of stronger intellectual property rights mechanisms are issues that need to be taken very seriously as these are likely to impinge on conservation issues in general. It should also be noted here that the export potential of many developing countries will fall alarmingly if indigenous medicinal plants are not given legal recognition in the exporting countries themselves.

From the foregoing, it is evident that many developing countries operate regimes most dissimilar to protection systems governing innovations in industrialised countries. These differences have led to serious tensions between the North and the South, the former accusing the latter of piracy, counterfeiting and weak enforcement of intellectual property protection. In reality, the new challenges have their roots in a changed international environment. During the early 1960s, developing countries protested vehemently against the structure and content of the Paris Convention, and urged industrialised countries to modify certain provisions which could help facilitate the economic and technological development of the South. An issue favoured by the South was that regimes of industrial property should reflect national socioeconomic needs and historical challenges, giving each country the freedom to exclude products or technologies which compromise the development process. These calls were resisted by the North who pushed for the adoption of a universal set of minimum standards to be enforced across the board. The USA was concerned, for instance, with losses reported by American firms from counterfeiting and piracy. The USA first floated her concerns in GATT (the General Agreement on Tariffs and Trade), because these were issues of trade, during the Tokyo Round so as to secure protection against trade distortions. A few years later, the industrialised countries broadened the scope of this question to include intellectual property concerns that affected trade, thus giving birth to a framework in the Uruguay Round known as the Trade Related Aspects of Intellectual Property Rights, TRIPs in short. GATT has since become the key multilateral institution formally addressing the global uniformity of intellectual property standards and the mechanisms to ensure maximum protection.

The enormous importance attached to intellectual property questions in recent years stems from a changing world order, namely, the increased internationalisation of the world economy, the emergence of technology-based industries as new competitive forces in world trade, the ease of replication of many of these technologies, the huge expenditures on Research and Development to develop the technologies (and hence the need to recover costs through protection) and, lastly, the threat of competition from the relatively advanced developing countries. These factors have induced the industrialised countries (led conspicuously by the USA and Japan) to apply bilateral and multilateral pressures on violating countries, predominantly the developing nations. Bilaterally, the USA has employed its trade provisions to force compliance, and already some countries, notably Brazil, Argentina and Venezuela, have initiated property reforms in response to trade retaliation threats. Multilateral initiatives have largely been transmitted through TRIPs within GATT, but agreement on minimum international standards has yet to be finalised. The main contentions in TRIPs include: patentable subject matter (for example genetically engineered products, food, medical and agricultural products, biological processes, etc.), duration of protection, limitations on rights, and legal enforcement of rights (UNCAD, 1991). There are fears that these property rights questions will be widened to include medicinal plants in particular and genetic resources in general. These will, in the process, discard patterns of indigenous resource ownership so vital for conservation programmes in developing countries. The South's non-compliance with uniform standards now being pressed by the North may carry punitive sanctions for traditional methods of conservation. The unique characteristics of biodiversity raise fundamental questions about uniform property regimes.

... in the pursuit of uniform patent standards, little attention has been given to the unique ethical and economic attributes of genetic resources which suggest that they may need to be approached somewhat differently from industrial products. . . . From an economic standpoint, the ability of. . . genetic resources to self-reproduce and undergo evolutionary change raises difficult questions regarding both the enforceability and legitimacy of patent protection. In addition a number of observers have noted that intellectual property rights protection for . . . genetic resources may be hastening the loss of genetic diversity.. . . Thus, considerable uncertainty surrounds the development of intellectual property policies for genetic resources -it would clearly be premature to adopt uniform global standards under such circumstances.

An issue that began to occupy policy makers in developing countries in their efforts to spur economic growth was the role that patents could play in accelerating technological development. A number of developing countries have expressed concern about the usefulness of patents and the advantages that patent regimes would bring to help stimulate economic change. In response to deliberations at the United Nations in 1961, a resolution was passed to address the role of patents in the transfer of technology to developing countries. A report produced in 1964 highlighted the drawbacks and iniquities of the existing patent system, and concluded that developing countries did not benefit from the commercialisation of technology across international frontiers.

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