15-16 April - my whereabouts

This past week (15-16 April) I attended the IV International Graduate Legal Research Conference (IGLRC) hosted by King's College London School of Law and Graduate School. Although the Conference and papers were not regarding IP in Latin America, I would like to share with you some ideas.

At the IP Session, chaired by Dr Tanya Aplin, I delivered a paper entitled “Registrability of Chemical Senses as Trade Marks – Looking Beyond Graphical Representation”. While the subject resulted on an interesting discussion and critiques, I would like to talk today about a paper that was delivered in the same session by Fiona Batt from Bristol University. The title of her paper was “Ancient Indigenous Deoxyribonucleic Acid (DNA) and Intellectual Property Rights”. I believe that the paper launches a fascinating and attractive topic which because of the time, resulted in a short discussion and debate. For this reason I would like to hear you opinions on this matter.

On the paper, Fiona mentions that because of the developments in science, body parts and genetic material are becoming ‘property’ which is protected and controlled by IP rights. She starts from the obvious, Patent, and then explores Traditional Knowledge and even Trade Secrets. But at the end, the question is: who is the owner of ancient indigenous DNA when extracted? While this appears to be somehow clear, the main challenge is: who would be the owner to prevent such extraction? She brought into attention the American and Western cultures.

When she finished her speech I was the first to raise my hand, I was not sure if I wanted to ask a question, or make a comment or just to praise her for such a remarkable paper. However, my intervention was more as to asking what was sought. The situation is, I believe, a delicate one. On one hand, we have a community that according to philosophy of social justice owns such information and are entitled to any compensation; moreover, this is something that the indigenous people finds offensive in the first place. On the other hand, we have investigators and industries that invest to change information into useful commodities. Yet, I sometimes wonder if IP is too intrusive and thus would be nice for a change to see a prohibition within IP that ‘protect’ rather than exploit such heritage.

We just need to wait for the Intergovernmental Committee on Intellectual Property
and Traditional Knowledge, Genetic Resources and Folklore to submit to the September 2011 WIPO General Assembly a text of an international legal instrument regarding this and other matters.