Struggling Around the Natural Divide: The Protection of Tangible and Intangible Indigenous Property

Abstract

In a century where access to information represents the key for doing business, big companies have come to realize that poor Developed Countries, whose economies are still based on agriculture and textiles, have an invaluable treasure worth billions of dollars. The varieties of plants and trees, located mostly in the Southern areas of the hemisphere, amount to a huge collection of genetic material with countless potential applications. Moreover, the value of these vast collections is further increased by the circumstance that local communities living in these areas have long studied and experimented the medicinal - as well other scientific - properties of such plants and herbs. Sometimes shamanic knowledge, for example, has reached very precise and effective results in the curing of some diseases. While indigenous communities have their own legal system and mores regulating the way their resources, both tangible and intangible, are to be produced and enjoyed within the group, Developed Industrialized Countries often look at traditional knowledge through the lenses of modern intellectual property systems. They reason in terms of inventiveness and novelty, they look for a specific author/inventor to reward and when they do not find any of the above, they just assume they have the right to take indigenous countries' scientific knowledge without giving anything in return. Such knowledge, they claim, is in the public domain. This paper is aimed at analyzing the current normative framework as well as the international debate surrounding the protection of biodiversity and traditional knowledge in such a way to solve the biopiracy issue and grant local communities the possibility of benefiting from a reasonable and fair exploitation of their resources by third parties.