Why do Intellectual Property Rights (IPR) matter in traditional medicine research?
Research should benefit everyone, including the owners of traditional knowledge. Unfortunately, there are many cases where new medicines have been developed without benefiting the people who shared their traditional knowledge with scientists. Here is one example.
Hoodia gordonii is a cactus-like plant that grows primarily in the semi-deserts of South Africa, Botswana, Namibia, and Angola. The San People have lived in the Kalahari desert for around 60 thousand years and have used the bitter flesh of Hoodia as a hunger suppressant while on long trips across the hot, arid & vast Kalahari.
The traditionally used appetite-suppressant property of Hoodia was brought to the attention of the South African Council for Scientific and Industrial Research (CSIR) who patented its application. CSIR licensed the Hoodia patent to Phytopharm, a UK-based herbal company, who then tested, developed and commercialized the new patent product. Pfizer then purchased the worldwide marketing rights from Phytopharm for a reported $32 million to develop and market diet pills based on the traditionally known hunger suppressant properties of Hoodia.
Phytopharm had earned over $10 million while the San were still waiting for benefits.
What can be done to protect TK and IPR?
A legal challenge was launched on behalf of the San People, as customary owners. An out-of-court settlement resulted in a benefit-sharing agreement which provided for the San to obtain eight percent of payments received from the licensee by CSIR and six percent of royalties from sales of the final product. The San population founded the “San Hoodia Benefit Sharing Trust”, which was created to ensure that the monies received were used for “the general development and training of the San community.” The San's immediate plans included buying land, building clinics and investing in education and development projects.
This case indicates the need to create benefit sharing models and develop prior informed consent through community engagement with active partners from the beginning of projects.
On August 19th 2013, a momentous agreement was struck between Cape Kingdom Nutraceuticals and the San and Khoi people, recognizing their indigenous knowledge and their legal entitlement to a share of the benefits from the commercial use of the buchu plant. The agreement stipulates that 3% of payments for the plant products, as well as knowledge of the plant's commercial use will be shared with the San and Khoi people. The full story is available here.
International Legal Frameworks
The Convention on Biological Diversity was implemented to promote the conservation of biological diversity and the equitable sharing of benefits arising from its use. The CBD website provides model agreements for ABS.
The Nagoya Protocol
This Protocol was adopted to supplement the Intellectual Property Rights sections of the CBD by introducing Access and Benefit Sharing (ABS) instruments.
The TRIPS Agreement
The Trade Related Aspects of Intellectual Property Rights introduced minimum global standards for IPR protection and enforcement, without specific reference to TK.
The Bangui Agreement
This Agreement unified legislation relating to IPR and acted as a common code of IP as its provisions and principles hold equivalent legal power to national laws.
The Swakopmund Protocol
The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore prevents theft, mishandling and illegal exploitation of expressions of folklore and protects traditional knowledge holders' rights.
For further information and resources about intellectual property rights, the World Intellectual Property Organization regularly publishes papers on the topic, as well as hosts a database of actual and model biodiversity-related information, with particular emphasis on the IP aspects of these agreements.
|For upcoming events and conferences, view our events page.
The panel overseeing this section of the website consists of the following experts:
Prof Gerry Bodeker, University of Oxford
Prof Drissa Diallo, University of Bamako
Prof Philippe Rasoanaivo, Institut Malgache de Recherches Appliquées
Dr Douglas Sanyahumbi, University of the Western Cape
Ms Charlotte van’t Klooster, University of Amsterdam
Ms Emma Weisbord, University of Oxford