FEATURES
A New Kind of Colonialism
The Ramifications of Intellectual Property Rights
I
ndigenous peoples have been marred for centuries
by the incredulous theft of knowledge they
obtained, and even resources they use. The thieves
are superior, more developed powers that jealously
protect the rights to knowledge that is not rightfully
theirs. They then refuse to recognize that the true
ownership of such precious information belongs to Native
Peoples. Indigenous knowledge is stolen without the
slightest consideration to the powerful implications that
it comes equipped with. The moral repercussions behind
such an unethical system leads to loss of Native culture
and sustainability and a shift from using Native knowledge
and resources for social needs to profit generation. These
problems are exacerbated by the use of Intellectual
Property Rights (IPR), and the situation has delved to
the point where nations bypass indigenous consent and
wrongfully patent their knowledge and resources.
Why Indigenous Knowledge Is So Important
Knowledge of the natural world is not limited to sci-
ence. Peoples spanning across the world have developed,
over many years, a set of culturally rich knowledge systems
Photo Courtesy Reuters Winter 2014HARVARD INTERNATIONAL REVIEW
SHAHRUKH KHAN
SHAHRUKH KHAN is a staff writer for the
Harvard International Review.
that have been a result of the environments that they live
in. Indigenous knowledge revolves around the environ-
ment and is of a largely ecological type. It is also referred
to, by the World Bank, as the "traditional knowledge of
the uses of plants" and even "ethnobotany."
These knowledge systems hold great importance to
the culture and understandings of the people that they
belong to and their interactions with their environment:
in medicine and the fight against disease, in spiritual
worldviews and religion, in agricultural productivity, and
even in the struggle to cope with a dynamic environment.
Indigenous knowledge also plays an essential role in the
sustainable rehabilitation of rangelands, thus strengthen-
ing the rangelands' natural capacity for resilience.
In recent years, indigenous knowledge has garnered
attention as a valuable contributor to natural resource
conservation as well. It has a dynamic, culture-specific con-
|37j
 FEATURES
text and is generally holistic in nature. As Jonathan Rouse
in his 1999 article "Global Dissemination of Indigenous
Knowledge" noted, it is sometimes labeled as "local" to
emphasize its very localness because it is "embedded in
its particular community, it is contextually bound" and "it
requires a commitment to the local context." The word
'indigenous' can also suggest that knowledge is "unique
to a particular community or ethnic group."
Indigenous knowledge rightfully belongs to the people
who use it within the context of their local environment
because survival was the intended purpose of this knowl-
edge. When it is used in another setting however, this
knowledge becomes a tool of exploitation.
Indigenes use this knowledge to survive in their envi-
"Indigenous knowledge rightfully belongs to the people who use it
within the context of their local environment... When it is used in
another setting...this knowledge becomes a tool of exploitation"
ronment and also to give life to their economy. As Marcia
Elen DeGeer writes in her article, "Biopiracy: The Ap-
propriation of Indigenous Peoples' Cultural Knowledge",
"even though Indigenes have been cultivating their crops
for generations, these communities...have been consid-
ered the public domain of anthropological study." The
natural assets that Indigenes have been using are now
becoming assets of multinational corporations.
Profits and Permission
Biotech industry profits have soared over the past few
years. The biotech industry has become a business that
gains momentum from scoping out organic materials and
chemical substances that can be developed into a com-
mercial product. Many of those materials and compounds
come from plant life within Indigenous environments.
Unfortunately, these biotech corporations are not
consulting Indigenes before using their products for the
betterment of humanity; they simply take them out of
the equation and heinously exploit the plants and natural
resources that these people have been using in a sustain-
able manner for centuries. What is worse is that these
corporations legally place their own control and rights over
the resources that Indigenes have been using for survival.
The instrument these corporations use is a patent,
commonly referred to as an IPR or Intellectual Property
Right. A patent is a document granted by a government
giving exclusive rights over a product to the inventor. The
Natural Rights Theory of Patents argues that an inventor
has a natural right to his or her invention and that society,
represented by the state, has an obligation to recognize,
protect, and enforce that right.
But the fact of the matter is that these corporations
never did create the resource or cultivate the plant that
they are placing exclusionary rights on. Instead they extract
I 38 I HARVARD INTERNATIONAL RE VI E W Winter 2014
the elements of the plant's genes and patent the active
compounds. Corporations have been able to patent genes
from plants and thus claim the plants for themselves in the
process. But the most odious thing they do is to take the
cultural knowledge of the plant and all that comes with it,
knowledge that Indigenes have collected from centuries
of observation and interaction with the environment, and
call it their own.
Corporations and governments argue that natural
resources such as oil, plants, and the like need to be ex-
tracted because it will benefit a country. Yet this is only
part of the story, because the people living in those areas
are greatly displaced. Some governments neglect their
obligations to protect its inhabitants. This is especially
true in Latin American coimtries such as Venezuela, where
multinational oil titans disregard the native lands they are
harming while extracting natural resources.
Prior consent is a basic human right included in in-
ternational agreements such as the International Labor
Organization's Convention 169 regarding Indigenous
peoples and the United Nations Declaration on the Rights
of Indigenous Peoples. Prior consent is necessary because
it showcases the rights Indigenes have to make choices
regarding their own livelihood.
In Brazil, multinational corporations have already pat-
ented more than half the known plant species. Indigenes
have the right to object and express the fact that they do
not want an activity that is going to contaminate the water
they drink, leave noxious byproducts of mining, or destroy
the lands on which they raise their children and crops, and
domesticate their livestock.
Implications of Intellectual Property Rights
Intellectual Property Rights are the bane of the ex-
istence of many Indigenous communities. Corporations
monopolize a natural resource and governments give ex-
clusionary rights to an entity that has never had any prior
use ofthat resource nor has stepped foot into the environ-
ment from which it is unjustly taking. Indigenes use these
resources to satisfy the demands of their community, and
if any such resource is taken away the community's abil-
ity to survive is compromised. Indeed today what is being
done by corporations is hurting indigenous communities.
Environmentalist Vandana Shiva has classified two
major restrictions of IPR. The first one emphasizes how
IPR has privatized Indigenous knowledge. IPR excludes
all kinds of information and innovations that take place in
"intellectual commons" - in farm villages or forests. The
second restriction is that IPR is only recognized when
 FEATURES
knowledge and innovation generate profits, not when they
meet social needs. The knowledge must be "capable of
industrial application." Shiva highhghts that this definition
of IPR underscores the idea that profits are the only ends
of creativity, and that social good is no longer recognized.
If governing bodies abide by this law, then Indigenes will
never see their knowledge protected against voracious
corporations looking to misuse their resources.
The enormous impacts of patents and IPR, both
in number and in intensity, can also lead to particularly
ironic situations. The patented product can be sold at
higher prices in countries where the patented product
originated. Higher prices are a result of import taxes on
patented products that, in actuality, came from within the
borders of a country in which they are being sold at higher
prices. Patents have limited and concentrated the control
of world food products to a few corporations. The top
five corporations in agricultural biotechnology accounted
for 60 percent of global pesticide use, 23 percent of the
commercial seed market, and nearly 100 percent of the
transgenic seed market, according to an ActionAid study
in 1999.
The Ultimate Consequence of^^Mind" Theft
IPR becomes another name for intellectual theft
and biopiracy when it denies Indigenes their right to use
products of their own ingenuity. Of course, IPR revolves
around the erroneous dogma that people are only creative
if they "can make profits" and "guarantee them through
IPR protection." Biopiracy and IPR deliver multiple pun-
ishing blows at the same time: they allow for the theft of in-
novation and creativity and establish patents on knowledge
that is compulsory for the everyday survival of Indigenes.
Canadian activist Pat Mooney defined biopiracy as
Doctor Vandana Shiva speaking during an anti-globalization protest outside the
fourth World Trade Organization conference in Doha. Patents on indigenous prop-
erty give corporations significant control on global biotech markets.
Photo Courtesy Reuters Winter 2014 H A R V A R D I N T E R N A T I O N A L
part of a coimter attack strategy that developing coun-
tries and Indigenous peoples are using against developed
countries and corporations who accused them of "intel-
lectual piracy." Yet corporations hardly felt that they did
anything wrong afrer obtaining Indigenous knowledge and
natural resources and then using them in profit-generating
schemes. Qn top of all that, these corporations refused to
compensate Indigenous peoples for knowledge that they
claimed to be their own.
Another irony lies in the corporations' reaction to
Indigenes using their own resources and knowledge to
survive. Corporations assert, "the infringement of patents
and copyrights constitutes intellectual piracy." Failure to
recognize and properly compensate Indigenes for products
of their own knowledge is then also an infringement of
rights. GRAIN coordinator Devlin Kuyek calls IPR "a
means for controlling the market and extracting more
profit from it." Kuyek's point is further bolstered by the
fact that the word 'patent' necessitates that a substance can
only be patented if it has an industrial application and has
potential to generate profit.
The Path to Restoration
It is difficult to conceive a solution that ameliorates
every party's problems, as biopiracy and IPR are both
widespread issues. Corporations argue that they own the
rights to knowledge and resources indigenous peoples have
spent centuries obtaining. Indigenous peoples argue that
their human rights are being violated as corporations are
wrongfully stripping them of their livelihood.
Thefirststep to offsetting this imbalance is education.
Some Indigenous peoples remain unaware of their rights.
Thus, indigenous people must be sensitized to IPR and
Western Corporate Patent Laws.
Greater participation from
Indigenes is necessary in fight-
ing the issue of biopiracy. Qnce
Indigenous communities under-
stand the principles behind IPR
and the differing perceptions of
western corporations, they will
be able to properly identify the
issues limiting their people and
act accordingly with respect to
international law.
The second step is predicated
on whether the first step was
executed properly. Nothing is
certain before Indigenous peoples
understand what exactly is going
on outside their communities.
They must comprehend the
laws, the dynamics of the world
economy, and the reasons as to
why they are in the situation they
are in today. SI
REVIEW l39|
Copyright of Harvard International Review is the property of Harvard International Review
and its content may not be copied or emailed to multiple sites or posted to a listserv without
the copyright holder's express written permission. However, users may print, download, or
email articles for individual use.