Ethnobotany and Intellectual Property Rights

Summary

Contemporary intellectual property law permits only the patenting of an identified active principle from a plant, not the plant or folk information relating to medicinal properties of a plant. The most significant rights of indigenous peoples are those deriving from physical control of the plants and the knowledge pertaining to their use. This control can provide the basis for trade secret protection. Such agreements are enforceable in developed nations and should become so in developing nations. There have been recent efforts to strengthen indigenous peoples' rights over genetic resources and relevant folk knowledge but the most far-reaching of these are not yet a part of international law. Pharmaceutical patents combined with trade secrecy can allow firms to develop and market products and ensure that the nation and/or people from which the material or information was derived are properly rewarded. This does not provide protection from competition or with respect to derived knowledge nor does it act retrospectively. At present, rights under the United Nations Convention on Biodiversity are prospective only. These rights belong to the nation and there is little legal pressure for recompense to be shared with indigenous peoples. A uniform agreement that deals in a balanced way with the relative rights of indigenous peoples and of their governments should be developed by non-governmental organizations.