We have seen indigenous designs being ripped off in souvenir shops, like those tacky t-shirts and didgeridoos mass-produced in China. But have you ever stopped to think that the latest medical treatments may also be ripping off indigenous culture?
Indigenous heritage and culture extends beyond Aboriginal art, music and stories of the dreamtime. It includes traditional knowledge of plants, animals and the environment, including the medicinal properties of plants.
In indigenous society, medicinal plant knowledge is passed on orally to family members and sometimes through apprenticeships. Only people who have been appropriately initiated can practise traditional medicine.
Just like a doctor has to have a degree before they can prescribe medication, so too a degree of traditional knowledge has to be attained before someone can use a plant safely in indigenous society. Sometimes parents won’t pass on medicinal knowledge to their children until they are deemed suitably mature and responsible enough to respectfully use this knowledge.
A lot of this “secret” medicinal knowledge has been published by anthropologists and scientists, so is readily available to companies wanting to develop new plant-based drugs. Some companies even use ethnopharmacology to develop new drugs. This involves screening plants that have been recommended by indigenous peoples for particular chemicals that can be used in drugs.
For example, Amrad Pty Ltd, the Victorian drug company, has signed an agreement with the Tiwi Land Council to work with the Tiwi Aborigines to conduct research on rare Northern Territory plants.
This would give the company an exclusive right to make and sell the drug. Indigenous knowledge is often not patentable because it has been around for generations, so it lacks novelty and an inventive step, whereas the drug company has been inventive and novel in isolating the active ingredient and developing a new extraction/manufacturing process.
While the benefits to the drug company are clear, the contributions of the indigenous peoples whose knowledge was the key to the drug development will probably go unrewarded. This has certainly been the case to date and the exploitation of “smokebush” – a plant that grows only in Western Australia – is an example.
Indigenous people in Geraldton and Esperance in Western Australia, have traditionally used smokebush for healing. In the late 1980s, the US National Cancer Institute found that smokebush contained “conocurovone,” which is reported to have potential in treating the HIV virus. This discovery was then patented by the Cancer Institute who gave Amrad, an exclusive worldwide licence to develop the patent. In the early 1990s, the WA Government also awarded Amrad the exclusive rights to the smokebush species for research purposes.
If conocurovene is successfully commercialised, the WA Government could recoup royalties of around $100 million per year. The indigenous community will probably receive no benefits even though it is their sacred plant that is being exploited and they were the first to realise its medicinal properties.
For indigenous people the commercialisation of their heritage could also represent the denigration of their culture through the use of their heritage in culturally inappropriate ways.
From the indigenous world-view, property rights are owned communally and are a means of maintaining and developing group identity rather than a means to increase individual or corporate economic wealth. This information is passed freely within the community according to customary rights, rules and obligations. Possessing the medical knowledge carries with it certain responsibilities, such as maintaining a relationship with the plants and places with which the medicine is connected.
Indigenous intellectual property (IP) concepts are not considered in the existing Australian patent laws and this has led to the current situation where non-indigenous people are able to reap the financial rewards of indigenous plant knowledge.
Sandra Mercado, who teaches IP Law at the University of Wollongong, believes “There is a gap between the social interests of patenting on the one hand and the protection for indigenous knowledge on the other.” She says that patent rights are tailored entitlements premised on monopoly being a bad thing. Patent laws are there to protect individual IP rights but also to make it publicly available so that other researchers can make further developments.
Ms Mercado adds that indigenous IP is more complex and includes matters of cultural identity and values. She says that she would like to see indigenous intellectual property interests fully articulated and given their own appropriate recognition, rather than trying to make them fit into the existing patent laws.
A 1999 report entitled: “Our Culture Our Future,” commissioned by the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), made several recommendations on how indigenous knowledge could be better protected.
The report recommended enactment of a specific Act that provides protection for all indigenous cultural and intellectual property. It also recommended that if no new legislation is developed then the existing Patents Act should be amended to deny any person or corporation the right to obtain a patent for any element of indigenous heritage without the free and informed consent of the indigenous owners. There would also need to be an agreed arrangement for the sharing of ownership, control, use and benefits of the IP.
Our Culture Our Future also recommended that indigenous people be informed of the laws affecting indigenous IP rights. This might enable indigenous communities to be aware of the ways that these laws could benefit them in relation to control of their IP. It would also make them aware of the ways that others could exploit it.
Since the release of Our Culture Our Future, there has been no change to the patent laws within Australia but there have been attempts to raise general awareness about indigenous intellectual property rights. For example, AIATSIS is currently running a series of seminars on intellectual property and indigenous knowledge. Topics include Future Legal Directions and Future Directions in Knowledge Management.
Certainly, the issue of indigenous intellectual property rights has received a lot of attention worldwide and there does appear to be some moves towards recognising these rights. For example, in Kenya, petty patents can be obtained for traditional medicinal knowledge. On the whole though, the existing systems do not recognise indigenous contributions to plant medicine and drug discovery.
Maybe the world of drug discovery is not too far removed from the world of the tacky souvenir shop. At least not in terms of the exploitation and inappropriate use of indigenous culture to make a buck.