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Background Document
Proposal for A Workshop on African Indigenous Knowledge (IK) &Intellectual Property Rights (IPR): Addressing Global & Local Challengesfor Nigeria
 By Ikechi Mgbeoji, Chidi Oguamanam, and Afia S. Zakiya
I.Introduction & Problem Statement
Nigeria and indeed much of Africa faces tremendous challenges to creating diverse means of economic returns based on its production of knowledge, utilization of indigenous resources (cultural,human, natural, etc), and benefits from resultant goods and services. The role of Intellectual Propertyis thought by some to provide an avenue for redress in increasing GDP on the continent within suchareas as patenting of biological substances to copyrighting of traditional cultural expressions and folklore,and providing redress to the ‘south-north’ flows of indigenous resources which deprive African nationsand communities of achieving maximum socioeconomic, political and cultural development. The roleof Information and Communication Technology (ICT) in facilitating the
 flows
of indigenous knowledgeand culture, and contributing to the misappropriation of these forms of potential revenues underscoresanother challenging area IP has been examined without resolve to date when determining the developmenttrajectory of Africa and the role of universities in digitization schemes thought to enhance overall sustainabledevelopment goals. IP regimes in Africa then, accent on those creating a viable sui generis approach,must consider these seemingly disparate yet dialectically related areas which will be discussed in theforthcoming workshop in Ibadan. The timeliness of this workshop is underscored since engagement inIK research, teaching, and scholarship is being proposed by UI to advance Nigeria’s sustainabledevelopment through the establishment of a proposed Center for Indigenous knowledge andDevelopment (CIKAD).
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In the early 1990s, the United States and the rest of the industrialized world re-conceptualizeda global regime for intellectual property rights. That initiative placed intellectual property, a hithertoexotic subject matter, at the centre of world diplomacy intrigue and power play. Perhaps, mostimportantly, the United States’ vision of a uniform intellectual property order placed the subject matterat the core and flashpoint of North-South tensions and highlighted shortfalls of IP systems. A combinationof three primary factors briefly cited below and which this workshop will address, account for thecurrent contentious role intellectual property, biopiracy, and indigenous knowledge (IK), among otherfactors, play in the relationship between developed or industrialized countries and the so-called developingor third world countries, including Nigeria. Following this will be an overview of the second and thirdrelated areas of IK and IPR to be discussed, those of protection of IK, folklore and traditional culturalexpressions (TCE) and IK, IPR and Information, Communication & Technology, and the challengesuniversities in Africa need to address to protect Nigeria’s rich culture and traditional and indigenousknowledge while availing it to global interests in ways that enrich the creators/owners of IK. All areasof inquiry ultimately have implications for creating jobs and businesses one of our concerns, but mostimportantly, they underscore the value of culture in shaping a society’s engagement in global discussionsabout knowledge production and ways of knowing which appreciate Africa’s ingenuity, which indeedexisted long before engagement with Western forms of proprietary rights perspectives.
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Dr. Afia Zakiya, IK and international development scholar and consultant, initiated talks with UI to engage moresystematically in contemporary IK research, scholarship and preservation activities through formation of CIKAD;she is also the creative planner and organizer of the proposed workshop along with Professors Mgbeoji andOguamanam.
 
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Intellectual Property, Biopiracy, And Indigenous Knowledge (IK)
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, the United States and other members dubbed the “coalition of the willing” such asJapan, Canada, Australia, and the European Union- pulled a diplomatic coup against the United Nationsspecialized agency on intellectual property, the World Intellectual Property Organization (WIPO). Inthe late 1980s, these countries pressed for shifting attention from WIPO as the central decision-makingbody on intellectual property matters to the Uruguay Round Multilateral Trade Negotiations. Thatsingular action fundamentally shaped the future of intellectual property law making and policy, andresulted in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) under theauspices of the World Trade Organization (WTO). TRIPS then became a new but critical governingorgan in the emerging intellectual property order. Significantly, the induction of intellectual propertyissue into an apex global trade framework marked a conceptual revolution in intellectual property jurisprudence. Before this paradigmatic shift, intellectual property was construed as a deliberate andpurposeful instrument in restraint of trade and an exclusive subject matter of 
 national 
laws. In thepost-TRIPS era, Under the WTO framework, intellectual property is calculated to foster free trade ina scheme in which a states’ ability to legislate in the national interest on the subject matter is nowradically curtailed.For many discerning intellectual property law and policy experts in the developing countries,including Nigeria, this shift from WIPO to WTO was most worrisome. The natural inclination to have,for example, a lax pharmaceutical and agricultural and agro-chemical patent regimes, as well as theease in the invocation of compulsory licensing options for patents, are now radically leveraged by thenew intellectual property order. Under the global minimum intellectual property regime enshrined in theTRIPS agreement, all the member countries of the WTO, irrespective of their level of technologicaldevelopment, are to observe a common protective regime for intellectual property. Given, that globallymore than 90% of patents on innovations (and more than that percentage of registered patents in thedeveloping countries!) are owned by a few countries of the global North, the TRIPS agreement ensuresthat developing countries are committed to the protection of intellectual property rights of the North.Part of the trade off to this agreement was a promise that developing countries, especially the UnitedStates, would open up its markets to developing countries’ commodity exports. More than 10 yearsafter the TRIPS agreement the US and other industrialized countries have yet to fulfill their promises.Instead, they are steeped in creative devices such as farm subsidies, genetic engineering and other rigidproduct safety regimes designed to shut out developing country exports.It should be noted that under the WIPO framework, developing countries were vocal andvisible in intellectual property matters, decisions were more democratic under the regime of one nationone vote, and developing countries of the South outnumbered their counterparts in the industrializedworld. For the most part, they insisted in the national character of intellectual property as an instrumentto foster national policy objectives. In comparison, a nation’s influence in the WTO framework ismeasured more by economic and financial clout than by any numeric equality ensured in the WIPO’sdemocratic process. Clearly, in the WTO/TRIPS scheme, developing countries are marginalized. Thesame is true of their expectations from intellectual property as an instrument to foster their nationalinterests. Putting the WIPO at the back stage of the new global intellectual property order now supervisedby the WTO/TRIPS agreement creates a crisis of confidence in the relationship between developedand developing countries.IK, TRIPS and IPRA
second 
contentious area of disappointment with the WTO/TRIPS agreement is reflected inprovisions of that agreement as well as in its omissions. With regard to the latter, there is no directprovision for indigenous knowledge (IK) in the TRIPS Agreement. That singular gap in the documentis a reflection of cultural hierarchies of power and politics implicated in the history of IK and theconventional intellectual property system. Indigenous knowledge is the mainstay of intellectual creation
 
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in many non-western societies such as Nigeria.
 A global regime for a uniform, albeit minimum,standard of intellectual property that does not account for the indigenous or local knowledge forms suffers legitimacy deficit 
.Ironically, TRIPS inability to accommodate local knowledge represents a blessing in disguisethat Nigeria must be prepared to capitalize upon. This omission has provided a rallying point for manydeveloping countries to chip away on the merits ascribed to TRIPS as they relate to developing countries.It has also provided a flashpoint for counter regime sentiments in direction of a new global intellectualproperty order that accords preeminence to local knowledge. In this regard, the United NationsConvention on Biological Diversity (CBD) through the activities of its Secretariat in Montreal, hastaken the moral high ground in championing the issue of indigenous knowledge. Also, WIPO hassought to re-assert itself by lending support in this regard through a number of initiatives, notably theIntergovernmental Committee on Intellectual Property and Genetic Resources
,
Traditional Knowledgeand Folklore (IGC/GRTKF).Similarly, the United Nations Educational, Scientific and Cultural Organization (UNESCO)has stepped up efforts in the arena of protection of indigenous knowledge, and tangible and intangiblecultural heritages in an effort to secure protection for diverse and disparate forms of local knowledgefor a holistic intellectual property order. Nigeria must more concretely and aggressively engage theseforay, and create a national response unique to its context.Biotechnology & Biopiracy in IK & IPRThe
third 
area of developments, especially from the second half of the 20th century, that havecoalesced to make the subject of intellectual property a contentious subject matter of North -Southrelations is the ascendancy of industrial biotechnology in the exploitation of genetic resources.Biotechnology is simply the use of biological and technological processes in the creation, manipulationand exploitation of the complex chemistry of biological systems for food, pharmaceuticals, cosmetics,health promotion therapeutic applications, environmental management and other industrial ends. Inthese diverse applications, biotechnology’s mainstay is biological diversity. By some accounts, over75% of global biological diversity and biological resources such as plants and animals and their geneticproperties are found in the developing countries of the world, including Nigeria. However, these countrieslack technologies designed to efficiently harness those resources for industrial applications. Even so,the epistemic approaches through which indigenous and local communities engage with their rich biologicalresources and other aspects of their cultural heritages are different from the western scientific andcapitalist industrial paradigm. For convenience, such approaches are founded within the “indigenousknowledge” paradigm in contrast to western scientific industrial epistemic model.Biotechnology accentuates an unprecedented interest in the rich biological resources of thedeveloping countries like Nigeria. This interest is realized through bioprospecting (the search for geneticresources of economic value) activities in the third world countries which is dominated by external (i.e.,Western/European) interests. In the scramble for the South’s rich genetic resources, unsuspectingindividual members and other custodians of local knowledge are targeted as vehicle for the transfer of sensitive genetic information, associated knowledge and cultural heritage. Also, even sophisticatedinstitutions such as universities and colleges, specialized research institutions, and NGOs are not exempt.It has become quite possible for external interests to take away important genetic resources and culturalproperty, information and associated knowledge at no cost only for such information to be re-packedas pieces of innovation to be exported in a trendy product name and label back to the originatingcountry at a prohibitive cost. This is in a nutshell a practice now known as biopiracy and is possiblebecause of the discretionary approach the new global intellectual property order adopts against localknowledge in relation to western science and technology. Many developing countries and centres of biodiversity, including Nigeria, South Africa, India, Costa Rica, Pakistan, Ethiopia, Mexico, etc havebeen at the receiving end of the practice of biopiracy that supervises a unidirectional transfer of knowledgeand wealth from developing to developed countries. Finally, biotechnology is an integral part of digital
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