Ancient indigenous deoxyribonucleic acid (DNA) and intellectual property rights

Abstract

The ownership/custodianship of extracted ancient indigenous deoxyribonucleic acid (DNA) from ancient indigenous human remains has received little critical legal examination. This article argues that an intellectual property framework would become the likely, however unsuitable, legal framework for the exploitation of ancient indigenous DNA through the vehicle of patents. As yet this is a hypothetical discussion as this new indigenous resource remains unexploited. The dilemma raised for indigenous peoples is this: how can they best control and protect their ancestors DNA extracted from human remains, especially as recently commodified objects. Part 1 highlights the differences between perceptions about property from an indigenous perspective and a ‘Western’ legal perspective. Part 2 examines the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and ownership of ancient indigenous DNA. Part 3 examines the work of the World Intellectual Property Organisation (WIPO) Intergovernmental Committee on Intellectual Property and Traditional Knowledge, Genetic Resources and Folklore (ICG) and the possibility of an indigenised intellectual property framework and/or sui generis protection.

Keywords:

• indigenous peoples
• DNA
• intellectual property
• WIPO

Notes

See Scoping Survey of Historic Human Remains in English Museums undertaken on behalf of the Ministerial Working Group on Human Remains, February 2003, Department of Culture, Media and Sport Publications, www.culture.gov.uk/reference_library/publications/4553.aspx for a comprehensive statistical analysis of data collected from 148 responses from holders of historic human remains, which are predominately from indigenous communities.

DNA is a nucleic acid that contains the genetic instructions used in the development and functioning of all known living organisms and some viruses.

The Eastern Band Cherokee have adopted a law that recognises the graves of Cherokee people as sacred and specifically prohibits destructive skeletal analysis: the Cherokee Code. See D. Harry and L. Kanehe, ‘Asserting Tribal Sovereignty Over Cultural Property: Moving Towards protection of Genetic Material and Indigenous Knowledge’, Seattle Journal for Social Justice 27 (2006): 6. Aboriginal Australians believe the spirit of the deceased person will escape; see The Submission to the Australian Law Commission Inquiry into the Protection of Genetic Information by the Torres Strait Islander Social Commissioner, HREOC 13 May 2002, http://www.hreoc.gov.au/legal/submissions/sj_submissions/submissions.html.

www.bbc.co.uk/news/uk.

See ‘Study on Discrimination against Indigenous Populations’, submitted by UN special rapporteur Martinez Cobo in relation to return and control of sacred and religious objects. E/CN.4/Sub.2/1983/21/Add.8 paras. 599-600,604-608. E. Daes, ‘Report of the Working Group on Indigenous Populations’ on its fifth session 24 August 1987, E/CN.4/Sub.2/1987/22. Annex 5. Declaration of Principles adopted by the Indigenous Peoples includes return of human remains of their ancestors for burial according to their traditions.

M. Barnes, ‘Black Women's Stories and Criminal Law: Restating the Power of Narrative’, University of California Davies Law Review 39 (2006): 941.

Doctrine is now discredited as an ‘unjust and discriminatory doctrine’. Mabo v. Queensland (No.2) (1992) 175 C.L.R. at 42.

See generally R. Delgado, ‘Storytelling for Oppositionists and Others: A Plea for Narrative’, Michigan Law Review 87 (1988): 2411–2441.

Barnes, ‘Black Women's Stories and Criminal Law’, 953–54.

See past and present Indigenous representatives of the United Nations Permanent Forum on Indigenous Issues.

A. Regino Montes and G. Torres Cisneros, The United Nations Declaration on the Rights of Indigenous Peoples: a Foundation of a New Relationship Between Indigenous Peoples, States and Societies in Making the Declaration Work, ed., C. Charters and R. Stavenhagen IWGIA 152 2009.

In the discussions around the Declaration on the Rights of Indigenous Peoples the African group had reservations in relation to the fact that the Declaration on Rights of Indigenous Peoples did not define the ‘rights holders’; see Draft Aide Memoire on the United Nations Declaration on the Rights of Indigenous People November 2006 2.0, New York.

Montes and Cisneros, ‘The United Nations Declaration on the Rights of Indigenous Peoples’, 154.

See Rodolfo Stavenhagen, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Commission on Human Rights, UN Doc. E/CN.4/2002/97, (2002) at para. 100. Daes E-I Standard Setting Activities: Evolution of Standards Concerning the Rights of Indigenous People E/CN.4/Sub.2/AC.4/1996/2 10 June 1996.

M. Hudson, A. Ahuriri-Driscoll and M. Lea, ‘Whakapapa – A Foundation for Genetic Research?’ Bioethical Enquiry 4 (2007): 43–49.

Ibid., 43–49.

Ibid., 43–49.

Milpurrurru v. Indofurn Party Ltd 54 F.C.R. 240 (1994), Bulun Bulun v. R & T Textiles Party Ltd (1998) 157 ALR 193, Yumbulul v. Reserve Bank of Australia 21 I.P.R. 481 (1991), Wik v. Queensland (1996) 141 A.L.R. 129, Okonkwo v. Okagbue [1994] 9 N.W.L.R. 301, Na Iwi Na Kupuna O Mokapu v. Dalton 894 F.Supp. 1397 (1995) Mabo v. Queensland (No 2) (1992) 175 CLR.

See R. Tsosie, ‘Indigenous Peoples’ Claims to Cultural Property: A Legal Perspective', Museum Anthropology 21 (1997): 5–11; and L. Graham and S. McJohn, ‘Indigenous Peoples and Intellectual Property’, Washington University Journal of Law and Policy 19 (2005): 313–337.

Protection of the Heritage of Indigenous People Final Report of the Special Rapporteur, Mrs Erica-Irene Daes, in Conformity with Subcommission Resolution 1993/44 and Decision 1994/105 of the Commission on Human Rights Draft Principles and Guidelines For the Protection of the Heritage of Indigenous Peoples Annex E/CN.4/Sub.2/1995/26.

Declaration of Principles of the World Council of Indigenous Peoples, Kari-Oca Declaration and the Indigenous Peoples, ‘Earth Charter, Charter of the indigenous-Tribal Peoples of the Tropical Forests, and the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples’.

See Alexkor Ltd. & Another v. Richtersveld Community & Others, 2003 (12) BCLR 130l para 34 and Moiwana Community v. Suriname (Judgment) (2005) 124 1./A. Ct H. R. (ser. C.).

See Section 4 Swakopund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, African Regional Intellectual Property Organization, Namibia 2010.

New Zealand Government Report, Royal Commission on Genetic Modification, Chapter 3 Cultural, Ethical and Spiritual values para. 15, 19.

Article 28 Trade Related Aspects of Intellectual Property Agreement.

Access to detailed knowledge of Whakapapa.

Article 70 Trade Related Aspects of Intellectual Property Agreement.

E/CN.4/Sub.2/1993/28 para 21.

See S. Gura, Consultancy Report to the League for Pastoral Peoples and Endogenous Livestock Development, Industrial Livestock Production and its impact on Smallholders in Developing Countries. www.pastoralpeoples.org 2008. See Action Group on Erosion, Technology and Concentration (etc.) Report, Who owns Nature: Corporate Power and the Final Frontier in the Commodification of Life etc., November 2008, http://www.ectgroup.org.

Whakapapa.

See J. Carbone and E. Gold, ‘Myriad Genetics: In the Eye of a Storm’, Genetics in Medicine 12 (2010): 39–70.

See UK Intellectual Property Office, patent forms www.ipo.gov.uk.

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 Supreme Court Canada, Communication 276 / 2003 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya.

The Wik Peoples v. State of Queensland & Ors; The Thayorre People v. State of Queensland & Ors: [1996] High Court of Australia (23 December 1996).

United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples E/CN.4/Sub.2/1993/28 para 27.

Mataatua Declaration, First International Conference on the Cultural & Intellectual Property Rights of Indigenous Peoples, Whakatane, June 1993, Aotearoa, New Zealand.

See A. Diaz, ‘How Indigenous Peoples Rights Reached the UN’, in Making the Declaration Work, ed., C. Charters and R. Stavenhagen (IWGIA, 2009).

Judge Trindade in Moiwana Community v. Suriname in the Inter American Court of Human Rights in his separate opinion, interestingly stated that the international law of human rights in particular, cannot remain indifferent to the spiritual manifestations of human beings. Moiwana Community v. Suriname (Judgment) (2005) 124 1./A. Ct H. R. (ser. C.), see in particular Part IX.

Study on the Protection of the Cultural and Intellectual property of Indigenous peoples, Erica-Irene Daes, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chairperson of the Working Group on Indigenous Populations. E/CN.4/Sub.2/1993/28.

Declaration of Principles of the World Council of Indigenous Peoples, Kari-Oca Declaration and the Indigenous Peoples, ‘Earth Charter, Charter of the indigenous-Tribal Peoples of the Tropical Forests, and the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples’.

A. Ngenda, ‘The Nature of the International Intellectual Property System: Universal Normsand Values or Western Chauvinism’? Information & Communications Technology Law (2005) http://www.informaworld.com/smpp/title. See D. Lea, ‘Aboriginal Entitlement and Conservative Theory’, Journal of Applied Philosophy (1998): 1, 1–14.

E/CN.4/Sub.2/1993/28 para 23.

E/CN.4/Sub.2/1993/28 para 24.

Maori view – Whakapapa.

R. Grad, ‘Indigenous rights and intellectual property law: A Comparison of the United States and Australia’, Duke Journal of Comparative & International Law (2003): 230.

R. Barsh, ‘How do you patent a landscape’, International Journal of Cultural Property (1999): 14–47.

E/CN.4/Sub.2/1993/28 para 31.

‘Report of the Indigenous Peoples. Health Research Centre to the Interagency Advisory Panel on Research Ethics. ‘The ethics of research involving indigenous peoples,’ (1993): 9, www.iphrc.ca/documents/ethics.

For a full discussion on indigenous peoples' participation in international rule making see E. Bluemel, ‘Separating instrumental from intrinsic rights: Toward an understanding of indigenous participation in international rule making,’ American Indian Law Review 29 (2005): 57–132. ‘Participation of Indigenous Peoples in International Law Making and its Legitimacy-Enhancing Qualities’ at the Liverpool Law School Conference on Minorities, Indigenous Peoples and Human Rights C. Charters, Liverpool, May 2009.

I. Mazonde and P. Thomas, ed., Indigenous Knowledge Systems and Intellectual Property in the Twenty-First Century: Perspectives from Southern Africa. (Dakar: CODESRIA, 2007), 27.

A Moreton-Robinson, ‘Witnessing Whiteness in the Wake of Wik’, Social Alternatives 17 (1998): 12.

J. Ransley and E. Marchetti, ‘The Hidden Whiteness of Australian Law: A Case Study’, Griffith Law Review 1 (2001): 139–152.

Charters, ‘Making the Declaration Work’, 289.

Montes and Cisneros ‘Making the Declaration Work’, 162.

Montes and Cisneros ‘Making the Declaration Work’, 162.

United Nations Declaration on the Rights of Indigenous Peoples, as adopted by the Human Rights Council on 29 June, 2006, and by the UN General Assembly on 13 September 2007.

Article 31.

1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions.

Bonnichsen et al v. United States, 375 F.3d 962-979 (9^th Cir. 2004).

Section 2(2) NAGPRA: ‘cultural affiliation’ means that there is a relationship of shared group identity that can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organisation and an identifiable earlier group.

See S. Harding, ‘Bonnichsen v. United States: Time, Place, and Search for Identity’, International Journal of Cultural Property 12(2005): 249–263.

For a full discussion on, ‘Who is Indigenous’, see Chapter 2, P. Thornberry, Indigenous Peoples and Human Rights (Manchester: Juris Publishing, 2002), 33–60.

Thornberry, Indigenous Peoples, 37.

Ibid. 38.

E/CN.4/Sub.2/1993/28.

UN Doc. E/CN.4/Sub.2/1993/28 para 28.

UN Doc. E/CN.4/Sub.2/1993/28 para 29.

See organisational options in D. Posey and G. Dutfield, Beyond Intellectual Property (Ottawa: International Development Research Centre, 1996), 62.

See Recent Requests for Pagan Reburial of British Bones in Museums, BBC, 25 February 2010, www.news.bbc.co.uk.

Article 11

1. Indigenous peoples have the right to practise and revitalise their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 Indigenous issues 1995/32UN Doc. E/CN.4/2001/85 Para. 151.

A. Vrdoljak, International Law, Museums and the Return of Cultural Objects (Cambridge: Cambridge University Press, 2008).

UNESCO report of the international conference of experts held in Barcelona, ‘The implementation of the right to self-determination as a contribution to conflict prevention’ (November 1998), www.unpo.org.

M. Simpson, ‘Museums and Restorative Justice: Heritage, Repatriation and Cultural Education.’ Museum International 61, no. 1–2 (2009): 121–129.

First International Conference on the Cultural and Intellctual Property Rights of Indigenous Peoples, Whakatane, June 1993, Aotearoa, New Zealand.

See Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, by Erica-Irene Daes, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chairperson of the Working Group of Populations E/CN.4/Sub.2/1993/28 Para. 4.

1995 Draft Principles and Guidelines E/CN.4/Sub.2/1995/26, Annex. Principle 2.

Aureliu Cristescu, Special Study on the Right to Self- Determination – Historical and Current Development on the Basis of United Nations Instruments (1981) (E/CN.4/Sub.2/404/Rev.1), United Nations Publication, New York Para. 641.

See Lubicon Lake Band v. Canada Communication No. 167/1984, Views adopted on 26 March 1990. Ivan Kitok v. Sweden Communication No. 197/1985, CCPR/C/33/D/197/1985 (1988).

A. Vrdoljak, International Law, Museums and the Return of Cultural Objects, (Cambridge: Cambridge University Press, 2008), 4.

T. Fenge, Towards Sustainable Development in the Circumpolar North, Canadian Arctic Resources Committee (2002) www.carc.org.

See Brundtland Report, which defined sustainable development as ‘meeting the needs of the present without compromising future generations to meet their own needs’, World Commission on Environment and Development (1987), UN Doc. A/42/427.

M. Bengwayan Intellectual and Cultural Property Rights of Indigenous and Tribal Peoples in Asia, Minority Rights Group International 2003, 13.

UNEP/CBD/WG8J/5/6 20 September 2007.

Rapporteur Justice M. Kelly, ‘Report of the International Bioethics Committee on Ethics, Intellectual Property and Genomics’, Paris 10 January 2002, www.uneso.org.

Davies in Gibson, ‘Community Resources’, 210.

M. Bengwayan, ‘Intellectual and Cultural Property Rights of Indigenous and Tribal Peoples in Asia’, Minority Rights Group International (2003): 13.

See A. Cristescu, The Historical Development of the Right to Self-Determination on the Basis of the Charter of the United Nations and Other Instruments, UN Doc E/CN.4 Sub.2/404, 641–77.

H. Marium, ‘The Cultural Benefits of the Return of the Axum Obelisk’, Museum International 61 (2009): 51.

The Law Reform Commission of Ireland, The law Commission Report on the UNDROIT Convention on Stolen or Illegally Exported Cultural Objects (October 1997) 125.

J. Raffan, ‘Crux of the matter: Manipulating Cultural Property in Aboriginal Rights Debates’, Art Monthly Australia (2010): 51.

See African Commission on Human and Peoples Rights, Communication 276 / 2003 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya.

E/CN.4/2001/85 para 147.

E/CN.4/1997/102.

A. Vrdoljak in F. Lenzerini, Reparations for Indigenous Peoples (Oxford University Press 2008), 213.

A. Eide, The Indigenous Peoples, the Working Group on Indigenous Populations and the Adoption of the UN Declaration on the Rights of Indigenous Peoples ‘Making the Declaration Work The United Nations Declaration on the Rights of Indigenous Peoples’, ed., C. Charters and R. Stavenhagen (IGWIA 2009), 44.

On 25 November 2009, the Walmajarri people, buried returned ancestors from Sweden on private pastoral property. The station is located on land where the Walmajarri traditionally met with neighbouring tribal groups including the Bunuba, Nyikina and Gooniyandi. The Koori Mail, 17 December 2009.

Australian Human Rights and Equal Opportunities Commission Report A18 Freedom of Belief and Religion International Covenant on Civil and Political Rights July 1998 43.

Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 Indigenous issues, 1995/32UN Doc. E/CN.4/2001/85 para 89.

CERD General Recommendation No. 21: Right to self-determination, adopted on 23 August 1996, para. 4. In respect of the self-determination of peoples two aspects have to be distinguished. The right to self-determination of peoples has an internal aspect, that is to say, the rights of all peoples to pursue freely their economic, social and cultural development without outside interference. In that respect there exists a link with the right of every citizen to take part in the conduct of public affairs at any level, as referred to in article 5 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination. In consequence, governments are to represent the whole population without distinction as to race, colour, descent or national or ethnic origin. The external aspect of self-determination implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation.

See fn 76. Cristescu, ‘Special Study on the Right to Self- Determination’.

Statement by the Chairman Global Indigenous Caucus Les Malezer, 13 September 2007, www.treatycouncil.org.

Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 Indigenous issues 1995/32UN Doc. E/CN.4/2001/85, para 79.

Havasupai Tribe et al. v. Arizona State University, Havasupai Tribe et al. v. Arizona State University, 3:04-CV-1494, (D. Ariz.): Tilousi, et al. v. Arizona State University, 3:04-CV-1290.

See Report of UNESCO-UNU Bio-Ethics Round Table Talks (February 2007). In particular the Hagahai case and Guayami case, which involved indigenous peoples, www.ias.unu.edu; Havasupai Tribe et al. v. Arizona State University, Havasupai Tribe et al. v. Arizona State University, 3:04-CV-1494, (D. Ariz.): Tilousi, et al. v. Arizona State University, 3:04-CV-1290.

For a thorough discussion on patents and plants see, I. Mgbeoji, Global Biopiracy, Patents, Plants and Indigenous Knowledge (Cornell University Press, 2006).

J. Gibson, Community Resources: Intellectual Property, International Trade and Protection of Traditional Knowledge (Farnham: Ashgate Publishing, 2005), 207.

B. Binkert, ‘Why the current global intellectual property framework under TRIPS is not working’, Intellectual Property Law Bulletin 143 (2005–2006): 146.

See generally M. Mutua, ‘Critical Race Theory and International Law: Convergence and Divergence’, Vil. L. Review (2000): 841.

V. Tauli-Corpuz, director of Tebtebba Foundation Presentation, Impacts of the WTO on the Environment, Cultures and Indigenous Peoples, 29 November 1999, http://www.ratical.org/co-globalize/impactsOfWTO.html.

Gibson, Community Resources, 207.

Article 27 of the TRIPS Agreement covers patentable matter:

UK Patent Act 1977 (as amended). A52 European Patent Convention.

See S 1 (1) Patent Act 1977: New, Inventive step, industrial application.

Resource Book on Trips and Development: An Authoritative Guide to the TRIPS Agreement, ICTSD & UNCTAD (Geneva 2005): 359, www.iprsonline.org.

UNESCO Report of the IBC on Ethics, Intellectual Property and Genomics, 10 January 2002, www.unesco.org.

R. Barsh, ‘How do you patent a landscape’, International Journal of Cultural Property (1999): 14–47.

T. Simpson, Indigenous Heritage and Self-Determination: The Cultural and Intellectual Property Rights of Indigenous Peoples (IWGIA, 1997): 120.

Brazil, Panama, Peru, Portugal, Kenya and the Philippines, see Gibson, ‘Community Resources,’ 139.

WIPO TN/C/W/52/ (19 July 2008) Disclosure Requirements, www.wipo.org.

A 39.2 Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, or acquired by, or used by others without their consent in a manner contrary to honest commercial practices as long as such information:

	a. is secret in the sense that it is not, as a body or in the precise configuration of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
	b. has commercial value because it is a secret; and
	c. has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

R. Barsh, ‘How do you Patent a Landscape’, International Journal of Cultural Property (1999): 14–47.

Ibid.

See R. Tsosie for a full discussion, ‘Cultural Challenges to Biotechnology: Native American Genetic Resources and the Concept of Cultural Harm’, Journal of Law, Medicine and Ethics, (2007): 396–411.

E/CN.4/Sub.2/AC.4/1998/4.

Statement presented by V. Tauli-Corpuz during the 2^nd Session of the United Nations Commission on Sustainable Development on behalf of the Cordillera Peoples' Alliance, New York 1994 Biotechnology and Indigenous Peoples, V. Tauli-Corpuz, www.twnside.org.sg/title/tokar.htm.

R.M. Dennis, ‘Social Darwinism, Scientific Racism, and the Metaphysics of Race’, The Journal of Negro Education (1995): 243–225. Cultural Survival Organisation, www.cs.org/.

R. Barsh, ‘How do you patent a landscape’, International Journal of Cultural Property (1999): p.36

Linda Smith, Decolonizing Methodologies: Research and Indigenous Peoples (London and New York: Zed Books/Dunedin, NZ: University of Otago Press, 1999), in The Ethics of Research Involving Indigenous Peoples Report of the Indigenous Peoples. Health Research Centre to the Interagency Advisory Panel on Research Ethics, 118, www.iphrc.ca/documents/ethics.

Sub-Commission on the Promotion and Protection of Human Rights of the United Nations Resolution on Intellectual Property Rights and Human Rights Adopted 17 August 2000 (Res./2000/7).

A28 TRIPS.

A33 TRIPS.

H. Chartrand, ‘Intellectual Property in the Global Village’, Government Information in Canada, University of Saskatchewan, 1 (1995).

J. Gibson, Community Resources: Intellectual Property, International Trade and Protection of Traditional Knowledge. (2005), 8.

E. Nwauche, ‘A Development Oriented Intellectual Property Regime for Africa.’ A paper presented at the 11^th Assembly of the Council for the Development of Social Science Research for Africa (CODESRIA), Mozambique, 6–10, December 2005.

Gibson, Community Resources: 139.

Gibson, ‘Community Resources.’ 139.

G. Dutfield, ‘What is Biopiracy’, International Workshop on Access to Genetic Resources and Benefit Sharing: New Forms of Sui Generis Protection, Mexico 2004.

Z. Ismail and T. Fakir, ‘Trademarks or Trade Barriers? Indigenous Knowledge and the Flaws in Global IPR System’, International Journal of Social Economics (2004): 173–194.

Ibid.

WIPO Intellectual Property Handbook: Policy, Law and Use (WIPO Publication No.489 (E)), 447, www.wipo.org.

S. Karjala, ‘Biotech Patents & Indigenous Peoples’, Journal of Law Science & Technology (2006): 497.

D. Marinova and M. Raven, ‘Indigenous Knowledge and Intellectual Property’, Journal of Economic Surveys (2006): 587–606.

Posey and Dutfield, ‘Beyond Intellectual Property’, 61.

Regional study in the Andean countries: ‘Customary law in the Protection of Traditional Knowledge’, (2006), http://www.wipo.int/tk/en/consultations/customary_law/study_cruz_en.pdf.

WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore: Draft Gap Analysis on the Protection of Traditional Knowledge (30 May 2008) WIPO.int/tk/en/igc/gap-analyses.html.

W. Wendland, ‘Intellectual Property and the Protection of Traditional Knowledge and Cultural Expressions’, in Art and Cultural Heritage: Law, Policy and Practice, ed., B.T. Hoffman (2006), 335.

WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore: Draft Gap Analysis on the Protection of Traditional Knowledge. P23 para.47 May 30, 2008 WIPO.int/tk/en/igc/gap-analyses.html.

See African Group Proposal on the Protection of Traditional Knowledge Traditional Cultural Expressions and Genetic Resources. WIPO/GRTKF/IC/13/9 September 18 2008, www.wipo.int.

WIPO ICG Draft Gap Analysis.

WIPO IGC Draft Gap Analysis P23 para.47.

Merrell Dow Pharmaceuticals Inc and Another v. HN Norton & Co. Ltd, 33 Intellectual Property Report 10, R.P.C. 76 (1996) (HL).

Ibid., 10–11.

Simpson, Indigenous Heritage and Self-Determination, 94.

See Part 111 (b) ‘Particular Ethical Principles’, Report of the IBC on Ethics, Intellectual Property and Genomics. Rapporteur Justice Michael Kirby UNESCO, www.unesco.org.

The Submission to the Australian Law Commission Inquiry into the Protection of Genetic Information by the Torres Strait Islander Social Commissioner, HREOC 13 May 2002, http://www.hreoc.gov.au/legal/submissions/sj_submissions/submissions.html.

WIPO IGC Draft Analysis. P23 para.47.

Ibid., 26.

Ibid.

WIPO/GRTKF/IC/8/8 ‘Draft Recommendations of TK in the Patent System’. para. 13.

WIPO/GRTKF/IC/8/8 para. 13.

‘Disclosure of Technical Information on the Internet and its Impact on Patentability.’ Standing Committee on the Law of Patents SCP/4/5, September 2000 www.wipo./int.

WIPO, Inventory of Existing Online Databases Containing Traditional Knowledge Documentation Data Geneva, 13-21 June 2002 www.wipo.int/edocs/mdocs/tk/en/wipo.../wipo_grtkf_ic_3_6-main1.doc.

WIPO/GRTKF/IC/13/8 (A) para. 6.

ICG Gap Analyses, 33.

WIPO/GRTKF/IC/6/12, 15 March 2004.

See discussions on Article 3 and 4 WIPO/GRTKF/IC/16/5 Prov. P23.

Section 6 Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore.

F. Batt, ‘The African Regional Intellectual Property Organisation Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore: Is it an indication of a new World Intellectual Property Organisation Traditional Knowledge Instrument?’, UK Minority Groups and Human Rights Newsletter, Winter 2010–2011, 8–9.

WIPO/GRTKF/IC/16/5 Prov., 22 January 2010.

WIPO/GRTKF/IC/16/5 Prov., 22 January 2010.

WIPO Decision Agenda Item 28, October 2009 www.wipo.int.

WIPO Magazine www.wipo.int/wipo_magazine/en/.