Background Document

Proposal for A Workshop on African Indigenous Knowledge (IK) & Intellectual Property Rights (IPR): Addressing Global & Local Challenges for 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 Property is thought by some to provide an avenue for redress in increasing GDP on the continent within such areas 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 nations and communities of achieving maximum socioeconomic, political and cultural development. The role of Information and Communication Technology (ICT) in facilitating the flows of indigenous knowledge and culture, and contributing to the misappropriation of these forms of potential revenues underscores another challenging area IP has been examined without resolve to date when determining the development trajectory of Africa and the role of universities in digitization schemes thought to enhance overall sustainable development 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 the forthcoming workshop in Ibadan. The timeliness of this workshop is underscored since engagement in IK research, teaching, and scholarship is being proposed by UI to advance Nigeria’s sustainable development through the establishment of a proposed Center for Indigenous knowledge and Development (CIKAD).1 In the early 1990s, the United States and the rest of the industrialized world re-conceptualized a global regime for intellectual property rights. That initiative placed intellectual property, a hitherto exotic subject matter, at the centre of world diplomacy intrigue and power play. Perhaps, most importantly, the United States’ vision of a uniform intellectual property order placed the subject matter at the core and flashpoint of North-South tensions and highlighted shortfalls of IP systems. A combination of three primary factors briefly cited below and which this workshop will address, account for the current contentious role intellectual property, biopiracy, and indigenous knowledge (IK), among other factors, play in the relationship between developed or industrialized countries and the so-called developing or third world countries, including Nigeria. Following this will be an overview of the second and third related areas of IK and IPR to be discussed, those of protection of IK, folklore and traditional cultural expressions (TCE) and IK, IPR and Information, Communication & Technology, and the challenges universities in Africa need to address to protect Nigeria’s rich culture and traditional and indigenous knowledge while availing it to global interests in ways that enrich the creators/owners of IK. All areas of inquiry ultimately have implications for creating jobs and businesses one of our concerns, but most importantly, they underscore the value of culture in shaping a society’s engagement in global discussions about knowledge production and ways of knowing which appreciate Africa’s ingenuity, which indeed existed long before engagement with Western forms of proprietary rights perspectives.

1

Dr. Afia Zakiya, IK and international development scholar and consultant, initiated talks with UI to engage more systematically 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 and Oguamanam.

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Intellectual Property, Biopiracy, And Indigenous Knowledge (IK) First, the United States and other members dubbed the “coalition of the willing” such as Japan, Canada, Australia, and the European Union- pulled a diplomatic coup against the United Nations specialized agency on intellectual property, the World Intellectual Property Organization (WIPO). In the late 1980s, these countries pressed for shifting attention from WIPO as the central decision-making body on intellectual property matters to the Uruguay Round Multilateral Trade Negotiations. That singular action fundamentally shaped the future of intellectual property law making and policy, and resulted in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) under the auspices of the World Trade Organization (WTO). TRIPS then became a new but critical governing organ in the emerging intellectual property order. Significantly, the induction of intellectual property issue 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 and purposeful instrument in restraint of trade and an exclusive subject matter of national laws. In the post-TRIPS era, Under the WTO framework, intellectual property is calculated to foster free trade in a scheme in which a states’ ability to legislate in the national interest on the subject matter is now radically 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 the ease in the invocation of compulsory licensing options for patents, are now radically leveraged by the new intellectual property order. Under the global minimum intellectual property regime enshrined in the TRIPS agreement, all the member countries of the WTO, irrespective of their level of technological development, are to observe a common protective regime for intellectual property. Given, that globally more than 90% of patents on innovations (and more than that percentage of registered patents in the developing countries!) are owned by a few countries of the global North, the TRIPS agreement ensures that 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 United States, would open up its markets to developing countries’ commodity exports. More than 10 years after 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 rigid product safety regimes designed to shut out developing country exports. It should be noted that under the WIPO framework, developing countries were vocal and visible in intellectual property matters, decisions were more democratic under the regime of one nation one vote, and developing countries of the South outnumbered their counterparts in the industrialized world. For the most part, they insisted in the national character of intellectual property as an instrument to foster national policy objectives. In comparison, a nation’s influence in the WTO framework is measured more by economic and financial clout than by any numeric equality ensured in the WIPO’s democratic process. Clearly, in the WTO/TRIPS scheme, developing countries are marginalized. The same is true of their expectations from intellectual property as an instrument to foster their national interests. Putting the WIPO at the back stage of the new global intellectual property order now supervised by the WTO/TRIPS agreement creates a crisis of confidence in the relationship between developed and developing countries. IK, TRIPS and IPR A second contentious area of disappointment with the WTO/TRIPS agreement is reflected in provisions of that agreement as well as in its omissions. With regard to the latter, there is no direct provision for indigenous knowledge (IK) in the TRIPS Agreement. That singular gap in the document is a reflection of cultural hierarchies of power and politics implicated in the history of IK and the conventional intellectual property system. Indigenous knowledge is the mainstay of intellectual creation 2

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 disguise that Nigeria must be prepared to capitalize upon. This omission has provided a rallying point for many developing 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 intellectual property order that accords preeminence to local knowledge. In this regard, the United Nations Convention on Biological Diversity (CBD) through the activities of its Secretariat in Montreal, has taken the moral high ground in championing the issue of indigenous knowledge. Also, WIPO has sought to re-assert itself by lending support in this regard through a number of initiatives, notably the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and 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 intangible cultural heritages in an effort to secure protection for diverse and disparate forms of local knowledge for a holistic intellectual property order. Nigeria must more concretely and aggressively engage these foray, and create a national response unique to its context. Biotechnology & Biopiracy in IK & IPR The third area of developments, especially from the second half of the 20th century, that have coalesced to make the subject of intellectual property a contentious subject matter of North -South relations 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, manipulation and exploitation of the complex chemistry of biological systems for food, pharmaceuticals, cosmetics, health promotion therapeutic applications, environmental management and other industrial ends. In these diverse applications, biotechnology’s mainstay is biological diversity. By some accounts, over 75% of global biological diversity and biological resources such as plants and animals and their genetic properties are found in the developing countries of the world, including Nigeria. However, these countries lack 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 biological resources and other aspects of their cultural heritages are different from the western scientific and capitalist industrial paradigm. For convenience, such approaches are founded within the “indigenous knowledge” paradigm in contrast to western scientific industrial epistemic model. Biotechnology accentuates an unprecedented interest in the rich biological resources of the developing countries like Nigeria. This interest is realized through bioprospecting (the search for genetic resources 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, unsuspecting individual 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 sophisticated institutions 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 cultural property, information and associated knowledge at no cost only for such information to be re-packed as pieces of innovation to be exported in a trendy product name and label back to the originating country at a prohibitive cost. This is in a nutshell a practice now known as biopiracy and is possible because of the discretionary approach the new global intellectual property order adopts against local knowledge 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 have been at the receiving end of the practice of biopiracy that supervises a unidirectional transfer of knowledge and wealth from developing to developed countries. Finally, biotechnology is an integral part of digital 3

technology-driven revolution in information of the second half of the last century. Rather than the use of notorious briefcases for the smuggling of plant samples or the use of cages for the transportation of exotic animals, today crucial genetic information and associated local knowledge are collected as mere data in sophisticated computer devices, such as laptops, palmtops and other digital devices like the cell phone and digital pens. In sum, the bio- and digital revolutions of the second half of the last century are perhaps being legally consolidated by TRIPS to the advantage of industrialized countries. This is in terms of their effect on the accentuation of biopiracy, the rape of indigenous knowledge and the scramble for and appropriation of genetic resources at the centres of biodiversity origin, including Nigeria. The TRIPS Agreement’s glaring omission or disdain for indigenous knowledge not only demonstrates the age long historic epistemic racism, in a counterintuitive way, it provides a rallying point for many developing countries to seek alternative and more friendly fora for challenging not only the legitimacy of the TRIPS regime but also for securing the protection and future of indigenous knowledge forms. The proposed workshop will outline these issues in more detail through the case study approach, and provide recommendations for countering their negative impact in Nigeria. IPR, Culture and Folklore: Protection of Indigenous /Traditional Cultural Expressions The relationship between intellectual property protection regimes and the rights and interests of indigenous and local communities in expressions of their traditional cultures ( TCE or ‘folklore’) will be a major focus area of this workshop in addition to biodiversity issues. IP and TCE has been the subject of international debates and foray for several decades, including whether the term ‘folklore’ is appropriate due to its linkage with indigenous people in condescending ways, while relegating their ways of knowing less scientific, static, and broad, implying an inferiority of the cultural and intellectual property of Indigenous peoples to the dominant western culture. Discussion of policy and legal options for the improved protection of TCE or ‘folklore’ as Janke notes, “should be guided as far as possible by the real needs articulated by Indigenous and local communities and, most importantly, their actual experiences with the intellectual property system.” (WIPO 1998). However, as we deliberate in the workshop ahead, economic remedies are the focus of copyright and trademark actions, not cultural rights. Furthermore, other strategies are being employed such as contracts, the establishment of collective management systems, the drafting of cultural protocols, the use of knowledge management systems, and the strengthening of Indigenous customary laws to protect indigenous or traditional knowledge and culture.2 The creations of cultural communities thus are important to examine to identify ways of protection and preservation of their indigenous knowledge and way of life as issues of compensation for unauthorized appropriation remain fully unresolved, and cultural harm possibly done by those without respect for the cultural creations of Africans must be thwarted. Information Communication Technology, IK, and IP: Sharing Africa’s Culture through the Superhighway of Information A growing concern that the University of Ibadan and other African Universities involved in indigenous and traditional knowledge and culture research and scholarship grapple with is how to document, store, disseminate and publish the knowledge forms investigated. Research on IK at universities and elsewhere face knowledge and IPR access challenges to what most local communities consider ‘communal ownership,’ and attempts to turn this into private property. However, As Kawooya notes: “…ownership claims would be antithetical to the contributive pillar of social justice envisaged in the collectivist African societies…beyond individual claim to ownership, digitization of ITK presents

2

See Janke's WIPO report "Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions, Geneva: WIPO, 2003.

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moral questions and value judgements, which skew representation of certain groups within countries and countries in the global knowledge flows.3 Universities also have libraries which are increasingly utilizing the internet and digitization methods to share knowledge, including indigenous knowledge, and their specific nation’s culture, despite financial challenges and lack of infrastructure, trained technicians and other issues. Yet, Africa is far behind the Western world in providing access to and dissemination of knowledge, and protecting the ownership of such knowledge. Even so, a number of university librarians and scholars of IK and African culture in general, are fearful that their work will be stolen by Western/European nations, despite UNESCO’s push for virtual libraries in Nigeria and elsewhere citing the need to share Africa’s languages, value systems, etc., to avoid total subjugation of such knowledge by dominant cultures (Carnegie Reporter, Spr 2005, 19) The role of African libraries and other centres of documentation in enhancing ICT to both acquire knowledge from the outside world, and share African cultural genius then, is tempered by the copyright and intellectual property right challenges that must be resolved to mitigate abuses of African IK scholarship. Ultimately, Africa’s libraries must master digitization opportunities as a means of promoting IK scholarship in legally and technologically safe environments across the continent. The economic benefits to the university, IK holders and ultimately national development begs for a solution to assist university research efforts adequately protect IK research and scholarship. In sum, UI and other existing institutions who seek to protect, preserve, and document IK must decide how it’s proposed research center will engage in digitization of Indigenous knowledge based publications. The Nigerian Situation & Significance of the Workshop Nigeria is a regional and continental leader with a unique cultural and biological diversity. As the most populous Black country in Africa, Nigeria ranks as the topmost culturally rich and diverse nation at the global level composed of roughly over 250 nationalities with corresponding numbers of languages and cultural practices. Its diversity areas include ecological and biological diversity, language, peoples, history, the arts, architecture, and religion, among others. Like India, it also has a comparatively sophisticated manpower. Nigeria is in a position to show leadership in the protection and preservation of African indigenous knowledge and cultural resources in this era of predatory global intellectual property order. However, Nigeria has been and continues to be a victim of documented biopiracy and theft of its cultural artifacts and other intangible cultural heritage, even though egregious forms of biopiracy are undocumented.4 Furthermore, aside from endorsing the African Union Model Law for the Protection of Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources in 2000, Nigeria has not been proactive like several other developing countries and centres of biological diversity on the issue of regulating access to its rich genetic resources and associated indigenous knowledge. From both legal and regulatory perspectives, there is no harmonized regime for the regulation of access to Nigeria’s genetic resources, indigenous knowledge forms or cultural properties. Neither is there any sophisticated policy on biotechnology. How best could Nigeria strategize in the protection of its indigenous knowledge in its diverse regimes, especially in the current biotechnology epoch? Before, during and immediately following the negotiations and coming into effect of the TRIPS Agreement, many developing countries, including Nigeria, lacked relevant or adequate expertise and manpower on the subject of intellectual property and IK. WIPO has since developed a Worldwide Intellectual Property Academy that, among other things, targets the training of intellectual property manpower in the developing countries. Recently, WIPO entered into partnership with the African Regional Intellectual Property Organization (ARIPO) and the Africa University in Harare, Zimbabwe
4

II.

Dick Kawooya, "Copyright, Indigenous knowledge andAFrica's University Libraries: The Case of Uganda." Paper presented at the WLIC, 72nd IFLA Conference, Seoul Korea, 20-24 August, 2006. Accessible at: www.ifla.org/ iv/ifla 72/papers/116-Kawooya-en.pdf . Accessed Jan 2008 by A. Zakiya. 4 See Dele Jegede's chapter "Nigerian Art as Endangered Species," in Plundering Africa's Past. Peter R. Schmidt and Roderick J. McIntosh, eds. Bloomington: Indiana University Press, 1996, 125-142, and others.

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for a scholarship and training program in intellectual property. The program targets young African professionals from academic and research and development institutions who are expected to contribute to the manpower development in intellectual property in the continent. In Nigeria alone, ten or fifteen years ago, only a handful of universities taught intellectual property in one form or another. While some response to rectify this situation has begun, including this proposed workshop, at the recent August 2008 Nigerian Bar Association conference in Abuja, Director-General of Nigerian Copyrights Commission (NCC), Mr. Adebambo Adewopo called on lawyers, legislatures, policy makers and other stakeholders to increase their knowledge to prevent piracy in Nigeria, citing the overall lack of qualified experts in this area. He lamented the low number of practitioners in the field of IPR as compared with other areas of legal practice in Nigeria due to lack of vigorous teaching of IPR in tertiary institutions. Furthermore, few faculties of law regularly offer IPR courses in their law curriculum at the undergraduate level while even fewer offer the programme at the postgraduate level. In fact, he stated that while “many legal practitioners claim to be IP experts in Nigeria, the truth is that their expertise is only limited to the filing of papers and forms for Patent, Design and Trademark application at the Trademark Registry which in reality does not really requires a deep knowledge of IP. IP law is a field of knowledge that is vast and deep.” 5 Such challenges, and the protection of traditional/indigenous culture and folklore, including decisions related to ICT and digitization of IK, are at the forefront of what this proposed workshop will assess what is to be done as the NCC, IK scholars, Faculties of Law and lawyer associations such as the Nigerian Bar Association, and cultural resource and property managers within the Ministry of Tourism, Culture and National Orientation and its parastatals, University of Ibadan scholars, and Biodiversity Organs, especially those focusing on Traditional Medicine, among other relevant stakeholders, are targeted for participation. Nigerian participants will greatly benefit from the case study examples of how other developing countries, especially regional leaders, have taken strategic steps to challenge or check biopiracy and the appropriation of indigenous knowledge and cultural forms through innovative national legal regimes and the creation of administrative mechanisms in this regard. It will be shown how divergent schemes for fair and equitable distribution of the benefit of genetic resources and associated local knowledge continue to be negotiated at national and international levels. III. Workshop Design, Aims and Objectives The UI IK Study Group proposed workshop will take place over a four day period. Appendix1 is the tentative workshop agenda. Two lead facilitators/instructors, and a number of additional facilitators/recorders will assist to conduct the workshop, provide summary notes and a final report, and help facilitate group exercises. The teaching pedagogy and curricula will allow for active participation and learning of attendees through group assignments, case studies, plenary discussions, and review of reading assignments on targeted subject areas related to IK, intangible and tangible culture, TCE and folklore, ICT, and IPR. Course materials will be provided, and consist of packaged handouts, articles and internet resources on a CD/ROM. Certificates of attendance will be issued. Our principal objectives based on the issues outlined above include the identification/articulation of: a) Nigeria’s unique position, compelling interests and comparative advantage in championing the protection of its intellectual property rights, genetic resources and associated indigenous knowledge and various of forms cultural heritage; b) Ways Nigeria can explore and harness its unique cultural wealth in its diverse domains to seek economic empowerment of its peoples, to leverage its economic strength outside of oil and seek political clout in the current global constitutive process;

5

See Guardian Newspaper September 15, 2009 for full speech. Available at: http://www.tribune.com.ng/15092008/mon/law.html

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c) d)

e)

f)

g)

h)

i)

Existing legal, regulatory and policy mechanisms and options in Nigeria for the protection and preservation of Nigeria’s rich indigenous knowledge and rich cultural heritage; Specific post-TRIPS, post-CBD policy and legal responses in Nigeria (if any) designed to address the issue of access and benefit sharing and other protocols designed to supervise external interests in Nigeria’s rich genetic resources; The adequacy of legal regimes on intellectual property in Nigeria for tackling the subject of protection of rich genetic resources, associated indigenous knowledge and tangible and intangible cultural heritage, and Information and Communication Technology related issues; The status of Nigeria in regard to relevant international treaties dealing with indigenous knowledge, intellectual property, biodiversity conservation and protection of cultural properties, including tangible and intangible cultural heritage; Specifically, the steps Nigeria has taken at domestic level since 2000 when it endorsed the African Union Model Law for the Protection of Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources; How best to identify or classify Nigeria’s diverse cultural resources, including its genetic resources for ease of management, protection, preservation and administration of the subject of access and benefit sharing and sustainability; and, The challenges facing the relevant ministries, agencies, organizations commissions, departmental and interdepartmental units charged directly, indirectly or in part with the subject of intellectual property, culture and cultural properties, indigenous knowledge, ICT, biodiversity, biotechnology.

In terms of outcome, we aim at: a) Drawing attention to the urgent need and the benefits for Nigeria to take concrete steps to protect its rich genetic resources, associated indigenous knowledge and all aspects of its rich tangible and intangible cultural heritage; Highlighting the imperative for Nigeria to show regional leadership on the subject of protecting genetic resources and associated indigenous knowledge, tangible and intangible cultural heritage in regard to the African continent in general and the West African region in particular; Identifying diverse stakeholders on the subjects of indigenous knowledge and access to Nigeria’s genetic resources and rich tangible and intangible cultural heritage; Sensitizing the legislative, executive and judicial arms of the government at federal, state and local levels on the subject of intellectual property, indigenous knowledge and access to Nigeria’s genetic resources and rich tangible and intangible cultural heritage; Provoking a nationwide debate in a participatory democratic way on the modalities for determining ownership of genetic resources and associated indigenous knowledge and the role of different stakeholders; Sensitizing our indigenous and local communities, universities, research institutions, researchers, industries and the private sector and diverse stakeholders on the subject of intellectual property, ICT, indigenous and local knowledge and access to Nigeria’s rich genetic resources and cultural properties;

b)

b)

c)

d)

e)

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f)

Exploring various potential options for comprehensive legal and institutional frameworks for effective protocols on the protection of Nigeria’s indigenous knowledge and for the regulation of access to Nigeria’s genetic resources and rich tangible and intangible cultural heritage; Promoting the growth of local manpower in the professions, university research centers and libraries, bureaucracies and various policy sectors implicated at the intersections of intellectual property, indigenous knowledge, ICT and cultural heritage; Prompting the need for legal and educational reform along (a) – (g) above

g)

h)

Achievement of the above aims and objectives will chart a new path for sustainable economic and cultural development in Nigeria as a blue print will be developed to increase its knowledge and effective local, national and global practice in IP and indigenous knowledge. The time to act is now! IV. Sponsoring Institution and Key Workshop Facilitators This workshop is being held under the auspices of the UI IK Study Group, at the University of Ibadan, which seeks to promote, preserve and protect African and Nigerian indigenous knowledge and harness such for sustainable development. For the proposed workshop, two world renowned Nigerian IK & Intellectual Property scholars/lawyers, Professors Ikechi Mgbeoji and Chidi Oguamanam will co-design and conduct workshop activities in collaboration with Dr. Afia Zakiya, a visiting IK & development Scholar at UI who serves as the activity manager and primary point of contact. Resumes of the two lead facilitators are available on the world wide web. UI will seek funding from the relevant government agencies, ministries, ngo’s, and other sources for this workshop. It is hoped that through acquired funding support, we will be able to provide at least four scholarships to junior scholars and community activist (2 male, 2 female) to attend this workshop in aims to increase the cadre of young adults interested to study and promote IK, IPR and sustainable development excellence in Nigeria, with an eye towards overcoming digitization challenges to dissemination of Nigeria’s cultural traditions in positive ways whether through the internet, films, festivals, tourism, or other means. For questions related to the workshop please contact: Dr. Afia S. Zakiya Visiting IK & Development Scholar University of Ibadan, Nigeria ikibadan@yahoo.com ; 0803 939 1349

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UNIVERSITY OF IBADAN INDIGENOUS KNOWLEDGE STUDY GROUP
Intensive Workshop on African Indigenous Knowledge & Intellectual Property Rights: Implications for Nigeria's Development Date: April 20-23, 2009 Venue: University of Ibadan, UI Hotels & Conference Center, Ibadan, Nigeria

WORKSHOP AGENDA
SUNDAY APRIL 19, 2009: ARRIVAL – 4.00p.m - 6.00p.m: Facilitators Meeting Monday April 20, 2009: DAY 1

Time
7.30am - 9.00am

Activity
Registration MORNING SESSIONS

Facilitator

9.00am - 9.10am

9.10am - 9.45am

Welcome Address: Mr. Ikechi Mgbeoji, LL.M., J.S.D. Associate Professor, Osgoode Hall, Law School, T oronto, Canada & Mr. Chidi Oguamanam, LL.M, Ph.D., Director, Law & T echnology Institute, Dalhousie University Law School, Halifax, NS, Canada. Opening of the Workshop 1. Prof. Olufemi Bamiro, Vice Chancellor, University of Ibadan, Opens Workshop 2. Recognition of Traditional Leader - Alhaji Chief A. A. Monilola, The Ewegbemi of Ede, Mogaji of Sagun Family, Ibadan; Member, Oyo State Advisory Board on Traditional Medicine Practitioners, Ibadan. 3. Workshop Overview and Objectives - Chidi Oguamanam, Ikechi Mgbeoji

Prof. Chidi Oguamanam & Ikechi Mgbeoji

9.45am - 10.45am

Plenary 1: Understanding Intellectual Property Rights: Justification/Imperative Topic: Theoretical and Conceptual Issues in IPR and Indigenous/T raditional Knowledge - Chidi Oguamanam Question and Answer

Ikechi Mgbeoji

10.45am - 11.00am Tea Break – GROUP PHOTOGRAPH TO BE TAKEN

11.00am - 12.30 pm Plenary II: Folklore, Traditional Cultural Expressions and Intangible Cultural Heritage Topics: 1. T raditional and Modern Mechanisms of Protecting Folklore: African & Western view on IP & The Domains of Creativity – Prof. Ikechi Mgbeoji 2. The Economic Significance of Folklore, Traditional Knowledge and Biodiversity in Nigeria and Beyond - Mr. Moses Ekpo (1st DG NCC) 3. Protection of Expressions of Folklore and its Challenges under Nigerian law - Mr. John Asein, Director, Nigerian Copyright Institute/NCC Question and Answer

Dr. Afia Zakiya, UI Visiting IK & Development Scholar/ Workshop Coordinator Session Chair: Mr. A. Adewopo, Director General, Nigerian Copyright Commission (NCC)

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12.30 pm - 1.30 pm

Plenary III: Indigenous/Local Knowledge and Biological Diversity Topics: 1. Indigenous Knowledge and its Relationship with Biological Diversity. Question and Answer

Ikechi Mgbeoji, Chidi Oguamanam

1.30 pm - 2.15 pm

Lunch AFTERNOON SESSIONS

2.15pm - 4.15pm

Plenary IV: Indigenous Knowledge in the Global Knowledge Economy and Intellectual Property Order Topics: 1. Understanding the Global Knowledge Economy 2. The International Legal Framework for the Protection of IK 3. WIPO/WTO/TRIPS 4. The CBD, UNESCO, WHO, etc 5. Biotechnology and Digital Technologies Question and Answer Session

Chidi Oguamanam

4.15pm - 4.30pm 6.00pm - 7.00pm

Closing Remarks & Overview of Day 1 Facilitator’s Meeting Dr. Afia Zakiya

TUESDAY, APRIL 21, 2009: DAY 2 Time Activity
Morning Session 8.00am - 9.00am 9.00am - 9.15am 9.20am - 10.45am Registration Overview of Day 2 Plenary V: Biopiracy, and the Protection of IK and Cultural Heritage: Opportunity and Responses T opics: 1. Economics of Indigenous Knowledge & Biodiversity: Implications for Wealth Creation, T rade and Employment. 2. 3. Biopiracy & Bio-prospecting in Perspective: Local and Global Dimensions Regime Shopping: UNESCO, CBD Chidi Oguamanam Ikechi Mgbeoji

Facilitator

Question and Answer 10.45am - 11.00am TEA BREAK

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11.00am - 12.30pm

Plenary V (con’t): Biopiracy, and the Protection of IK and Cultural Heritage: Opportunity and Responses 4. Status on Nigeria’s Country & Legislative Development on Protection of Traditional Medicine & Biodiversity NNMDA Panel & Paper Presentation: “Status of Protection of Traditional Medicine Knowledge & Practice and Biodiversity: NNMDA Experience” - Mr T. F Okujagu, . Director General/Chief Executive NNMDA NNMDA 2005 TMP & IPR Workshop Special Committee Achievement & Presentation of Draft Legislation on TMP & Biodiversity Protection for Review: 1. Prof. Abayomi Sofowora: Chairman, Drafting Committee on IPR for TK & BR 2. Mr. Sam Etatuvie: Deputy Director (Research NNMDA) 3. Ms. Stella Mbah: Senior Legal Officer (NNMDA) Question and Answer

Ikechi Mgbeoji, Chidi Oguamanam & Adeola Jegede (Facilitators)

Nigeria Natural Medicine Development Agency (NNMDA)

12.30pm - 1.30pm 1.30pm - 3.00pm

LUNCH BREAK

AFTERNOON SESSIONS
Plenary VI: Auditing Nigeria’s IK Profile Folklore, TCE, Biodiversity, Languages, Science, Technology, k.w.k. Topics: 1. Domains for Generation & Protection of Indigenous/T raditional Knowledge & Biological Knowledge 2. NIPRD Nigeria as a Case Study: Best Practices NIPRD in identifying and protection of I/TK 3. CBAAC Nigeria as Case Study: IPR CBAAC and CBAAC - Will focus on discussions of IP and FESTAC 77: Challenges & Opportunities in Cultural Documents Protection using IP Regimes. Festac ‘77 pending issues Question and Answer 3.00pm - 5.00pm Roundtable Discussion I: Evaluation of Nigeria’s Ikechi Mgbeoji, Potential as Regional Voice in the Protection Chidi Oguamanam of Indigenous Knowledge & use of IP Discussion Topics for Development of Multipronged Strategies: Ikechi Mgbeoji, Chidi Oguamanam

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! Regional Initiatives: Understanding the Dynamic

of State Interests on the subject of IK in Africa and Identification of Strategic Regional Partners and setting of Agenda for Collaboration at International Forums ! National/State/Local Law Reform, including constitutional issues relating to ownership/ stewardship of genetics resources and other forms of cultural heritage, capacity building, continuing professional education, sensitization and mobilization, identification of stakeholders, bureaucratic harmonization for efficiency and effective coordination. ! A clearing House for Access to Nigeria’s Genetic Resources? ! Information & Communication T echnologies, IPR and Indigenous Knowledge Protection at Universities: Role of Libraries. Question and Answer 5.00pm - 5.30pm 6.00pm - 7.00pm Closing Remarks & Wrap Up for Day 2 Facilitator’s Meeting

Ms. O. A. Araba, Director Technology Acquisition and Promotion, NOTAP to discuss IPTTO’s mandate

UI Library Director, Dr. Benedict Oladele & UI Librarian & IK Study Group Member, Ms. Adetoun Oyelude Chidi Oguamanam, Ikechi Mgbeoji Dr. Afia Zakiya

WEDNESDAY APRIL 22, 2009: DAY 3 , Time
9.00am - 9.15am 9.15am - 11.30am

Activity
Morning Session Welcome & Overview of Day 3 Plenary VII: The Future of Intellectual Property: Practice and Policy Prescriptions for Nigeria.

Facilitator
Participant Led/Ikechi Mgbeoji

ALL Participants, Chidi Oguamanam, Ikechi Mgbeoji, Dr. Femi Jegede - UI, 1. Charting the Way Forward: Role of Ministries Mr. Adeola Jegede & National Assembly, Universities, Indigenous/ Afia Zakiya (facilitators) Local Communities, NGO’s and other Stakeholders in developing Policy Prescriptions to Enhance Indigenous Knowledge, Intellectual Property & Biodiversity in Nigeria and West Africa Region Communiqué Finalized 2. Communiqué: Resolutions Adopted & Facilitators Type Final Proclamations of Support and Actions Document & Distribute to Participants for Signatures. Question and Answer Closing Remarks & Summary of Day 3 Chidi Oguamaman, Ikechi Mgbeoji

11.30am - 12.00pm

Presentation of Certificates - Prof. Olufemi Bamiro Vice-Chancellor, UI LUNCH BREAK & DEPARTURE 12.00pm - 1.00pm Day 3 & 4: Wed - Thurs April 22 - 23, 2009 Facilitators & Secretariat remain to compile workshop report

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Opening Ceremony
Welcome Address by Prof. Ikechi Mgbeoji to Participants at the Intensive Workshop on African Indigenous Knowledge & Intellectual Property Rights, April 20, 2009 UI Hotels and Conference Centre
The Vice Chancellor, University of Ibadan Distinguished ladies and Gentlemen, Guests and Participants, It is with a sense of relief and responsibility that I welcome you all to this occasion: relief that after several months of anxious preparation, debates, and hard-work, this worthy idea has finally taken shape before our eyes. The sense of responsibility derives from knowledge of the enormous task ahead of us, not only during the course of this intensive, but more importantly, after the event of the next five days. A little sense of history and perspective might be useful in situating where we are as Nigerians, Africans, and more importantly, as BLACK PEOPLE, in a world often described as “Knowledge-based”. It is a historical fact that human civilization began in this continent of Black people. We built the first massive structures-the pyramids in North and East African, the moats and walls of West Africa are a few examples. We founded the first cities and resolved the challenges of public hygiene. We created farms and built viable societies. We were the first chemists, physicists, and biologists. In literature, we were the first to invent writing. In poetry, our griots and oral historians were second to none. Some of our griots have been known to recite the equivalent of a thousand pages of history. It was not for nothing that Africa is rightly regarded as the cradle of human civilization. We taught the Greeks. The Greeks taught the Romans, the Romans taught the French and the British. And so on, across the world. Today, where are we? We are at the bottom of the knowledge ladder. What went wrong? How do we gather ourselves and assume our rightful place. It is no longer a secret that what went wrong is primarily what one may describe as the cultural and political holocausts visited on Africa in the past eight hundred years: First was the expansion of the Arabs from Arabia into North Africa and the consequent Arabization of North and East Africa. By this phenomenon, Black Africa first lost physical control and thus the narrative of Black genius in creating the pyramids, hieroglyphics, and other manifest expressions of culture and civilization. Today, a vast majority of the globe wrongly believe that Blacks did not originate and create the civilizations in Egypt, Sudan, and Carthage (Tunis). When you lose possession of your historical achievement, you also lose the narrative. Second, was the slave trade by Arabs, Europeans, and Americans which hollowed out Africa. We lost several hundred years of the most virile, productive, healthy stock of Africans to the global slave trade. Having weakened Africa through the slave trade, the continent was ripe for cultural conquest. The third holocaust was the frenzied cultural attack of the European colonialists on the cultural pillars and foundations of Africa. To this end, the native healer, herbalist, and priest was heathenized, and demonized as the “sons of Beelzebub.” Our task at this workshop will be incomplete if we fail to unpack these historical injustices and understand how they have shaped our attitudes to the critical questions of “what is knowledge”? What is African indigenous knowledge? What roles, if any can African Indigenous Knowledge play in a digital world? These questions are crucial if are to successfully address the pressing issues of the health and status of African folklore, cultural expressions, and identities. Our cultures, and thus who we are under an existential threat. We are increasingly becoming like the coconut: brown on the skin and white in the inside. What does it mean to be “Brown”? 13

The task of unpacking what really happened to our culture and civilization and of understanding that what we are witnessing is no mere academic flapdoodle. Speaking from the vantage point of hindsight, I make bold in saying that Nigerian law largely failed in making sense of what it was the changes were about, let alone in fashioning out a fair, principled, and sustainable mechanism for dealing with those changes. Let us first sketch out the bare bones of what was said to have occurred. In theory, the knowledge economy refers to an economy focused on the production and management of knowledge in the frame of economic constraints. On a second level, the knowledge economy refers to the use of knowledge technologies such as information technology and information management to produce economic benefits. Was this a theory in search of facts? Does the farm-hand really work only with her hands while her head is on a restful vacation? What is “knowledge”? Is the cocoa-farmer in Ilesha really an ignoramus? Whose knowledge deserves a privileged status? Why? In retrospect, what is more troubling is the complicity of the elite in failing to carefully separate the hype from real hope. Any fair-minded scholar would concede that that the African elite has been the greatest threat to the survival of African culture. The rush for intellectual property “protection” in virtually sphere of human endeavour and over all fauna and flora could not have proceeded with the same reckless speed without the benevolent prodding and imprimatur of the legal establishment, including the academia. Evidence shows that in the heat of the moment, law school course offerings on matters related to intellectual property increased exponentially. Virtually every law school in Europe and North America have widened their approach to the study of intellectual property law by hiring new professors and teachers in various courses (real and contrived) in intellectual property law. Of course, there is nothing wrong in studying intellectual property rights law. Where are we in this global phenomenon? The Universities in North America, and to a limited extent in Europe, are increasingly wedded to the industrial complex by literally converting public research laboratories and institutions into research and development outposts for the industrial/manufacturing complex. In the process, a focus on what could be commodified and sold undercut theoretical research. A huge number of speculative and dubious patents were granted. As the field of intellectual property expanded, and the research focus of public educational centres shifted, the ambit of the public domain dramatically shrank. Virtually every conceivable “intellectual” exertion became a product fit for capture and commodification by an aggressive intellectual property regime. It was the happy state of freedom fries, of stock options, dubious patents, and expansive copyrights. Nigeria is currently under the threat of bio-prospectors. What are the responses of the government, media, and academia to this new form of domination? Distinguished guests, ladies and Gentlemen, these are in bold strokes, the type of questions which will agitate and occupy our minds in this workshop. We hope that the solutions and ideas fashioned at this workshop will help in fending off the cultural attacks we face and in positioning our heritage and future well-being for survival. Thank you and welcome.

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Opening Address
African Indigenous Knowledge and Intellectual Property Rights: Implications for Nigeria’s Development by Prof. Olufemi Bamiro, Vice Chancellor, University of Ibadan
ALL PROTOCOLS OBSERVED Indigenous Knowledge (IK) is receiving increasing attention in academia as well as in national and international development agencies. This is due largely to the realization of the tremendous potential of IK in the development process. IK is essentially local knowledge that is unique to a particular culture or society, and is adapted to the requirements of local people and local conditions. IK is an important component of a country’s knowledge system. It encapsulates the skills, experiences and insights of people, and is applied to maintain or improve their livelihood. It has therefore been receiving increasing attention from scholars and development practitioners across the globe in virtually every field, ranging from the humanities and social sciences through agriculture, science and technology, to human and veterinary medicine. Unfortunately, the indigenous knowledge accumulated over generations by local communities is sometimes appropriated by so called experts without any compensation to the producers of such knowledge in spite of its tremendous potential to yield economic returns. Intellectual property has an important role in redressing this situation. It is capable of providing redress to the south-north flows of indigenous resources which deprive frican nations and communities the benefits of maximum socio-economic, political, and cultural development and the University of Ibadan is proud to be part of this endeavour. The timeliness of this workshop is underscored since engagement in IK research, teaching and scholarship is being pursued by the University to advance Nigeria’s sustainable development through the proposed establishment of the Centre for Indigenous Knowledge and Development (CIKAD). It is hoped that the Centre will come to fruition in the not too distant future, and that it will partner with relevant national and international agencies to ensure that Nigeria reaps optimal benefits from its IK resources. We wish to specially recognize the role played by Dr. Afia Zakiya, a Visiting Scholar, in putting together this workshop, as well as the support of the IK Group, University of Ibadan It is therefore my pleasure to declare this workshop open and to wish you fruitful deliberations to the benefit of Nigeria and Africa. Recognition of Traditional Leader - Alhaji Chief A. A. Monilola, The Ewegbemi of Ede, Mogaji of Sagun Family Ibadan; Member, Oyo State Advisory Board on Traditional Medicine Practitioners, Ibadan Workshop Overview and Objectives- Prof. Chidi Oguamanam Objectives, first Multi- and inter-disciplinary Workshop " A learning and sensitization interaction on IK as the mainstay of intellectual creation and potential driver of development in African societies, with focus on Nigeria. 15

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Raising awareness on IK as an instrument of wealth creation, economic leverage, national identity, political empowerment and socio-cultural enrichment. Examining the current international IP climate, the new global knowledge economy and technological advances, especially in bio and digital technologies and how they facilitate the exploitation of IK and consequently wealth transfer from indigenous and local communities Reflecting on Nigeria’s actual and potential legal and policy responses to current threats to IK Opening up conversation on options for Nigeria’s legal and institutional frameworks or protocols on the protection of IK, regulation of access to Nigeria’s rich genetic resources, tangible and intangible cultural heritage. As far as practicable, identifying and bringing together all stakeholders in IP and IK for a critical conversation around the two intersecting subject areas with a view to partnering in the future shaping of policy for our country, our region and continent. Promoting the growth of local manpower in the professions, scholarships, and the public service and other policy sectors of relevance in IK and IP Exploring insights from other developing countries and regions that have successfully exploited the opportunity provided by IK and IP for economic empowerment and national development

Overview: Because of the muti- and inter- interdisciplinary approach of the workshop, we will kick off with: " a primer on the basics of IP and its intersection with IK to bring every participant, especially non-lawyers, to a functional knowledge of both concepts " The rest of the sessions will revolve around three thematic areas at the intersection of IP and TK from national and diverse institutional governance perspectives at global levels. They will highlight the inherent opportunities and drawbacks of TK/IP for Nigerian and African economic empowerment and development # Folklore, Traditional Cultural Expressions and Intangible Cultural Heritage # Biodiversity, Biopiracy and their relationship with IK and IP # The role of digital and biotechnologies in the new global knowledge economy and how IP and IK are implicated in that order " The rest of our program of work for the workshop will be interactive, for the most part, enabling us to receive update account of Nigeria’s ongoing initiatives in specific domains of TK such as traditional medicine (Nigeria Natural Medicine Development Agency). Also, building on the presentations, we will embark on a process of identifying or auditing Nigeria’s indigenous knowledge profile as well as identifying the domains for generation of IK in Nigeria. We will hear from the Centre for Black African Arts and Civilization (CBAAC) and it experience arising from use of IP to “protect cultural documents”. Our interactive session with take a roundtable format where we explore Nigeria’s potential as a regional voice in the protection of IK tapping into insights from multi-pronged approaches and institutional experiences of NOTAP, and views from a University library. We will close with participant-led discussions on the future of intellectual property and practice, and IP’s potential for empowerment of IK toward national development and cultural emancipation. The role of various stakeholders and the need for strategic alliances in the advancement of IK and IP will be the central focus of that discussion. Participants will collectively adopt and sign resolutions arising from the workshop with proclamations of support outlining actions going forward. 16

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Summary Report of Workshop Sessions
OPENING CEREMONY* The workshop commenced with an indigenous rendition of the National Anthem by Mr. Ayo Ayanwale Olayanju of the Nigeria Ministry of Culture. Thereafter, Dr. Afia S. Zakiya, U.I. Visiting IK and Development Scholar and Workshop Coordinator, welcomed all (approximately 50 participants) to the opening ceremony and recognized the following special guests and Indigenous Knowledge (IK) and Intellectual Property (IP) Experts: Prof. Ikechi Mgbeoji, Associate Professor, Osgoode Law School, Toronto, Canada, Prof Chidi Oguamanam, Dirctor, Law and Technology Institution, Dalhousie University Law School, Halifax, NS, Canada, Mr. Adebambo Adewopo, Director General, Nigerian Copyright Commission (NCC), Prof. Olufemi Bamiro, Vice Chancellor, University of Ibadan, Alhaji Chief A.A. Monilola, The Ewegbemi of Ede, Mogaji of Segun family, Ibadan; Member, Oyo State Advisory Board on Traditional Medicine Practitioners, Ibadan, Mr. Moses Ekpo, First Director General, Nigerian Copyright Commission (NCC), and Prof. Stanley Okafor, Chairman, University of Ibadan IK Study Group. Next, Dr. Zakiya gave a brief background of the workshop and the intention of the U.I. study group. She mentioned three key areas of focus for the workshop to include: Folklore, traditional cultural expression and tangible/intangible Heritage Traditional knowledge in the area of Biodiversity Information, Communication and Technology (ICT) and its relation to TK/IK dissemination and protection and the role of universities

Before moving to the next session, Dr. Zakiya recognized three emerging Nigerian post-graduate scholars and activist in IK and IP who were sponsored to attend the workshop as part of the organizer’s future capacity building efforts in IK and IPR: Ms. Nkechi Ogbonna (Leeds Univ, London, UK), Mr. Gideon Christian (IDRC, Canada) and Ms. MIKang Longjan (Univ. of Abuja). Special note was made of the initial support of the workshop by former Hon. Minister of Culture Kayode. Next, Prof. Mgbeoji delivered the welcome address. He gave a little insight into the history of the Black people and observed that: ‘It is a historical fact that human civilization began in this continent of Black people. We built the first massive structure – the pyramids in North & East Africa, the moats and walls of West Africa. We founded the first cities and resolved the challenges of public hygiene. We created farms; built viable societies. We were the first chemists, physicists and biologists. In literature, we were the first to invent writing. In poetry, our griots and oral historians were second to none’. He noted that it is rather unfortunate that Africa, which is rightly regarded as the cradle of human civilization, is positioned at the bottom of the knowledge ladder and emphasized the fact that Nigeria and other African countries (seemingly) have nothing to show for the resources and knowledge systems which they have in abundance. Three key factors for this setback was identified to include: The expansion of Arabs from Arabia into North Africa and East Africa. The slave trade by Arabs, Europeans and Americans which hollowed out Africa, and; Colonization which affected the cultural foundations of Africa such that any discussion on traditional knowledge became a sign of primitivism.

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Note that the full text of most presentations is provided in this proceedings document for review.

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Thus, native healers, herbalist and priest were heathenized and demonized in his words as ‘sons of Beelzebub’. Prof. Ikechi criticized the Nigerian law in its failure to provide a fair, principled and sustainable mechanism for dealing with the protection of traditional/indigenous knowledge and genetic resources when compared to what is available in the western world. In general, he asked for the responses of the government, media and academia to address this new form of domination of IK in Africa. In conclusion, he encouraged all to participate actively so that the solutions and ideas fashioned at the workshop will help in fending off the cultural attacks faced and in positioning our heritage and ways of knowing to improve our future well being for sustainable survival. Opening Address Prof. Olufemi Bamiro, the Vice chancellor of the University of Ibadan, on behalf of the entire University Community, welcomed all to the University and to the workshop. He acknowledged the contributions and supports of IDRC, NCC, NCAC, NIPRD, NNMDA, NICO, CBAAC, AIDIKI, towards the funding and success of the workshop. He observed that IK is receiving national and international attention in development agencies due to the realization of the tremendous potential of IK in the development process, its uniqueness to a particular culture and society and its adaptation to the requirements of local people and conditions. He observed again that unfortunately, IK is appropriated by experts without compensation to the producers despite the tremendous potentials of IK to yield economic returns. He challenged Intellectual Property Rights experts to play their roles at addressing the South – North flow of indigenous resources which deprives African nations and communities of the benefits of maximum socio-economic, cultural and political development. The Vice Chancellor noted that although more than eighty percent (80%) of Nigerians rely on traditional medicine, Western science and its civilization curiously referred to such IK/TK as ‘alternative medicine’. At such, he emphasized the University’s commitment to the promotion and development of IK by the establishment conclusively through a proposed center for IK and sustainable development at the University which can help in addressing this misconception. Opening Remarks The Ewegbemi of Ede, Mogaji of Sagun family, and member, Oyo State Advisory board on traditional medicine practitioners, Alhaji Chief A.A. Monilola who spoke in indigenous Yoruba tongue, positing that indigenous language is also a part of indigenous knowledge; remarked that a lot has to be done by the universities and research institutes especially in the area of Traditional Medicine. He expressed the fear of IK in TM Practices becoming extinct if not used, promoted and made significant in the development of Nigeria. He encouraged the Universities on the need to design a curriculum for TM, with such knowledge not limited to the reading of books alone but to include an exploration of the practical aspects of TM. In his view, the potency and efficiency of TM is incontestable. Therefore, he advocates the need for western medical practices and indigenous or traditional medical practices to complement each other. Alhaji Monilola concluded with a song promoting IK in the area of TM. It is interpreted thus: ‘Disease will cripple the world without the knowledge of black traditional herbalist.’ WORKSHOP OVERVIEW AND OBJECTIVES Prof. Chidi Oguamanam According to Prof. Oguamanam, the workshop adopts a multi and inter-disciplinary workshop approach. Experts in various disciplines have come together to tackle issues revolving around three thematic areas at the intersection of IP and TK from national and diverse institutional governance perspectives which ultimately must relate to global dynamics. The subject of indigenous knowledge is inherently an interdisciplinary one, and is best explored from such diverse disciplinary perspectives. The workshop will highlight the inherent opportunities and drawbacks of TK/IP for Nigerian and

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African economic empowerment and development especially as it concerns the following thematic thrust: Folklore, Traditional Cultural Expressions and Intangible Cultural heritage. Biodiversity, Biopiracy and their relationship with IK and IP. The role of digital and bio-technologies in the new global knowledge economy and how IP and IK are implicated.

Prof. Oguamanam also indicated that the workshop will benefit from interaction between workshop participants and resource parsons since it is generally a learning and sensitization intiative. Overall, he heighted the objectives of the workshop to include but not limited to the following: Providing a primer on the basics of IP and its intersections with IK to bring every participant, especially non-lawyers to a functional knowledge of both concepts. A learning and sensitization interaction on IK as the mainstay of intellectual creation and potential driver of development in African societies. Raising awareness on IK as an instrument of wealth creation, economic leverage, national identity, political empowerment and socio-cultural enrichment. Reflecting on Nigeria’s actual and potential legal and policy responses to current threats to IK. Opening up conversation on options for Nigeria’s legal and institutional frameworks or protocols on the protection of IK, regulation of access to Nigeria’s rich genetic resources, tangible and intangible cultural heritage. Identifying and bringing together all stakeholders in IP and IK as far as practicable, with a view to partnering in the future shaping of policy for our country, our region and continent. Promoting the growth of local manpower in the professions, scholarships and the public service and other policy sectors of relevance in IK and IP. Exploring insights from other developing countries and regions that have successfully exploited the opportunity provided by IK and IP for economic empowerment and national development.

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The workshop will also aide the ability of participants to examine Nigeria’s potential as an African regional power and a strategic country for IK protection. He indicated that the workshop will end on a reflective note with participant–led discussions on the future of IP for empowerment of African IK for national development and cultural emancipation. In addition, the workshop will reflect on the role of various stakeholders and the need for strategic alliances in the advancement of IK and IP. Thereafter, the participants will collectively adopt and sign resolutions and issue a communiqué arising from the workshop.

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PLENARY I
Understanding Intellectual Property Rights: Justification/ Imperative.
Topic: Speaker: Theoretical and Conceptual Issues in IPRs and IK/TK Prof. Chidi Oguamanam

Prof Oguamanam recognized the fact that no one definition is sufficient enough in the description of the term IP. He outlined a few competing and but often inclusive definition of intellectual property to include: - A convenient reference to various legal regimes that regulate use of ideas or works of the intellect in general. - “Propertization of talents”, innovation and various forms of creative endeavour. - Rights for exploitation in information. - Mechanism for allocation of rights over knowledge and its products. The concept of IP presupposes a distinction in categories of property into Tangible and Intangible properties. He outlined the characteristics these distinct categories of property as well as the justifications for IP. Tangible property includes real estate (houses), factories, farmlands etc. It is physical, tangible, rivalrous, exhaustible, and naturally scarce/limited. Uses, access and ownership or proprietary claims to tangible properties are minimally curtailed by reason of public policy. Intangible properties on the other hand include: original ideas, their expressions, thoughts and “products of the human intellect” in general. Unlike tangible properties, intellectual property categories are for the most part non-rivalrous, inexhaustible. They are artificially made scarce/limited as basis for wealth creation. Ownership and proprietary claims to intellectual property is ideally constrained or curtailed by reasons of public policy perhaps more than the case with tangible property. After providing examples of IP and traditional and non traditional regimes of IP, it was shown how promoters of IP argue that without the latter’s guarantee of economic reward, the pool of creativity will run dry. Apart from the provision of incentives or motivation for creativity, IP rights are justified on a number of other grounds, including but not limited to reasons of moral, economic and contractual imperatives. Generally, intellectual property rights are recognized as an important legal mechanism to ensure sustainable progress of science, innovation, creativity and promotion of useful arts. Next, Prof. Oguamanam examined the conceptual issues in IP and the gulf between Western IP and IK/TK and IP in the new knowledge order, especially as implicated in the contexts of food, agriculture, medicine, environmental sustainability, digital technology, traditional cultural expressions, intangible cultural heritage, tourism etc. Accordingly to him given the emphasis on “western formal science” as central plank of knowledge generation in Western societies, conventional intellectual property, especially the patent system, does not adequately accommodate the process of knowledge generation in non-Western societies, including Africa. He noted that one of the challenges confronting Global Knowledge Economy (GKE) is the need of an IP system that accommodates the process of creativity outside the capitalist non-market societies. Given the undenied and undeniable contributions of IK to innovation, there is an urgent need for an intellectual property system that recognizes the peculiar process of innovation in non-western societies, the nature of communal knowledge system and the contributions of IK to global basket of innovation. Thus, the main tasks for Nigeria in the global knowledge economic order, in a nutshell, include exploring a deliberate strategy for: - Resisting the transfer of intellectual products in TK from Nigeria to external interests on inequitable terms. - Positioning Nigeria not as supplier of genetic resources but a strategic partner for innovation arising from TK. - Optimizing TK as an instrument for economic and cultural leverage. 20

PLENARY II
Folklore, Traditional Cultural Expressions and Intangible Cultural Heritage
Chairman: Topic: Speaker: Mr. Adebambo Adewopo, Director General, Nigerian Copyright Commission (NCC). No Room for Grandma: Traditional IPRs Regimes and (Non) Protection of Folklore. Prof. Ikechi Mgbeoji

Prof Mgbeoji began by using an analogy of a mother who traveled abroad to visit her son, (who was still at the office). She was asked by the wife and kids to remain in the living room, because there was ‘no room for grandma’. This was not as a result of hatred or disgust for the mother, but their cultural ideology which did not understand communality i.e., that a room can be shared or vacated by them for use by the grandma. Prof. Ikechi opined that the lack of a mechanism protecting folklore in Africa is traceable to the attitudinal and institutional problems arising from European colonization of Africa which does not leave room for others to thrive. Before the Europeans came to Africa, the indigenous peoples had complex systems of laws, norms, and practices governing the acquisition, sharing, possessing and transmission of IK. After defining IK, he went on to show how European colonization was unique and radical in justifying itself on the grounds of racial and ‘biological’ superiority which instituted a mutilation of indigenous people’s knowledge across the world. It demonized and erased pre-existing indigenous protocols for the production, sharing, dissemination and revitalization of knowledge and information, describing such protocols negatively as ‘unscientific’ and ‘folklore’. Thus, IK in Africa, including the overwhelming basket of IK derived from women, was effectively marginalized. Subsequently, an alien system for the recognition, identification, classification and protection of knowledge was imposed, and today’s globalization and perpetuation of international IPR institutions deliberately shuts out non-traditional rights to which Folklore and other intangible property belongs. With particular reference to Folklore (notwithstanding past critiques on the usefulness of the term), the debate across national, regional and global institutions have focused on the question – should folklore be protected? If yes, which aspects of folklore should be protected and how? This is with a view that the realm of folklore is, like many manifestations of IK, holistic and thus difficult to compartmentalize. Prof. Mgbeoji lamented the fact that the criteria and dominant IPR regimes for the identification, classification and protection of knowledge are EUROCENTRIC. Thus, indigenous peoples have at best, been recipients of norms; not active co-participants or equal partakers in the development, interpretation, implementation and revision of laws on IPRs at both municipal and international levels. He emphasized the need for taking charge and recognized the current trends of emerging critical scholars, institutions, and international treaties (CBD, FAO, WIPO, UNESCO) sympathetic to the causes of indigenous people and their attempts to facilitate the legitimation of indigenous people’s knowledge. They have also questioned the arrogance of Western empiricisms and argued that indigenous methods of inquiry were often as empirical as the dominant science. The session was concluded by urging Nigeria’s policy makers and stakeholders in this domain to set the pace, and not just by adopting an approach that ignores the traditional structures and codes of regulations, but, by being humble enough to engage traditional knowledge holders on means of protecting, preserving, learning and documenting our indigenous and traditional knowledge. Topic: Speaker: The Economic Significance of Folklore, Traditional Knowledge and Biodiversity in Nigeria and Beyond Mr. Moses Ekpo, the first Director General, Nigerian Copyright Commission (NCC)

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Mr. Ekpo started his discussion by acknowledging the uniqueness and appropriateness of the workshop especially its timeliness with the celebration of the twenty years anniversary of the Nigerian Copyright Commission (NCC) and its role at protecting creativity. Next, his introductory remarks extensively discussed the nature of folklore, traditional knowledge and biodiversity, looking at their interconnectivity and challenges. Mr. Ekpo noted that the mistaken belief that everyone has to earn money from a white collar job has increased the level of poverty and reduced the incentive to be creative. He sees traditional knowledge as having a number of subsets, designated by expressions such as IK, folklore, traditional medicinal knowledge etc. while Biodiversity is the resources upon which these traditional knowledge systems are dependent. (Note: not all scholars subsume IK under TK) Evidently, the interest in Nigeria’s intangible cultures has grown outside its environment, due to their value as sources of aesthetic enjoyment and the challenges they pose to the creative imagination. It follows therefore, that contemporary Nigeria should not sit back and ignore the need for the legal protection of such intangible properties for commercial exploitation by the originators. Rather, it should promote indigenous innovation, knowledge and creativity and create awareness on the economic value of the knowledge systems existing within Nigeria. Mr. Ekpos argued that the presumption that all aspects of traditional knowledge are sacred is a misrepresentation of the social and economic structure of Nigerian communities. He believes however that, while some aspects of TK cannot be commercialized because of the link to traditional religion or the classification of certain objects as sacred, other objects can be sold for economic purposes. Thus, an overgeneralization that the commercialization of knowledge could be destructive to the development of any society should be disregarded. In his view, our forefathers knew and taught us how to think and trade for survival and they passed it on. Undoubtedly, commerce in such products as medicinal plants, traditional crop varieties and handicrafts can and does benefit Nigerians. He concluded that based on the above, the Nigerian government should look into possible ways by which indigenous knowledge holders acquire the commercial and legal tools needed to collect the value of their novelty, particularly by having access to the markets and control over the pricing of their goods without any third party who would take the biggest piece of the pie. Furthermore, the conservation, preservation and dissemination of expressions of intangible heritage must continue to be improved upon. Topic: Speaker: Protection of Expressions of Folklore and its Challenges under Nigerian Law Mr. John O. Asein, Director, Nigerian Copyright Institute

According to Mr. Asein during his opening remarks, while the attempts at the international level for an international instrument to protect Folklore exists, it is pertinent that national and regional efforts should be used, not only as catalysts to the international process but also to give the countries and regions concerned flexible but effective options as a prelude to any international regime. Next, Mr. Asein gave elaborate definitions of the word ‘protection’ and classified it under two broad subjects: positive protection and defensive protection. Positive protection gives TK holders the right to take action or seek remedies against certain forms of misuse of TK while Defensive protection safeguards TK against the acquisition of illegitimate IP rights by others over the subject matter of TK. At the international level, article 15 of Berne Convention was the first to apply IPR to folklore. It was a response to recommendations by delegates of the African working session on copyright held in Brazzaville, 1963. African initiatives includes: 1964 UNESCO/WIPO committee of African experts, 1967/1973 Draft model law, which provided for an economic and moral rights in ‘works of African folklore’ and authorization for exploitation. Also, the OAPI 1977 Bangui Agreement that entered into force in February, 1982. Like most countries with provisions on Expressions of Folklore (EOFs), Nigeria adopted the Tunis model. It aims at protecting EOFs against: - reproduction

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communication to the public by performance, broadcasting, distribution by cable or other means; and, - adaptations, translations and other transformations. That said, Asein surmised that expressions of folklore are faced with the following challenges under the Nigerian law: Definition of terms which is often muddled up when lawyers, anthropologists and stakeholders meet. Constitutional provisions and ethnic delineation Width of exemptions and limitations as the formulation of the exceptions and limitations under the Act does not discriminate between local and international users. Lack of ownership and contending enforcement priorities. Very few African countries are thinking of folklore because there are other priorities pressing upon them. Absence of clear directions and guidance from the international level and other counties that have the provisions. Here, the Ghanaian experience is instructive. Others (fear of the unknown) i.e. how do you treat expression that have crossed cultural political boundaries. Gradual but persistent and deep erosion of traditional values and protective structures.

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In conclusion, Mr. John Asein advised that unless there is a rethink of the values and priorities even a better protective regime locally or internationally may just as well be to the benefit of the same people from whom we want to deliver these cultural assets. Q & A / DISCUSSION SESSION The chairman of the session, Mr. Adebambo Adewopo thanked the presenters and called for questions, comments and contributions for the audience. 1. Lady Gloria Chuma – Ibe (CBAAC) (i) Why does NCC only identify cases of copyright and not assist the copyright owner at court? (ii) Needs a clearer definition of folklore as distinct from expression of folklore? Hilary Ogbechie (NCAC) (i) In what era can we claim to have succeeded more in protecting folklore – pre or post colonial eras? (ii) How can we encourage investors in the areas of culture and folklore?

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3. Adetoun Oyelude (U.I. library): “You mentioned that “communal ownership is a fiction” please explain. 4. Christian Gideon (IDRC): Adapting folklore into technological forms to benefit economically, which community lays claim to it, which particular individual within the said community owns it, what/ how will the benefits accrued be equitably distributed? 5. Ayanwale Ayo Olayanju (Ministry of Culture). It is said that from works of art, an artist can move from poverty to affluence. How long can an artist who has sold his work across cultural and economic boundaries, claim royalty to a work? (He gave example of a Nigerian (Yoruba) artist (Mr. Fakeye) whose work of art is on display in Cuba where it constitutes an enduring precious work of art that attracts many tourists annually] He noted, however, that the artist sold the work at a time he had no clue regarding the potential value his creation.

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6. Dr. Femi Jegede (U.I, IK study Group) How do we emerge from the standpoint of folklore not monetarily based but humanly and communally based? Mr. John Asein responded to Question 1: The burden of enforcement is shared between the owner and government. The owner of such right primarily has the responsibility to institute a civil action against an infringer. That owner can also make a report to NCC. The latter, in turn, acts by investigating and if need be initiate prosecution. Very often the problem is that copyright owners are not vigilant in regard to matters of enforcement of their rights. Using the FESTAC mask as an example, he argued that folklores and expressions of folklores have gone beyond issues of preservation; there is an increased focus on wealth generation. NCC and CBAAC should forge a continuing dialogue on the issue of preservation, protection and economic exploitation of folklore. In contributing his response to the question, Mr. Ekpo added: Why preserve something that you cannot benefit from? Preserved in the British Museum, the FESTAC emblem can generate tourist income for that country. But what is needed to resolve is how such a mask, emblem or device can be protected in a way that benefits the indigenous people who created it, whose cultures are reflected in the emblem or masks. Sadly, today, the Benin people who were the progenitors of the FESTAC mask and emblem and whose cultural symbols are therein implicated have nothing to show for it. Prof. Ikechi and Mr. Ekpo responded to Question 2 A large majority of the elites believe one is civilized when one lives, behaves, and reasons like the western people. This has led to the loss of our cultural values i.e., people no longer feel civilized when their native/mother tongue is spoken. Parents encourage children to speak the English language and disregard their local or traditional mother tongues. This is a case of being brown on the outside and white on the inside. If one does not have mastery of indigenous language, one definitely can not pass it on to the next generation. The aim therefore is to change our attitudes to these ideologies. Those who are business inclined should invest in cultural enterprise. They can get government’s assistance where necessary thus, government needs to come in and collaborate with holders of such knowledge to ensure protection and value for their novelty. Mr. John Asein responds to Question 3: Somebody somewhere in Africa has the capacity to originate something that can be termed folklore. Overtime there are now embellishments; innovations to such works from inspiration by the community, this does not in any way imply communal ownership as communal/folk mind is not an empirical entity capable of taking credit for the authorship of such work of art. When we use the axiom ‘Our fathers said’, it is a sign of respect to the ancestors and also a copyright heritage acknowledgement. Mr. Ekpo responded to question 4: An expression of folklore at the traditional society was not for free. There were incentives or economic underpinnings involved. The praise singer at a chieftaincy or wedding ceremony was rewarded in someway. Some reward come in form of recognitions and whoever dramatizes or initiates the story gets the reward.

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Prof. Oguamanam also commented: IP and IK are each dynamic. The history of IP and its evolution demonstrate flexibility to accommodate diverse and newer forms of knowledge system. If we are consist with the dynamism of these concepts, we would have no problem using intellectual property to empower folklore. We need to match that legal imperative with the political will. He argues the as part of its dynamism, traditional medicinal practitioners are now adopting their service delivery to realities of modern market place and sophistication of their patrons. Traditional medicine practitioners now sell their drugs in well packaged and labeled forms. It may not be out of place if they use lap or desk top computer to manage their stock of herbal medicines and provisions. We must not shy away from the economic promises and potentials of IK and expressions of folklore. Mr. John Asein on Question 5 Under the law, there is nothing much he can get as the system itself is unfair. However, nothing stops the government of the said country to reward him by way of an award or monitory incentive. Mr. Ekpo on Question 6: Amongst other things, NCC has prepared a model agreement for an art work and if they are accurately answered, the agreement enables the owner to earn something from the work.

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PLENARY III (Brief Introduction to IK and Biological Diversity)
Indigenous/Local Knowledge and Biological Diversity
Chairman of Session: Prof. Chidi Oguamanam Topic: Indigenous knowledge and its Relationship with Biological Diversity Speaker: Prof. Ikechi Mgbeoji Biologists define biological diversity as species genius diversities found in flora and fauna. So far, they have been able to identify 250,000 different plant life forms from those of little complexities to greater ones. Only about ten percent (10%) of these plants have been officially endorsed for medicinal purposes. In fact, plants possess a complex property of chemical that have aided their survival for years. Researchers have discovered a direct relationship between human cultural diversity and plant diversity as people of different cultures can breed the same types of plant to suit different purposes. Therefore, it is important to understand and know how to use any part of a plant which often involves an interaction of the human body and the plant; in indigenous societies there is a view that some plants need rituals to cultivate and harvest them. Such a view constitutes a belief that closer ecological relationship with plants provides the basis for intimacy in human-plant relationship. However, Mgbeoji then stated that our knowledge of plants is eroded by population pressure and negative religious influences. It is commonplace in Nigeria for adherents of the Christian religion to label traditional forests that preserve medicinal plants as evil forest and consequently proceed to destroy them in an act of “liberation”. Another significant problem to the sustainability of IK is biopiracy. The appropriation of IK by western research institutions, entities, and commercial bodies threaten the integrity and survival of IK. Finally, he ended with the submission that in this age of biotechnology where we are in a rush to be part of its evolution, we can harm ourselves if we do not poses the necessary knowledge and value over the issues of plants, and protect our own African contextual indigenous knowledge of biodiversity. Q & A / DISCUSSION SESSION Ms. Ngozi Aligbue (NNMDA) - Ms. Aligbue observed that when discussing IK, there is a tendency to concentrate on flora alone and little attention to fauna. She identified poverty, oil pollution and industrialization as the main threats to biological diversity which, as we have noted, is the mainstay of IK. In her contribution/comment, Dr. Afia Zakiya used various illustrations to underscore the issue of indigenous belief in the spiritual relationship between humans, plants and animal life forms that should not be overlooked and cautioned against embracing neo-Malthusian perspectives of which includes a focus on poverty and overpopulation among ‘third world’ people as reasons for resource scarcity and environmental degradation as these tend to denigrate indigenous peoples culture when in fact, freemarket environmentalism, the colonial enterprise and other factors are threats to biological diversity. Contributing to the discussion, and providing information all participants were excited to learn about, Alhaji, Chief A. A. Monilola stated that in traditional medicine practitioners have researched and observed despite their importance as food and medicine, maize pepper can have adverse consequences if used in different ways. The root of maize and pepper are inherently poisonous and lethal when consumed. This is to stress on the fact that the closer you are to the plants, the more intimates you get and the more your understanding of the various usefulness of such plant.

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PLENARY IV
Topic: Speaker: Chair: Indigenous Knowledge in the Global Knowledge Economy and the Intellectual Property Order Prof. Chidi Oguamanam Prof. Stanley Okafor

Prof. Oguamanam began this session by emphasizing the role of women as the drivers of our IK. He called them ‘the force strongly promoting our IK’. He described IK and listed a number of its features such as inherent complexity, inexhaustible in its caterories, holistic in its outlook, resistance to fragmentation, culture specific, innovative, dynamic, penetrable and penetrating other knowledge systems, and not lacking in scientific character. IK is manifested in the following forms amongst others: Arts, design, music, language and other forms of expressive culture, agriculture, medicinal knowledge, recordings, education – oral and written, religious and diverse cultural rituals, history, political craft, social relations etc. According to Professor Oguamanam, the Global Knowledge Economy (GKE) is an offshoot of globalization. The later depicts the global harmonization of legal and economic regulatory frameworks and the breaking down of barriers to trade to promote capitalist interests. GKE also involves the fusion of the local and the global. It is characterized by the power of information/knowledge in life science (biotechnology) and TK (biological resources) with a focus on Bio-resources which is the site of conflict of interest between TK, western science (biopiracy), and intellectual property rights. Technological trends and transitions at the cusp of GKE include digitization, the internet/ cyberspace, information revolution ICT, and the “GSM phenomenon”. These trends also involve the implosion biotechnologies and the life sciences industry which have led to intense prospecting in biodiversity, biological resources and increased bio-piracy. In fact, GKE is a paradigm shift in innovation i.e. from physical sciences to life sciences. Information is now at the centre of wealth creation and constitutes the new focal point on innovation as evident in the increasing important of cutting edge disciplines such as molecular/microbiology (genetics, genomics), organic chemistry, biochemistry, physiology, pharmacology, and bio-informatics, among others. Thus, we observe that Biotechnology (an interdisciplinary endeavour and critical player in the knowledge of economy) has a symbiotic relationship with digital technology (electronic or computerized representation of information regarding an object, document, image or signal). Accounts have it that Indigenous communities are home to an estimated seventy five (75%) of the world’s biological resources, the mainstay of IK. IK system are critical in the new innovation frontier — i.e., reliance on TK increases discovery of marketable pharmaceutical by seventy eight percent (78%). For example: Fifty percent (50%) of all prescription drugs in the US are based on drugs derived from natural substances. Twenty five percent (25%) of US prescription drugs contain active ingredients derived from IK.

IK is a serious ‘science” and often more meticulous than what happens in formal science laboratories. In the GKE, generation, ownership, management and manipulation of information/ knowledge is critical. IP then becomes ‘the currency of choice, the instrument of power and empowerment in the GKE’. Prof. Oguamanam indicated that the issue of IK knowledge and IP is tackled from different perspectives as a subject matter of international law and policy. Overall, he argued that the global governance framework for intellectual property and IK remain critical aspects of policy debates at one level or another at the WTO/TRIPS, WIPO, UNESCO, FAO, WHO, global level. He singled out the 27

Convention on Biological Diversity (CBD) and its secretariat in Montreal Canada, as a major instrument and institution that provided a boost on the subject of IK. Despite extensive international initiatives around the intersection of IK and IP, there is little responsive domestic initiative in Nigeria to align with the state of progressive international developments on the subject. This vacuum is felt more when cognizance is taken of Nigeria’s profile as an important political and economic voice in sub-Saharan Africa, combined with its rich cultural heritage. Also, as indicated, Nigeria is a significant user and supplier of genetic resources and has one of Africa’s most unique biological diversity in flora and fauna. The lack of dedicated and responsive domestic regimes on emerging roles of IK in the GKE needs addressing as a matter of urgency. Professor Oguamanam argues that there is a need to reappraise Nigeria’s legal and bureaucratic infrastructure in a manner that aligns with the critical importance of TK, its complex relationship with IP and its significance in the new global knowledge economy. He suggests that Nigeria may need to reach out to key developing countries such as India and Brazil who represent credible voices on the issue of IK, IP and biological diversity. Q & A / DISCUSSION (i) Do we have such an example of a country with SUCCESSFUL IPR in IK? (ii) The knowledge of biodiversity – How do we reach out to others? ANSWERS Prof. Ikechi started with a response to Ms Ngozi’s observation at the former session. He pointed out that as a subject “plants” are central in the discourse about IK. But he also noted the role of animals and minerals. He made analogy to a bank robber who was asked why he always robbed banks. The robber looked at the questioner surprisingly reminding him how stupid the latter was by not realizing the obvious: “the bank is where the money is”. On the second question, Professor Mgbeoji indicated that traditional medicine practitioners cultivate medicinal plants around their homes. Over the years, they have acquired the knowledge of how to cultivate and preserve those plants which are part of their cultural heritage. Prof. Oguamanam: In responding to the first and second questions, Professor Oguamanam pointed out that India is a very good example of a country that has promoted its IK. It made sure that all knowledge system on its traditional medicine has been computerized. India’s initiative has led to some critical changes in international patent classification in a way that has resulted in impoved accommodation of traditional knowledge categories. Also India has dedicated laws on biodiversity, geographical indications that aim at maximizing that country cultural and economic advantage from its traditional knowledge resources. India continues to be a credible and respectable voice and a model for developing countries on how to tacke the issue of IK and IP for national empowerment. He concluded by remaking that his working trip to India revealed that there is a lot to learn from that country on the subject of IK and IP. CLOSING: Prof. Okafor commended all and gave an overview of the day’s activity highlighting the challenges of IK and TK.

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DAY II TUESDAY APRIL 21, 2009

PLENARY V
Biopiracy and the Protection of IK and Cultural Heritage: Opportunity and Responses
Chairman of Session: Dr. Afia Zakiya First Topic: Speaker: Biopiracy and Bio-prospecting in Perspective: Local and Global Dimensions Prof. Ikechi Mgbeoji

The debate on whether the appropriation of a given people’s knowledge of the uses of biodiversity amounts to theft may be analyzed at different levels. First, there is the pervasive claim that communities own the rights to biological resources and the knowledge of such resources. It follows therefore that individuals in the society who create something innovative are not recognized. Although the community creates values using insights from shared cosmological experiences, the individual’s contribution in knowledge expression cannot be discountenanced. Individual contributions add values to even shared communal resources. It is obvious that there is a huge array of area of specialization in IK/TK. Sometimes, it takes a long period of tutelage, experience, learning and studentship. Unfortunately, this universe of knowledge is being lost as there are no longer initiates in this field of endeavour. If science is said to be rigorous in expression of theories, it follows that since there is rigour in the long period of scholarship and diverse areas of specialization, IK/TK is worthy of IPR. After this analysis, Prof. Mgbeoji gave an illustration on the subject of biopiracy with case of Angharad Gatehouse, researcher of the University of Durban who received a patent on cowpeas he collected from the local farmers at Ibadan on a sponsored trip by IITA. He was aided by local institutions and his office facilitated access to local farmers who handed him their improved cow pea seeds. Unknown to them, Dr. Gatehouse patented the insect-resistant cowpeas which they had developed through their own ingenuity and efforts. He identified the following undercurrents that made the Gatehouse biopiracy experience in Ibadan possible: - The power, cultural and epistemic gap between the farmers and Gatehouse - The power imbalance and institutional imbalances - The conflict between the patent system and traditional protocols, and, - The indulgence of the system which does not even accredit the lone ranger farmers. International law has firmly concluded that a country has undeniable rights to control and regulate access to their biological resources that are leaving their society. Thus, the era of taking plants and other resources without proper consent is over. (The Deputy Vice Chancellor-Academics of UI, Prof. Agbaje was introduced and welcomed by workshop coordinator Dr. Zakiya. The DVC acknowledged and thanked the organizers, sponsors and agencies, especially the IDRC that were once partners with the University of Ibadan. He encouraged the organization to continue in its efforts at IK and IPR research development. He also re-stated that a centre is being put in place soon to promote IK and TK at the University of Ibadan.) Continuing, Prof. Mgbeoji distinguished Biopiracy from bioprospecting. He stated that bioprospecting is not illegal per se; when done properly, it is necessary and permissible. It is the search for biological resources of useful value which may often include associated traditional knowledge. The main challenge, however, is in articulating a viable, fair and informed framework regulating access to and benefits sharing. 29

Q & A / DISCUSSION Chief Isiaka O. Sholagbade, a Traditional Medicine Practitioner, highlighted the fact that there are some knowledge and discoveries in IK that are yet to be acknowledged. He craved the indulgence and assistance of the government and stakeholders to assist the traditional medical practitioners when they report these discoveries in order to enable development in the area. Hilary Ogbechie NCAC: - Can a person claim knowledge that he/she is not aware of? - He seem to have disputed the idea that that a community cannot lay claim to an area of specialization. He points out that there is a community in his ancestral area where even children as young as four year old are skilled in the art bone setting as part of the community’s cultural heitage. Mr Ogbechie also expressed reservation about the role of local intermediaries in the exploitation of IK/ TK Adeola Jegede NIPRD Informed the group that there is a department presently in the Faculty of Pharmacy that is interested in Traditional Medicine –Pharmacognosis. Dr. A.O. Adegoke Faculty of Pharmacy, University of Ibadan asked: How can we ensure that the emerging momentum on IK issues is not undermined by government bureaucracy and interventions? He mentioned the red tape and what he called ‘the Nigerian factor’ has crippled genuine efforts in creating a Nigeria Pharmacopeia for years. Dr. Femi Jegede U.I : Gave two examples of biopiracy: - A traditional leaf used to wrap food (name the leaf) has been discovered to reduce the sugar or carbohydrate expression in wrapped food but has it has now been replaced by nonbiodigradable nylon wraps. He mentioned that the leaf is now endangered and there seems to be external interests that have “discovered” the same medicinal value of the leaf. - He also indicated that ‘Oriata’ which is associated with the reduction or treatment of sickle cell anemia crisis is fast vanishing. Instead of cultivating the values of these local knowledge forms that address endemic situations, we would rather allow ourselves to be exploited by external interest that are committed to taking away the vital biological resources, recycling the local knowledge and exporting them back to us (in forms local people cannot afford to purchase). He surmised that we need to be more vigilant before things because totally irreparable. Another participant asked/noted: In the case of IPR in biomedical research and the position of the research participants, do we quantify their efforts as being acknowledged i.e. Fitzer case, Moore’s case? Since we do not have much case law in this area and given a clue from the presentation, should this be the position in Nigeria? ANSWERS It is impossible to claim property over knowledge where the said knowledge is lacking. It is also not possible to generalize knowledge by individuals to all in the indigenous community. Cultural and institutional power imbalances have caused even the intermediaries to part with their heritage. One must get participant’s consent in research and acknowledge such consent. Not certain whether the domestic regimes have put this into law. The undeniable fact from an academic realm remains that credit and acknowledgement be given to persons whose IK/IT is used.

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PLENARY V (CONTINUED) Speaker: Topic: Prof. Chidi Oguamanam Status on Nigeria’s Country and Legislative Development on Protection of Traditional Medicine and Biodiversity

While it certainly is not as if nothing has been done in Nigeria in response to current international or global momentum on the protection of TK and the preservation/exploitation of biological resources, one must still reflect on how determined or committed is Nigeria to addressing such issues and ascertaining to what extent has any responsive initiative translated into concrete results? Also, what is the plan going forward? In 2000, the AU raised a model law for the protection of local communities, farmers, and breeders, which was to serve as a template for African countries on the diverse subject matters covered in that document. It is not clear to what extent Nigeria has stepped down the letter and spirit of the AU initiative into its domestic legal regime. The AU initiative underscores the importance of a regional initiative on the subject of TK/IP. It provides a good starting pint for Nigeria to show concrete leadership by re-engineering its relevant domestic laws. Such a move will ensure not only a comprehensive approach to the subject of TK/IP, but it would have positive impact regionally in regard to other African countries. Regrettably, a cursory look at Nigerian statute books shows a scattered and incoherent approach to the issue of IK /IP and biodiversity conservation. In order to determine legal or policy modalities for Nigeria’s compliance with the Convention on Biodiversity and its protocols on access to genetic resources, biosafety, etc. one has to navigate complex and incomplete legal labyrinth traversing legislation on National Parks, Agricultural Seeds, Agricultural (Control of Importation), Animal Diseases (Control), and various environmental and complex regulatory regimes to mention the few. These do not include other layers of inter-jurisdictional ministerial bureaucracies that compete for a regulatory stake and clout. What is the most viable thing to do? Prof. Oguamanam concluded his presentation by stating that Nigeria/we all should study other societies or countries that have made positive policy and regulatory impact on these subjects at domestic and international levels. We must also pay attention to those who have failed, to the factors that accounted of their failure and to the lessons to be learned. India’s success is an enviable example. The country has a robust domestic initiative on the digitization of its traditional medicinal knowledge which has had a monumental global impact attracting the interest of many developing countries and regional bodies. India has an innovative Biodiversity Act which establishes biodiversity authorities at the national, state and local levels. The Act also created a National Bodiversity Fund run by a group of stakeholders focused on re-distribution of benefits of biodiversity exploitation in sustainable ways. India’s success is premised on the background of a huge sensitization drive, competitive literacy level of stakeholders and an inclusive approach in policy elaboration. Topic: Protecting traditional knowledge and Biological resources in Nigeria: NNMDA experience. Mr. Emmanuel Orgah: Representing Mr. T.F Okujagu, Director General/Chief Executive NNMDA.

Speaker:

Mr. Orgah began with apologies for the CE’s (Okujagu) absence. He then noted that traditional knowledge cuts across numerous issues and the transfer of this knowledge form from generation to generation is traditionally done orally. Where documentation exists, it is available in the local dialect of the community, however, improper documentation of the practices have led to gaps in the transfer of such knowledge. When TK is protected, it could give benefits to the custodian of such knowledge and some recognition and control over how it is used. This in turn can help in raising the standard of living for locals, particularly in the developing world. 31

Several intergovernmental organizations and agencies have enacted laws to protect TK and deal with access to generic resources and benefit sharing both at the regional and international levels: TRIPs, CBD, WIPO, AU. The NNMDA in its attempt to develop and protect traditional medicine in collaboration with national and international stakeholders, has taken the following steps: In December 2005, NNMDA organized a 3-day international workshop on IPR for TMP with NOTAP. Set up a committee co-chaired by Prof. Abayomi Sofowora and Prof. Maurice Iwu which produced a draft policy and legal instrument for an IPR regime for traditional medicine knowledge and practice. Copies of the document entitled “Traditional Knowledge and Biological Resources Protection Act” were given to participants. Inputs are sought from experts throughout Nigeria, and amongst those gathered at the current workshop to be subsequently provided to NNMDA. Conducts continual interactive sessions with TMPs in order to stimulate active participation. To date 30 interactive sessions nationwide with 9000 TMPs participating have been held.

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Most importantly, NNMDA has developed a Digital Virtual library on TM to serve as a dedicated focal reference centre for research development and promotion of TM. These are some of the highlights of NNMDA’s activities. Q & A / DISCUSSION Christian Gideon IDRC: Are there ways IK can be digitized? What precautions are taken to spread the knowledge and protect it? ANSWERS: Mr. Orgah: NNMDA’S digital library has a free open access unit but knowledge on information is not easily accessible or documented fully to grant protection to IK on TMPs. Prof. Oguamanam: Even in India, access to the digital record in its TKDL is not open as such. It is limited only to those who have legitimate basis to have the information such as patent officers and offices who have to conduct searches for the determination of prior art. Also, other persons interested in having access to the information must sign a simple one page agreement that outlines the terms of such access. Essentially, apart from using the TKDL project to starve off biopiracy, India seeks to use that initiative to position itself in a place of strength to strategically partner with anyone who is interested in researching into the area of its traditional medicinal knowledge on mutually agreed terms. T.K Hamzart college of Medicine, U.I: When research is conducted, its findings are to be documented in journals some of these journals are not accessible, the best one can get at times is an abstract. At other times, one is asked to subscribe or meet with the author who usually asks for a token payment. This supports the issue that open is not entirely or totally open to all.

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PLENARY VI
Topic: CBAAC And The Challenges Of Protecting Black And African People’s Cultural Expression And Folklore, Accent On Video Productions From FESTAC And Other Documentation Materials. Lady Gloria Chuma - Ibe.

Speaker:

CBAAC was established by the Federal Government of Nigeria in response to the need to store, preserve and conserve for better utilization the invaluable cultural property bequeathed to Nigeria in trust by all participating countries of FESTAC 77 after the festival. It also serves as a vital organ for the study, propagation and promotion of understanding of Black and African ideals and civilization. As a centre in the position of preserving diverse cultural property, it has faced the following challenges: Lack of adequate legal and institutional framework of protection for cultural property in Nigeria. Lack of personnel with training in the protection of cultural property. Lack of comprehensive list of items in the Heritage reserve Most practitioners are not aware on the IPR and rights especially on intangible heritage (proverbs etc) Inadequate financial support for cultural heritage centers Theft, fire etc.

CBAAC’s challenge has also been to move beyond overprotection of its cultural resources from FESTAC 77 and other activities engaged so that the public is better educated on the culture of Africans throughout the continent. The Legal and institutional framework for the protection of cultural property must be better entrenched in CBAAC, training is needed in this regard along with a stronger partnership with NCC, UI IK Center and others empowered to discern heritage laws - common law copyright, IPR and their relationships to the work of CBAAC management and staff. Another area of focus is that of cultural property buildings or heritage reserves such as palaces, forts and shrines, and how to make them suitable to preserve their content. Most critically, CBAAC is concerned that heritage managers have been ‘slow’ to preserve identified intangible cultural assests (folklores,, idioms, proverbs, norms, myths, etc) to ensure access and use by future generations of Nigerians and others interested in Nigerian quo African culture. Topic: Information And Communication Technologies (ICT), Intellectual Property Rights And Indigenous Knowledge Protection At Universities—The Role Of Libraries. Mrs. Adetoun Oyelude, Sr. Librarian Kenneth Dike Library, U.I.

Speaker:

Ms. Oyelude started with an overview and definition of IK and its characteristics which include: - IK is a product of its environment. - It is by nature oral – handed down from generation to generation through word of mouth. - IK resides in the memory of the holder and relies on this memory for it to be kept or preserved in the community. - IK is a body of knowledge communally owned i.e., hunting, mode of worship, agriculture, naming etc. Some aspects of TK/IK are in the private domain, restricted to a limited number of professionals or groups e.g. priests, cults, etc. 33

Role of libraries By nature, the library assumes responsibility for any knowledge collected or gathered and should acknowledge the source of the knowledge acquired. The library relies on knowledge acquired through: - researchers or field workers, - the library itself going on an acquisition bid into the field to collect the information, and, - purchase of literature in which indigenous knowledge has already been recorded in one form or the other. Since libraries have a role in indigenous knowledge management, they face the challenge of putting the IK in language that makes it more widely acceptable. In many libraries the scarcity of such resources and the cost to manage its acquisitions are problems. There is also the issue of training of staff in ICT use to ensure continuity of protection. In this regard, libraries face such issues as the security of the IK collected and ensuring sustainability of use. Recording and disseminating IK elevates the risk of piracy and inappropriate use. The multimedia technologies used to reproduce what IK or other forms of knowledge has been documented or recorded opens up access (legal or illegal) and changes of misuse of knowledge. Yet, the role of libraries in preserving knowledge for posterity is evident. The wise use of ICT within an informed framework of IPR to help protect IK is thus mandatory. ICT helps one to capture IK, proecess the IK, preserve the IK and organize it by extracting metadata with which to provide access and finally to disseminate IK regarless of time, location or physical barriers to ICT. ICT thus is a way to manage IK, and engage in information literacy and education. That said, the challenges of IPR issues and digitization throughout Nigeria and indeed all of Africa must be addressed. Universities struggle to get funding to buy computers, lay the technology to transmit data, and train staff, faculty and students to use ICT effectively. All issues must be overcome urgently to make Nigerian citizens competitive in the global knowledge economy. In conclusion, libraries need to be adequately funded and used as a knowledge base or repositions for African indigenous knowledge. Q & A / DISCUSSION Prof. Oguamanam I have noticed potential duplication of mandate and overlap in the jurisdiction of NIPRD, NNMDA and also potentially other agencies not represented here. Such duplication tends to be counterproductive in terms of results and efficiency. My question then is to what extent does NIPRD, NNMDA and other such agencies harmonize their activities in order to ensure effective coordination and results oriented outcomes in the conduct of their programs of work? Dr. Hamzat, UI Ctr for Entrepreneurship: It might be difficult to label a particular thing with IP given the example where the chinlop slippers is used as collar support for accident victims, who owns the IPR? is it the producer of the slippers or the initiator of its use for emergency purposes? Mr. Fagbemi Faculty of Law, U.I.: If an IK practitioner dies with the knowledge, it is like a library of knowledge is burnt down. What do we do to encourage sustainability? Hilary Ogbechie NCAC: NCAC takes people ground for exhibition and these people get incentives but in the process, pholographs are taken. How do help to protect such rights and seek necessary remedies when violated as money is being made on their IK/TK:

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How will the incantations of the TMPs be interpreted when subjected to scientific experimentations? What is the difference between FESTAC and Abuja Festival/carnival?

ANSWERS Both agencies used to be with the Ministry of Science and Technology. Information on natural medicine is usually sent from NNMDA to NIPRD at such we notice a kind of interconnectivity. Other agencies and stakeholders are encouraged to join in achieving a unified goal. NIPRD is planning, a meeting with TMPs next month to note their opinions on the way forward for natural medicine and IPR NIPRD is encouraged to build a lot of courage in the TMPs so as to encourage more discoveries that will aid the community. Abuja carnival is an awareness creation festival for arts that can bring in money, create awareness for products while festac is not limited to Nigeria but international. In fact, it has been planned to take place in Senegal twice, but failed. It is to promote Black peoples culture and to discuss their common problem. It involves people in continental and diasporic Africa. It is not necessarily for economic gains.

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DAY III

PLENARY VII
The Future of Intellectual Property: Practice and Policy Prescription for Nigeria.
All participants were involved in a round table discussion on the future of IPR, its practice and findings of the workshop. A communiqué of resolutions, subsequently dubbed the “AIDIKI Declaration” was jointly adopted. It is contained in an appendix to this proceedings report. WORKSHOP EVALUATION & CLOSING An oral evaluation of the workshop was solicited at the end of the final session. Additionally, participants were sent an email communication asking for feedback. The overwhelming consensus was that the workshop achieved its objectives, was worthwhile, informative and educative on the issues of IK and IPR. New relationships were formed between University of Ibadan which seeks to become a leader on research and policy on IK and all participants. Other linkages created was that between the Ministry of Culture and MDAs that had not otherwise engaged the NCC (NCC & CBAC, for instance). Futhermore, emerging scholars and activist on IK and IPR were identified to continue the promoting the importance of the need for Nigeria to become a leading force in Africa and globally to protect, promote and preserve IK in general, and in relation to IPR in particular, and the traditional healers/TMP and leaders invited were pleased with discussions that valued their ingenuity and knowledge. The challenges facing Nigerian NGOs, academics, community development agents and government-at the local, national, and regional levels, and the broad policy prescriptions provided during the workshop were agreed upon in the declaration statement and continued dialogue on the way forward is anticipated. The workshop ended as it began, with traditional music calling the participants forward to ceremoniously receive their certificates of participation which were handed out by the special guest of honor, Alhaji Chief A.A. Monilola, The Ewegbemi of Ede, Mogaji of Segun family, Ibadan, and member, Oyo State Advisory Board on Traditional Medicine Practitioners. A testimony of the success of the IK & IPR workshop is cited below: “ since I came back and starting implementing the things I gathered from the seminar in my research, its amazing how helpful the workshop has been. I cannot believe the little things one picks up just by listening to others speak…Thanks for the materials on the CD already had some and came across many news ones, so well done! Nkechi Ogbonna, University of Leeds, London, and Sponsored Workshop Graduate Student

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Workshop Presentations
Plenary I: Understanding Intellectual Property Rights (IPR): Justification/ Imperative Theoretical and Conceptual Issues In IPR and Indigenous/Traditional Knowledge - Chidi Oguamanam

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Some Checks on IP
# Balancing private and public interests
$ Discoveries $ Laws of nature, scientific principles, abstract theorem, etc $ Term limitation $ Overriding public interest $ Compulsory disclosure $ Preservation of personal interests $ Residual power of state

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Regimes of IP
# Traditional Regimes
$ $ $ $ Patent Copyright/Neighboring Right Trademark Design

# Non-Traditional Regimes
$ Chips (integrated circuits) $ Geographical Indications $ Sui generis rights (e.g. Plant Breeders Rights)

# IP Regimes & Subject Matters Not Closed
$ Dynamic and continues to evolve as human ingenuity thrives

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Plenary II: Folklore, Traditional Cultural Expressions and Intangible Cultural Heritage Traditional and Modern Mechanisms of Protecting Folklore: African & Western views on IP & The Domains of Creativity - Prof. Ikechi Mgbeoji

No Room for Grandma:
Traditional IPRs Regimes and (Non) Protection of Folklore

Prof. Ikechi Mgbeoji
Osgoode Hall Law School, York University, Canada

Take The Long Way Home!
• The marginalization of the artistic and cultural expressions of non-European peoples by the dominant regimes for the protection of IPRs is not a coincidence. • To the contrary, it is a deliberate and required consequence of the hierarchical construct of peoples and civilizations which animated and underpinned the colonial enterprise.

Take The Long Way Home!
• The European colonization of “other” civilizations and peoples was neither the first nor only instance of colonization in human history but it was UNIQUE in one radical manner; that is, the justification of itself on the grounds of racial and “biological” superiority. • Certain paternalistic doctrines of international law such as “discovery”, “guardianship” etc, enabled the dispossession of indigenous peoples and the savage attack on their systems of knowledge and inquiry.

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Take The Long Way Home!
• The colonial enterprise operated on the bizarre logic that history is a linear, unidirectional progression with the “superior” and “scientific” Western civilization leading and paving the way for others to follow. This instituted a mutilation of indigenous peoples knowledge across the world.

The Colonial Encounter and Indigenous Protocols on IK
• Some of the enduring legacies of the colonial encounter are: • A) The demonization and erasure of preexisting indigenous protocols for the production, sharing, dissemination, and revitalization of knowledge and information. • B) The imposition of alien systems for the identification, recognition, classification, and protection of “knowledge”. • C) The Gate-Keeper Role assumed by Western forms of IP protection. • D)The globalization and perpetuation of international IPRs institutions

The Gold Standard vs. “The Other”
• The racial and racist construction of “scientific” knowledge facilitated and legitimated the dispossession, appropriation, and erasure of IK. • Dominant IPRs regimes operated on the hypothesis that indigenous peoples across the world were devoid of intellectual ability and therefore incapable of generating protectable “intellectual property.” • IK systems were thus dismissed as “irrational” or “unscientific” or “folklore”

Eurocentricity of Dominant IPRs Regimes
• It is often assumed that dominant IPRs regimes represent global consensus and universal values. This is a myth and a fallacy. • The criteria for the identification, classification, and protection of “knowledge” are EUROCENTRIC! • The assumption is that WHATEVER is good for EUROPEAN CULTURE should be good enough for other cultures regardless of their histories, experiences, and needs.

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Facts About IK
• Not always in the “public domain”; • It is not necessarily a “legacy” in the sense of being a dead or dormant expression of culture; • The knowledge is dynamic and innovative; • The insights and products are often holistic and cannot be fragmented into “useful” and “ceremonial” components.

Before They Came
• In the pre-colonial age, indigenous peoples had complex systems of laws, norms, practices governing the acquisition, sharing, possessing, and transmission of IK. • IK is best understood within the context of colonialism and irruption of the development of indigenous peoples’ legal systems.

Xteristics of IK
• What makes IK “traditional” is the way and context in which it is learned, improved, transmitted and conserved; • An overwhelming number of IK is derived from the efforts and intelligence of women; • Sexism and gender (dis)empowerment often enable the non-recognition of IK (cloth-weaving, dyeing, songs, etc)

We Should Be There!
• Legal scholars of the constitutive theory of law have long recognized that law protects the interests and worldviews of those who participate in it. The converse is that law can be and has been an exclusionary and (dis)empowering institution. • At best, indigenous peoples have been recipients of norms; not active co-participants or equal partakers in the development, interpretation, implementation, and revision of laws on IPRs at both municipal and international levels.

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Current Trends and Approaches
• It is not a coincidence that the formal end of colonialism in the mid-half of the last century brought with it a change in how international IP law perceives of and engages with IK. • The participation of decolonized “states” in the deliberations of the UN and its agencies such as the FAO, UNCTAD, UNESCO, WIPO, have been chipping away at the monolithic structure of international IP protection.

Current Trends
• The emergence of critical scholars sympathetic to the causes of indigenous peoples facilitated the legitimation of indigenous peoples’ knowledge. They questioned the arrogance of Western empiricism and argued that indigenous methods of inquiry were often as empirical as the dominant science. • Instead of parroting antiquated ideas about IP rights, our academia should borrow a leaf from progressives.

Taking Charge
Current Trends
• It is remarkable that a significant number of international treaties, conventions, etc favourably disposed to IK are to be found in environmental law treaties, not in IP treaties. • Art. 27 of Int. Covenant on Civil and Political Rights • Art. 8 (j) of the CBD • Farmers’ Rights in FAO Instruments • FAO Treaty on Plant Genetic Resources

• It is equally significant that while new volumes of laws have been created in the past 20 years to accommodate and protect computer programmes, databases, integrated circuit topography, plants, indications of origins, business methods, etc, IK is said to be too “problematic” and “complex” to be protected by law.

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Folklore and Int’ IP Regimes

One Size Fits All?
• The platitudes and exhortations in a number of treaties requesting the recognition of IK by states has led to some new legislation on the issue. • However, a significant number of the new laws on IPK seek to adopt western concepts of property, ownership, and control of “intellectual property.”

• With particular reference to folklore, the debate across national, regional, and global institutions have focused on: • 1. should folklore be protected?; • 2. If yes, which aspects of folklore should be protected?; • 3. How should it be protected?

Let Those Who Know Decide

Folklore and IP Protection
• The realm of folklore is, like many

manifestations of IK, holistic and thus difficult to compartmentalize. • Folklore often traverses a wide range of experiences. If it is a textile design, the scope and relevance may extend well beyond the design itself. What then happens in terms of legal protection.

• My suggestion is that the deep cultural roots of folklore compel the need to AVOID a syncretic approach which ignores the traditional structures and codes of regulation. • Ideally, the identification, classification, and protection of folklore should be anchored on the traditions and codes of its true practitioners.

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The Economic Significance of Folklore, Traditional Knowledge and Biodiversity in Nigeria and Beyond
Mr. Moses Ekpo, Former Director General Nigerian Copyright Commission Intensive Workshop on African Indigenous Knowledge & Intellectual Property Rights: Implications for Nigeria’s Development, University of Ibadan Conference Center April 20 – 23, 2009. Introduction Traditional or rural communities in Nigeria are finding it ever more necessary to secure a reliable flow of income so that they can achieve greater self-sufficiency. A more appealing option is to establish market links for locally produced intangible properties. People indigenous to Nigeria may take the initiative of selling local resources, manufactured goods and artworks in local and regional markets, as it was done from generation to generation for centuries before western interference and dominance. The failure of a large percentage of Nigerians to think of ways to earn an income increases the number of poor people in Nigeria. Poverty is no longer synonymous to local or rural communities; it is visible across the country. Thus, folklore, traditional Knowledge and biodiversity are useful in benefiting the poor. The development of a field of cultivating entrepreneurs, who ultimately serve national economic growth, will ease poverty.6 The mistaken believe that everyone has to earn an income from a white collar job has increased the level of poverty and reduced the incentive to be creative. It is easily forgotten that knowledge is power and knowledge is not limited to western knowledge. The proper use of information indigenous to Nigeria can result in wealth. The time has come for Nigeria to promote indigenous innovation, knowledge, and creative skills and create awareness on the economic value of the knowledge systems in existence within Nigeria. It is about the knowledge we own, create, and sell, which is an attempt to increase earnings from indigenous knowledge. The interest in Nigeria’s intangible cultures has grown outside its environment, both on account of their value as sources of aesthetic enjoyment and the challenges they present to the creative imagination.7 It seems, therefore, that contemporary Nigeria cannot sit back and ignore the need for the legal protection of intangible cultural items for commercial exploitation by the originators. Commercially relevant traditional knowledge includes wild plant resources, domesticated plants with interesting genetic properties, musical instruments producing evocative sounds, new ingredients for cosmetics, new foods and spices, art designs and their potential use on all manner of salable products, mythic elements and stories, and sites for tour organizers.8 The commercial exploitation of works of art, craft, and knowledge of traditional societies should be beneficial to the originators.9 Numerous art and other objects from traditional communities are already openly displayed in local markets and tourist centers stretching across Nigeria and beyond. Indigenous music and dance should be promoted as part of the Nigerian entertainment industry. Local pharmaceutical companies and even government

6

Tirfe Mammo, The Paradox of Africa's Poverty: The Role of Indigenous Knowledge, Traditional Practices and Local Institutions - The Case of Ethiopia (Eritrea: Red Sea Press Inc 1999). 7 J. H. Kwabena Nketia. Safeguarding Traditional Culture and Folklore in Africa (International Centre for African Music and Dance University of Ghana School of Performing Arts Accra, Ghana) http://www.folklife.si.edu/resources/ Unesco/nketia.htm 8 Tom Greaves, IPR: A Current Survey, in INTELLECTUAL PROPERTY RIGHTS FOR INDIGENOUS PEOPLES: A SOURCEBOOK 3-4 (Tom Greaves ed., 1994) [hereinafter SOURCEBOOK]. 9 Adebambo Adewopo, Protection and Administration of Folklore in Nigeria <http://www.law.ed.ac.uk/ahrc/SCRIPTed/vol3-1/editorial.asp> accessed 10 April 2009.

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agencies should tap into local knowledge of the medicinal value of plants that could in turn be useful in curing priority diseases. Thus, the commercial exploitation of traditional knowledge through advanced technological processes should not be left to appropriators from the Western world.10 Attention should be called to a broader range of knowledge that has commercial potential in Nigeria, as it has been done in some developing countries, and bring an economic dimension into the discussion of traditional knowledge. The incentives for and concerns of traditional knowledge holders which may be different from those of corporate research, nongovernmental organizations (NGOs), or already successful entertainment stars should be highlighted. The answer to the reduction of poverty in Nigeria is often commercial rather than legal (for example, obtaining a formal patent or copyright protection), although in some instances standard legal approaches have been effective and it is useful to identify the problems in which legal innovation is really needed. Indeed, there are many income-earning dimensions of culture and indigenous people still respect tradition and use traditional protection mechanisms such as trade secrets to keep their information confidential. The economic dimension of traditional knowledge should not be placed second to the legal analysis of this knowledge system rather they should be at par. Nonetheless, the need to protect traditional knowledge and the rights of traditional knowledge holders are often at the forefront of international debates. The protection of expressions of folklore, traditional knowledge and biodiversity are classified as global issues. These issues are considered as matters linked to the laws and practices covering intellectual property use and protection. Folklore and aspects of traditional knowledge are deemed protectable as intellectual properties because there is some overlap between the intellectual property system and the means of protection in indigenous communities. Intellectual property is a legal concept which deals with creations of human ingenuity. Thus the international community has paid more attention to, the defence of traditional knowledge against misappropriation by industrial country interest and the policing of bio-piracy or exploitation of biodiversity that exists in developing countries to develop products based on biodiversity biological and genetic resources without proper compensation to traditional communities that first discovered the usefulness of these materials. Global sales of pharmaceuticals derived from genetic resources link back to knowledge that traditional communities possess on how to use natural materials as medicines, foods, and preservatives.11 Traditional knowledge is useful information that is passed on by the members of the society from generation to generation. It develops incrementally, with each generation adding to the stock of knowledge.12 It could be creations, whether they be inventions, designs, trademarks or artistic works, such as music, books, films, dances, sculpture protectable as property. Folklore on the other hand covers some of these creations and it is often linked to copyright works. The role folklore plays or can further play in the Nigerian copyright industry is very promising. Culture and commerce more often complement than conflict. The economic value of traditional knowledge brings out instances in which more or less standard legal approaches can be effective. The

10

Paul Kuruk, Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States 11 Kerry ten Kate and Sarah A Laird (2004): Bioprospecting Agreements and Benefit in Sharing with Local Communities in Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank and Oxford University Press). 12 Preetha Sadasivan, Protection of Traditional Knowledge Under Biodiversity Act 2002: A Critical Analysis http:// articles.manupatra.com/PopOpenArticle.aspx?ID=553bf547-703a-47fb-94d5 41ee79fb5a32&txtsearch = Ms.%20Preetha%20Sadasivan

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assumption that commercialization of knowledge to indigenous communities could be destructive to the development of any society should be crushed. While some aspects of traditional knowledge cannot be commercialized because of the link to traditional religion or the classification of certain objects as sacred objects others can. Indigenous people in Nigeria have been involved in buying and selling of both tangible and intangible properties without jeopardizing their religion. The presumption that all aspects of traditional knowledge are sacred is a misrepresentation of the social and economic structure of Nigerian communities. Our forefathers knew and taught us how to think and trade for survival and they passed it on. Undoubtedly, commerce in such products as medicinal plants, traditional crop varieties and handicrafts can and does benefit Nigerians.13 This paper explores the idea of making traditional knowledge make economic sense to traditional communities and how this can be achieved. It is about promoting the innovation, knowledge, and creative skills indigenous to Nigeria and other African countries, and particularly about improving the earnings of indigenous people from such knowledge and skills. The objective is to shift discourse from the international community to activities at the domestic level and examine the role of intellectual property rights in the commercialization of folklore, traditional knowledge and biodiversity. The Nature of Folklore, Traditional Knowledge and Biodiversity Traditional knowledge has a number of different subsets, some of them designated by expressions such as indigenous knowledge, folklore, traditional medicinal knowledge and others.14 Biodiversity is the resources upon which traditional knowledge systems are dependent. Folklore includes literary works of all kinds, dances, musical productions of all kinds, dramatic, dramatic-musical, choreographic and pantomime productions, styles and productions of fine art and decorative art by any process and architectural styles.15 The protection of both tangible and intangible properties pushed traditional knowledge and intellectual property issues into limelight; however, it has become essential to conceptualize this knowledge system as an economic asset. ‘Traditional knowledge never was and is not an end in itself but a means to achieve a greater object. Therefore, advocates for protection of traditional knowledge ought to see beyond the instruments of protection but engage in further enquiry with regards to the question of development and improvement in the socio-economic conditions of the traditional communities’.16 Contrary to common perception within and outside Nigeria, traditional knowledge is not wholly ancient. It is evolving all the time, a process of periodic, even daily creation as individuals and communities take up the challenges presented by their social and physical environment. In many ways therefore, traditional knowledge is actually contemporary knowledge. Traditional knowledge is embedded in traditional knowledge systems, which each community has developed and maintained in its local context. It is the commercial and other advantages deriving from use that has given rise to intellectual property questions that could in turn be linked to international trade and cultural exchange.17 Folklore is itself the product of the creative ideas of the people who express such creativity through verbal, artistic or material forms, which is in turn transmitted orally, or in written form, or through some other medium, from one generation to the other, belonging to a literate or non-literate society, tribal or non-tribal, rural or urban people. Although usually involving low technological activities, some cultural products require great creativity, involving intricate detail and complexity reflecting not only great skill,

13

Graham Dutfield, Protecting Traditional Knowledge: Pathways to the Future http://www.iprsonline.org/ unctadictsd/docs/Graham%20final.pdf accessed 8 April 2009. 14 http://www.wipo.int/about-ip/en/studies/publications/genetic_resources.htm 15 Article 67, Revised Bangui Agreement of 1999 16 ibid 17 http://www.wipo.int/about-ip/en/studies/publications/genetic_resources.htm

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but originality as well. Some of the cultural products express or convey some form of symbolic meaning, which endows them with a cultural value or significance distinct from whatever commercial value they may possess. According to an eminent scholar ‘the terms “traditional knowledge” (TK) and “folklore” are frequently used as if they are discrete categories of culturally-specific knowledge. ‘Since “folk” means people and “lore” is defined in the Oxford English Dictionary as “a body of traditions and knowledge on a subject or held by a particular group”, the two are not obviously different in meaning. And yet, for certain reasons the two are differentiated, as should soon become clear’.18 Categories and embodiments of folklore and traditional knowledge include knowledge of current use, previous use, or potential use of plant and animal species, as well as soils and minerals; knowledge of preparation, processing, or storage of useful species; handicrafts, works of art, and performances.19 As earlier mentioned traditional knowledge commonly refers to knowledge associated with the environment rather than knowledge related to, for example, artworks, handicrafts and other cultural works and expressions (which tend to be considered as elements of folklore). The expression ‘Traditional Knowledge’ accommodates the concerns of those observers who criticize the narrowness of ‘folklore’. However, it significantly changes the discourse. Folklore was typically discussed in copyright or copyrightplus terms. Traditional knowledge would be broad enough to embrace traditional knowledge of plants and animals in medical treatment and food. In this circumstance the discourse would shift from the environs of copyright to those of patent law and biodiversity rights.20 As for folklore, it is worth noting that folklore predates traditional knowledge as a subject for discussion at the international level, going back to the 1970s, when it was classified as a copyright-related matter.21 UNESCO recognizes folklore as living and evolving, handed down from generation to generation orally rather than in fixed form, and it is an essential aspect of cultural identity in many countries.22 In addition, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was established by the WIPO General Assembly in October 2000 as an international forum for debate and dialogue concerning the interplay between intellectual property, and traditional knowledge, genetic resources, and traditional cultural expressions / folklore.23 Folklore in traditional societies takes various forms. It is not limited to certain types of society but on the contrary may be found in all societies no matter how modern they might appear to be and how untraditional much of the knowledge in circulation within them is. The urbanization and westernization processes that have transformed many of the world’s societies are unlikely to have resulted in the complete eradication of folk ways even in those countries which have experienced these phenomena the most comprehensively. The protection of folklore is recognized under the Nigerian Copyright Act.24 Folklore means a grouporiented and tradition based creation of groups or individuals reflecting the expectation of the community

18

Graham Dutfield, Protecting Traditional Knowledge and Folklore: A Review in Progress in Diplomacy and Policy Formulation (UNCTAD/ICTSD project on IPR October 2002 19 ibid 20 Michael Blakney, 'What is traditional knowledge? why should it be protected? who should protect it? for whom?: understanding the value chain', 3 WIPO Doc. WIPO/IPTK/RT/99/3, available at http://www.wipo.int/eng/meetings/ 1999/folklore/index_rt.htm 21 Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank and Oxford University Press). 22 ibid 23 World Intellectual Property Organization (WIPO) website, see also http://www.wipo.int/about-ip/en/studies/ publications/genetic_resources.htm. 24 Section 28 Nigerian Copyright Act (Cap 28 Laws of the Federation 1999)

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as an adequate expression of its cultural and social identity, its standards and values as transmitted orally, by imitation or by other means including a. Folklore, folk poetry, and folk riddles b. Folk songs and instrumental folk music c. Folk dances and folk plays d. Productions of folk arts in particular, drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, handicrafts, costumes, and indigenous textiles. As part of the effective administration and enforcement of the provisions of the Nigerian Copyright Act on expressions of folklore, the Nigerian Copyright Commission initiated the “Documentation of Nigerian Indigenous Folklore Resources”. This project is meant to provide a source of revenue to both government and the local communities while ensuring the preservation of Nigeria’s vital artistic and cultural heritage. Given the size and cultural diversity of Nigeria, this project is to be executed in phases over a number of years. Three states, namely, Rivers, Kogi, and Nassarawa, out of the 36 states of Nigeria have been selected both as the first phase and as the pilot scheme. The project will be carried to other states of the Nigerian Federation when the first phase is completed.25 Many people tend to apply the term traditional knowledge more narrowly to the knowledge held by tribal populations that are outside the cultural mainstream of the country in which these peoples live and whose material cultures are assumed to have changed relatively little over centuries or even millennia. Those who use the term this way consider traditional knowledge as referring primarily to the knowledge of indigenous and tribal peoples as defined under the International Labour Organization Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries. According to the Convention “tribal peoples” refers to those whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations. Indigenous people refers to those peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. Because it is so common to characterise TK holders as being members of such societies, the term indigenous knowledge is sometimes used instead of, interchangeably with, or as a sub-set of, traditional knowledge.26 Protecting Traditional Knowledge for Economic Reasons: Make Knowledge Make Naira Indeed, Nigeria and other African countries are rich in expressions of folklore, traditional knowledge and biological resources, which are an important part of cultural and natural heritage.27 Local and indigenous communities depend on traditional knowledge for their livelihoods and well-being. Even today, many of the local and indigenous communities in Nigeria meet their basic needs from the products they manufacture and sell based on their traditional knowledge. The economic significance of these resources has played a role in the need to protect it. For years or better still centuries these resources have been traded within and outside Nigeria.

25 26

Nigerian Copyright Commission website www.nigcopyright.org. Graham Dutfield, Protecting Traditional Knowledge and Folklore: A Review in Progress in Diplomacy and Policy Formulation (UNCTAD/ICTSD project on IPR October 2002). 27 Statement by the African Group (Third Session of the WIPO Intergovernmental Committee of Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore June 13 -21, 2002).

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The commercialization of expressions of folklore, traditional knowledge and products of biodiversity has often not benefited the countries of origin, particularly in the fields of music, film, video production, visual arts, crafts and performing arts and dance. Despite their economic potential, these products hardly feature in national economic statistics. The production, distribution, exhibition and preservation of cultural products should be a source of inspiration and creativity for cultural industries, generating considerable income and employment fuelled by the growing demand for cultural goods and services in an expanding marketplace. Many businesses today, small, medium and large, create wealth using the forms and materials of traditional cultures. Local cooperatives have been formed in some countries to produce and market handmade crafts, textiles that employ traditional designs, audio recordings of traditional music, pharmaceuticals that use indigenous knowledge of healing plants, and entertainment that employs various forms of traditional representations for motion pictures, amusement theme parks and children’s toys.28 Music, dance and other performing arts are, in traditional communities, vital expressions of a living culture. Performances may be purely for entertainment or they may be carried out for religious or other reasons. Some performances may be open to the whole community, whereas others may be restricted, with initiated people only permitted to enact, listen to or see them. Traditional handicrafts and artworks can be important sources of income. They are the products of individual artisans and artists steeped in the culture of the society to which they belong.29 Cultural products consist of characteristic elements of the traditional artistic heritage developed and maintained by a community or by individuals reflecting the traditional artistic expectations of such a community. A society’s creative expression and artistic forms, as well as its traditional knowledge and practices, often leads to the production of numerous articles and other things such as paintings, sculptures, cravings and textiles. African cultural products are found all over the continent, deriving from the wealth of cultures on the continent and the ingenuity of the people of Africa. However, African cultural products are increasingly being made in other parts of the world without deference to the African originators.30 It is worth mentioning that economic exploitation where desired by the holders should be on terms agreeable and acceptable to them, without losing respect for cultural products. Trade in cultural products can contribute to the quality of life in the places they are produced, and can enhance the image and prestige of the local area. Some cultural products can also play an important role in community food security, nutrition and health. Their benefits are relatively more important for poorer households, women and disadvantaged groups.31 Economics of Folklore Handicrafts provide a modest livelihood to large numbers of poor people, particularly to the rural poor. In India, about 9.6 million people earn about US$3.3 billion a year, or just under US$400 per person.32 There is no such statistics available in Nigeria. The part-time rural nature of much crafts activity
28

Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/5/3, May 2 2003. International Network on Cultural Policy (INCP) October 2002, www.incp-ripc.org. 29 Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank and Oxford University Press). 30 The Promotion and Protection of Africa's Cultural Products (Advocacy Statement) African Union http:// w w w. t h e c o m m o n w e a l t h . o r g / S h a r e d _ A S P _ F i l e s / U p l o a d e d F i l e s / 0 D D 2 D 9 D E - E 7 3 7 - 4 8 3 9 B5F111F4B3B53102_Cultural_products_protection_advocacy_statement_2.pdf 31 Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank and Oxford University Press). 32 Maureen Liebl and Tirthankar Roy (2004): Handmade in India: Traditional Crafts in Skills in a Changing World in Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank and Oxford University Press).

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complements the lifestyles of many craft workers and provides supplementary income to seasonal agricultural workers and part-time income to women. Engaging in this type of work often provides the means for people to remain in their traditional villages rather than migrate to the city. Handicrafts have value beyond their capacity to generate income. Myriad craft traditions and living craft skills are rare and irreplaceable resources, generally acknowledged as living links to the past and a means of preserving cultural meaning into the future. Due to the natural evolution of societies it is neither possible nor desirable to preserve every single piece of the past. Except in a museum setting, no traditional craft skill can live on unless it has a viable market. Artisans in different region in Nigeria have been making distinctive products, made entirely from local resources for years. The capacity of the Congolese group is basically their design capacity. Their production to now has been by hand in small lots. If they obtain a large order they would need assistance to arrange for production to be handled by third parties and to ensure that they were compensated for their design elements. With a view to the long run, such an order might be a step toward building a market awareness of their design style and thus lead to further earnings from design. Indigenous music has significant business potential. It currently makes up about half of the fast-growing world music segment of recorded music, and music industry experts suggest that African music today may be at the jumping-off point where country music and rock and roll were in the United States in the 1950s. Africa has to see itself as succeeding in activities that have some glamour. The music industry has the potential to be an important symbol as well as a substantive element in bringing a poor society forward.33 The use of reproductions of traditional aboriginal designs to decorate mundane products for the tourist trade, such as key rings, T-shirts, and drink coasters, is a matter of increasing concern to aboriginal peoples. Aboriginal customary law provides for collective ownership of paintings and other artistic works, but that collective ownership does not carry over into Australian law. Even so, Australian courts have found ways to defend aboriginal artistic creations against exploitation from outside the aboriginal community while at the same time recognizing the spiritual and sacred significance of the images and respecting the community’s sense of communal ownership.34 Large Scale Production and Exportation of Products of Traditional Knowledge: Challenges Taking advantage of opportunities in the market for intellectual properties involves skills different from those necessary for the production and marketing of products that embody traditional knowledge. An indigenous product that sells well is quickly followed by a machine-made copy distributed by a mass retailer.35 Indigenous products are often produced on a small scale while copycats produce on a large scale. There are problems of cheap knockoffs, extensive copying among artisans, artisans who pass along (and sometimes sell) designs belonging to a client, and buyers who have a sample designed and produced in the country of origin, then manufactured in bulk somewhere else. People in the crafts business in some developing countries are pessimistic about obtaining design and process protection through enforcement of patent and copyright laws by government. The modern economic system has penetrated indigenous societies, affecting traditional economic systems to varying degrees. Indigenous economic systems are under increasing pressure to conform to a globally33

Frank J. Penna, Monique Thormann, J. Michael Finger (2004): The Africa Music Project in Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank and Oxford University Press). 34 ibid 35 Ron Layton (2004): Enhancing Intellectual Property Exports through Fair Trade in Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank and Oxford University Press).

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defined system. Whereas this has provided opportunities for some it has meant severe challenges for many. Although forms of market economy are part of both modern and traditional societies, the emphasis is very different. Traditional systems need to move away from subsistence production to more commercial forms of production and integration into the market economy. Access to markets is still limited, and communities that want to market their goods very often have to operate through third parties who take the biggest piece of the pie. Indigenous producers have little control over the pricing of their goods as their bargaining power is limited, and they are subjected to the fluctuations of the market. All these challenges should be faced. However the support of the government is required in facing such challenges. Traditional knowledge as a means of economic development and poverty reduction requires legitimization. The Way Forward The Nigerian government should look into possible ways to improve the situation for traditional knowledge and those dependent on it for livelihood: (1) To increase the income of crafts producers; the prerequisites are adaptation of skills and products to meet new market requirements and improvement in market access and supply. (2) To sustain the traditional skill base and protect traditional knowledge resources. The priority in this area is development of appropriate legislation and implementation. 36 On the whole, economic and noneconomic uses should be portrayed as complements, which they are and not substitutes. The Nigerian culture evolves better with economic support. Regulations attempting to limit commercial use can end up destroying rather than supporting culture. The development dimension lies in helping poor people to master the commercial/legal tools needed to collect the value of their novelty. This is about entrepreneurship, about finding clever ways to repackage traditional knowledge into products useful for consumers in mass markets, and about developing the capacity to produce and deliver these products in sufficient quantity and quality as to satisfy such markets. It is also about building local business infrastructures, overcoming corruption, and overcoming disproportionate tax burdens.37 Conclusion The Economic value of traditional knowledge is important to the economic development of Nigeria. Creating a market for products based explicitly on indigenous economic activities may provide a niche for indigenous products. If a successful market niche for indigenous products is to be created, producers need to be formally recognized and respected. More significantly, legal recognition would mean respect for indigenous products and traditional knowledge holders. Nonetheless, the conservation, preservation, and dissemination of expressions of intangible heritage must continue to be important components.

36

Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank and Oxford University Press). 37 Jannie Lasimbang, Indigenous Peoples and Local Economic Development (Issue No. 5 2008)

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Protection of Expressions of Folklore and its Challenges Under Nigerian Law
Mr. John Asein, Director Nigerian Copyright Institute/NCC

Foreword . . .

Protection of Expressions of Folklore and its Challenges under Nigerian Law
JOHN O. ASEIN Director, Nigerian Copyright Institute Nigerian Copyright Commission, Abuja aseinjohn@yahoo.com

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Acknowledging the cultural and social importance of expressions of folklore and traditional knowledge, their value as economic resources, developing countries have sought the protection of these materials at the international level within the framework of the intellectual property system. . . . While the attempts at the international level for an international instrument it is pertinent that national and regional efforts should be used, not only as catalyst to the international process but also to give the countries and regions concerned flexible but effective options as a prelude to any international regime.

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Definition of Terms. . . Protection
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Definition of Terms. . . Protection
Some Questions that come to mind in “Protection” " " " " " " What does it mean to protect? Protect what? Protect from what? Protect for whose benefit? Why protect?

“Protection” is often used to refer to the whole panoply of regulatory mechanism for the protection of rights and the sustenance of the integrity and value of traditional knowledge.
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Positive Protection: Gives TK holders the right to take action or seek remedies against certain forms of misuse of TK Defensive Protection: Safeguards TK against the acquisition of illegitimate IP rights by others over the subject matter of TK.

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Were any of these considered (deeply) at the introduction of the provisions of expressions of folklore in the Nigerian Copyright Act?

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Definition of Terms. . . Protection
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Definition of Terms. . . EoFs
The definition of “Expressions of Folklore” (EoF) has been evolving with little change in character. The present definition which is not far from the Nigerian definition is: $ any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof: " verbal expressions, such as: stories, epics, legends, poetry, riddles and other narratives; words, signs, names, and symbols; " " musical expressions, such as songs and instrumental music; expressions by action, such as dances, plays, ceremonies, rituals and other performances,

Some form of protection existed in traditional societies for creative expressions including Expressions of Folklore (EoF) but much for the protective regime has been lost Any decision on appropriate protection regime must complement existing traditional mechanisms It is ill-advised, if not worthless to dwell only on the spiritual and superstitious aspects of EoF There is a consensus that the primary beneficiaries of protection should be the holders of the EoF.

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whether or not reduced to a material form; and

Definition of Terms . . .
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Limitations of Protection under Classical IP
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tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewelry, baskets, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms; which are: " (a) the products of creative intellectual activity, including individual and communal creativity; " (b) characteristic of a community’s cultural and social identity and cultural heritage; and " (c) maintained, used or developed by such community, or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community.

Available options under classical copyright:
$ $ $ $

Collections of expressions of folklore Adaptations Producers’ neighbouring rights Performers’ neighbouring rights Fixation requirement Originality Authorship and Ownership Duration Designs, Trade marks, Geographical indications and Unfair competition

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Problems with direct protection via copyright:
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Available options under Industrial Property Rights:
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International Protection? – Art 15
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International Protection? – Art 15 Berne
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Working Group proposed addition of new paragraphs 4(a) and (b) to Art. 15 [Right to Enforce Protected Rights]: " (4) (a) In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union. " (b) Countries of the Union which make such designation under the terms of this provision shall notify the Director General by means of a written declaration giving full information concerning the authority thus designated. The Director General shall at once communicate this declaration to all other countries of the Union.

Art. 15 of Berne Convention – First application of IPR to folklore at International level
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Inserted at the1967 Stockholm Diplomatic Conference Response to recommendation by delegates of the African Working Session on copyright held in Brazzaville, 1963: “Inclusion in the list of works protected under the Berne Convention of “special regulations protecting the interests of the countries of Africa in the field of their folklore.”

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Did not go as accepting suggestion by the Indian delegation to include folklore works in the list of works under the Berne Convention.

International Protection? – Berne Art 15
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International Protection? –Related Rights
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Grants ownership to Competent Authority designated by country of which author is presumed to be national Found to be largely unsatisfactory Treats folklore as special category of anonymous work No information on how the competent authority is to discharge its functions No duration – some argue that the 50 year duration of anonymous works should apply from date of publication For the formality to be applicable the country must recognize folklore as protected subject matter and authorize a competent authority to enforce vested rights Article 15 applies so long as the work is unpublished Only one notification (India) has been made under Art. 15 Hesitation to use the provision often ascribed to its complicated nature

Uncertainty with Rome Convention WPPT is thought to eliminate any ambiguity The conclusion of the WPPT saw a renewal of the political will to protect folklore. Protection of performers and phonogram producers incorporating expressions of folklore Limitation
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Application limited to EoFs that are capable of being performed e.g. songs, tales and dances Beneficiaries would be restricted to individuals or groups and may exclude large sections of community

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It is doubtful if the introduction of “expressions of folklore” in the definition of performances benefits holders of EoFs

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The African Initiative
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African Initiative
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Most African countries gained independence only in the second half of the 20th Century With independence came a wave of cultural renaissance and resurgence of national identities. Stronger sense and bond of affinity on the Continent 1963 Brazzaville – African Study Meeting on Copyright
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1964 UNESCO/WIPO Committee of African Experts – Came up with a draft model which included “works inspired by folklore” within the framework of copyright – an unsuccessful experiment. 1967/1973 Draft Model Law provided for economic and moral rights in “works of African folklore” and authorization for exploitation. Primary aim: “to give African countries an opportunity to supervise and benefit financially from the exploitation of their folklore heritage,” Rationale for protection (like the present): Folklore represents an important part of the living cultural heritage of the nation, the dissemination of which may lead to improper exploitation; A abuse or distortion is prejudicial to the cultural and economic interests of the people. Folklore constitutes manifestations of intellectual creativity deserving of protection.

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Noted the need for a form of protection for “native music and folk-lore in the absence of a material fixation thereof.” – Represents the earliest categorical statement on the need to give special attention to the delicate subject of unfixed expressions of folklore. Considered the possibility of “inventorization” and clear definition of the various categories of folklore as a first step in the determination of their paternity. Recommended special provisions to safeguard interests of African countries in their own folk-lore, on the one hand, and the permission of free use of protected works for educational and school purposes.

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Africa Initiative
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The Nigerian Protective Regime
" Like most other countries with provisions on EoFs, Nigeria adopted the Tunis model " See Copyright Act sections 31 – 33 (old 28 – 30) " Protect EoFs against: " (a) reproduction; " (b) communication to the public by performance, broadcasting, distribution by cable or other means; " (c) adaptations, translations and other transformations, . . . . when such expressions are made either: for commercial purposes or outside their traditional or customary context.

OAPI 1977 Bangui Agreement (Annex VII on Copyright)
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Entered into force in February 1982 Amended in 1999 with folklore mentioned as part of the non-exhaustive list of works protected by copyright

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Despite uncertainties at the international and regional levels many national laws in Africa grant protection to folklore Often not clear if copyright based or sui generis Algeria, Angola, Benin, Burkina Faso, Burundi, Cameroon, Central Africa Republic, Congo, Cote d’Ivoire, Gabon, Ghana, Guinea, Kenya, Lesotho, Madagascar, Malawi, Mali, Morocco, Nigeria, Rwanda, Togo, Tanzania, Tunisia, Senegal, Sudan, Zambia, Zimbabwe

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Protection under Nigerian Act
" The following are expressly excluded: 1. the doing of any of the acts by way of fair dealing for private and

Protection under Nigerian Act
The right to authorise acts referred to under the Act vests in the Nigerian Copyright Commission. Any breach may result in civil and/or criminal infringement
" "Civil Infringement "Any person who, without the consent of the Nigerian Copyright Commission, uses an expression of folklore in a manner not permitted by section 31 of this Act shall be in breach of statutory duty and be liable to the Commission in damages, injunctions and any other remedies as the court may deem fit to award in the circumstances.

domestic use, subject to the condition of acknowledgment of title and source;
2. the utilisation for purposes of education; 3. utilisation by way of illustration in an original work of an author:

Provided that the extent of such utilisation is compatible with fair practice; 4. the borrowing of expressions of folklore for creating an original work of an author: Provided that the extent of such utilisation is compatible with fair practice; 5. the incidental utilisation of expressions of folklore.

Protection under Nigerian Act
" Criminal Infringement

Challenges
Challenge 1: Definition of terms "The definition of expressions of folklore is often muddled up when lawyers, anthropologists and stakeholders meet "The notion of community authorship is probably a fiction. There is no such thing as a folk mind as an empirical entity capable of taking credit for the authorship of a work of art. Challenge 2: Constitutional provisions and ethnic delineation
"By section 15 of the Constitution, the Nigerian state is founded on

(a) the doing of any of the acts set out in section 31 without the consent or the NCC (b) non-compliance with the requirement of acknowledgement of source (c) willfully misrepresents the source of an expression of folklore; or (d) willfully distorts an expression of folklore in a manner prejudicial to the honour, dignity or cultural interests of the community in which it originates " Act provides for the following penalties (a) in the case of an individual, to a fine not exceeding N100,000 and/or 12 months imprisonment (b) in the case of a body corporate, to a fine of N500,000. (c) Order of delivery up to the NCC of infringing or offending articles
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Unity and Faith, Peace and Progress and accordingly 1. national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.

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Challenges
2. For the purpose of promoting national integration, it shall be the duty of the State to: " provide adequate facilities for and encourage free mobility of people, goods and services throughout the Federation; " secure full residence rights for every citizen in all parts of the Federation. Challenge 3: Width of exemptions and limitations The formulation of the exceptions and limitations under the Act does not discriminate between local and international users Challenge 4: Lack of ownership and Contending enforcement priorities It has been argued that the “conferment” of the right on a national authority separates it from the immediate owning communities

Challenges
Challenge 5: Absence of clear directions and guidance from the international level and other countries that have the provisions. " The belief of many countries is that an international instrument is a prerequisite for the protection of EoFs.
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The question is how far can we go with enforcement without a critical buy or the absence of an international norm-setting instrument
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No country in Africa (and indeed the world) has effectively implemented the provisions on EoFs The Ghanaian Experience is instructive

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Challenges
Challenge 6: Others (The fear of the unknown)
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Challenges
Challenge 7: Gradual but persistent and deep erosion of traditional values and protective structures The law has effectively relegated and almost paralyzed the customary law system to a point where is can give much teeth for the protection of EoFs The abandonment of our culture by their owners who in one breath are not eager to transmit their culture and in another breath want protection for the expressions of that culture The gradual undervaluing of the cultural sector while at the same time agitating for more protection for the products of that sector. Unless there is a rethink of the values and priorities even a better protective regime locally or internationally may just as well be to the benefit of the same people from whom we want to deliver these cultural assets

How do you treat expressions that have crossed cultural/political boundaries Addressing EoF questions with an IP-centric mind set had not helped the case for protection. Many of those that are perceived as abusing EoFs are not comfortable with the emergence agitations for protection in a field that is hardly predictable and has economic consequences The demands for protection has run into the perpetual wheel: domestic implementation before international norm setting vs.– international norm setting before domestic implementation

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Final Word

Final Word

I believe that this generation of Nigerians – nay Africans – is traumatized, disorientated , dispossessed but I hope also that it has not become confused or rudderless. . . If my fears are founded then the earlier we found a way out of this morass the better for us and generations yet unborn

Thank you
John O. Asein Nigerian Copyright Institute Nigerian Copyright Commission aseinjohn@yahoo.com

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Plenary IV Indigenous Knowledge in the Global Knowledge Economy and Intellectual Property Order

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Day 2

Plenary V
Biopiracy, and the Protection of IK and Cultural Heritage: Opportunity and Responses Prof. Mgbeoji: Biopiracy & Bio-prospecting in Perspective: Local and Global Dimensions

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NNMDA Panel & Paper Presentation

PROTECTING TRADITIONAL KNOWLEDGE AND BIOLOGICAL RESOURCES IN NIGERIA: NNMDA EXPERIENCE
By TF Okujagu, Director General/Chief Executive, Nigeria Natural Medicine Development Agency (NNMDA) A paper presented in a workshop organized by Center for Indigenous Knowledge and Development (CIKAD) of University of Ibadan from April 20-24, 2009, at conference Center, University of Ibadan, Oyo State. With the theme: Intensive Workshop on African Indigenous Knowledge & Intellectual Property Rights: Implications for Nigeria’s Development.

INTRODUCTION The concept of traditional knowledge is fully clear or understood but is generally considered to cover the knowledge, innovations, creations and practices of indigenous and local communities (CBD Articles 8(j) and 18). These can be in the fields of agriculture, science, technology, ecology, medicine, and include expressions of folklore, names, geographical indications and symbols and movable cultural property (World Intellectual property Organization Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge, 1998-1999) Traditional Knowledge cuts across numerous issues including food and agriculture; biological diversity; desertification and the environment; human rights, especially the rights of indigenous peoples; cultural diversity; and trade and economic development. Transfer of this knowledge from generation to generation is traditionally done orally. Where documentation exists, it is available in the local dialect of the community. Improper documentation of these knowledge and the practices have led to gaps in the transfer of such knowledge. Patents of such knowledge are many a time granted to parties who are traditionally not the owners of the knowledge, thereby leading to conflict in trade interests of the parties involved. Moreover, a part of the profits made by the patent holders also does not flow back to the originators/holders of traditional knowledge, thus leading to discontent. In issues affecting bioresources, a fall out of this is the responsibility of conserving this traditional knowledge which remains undefined between the patent holders and holders of the knowledge. As a result, sustainable management of the resources suffer, large-scale exploitation of these resources occur due to profit maximization by patentee, thereby leading to the extinction of many of the species with medicinal value and many more becoming endangered. Other issues stem from the growing economic, commercial and scientific value of genetic resources, biodiversity and associated traditional knowledge systems which call for their protection.

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The provisions of Trade Related Aspects of Intellectual Property Rights (TRIPs) and Convention on Biological Diversity (CBD) have tried to develop a system of protection of traditional knowledge globally, which needs to be further strengthened in terms of providing incentives for disclosure and dissemination of valuable traditional knowledge. The disclosure and dissemination of traditional knowledge is to be achieved by linking the grassroots knowledge systems with the global opportunities for financing the commercial use of biological diversity. Moreover, the regulation of the extent of such dissemination of traditional knowledge is also essential. For instance this kind of regulation has been aimed at in India by designating a regulatory Board under the promulgated Biodiversity Act, 2000. Documentation of indigenous and local knowledge systems is, therefore not only critical, but of prime importance, especially for the developing countries, which have a rich abundance of this knowledge and mostly undocumented. This documentation in electronic format would not only serve as a databank for searching for information before granting of patent but also would register the traditional use patterns and most importantly their preservation. BENEFITS FROM PROTECTION FOR TRADITIONAL KNOWLEDGE Protection of traditional knowledge could give to custodians of such knowledge some recognition for the contribution of the knowledge to new developments, and some control and benefits over how it is used. Benefits that could flow from this include: 1. 2. Removal or reduction of a perceived injustice. Prevention of use of knowledge in a way objectionable to the originators (e.g. publication of details of sacred rites). Greater recognition of the value of traditional knowledge, and respect for those who have preserved it. More resources for the custodians, raising standards of living and degrees of development, in particular in the developing world. Wider application of useful traditional knowledge throughout the world; Preservation of traditional lifestyles (as promoted by article 8j of the Convention on Biological Diversity) Protection or preservation of the environment.

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No doubt there are others, and views will certainly differ widely about their respective importance or relevance. Discussion is needed to explore possible areas of consensus. WHAT IS TO BE CONSIDERED FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE (TK) Two main options for the protection of traditional knowledge are being discussed:
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The application of existing intellectual property rights to traditional knowledge, Possible creation of new rights adapted to the specific characteristics of traditional knowledge.

TK has moved towards the center of policy debate about intellectual property (IP). This leads to some challenging questions: 78

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Is the IP system compatible with the values and interests of traditional communities – or does it privilege individual rights over the collective interests of the community? Can IP booster the cultural identity of indigenous and local communities, and give them greater say in the management and use of their TK? Has the IP system been used to misappropriate TK, failing to protect the interests of indigenous and local communities? What can be done – legally, practically – to ensure that the IP system functions better to serve the interests of traditional communities? What forms of respect and recognition of TK would deal with concerns about TK and give communities the tools they need to safeguard their interests?

To develop a legal framework for the protection of traditional knowledge, a number of choices need to be made. These include: 1. What kinds of knowledge should be protected: If any protection system is to be workable, it is essential that the subject matter of that protection can be identified. Perhaps confining traditional knowledge protection to a specific narrow scope such as medicine, food and agriculture might be a good start. While this would not satisfy all aspirations, introducing specific protection in priority area would be a useful opportunity to test the concept. Presumably, all protected knowledge will need to be documented in some way. 2. What uses of such knowledge should be controlled: ( publication, possession, or commercial use) 3. What rights will traditional knowledge give: Will it be rights to exclude or even to suppress, or just to compensate, or to no more than an acknowledgement of origin. Will derivation (copying) be a condition of infringement. 4. 4. What conditions would be applied to it: Novelty as in patents, uniqueness etc. 5. Who will own it: An individual, family, clan, tribe, indigenous people or a nation. How will they establish that they own it. How will third parties become aware of their obligations. 6. Where will the rights have effects: Will they be valid world-wide or have territorial limitations. Who will enforce them and how. Will they require registration. (Most of those who might benefit from traditional knowledge rights have no money even for a simple registration process, let alone litigation. 7. How long will the rights last: for a limited term starting when or indefinitely. Clearly there are innumerable possible combinations of conditions, leading to an unlimited variety of possible schemes. While some conditions cause more problems than others, each scheme would need to be judged as a whole. For any scheme there will be a difficult decision as whether its benefits to society as a whole outweigh its drawbacks for specific sectors. WHAT KIND OF LEGAL PROTECTION FOR TK? The protection of TK is important for communities in all countries, particularly in developing and least developed countries. National laws are currently the prime mechanism for achieving protection and practical benefits for TK holders. A comprehensive strategy for protecting TK should therefore consider the community, national, regional and international dimensions. The stronger the integration and coordination between each level, the more likely the overall effectiveness. Many communities, countries and regional organizations are working to address these levels respectively. For instance, Brazil, Costa Rica, India, Peru, Panama, the Philippines, Portugal, Thailand and the United States of America have all adopted sui generis laws that protect at

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least some aspect of TK (sui generis measures are specialized measures aimed exclusively at addressing the characteristics of specific subject matter, such as TK). Protection should reflect the aspirations and expectations of TK holders and should promote respect for indigenous and customary practices, protocols and laws as far as possible. Some intellectual property mechanisms (such as patents, copyrights, trademarks and trade secrets) exist, but do not adequately protect traditional knowledge. INTERNATIONAL AND REGIONAL MEASURES There has been a global focus on IPR for the protection of Traditional Knowledge. Several Agreements and treaties have been signed by different countries. The most important of these is highlighted below: 1. Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) TRIPS is an important international agreement, which:· Obliges new standard for various types of IPRs. · Includes the multilateral trading system in which trade law and jurisprudence are taken in consonance with Intellectual Property Law and provides for effective dispute settlement process by WTO. · Includes detailed standards for domestic enforcement of IPRs, both within as well as across the borders of a country. · Obliges protection on IPRs related to food, medicine and drugs in developing countries. · Provides for higher level of protection for geographical indications and reversal of burden of proof for process patentees. 2. Convention on Biological Diversity (CBD) The prime objective of CBD is to conserve biological diversity, provide appropriate access to this resource for utilization and encourage equitable sharing of benefits, thereby making the indigenous communities stakeholders in benefits arising out of the utilization of knowledge, innovation and practices. The provisions of TRIPs and CBD have tried to develop a system of protection of traditional knowledge globally, which needs to be further strengthened in terms of providing incentives for disclosure and dissemination of valuable traditional knowledge. 3. WIPO Intergovernmental Committee and Roundtables on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore The World Intellectual Property Organization (WIPO) is working with different nations, organizations, indigenous and local communities to address the policy/legal issues with traditional knowledge protectionism through the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. This Secretariat of the Committee has produced numerous excellent comparative reviews of existing intellectual property tools for protective traditional knowledge and providing benefit sharing. As of March 2008, there are still large disagreements among countries as to whether there should be a binding or non-binding (voluntary) international legal regime. 4. Regional Measure: At the regional level, several intergovernmental organizations and associations have enacted laws or model laws to protect traditional knowledge and deal with access to genetic resources and benefit-sharing. The African Union passed the African Model Law for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources in 2000. This Model Law aims to: % To prevent loss of traditional medicinal plants (the basis of health care), seed and natural fibres and colours (basis of arts and crafts of local communities) 80

% Ensure that local communities, farmers and plant breeders can contribute to and benefit from the sustainable development of the region % Provide the basis to enable Member States to enact national law in accordance with their national interest, economic development objective and political orientation. % Prioritize the need for regulating access to biological resources, community knowledge and technologies and the implications of intellectual property rights as entrenched in the TRIPS agreement. NNMDA EXPERIENCE Nigeria has a vast biodiversity, bioresources and knowledge which are fast disappearing because the custodians are not disclosing as they pass on. Importantly, also the knowledge is being exploited by local and especially international researchers and entrepreneurs without any benefit to the original custodians and communities in particular, and the country in general. As it affects bioresources, in addition to the above, there is excess loss caused by unsustainable utilization and other human and corporate activities (oil exploitation, construction, logging) and environmental activities. Traditional Medicine Knowledge and Practices (TMKP) are often handed down from generation to generation and have no clearly identifiable individual inventor. Internationally, the IPR laws regimes or frameworks as presently constituted are not adequate for the protection of TMKP. According to World Health Organisation, one of the organizational arrangements required for institutionalizing Traditional Medicine (TM) into health care delivery system, amongst others include the creation of appropriate IPR to protect Traditional Knowledge (TK). As a result of this inadequacy in the IPR law in the protection of TMKP, both the African Group of World Trade Organisation Council for Trade Related Aspects of IPRS (TRIPS) in their review of Article 27.3(b) of TRIPS Agreement, and the Centre for International Environment Law (CIEL) recommended, that countries should establish proper IPR framework for the protection of their TMKP. In Nigeria, the issue of IPR in relation to Traditional Medicine needs to be adequately addressed. Before 2004, there had been little effort to address the IPR regime in Nigeria with reference to TK. However, the Nigeria Natural Medicine Development Agency, in its attempt to develop and promote Traditional Medicine in collaboration with national and international stakeholders, is taking steps to attempt to institutionalize and provide a protective mechanism for TK as well as create awareness and sensitize stakeholders on this issue. As ways to assist address some of these challenges, the Agency has focused activities that: - Create public awareness on the value and potentials of Medicinal Plants and Traditional Medicine in Nigeria and the inestimable roles of Traditional Medicine Practice and Products in healthcare delivery especially at the primary healthcare. - Highlight the Wealth and Job creation potentials of Traditional Medicine - Build the capacity of Traditional Medicine Practitioners with a view to enhancing their practices, quality and safety of their products, and utility as agents for positive change in the communities where they practice and the nation as a whole - Collate, Document, Research, Develop and Promote all aspect of Natural Medicine – (Indigenous (Traditional) Health System, Medication and Non Medication healing arts, Sciences and Technologies.

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In December 2005, the Agency jointly organized a 3-day International workshop on IPR for TMKP with the National Office for Technology Acquisition and Promotion (NOTAP) both parastatals of the Federal Ministry of Science and Technology along with other national and international stakeholders with the theme: “Appropriate Intellectual Property Right Regime, a necessity to maximize the potentials of Traditional Medicine for Improved Healthcare Delivery, National Economic Growth and Development”. An International consultative Committee composed of experts co-chaired by Prof. Abayomi Sofowora and Prof. Maurice M. Iwu, was constituted to develop and produce a draft policy and legal instrument for an Intellectual Property Right (IPR) regime for Traditional Medicine Knowledge and Practice (TMKP). The Committee met severally and has developed a draft policy as well as a draft legal framework, titled: “TRADITIONAL KNOWLEDGE AND BIOLOGICAL RESOURCES PROTECTION ACT” The policy is made up two parts: Part one is the general background which includes: ! Brief introduction and history of traditional knowledge in Nigeria. ! Overview of the need for the policy. ! Objectives of the protection of traditional knowledge. ! Vision. ! Mission. ! Expected Outcome of the Policy. ! Goals Part two covers issues that will form the basis for the bill such as: ! Recognition of the value of traditional knowledge. ! Promotion of respect for traditional knowledge systems and holders. ! Meeting the needs of communities and holders of traditional knowledge. ! Empowering communities and individual holders of traditional knowledge. ! Support for traditional knowledge system. ! Preserving and safeguarding traditional knowledge. ! Preventing unlawful acts. ! Consistency with relevant international agreements and processes. ! Promoting innovation and creativity. ! Promoting intellectual and technological exchange. ! Promoting equitable benefit sharing. ! Promoting community development and legitimate trading activities. ! Precluding the granting and exercising of improper IP rights. ! Enhancing certainty, transparency and mutual confidence. ! Complementing the protection of expressions of folklore. ! Intellectual Property Rights and Indigenous Knowledge of traditional medicine. ! Technical cooperation among countries. ! Allocation of financial resources. ! Statement on implementation strategy for the Policy. The draft bill is divided into various sections and covers the following major areas: ! The short title ! Establishment of the Traditional Knowledge and Biological Resources Management Board. ! The scope of Protection. ! Beneficiaries. ! Duration. 82

! ! ! ! ! !

Protection of Traditional Knowledge. Civil and Criminal Liability. Exception clause. Regulation of Access to Biological Resources. Benefit Sharing. Institutional Arrangements.

To ensure joint ownership and acceptance by all stakeholders, these documents are at present, being subjected to wider critical review and input by stakeholders nationally before its finalization and onward transmission to the Federal Executive Council for consideration and approval and subsequently to the National Assembly for enactment into law. As at April 2009, stakeholder’s forum on IPR has been conducted in the following geopolitical zones of the country: South-West, North-East, and South-East Zones. The outcome of these forums indicate tremendous acceptance by stakeholders. The Agency also uses these forums to educate Traditional Medicine Practitioners on IPR and Traditional Medicine Knowledge and Practices, providing them with the general view of the practice while enlightening them on the need and benefit of protecting their knowledge, practices and products. In order to stimulate active participation of Traditional Medicine Practitioners for the development and promotion of Traditional Medicine, the Agency conducts continual interactive sessions structured to cover the six geopolitical zones of the Nation. The Agency is presently in its second Phase of the training sessions. To date the Agency has had 30 interactive sessions nationwide with 9000 TMPs participating. The Agency maintains linkages and collaborations with TMPs and stakeholders of Traditional Medicine through the Consultancy & Extension Services Unit. This is to bridge the gap between TMPs, stakeholders and the Government, build trust and promote Public Private Partnership initiatives.

To further aid the conservation and preservation of the Nation’s bioresources, the Agency conducts surveys to collate and document the nation’s bioresources aimed at developing a dedicated comprehensive national inventory of Medicinal, Aromatic and Pesticidal Plants of Nigeria. From these surveys, the Agency is developing a Herbarium and has published an inventory of Medicinal Plants in Nigeria (South West, North Central and South East Volumes I). A summary of the publication is available on Pictorial canvasses. The Agency through its Product Development Unit will assist promote value addition to TMPs by assisting to develop, formulate and produce pilot/sample herbal medicines, galenicals, nutraceuticals, health foods, dietary supplements based on established scientific research findings in line with Good Manufacturing Practices (GMP). Most importantly, the Agency has developed a Digital Virtual Library on TM to serve as a dedicated Focal Reference Centre for Research Development and Promotion of Traditional Medicine and Medicinal, Aromatic and Pesticidal Plants (MAPP) of Nigeria. Through this, we collate, develop, manage and disseminate information on TMKP nationally and internationally. Data on research, documentation and collation will be domiciled here for ease of referencing and reduce research and development duplication.

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CONCLUSION The importance of protecting the knowledge, innovations and practices of indigenous local communities (TK) is increasingly recognized in international forums. The immediate task is to ensure that the benefits of cumulative innovation associated with TK accrue to their holders while enhancing their socio-economic development. Frequently TK is used and appropriated without the prior informed consent of the holders. Although some aspects of traditional knowledge may be protected under existing IPR such as patents, other aspects may require tailored intellectual property regimes. Consequently, there have also been proposals to develop sui generis systems of protection — that is, systems specially suited to the characteristics of traditional knowledge, including traditional medicine. TK is valuable first and foremost to TK-holding local communities who depend upon it for their livelihoods and wellbeing, as well as for enabling them to sustainably manage their local ecosystems. According to World Health Organization, up to 80 percent of sub-saharan Africa depend on traditional medicine for its primary health care needs. Over 90 percent of food in sub-Saharan Africa is produced using customary farming practices. TK benefits national economies and has the potential to benefit them still further. Possible instruments for the protection of TK include traditional/customary law, modern intellectual property rights instruments, sui generic system, documentation of TK, and instruments directly linked to benefit-sharing. While protection of TK is necessary, it is not sufficient to foster its preservation and further development. To harness TK for development and trade, developing countries need assistance to build national capacities in terms of raising awareness on the importance and potential of TK for development and trade; developing institutional and consultative mechanisms on TK protection and TK-based innovation; and facilitating the identification and marketing of TK-based products and services. The stronger the integration and coordination between each level (i.e. the community, national, regional and international dimensions), the more likely the overall effectiveness of an IP regime. The need for Nigeria to protect its rich bioresources cannot be overemphasized. The draft IPR legal instrument is presented in this forum for participants to study and make input that would further enrich the documents and urge you to partner with the Agency to ensure the successful development of an appropriate IPR mechanism for Nigeria. Protection here is not secrecy but put in the right perspective for the benefit of all. It is thus an IPR regime for development and promotion of our indigenous knowledge to allow for its contribution to national economic growth and development. Traditional Medicine Knowledge development, promotion and utilization in Nigeria would be on the way to contributing to economic growth and development with an appropriate mechanism for its protection. THANK YOU

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NIPRD Nigeria as a Case Study: Best Practices in identifying and protection of I/TK - Dr. U.S. Inyang, Director General/CEO NIPRD, presented on his behalf by Mr. Adeola Jegede, Research Fellow I, NIPRD

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CBAAC Nigeria as Case Study: IPR, CBAAC and FESTAC 77: Challenges & Opportunities in Cultural Documents Protection using IP Regimes LADY CHUMA SP? PAPER

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INFORMATION AND COMMUNICATION TECHNOLOGIES, INTELLECTUAL PROPERTY RIGHTS AND INDIGENOUS KNOWLEDGE PROTECTION AT UNIVERSITIES: ROLE OF LIBRARIES
By Benedict A. Oladele, PhD University Librarian, Kenneth Dike Library, University of Ibadan & Adetoun A. Oyelude Senior Librarian, Kenneth Dike Library, University of Ibadan

ABSTRACT The framework for understanding Intellectual Property Rights and Indigenous Knowledge is studied in this paper. Discussion of acquisition of materials oral, written and archival reveals that knowledge gathering for purposes of conservation and preservation is one that needs urgent attention especially on the African Continent. Current Indigenous Knowledge gathering practices are examined and the role of the librarian or archivist in this process is highlighted. The impact of the environment in which the indigenous knowledge comes from on the Library, Archive or Collection Centre is reviewed, noting Intellectual Property Rights, Copyright issues and sanctions involved. Recommendations on the way forward for Africa in building up a formidable IK content and protecting it in libraries are made. Definition and Characteristics of Indigenous Knowledge Indigenous Knowledge (IK) is the body or corpus of knowledge that is peculiar or indigenous to a community, locality, ethnic group or nationality. This knowledge is a product of the people’s culture and belief system. It may be written and unwritten. The general understanding of IK for our paper is in the context of that in a non-literate society. IK is a product of its environment. It is the environment in which a community lives that defines the IK it produces e.g. equine (horse) with the Hausa people of Northern Nigeria. Hausas are expected to know more about this than others because they live in the environment conducive to horse breeding unlike the Yorubas who do not usually have horses in their environment. By conventional understanding Indigenous Knowledge is by nature oral which means that it is a body of knowledge handed down from generation to generation through word of mouth. It resides in the memory of the holder and relies on this memory for it to be kept or preserved in the community. By nature still, IK is a body of knowledge communally owned. It covers virtually all aspects of the society or community some of which may be agriculture related, norms and control, hunting, business transaction, governance and spiritual or mode of worship including health care of the community. Members of the general community have access to knowledge in the public domain through daily interpersonal interactions or through consultation with designated individuals in the community charged with the custody of such knowledge. These aspects are ones generally known, for example, knowledge about farming, preparing the soil for planting and so on. Some aspects of the knowledge however are in the private domain, restricted to a limited number of professionals or groups e.g. to the priests and cults like the Ogboni, the kingmakers and the artisans e.g. guild of bronze and brass casters in Benin and Bida respectively. The knowledge in the private domain may be accessed through membership of groups and associations provided such members 94

have been initiated. This is the case with known societies that may not necessarily be opened to members of the public. Above all, the intellectual property rights (IPRs) in a technical sense cannot be ascribed to individuals but instead such rights are common assets of the community. The knowledge is more exclusive, for example the ‘babalawo’ (diviner) in traditional medical care is consulted and he gives remedies, but not the principles behind it. In herb gathering for the remedies, he may pick well known ones, but one never knows how he picked them, as some herbs are only efficacious when picked at certain times of the day, say after or before sunset. Pawpaw leaves for example are used in treating malaria but not everyone knows that it is the leaves that drop naturally that are most useful not the one deliberately plucked. In some cases however, such rights may by convention or tradition be vested in the traditional head of the community since they are seen as the embodiment of the totality of the Indigenous Knowledge, holding it in trust for the people. Another issue is that in traditional names. The names given indicate some indigenous or cultural aspect that is obvious to an indigene but may be foreign to one who does not understand. The name ‘Awani’ in Kogi State indicates indigenous bonesetters and no matter the age of a child from that family, the traits of orthopedic training are there. For those from a warrior family, the name ‘Balogun” for example gives away that information as they are believed to have knowledge of protective charms. Any name with ‘Ayan” indicates belonging to a family of drummers. Where does knowledge stop and myth begin? The role of the library Joranson (2008) alluded to the fact that IK is part of a knowledge commons and describes the importance of preserving and disseminating IK. She also notes that “with recording and disseminating IK comes the risk of piracy and inappropriate use” (pg. 67). There are problems with data gathering and preservation here. The multimedia technologies in reproducing what has been recorded open up access (legal or illegal), to the use or misuse of the knowledge. The library by nature, assumes responsibility for any knowledge collected or gathered if it has acknowledged the source of the knowledge acquired. If a book is acquired and procured, the library has the responsibility to protect the intellectual property of the author. There are restrictions as to how much of the work can be photocopied for academic purposes for example. The responsibility to protect Intellectual Property of information sources in the library is at the level of post procurement, but for Indigenous knowledge, how do you protect the intellectual property rights of what is acquired, especially those in oral form? Two main sources of Indigenous Knowledge acquisition in libraries are: 1.) Depending on researchers or fieldworkers to acquire the knowledge content, or 2.) The library going on an acquisition bid into the field to collect the information. 3.) Purchase of literature in which indigenous knowledge has already been recorded in one form or the other. With any of these options the question of ethics comes in. Whom does the library ascribe the Intellectual Property Rights to? Is it the author or researcher that has the copyright of the knowledge? The researcher is just repackaging what the community has given. Is it ethical for one or two to arrogate copyright to the researcher? Take Ifa Divination as an example. Who owns it? The issue is if someone writes about Ifa, the copyright law applies, but not in the case of ‘Odu Ifa’ (the Ifa Corpus) since the ‘babalawo’ is holding the knowledge in trust. But there is no doubt that the library’s role is to preserve the knowledge itself – for posterity and future use. It is expected that the researcher or library that goes into the field adds value to the knowledge gathered by transcribing what is recorded and at the same time leaving the knowledge recorded in as close to the original form in which it was given as possible. The library after repackaging performs its traditional role and makes the knowledge available to the public. The format in which IK is stored in 95

modern times adds value to the IK gathered. The oral nature of IK makes it necessary for the repackaging. ICT is therefore necessary. The pen, the tape recorder, the transcription, the preservation procedure like putting it in a database, on CD ROM or podcasting it are done with Information and Communication Technology. ICT helps one to capture Indigenous Knowledge, process the IK, preserve the IK and organize it by extracting metadata with which to provide access, and finally to disseminate IK regardless of time, location or physical barriers. ICT is a tool for the management of IK. Indigenous Knowledge is most useful in effective information literacy education. The knowledge can be stored in various formats and the user of the information can get to use it in the library after adequate training or explanation on how to use the technology, with which it is stored, organized, and from which it can be retrieved. The collector of Indigenous Knowledge thus makes use of Contemporary Knowledge so to say, and can further refine it to develop the Nation. The diagram below illustrates the relationship between Indigenous Knowledge, Contemporary Knowledge, the Library and National Development. It is a modification of Dorman and Gorman (2007) who discussed Indigenous Knowledge and Information Literacy Education.
Indigenous Knowledge (Technology, Socialization, Agriculture, Governance, Economy, Healthcare, etc)

Contemporary Knowledge (ICTs, Education, etc)

National Development

(Modification of Dorman & Gorman, 2007; pg 4)

Challenges to indigenous knowledge protection in libraries Since libraries have a role in Indigenous Knowledge Management, they face the challenge of putting the IK in language that makes it more widely acceptable. Translation of the knowledge gathered has to be done. Software that has the capability for translation needs to be used. In many libraries, the scarcity of such and the cost where available is a problem. Unfortunately also, except for the Yoruba language that has indigenous typing keyboard, other local Nigerian languages are left out for now and therefore documenting knowledge in the local languages is difficult. The librarian, archivist or field researcher gathering IK has to understand the language of Information and Communication Technology, to be acceptable. As such, libraries where staff ICT appreciation and use is of low level cannot adequately cope with IK protection. Lack of appropriate technology and know-how prevents prompt and efficient service in the libraries. Inadequate infrastructure and trained

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staff also compounds the problem and makes IK especially the oral forms out of the reach of the researcher, librarian, anthropologist, tourist or whoever needs the knowledge. Security of the IK collected is a problem. Artifacts, recordings and other valuable collections have been known to be stolen and carted off by unknown persons from libraries and Documentation Centres. How best can the IK be physically protected? Backups of whatever is electronically preserved are essential. The space and location for these could be problematic especially in a small library. For electronically preserved IK, the challenge is that of providing security measures through passwords, digital signatures, encryption and others to ensure that unauthorized access is not permitted. The sustainability of IK projects is another challenge that needs to be faced. Some IK Centres have been started and the interest in them has dwindled over the years. Konandu ( n.d) lamented the inability of the Bonoman Resource Centre for Indigenous Knowledge (BORCIK) in Ghana to be sustained. The ARKIC programme in the Nigerian Institute of Social and Economic Research (NISER) is also one that has not been sustained. In the Department of Library, Archival and Information Studies, University of Ibadan teaches a course in Oral Archives where the students go into the field to gather oral information of various subjects. These recordings are there, nothing is being done about them. The same applies to indigenous music, dance and drama that is recorded and kept in the Institute of African Studies, University of Ibadan. A lot needs to be done to systematically organize these collections, preserve and protect them. The issue of whether priority should be given to Indigenous Knowledge protection or its promotion was discussed in South Africa at a Conference on African Information Ethics in 2007. It was decided that Africa needs to do both, and however focus on IK in the areas of medicinal plants, game reserves, environment and so on is necessary to add value to the knowledge before it is protected (Msuya, 2007). Libraries have to face the challenge. Ways have to be found to create databases that will be regularly updated and made available. IK has to be protected and promoted by libraries. In conclusion, libraries need to be adequately funded and used as knowledge base or repositories for African Indigenous Knowledge. The classification of IK rests with the libraries, librarians, and archivist s and information managers. Above all, the intellectual property rights of Indigenous Knowledge holders should be protected especially in these libraries. REFERENCES 1. Dorman & Gorman (2007). 2. Joranson, Kate (2008). Indigenous Knowledge and the knowledge commons. The International Information and Library Review, 40, 64-72. 3. Konandu, Kwasi (n.d). Indigenous Knowledge Archives in a West African Society. Msuya, J. (2007).

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INFORMATION AND COMMUNICATION TECHNOLOGIES, INTELLECTUAL PROPERTY RIGHTS AND INDIGENEOUS KNOWLEDGE PROTECTION AT UNIVERSITIES: ROLE OF LIBRARIES By Benedict A. Oladele, PhD University Librarian, Kenneth Dike Library, University of Ibadan & Adetoun A. Oyelude Senior Librarian, Kenneth Dike Library, University of Ibadan

Definition and Characteristics of Indigenous Knowledge IK is: ! * A product of its environment ! * By nature oral ! * Communally owned ! * Domained publicly or privately

T he role of the library * Collect the IK ! * Process the IK ! * Preserve and protect the IK

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The library, IK, Contemporary Knowledge and National Development
Indigenous Knowledge
(Technology, Socialization, Agriculture, Governance, Economy, Healthcare, etc)

Library
Contemporary Knowledge
(ICT, Education, etc.)

National Development
(Economic, Cultural, Social, Educational, etc.)

Modification of Dorman & Gorman, 2007; pg 4

T HE UN IVERSIT Y OF TH E UNIVERSITY IBADAN
At the Gate

BACK ENTRANCE OF KENNETH DIKE LIBRARY

EN T RAN CE TO TRAN KEN N ET H DIKE ETH LIBRARY

FILES AW AITIN G AIT IN PROCESSIN G
Materials in the Archives Building

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Challenges to Indigenous Knowledge Protection in Libraries
!
Translation (Language) Training of Staff in ICT use ! Security of the IK ! Sustainability ! Setting priorities
! !

Conclusion
Libraries need to be adequately funded and used as a knowledge base or repository for African Indigenous Knowledge. The classification of IK rests with the libraries, librarians, and archivists and information managers. Above all, the intellectual property rights of Indigenous Knowledge holders should be protected especially in these libraries.

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Day 3

Plenary VII: The Future of Intellectual Property: Practice and Policy Prescriptions for Nigeria
Communiqué: Resolutions Adopted & Proclamations of Support and Government Policy Recommendation (SEE APPENDIX A)

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APPENDIX A

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Protecting Creativity

nc c

AiDiKi
C BAAC

NO LOG Y TEC H

DEVELOPMENT

NOTAP

AIDIKI Declaration from Participants at the University of Ibadan Indigenous Knowledge Study Group Workshop on: AFRICAN INDIGENOUS KNOWLEDGE AND INTELLECTUAL PROPERTY RIGHTS: IMPLICATION FOR NIGERIA’S DEVELOPMENT, April 20-24, 2009, Ibadan, NIGERIA We Senior Officials from the Ministries of Culture; Health; Science & Technology; Commerce; Education; the Nigerian Copyright Commission & Institute(NCC/I); the Centre for Black & African Arts and Civilization (CBAAC); National Institute for Cultural Orientation; National Council for Arts and Culture; National Office for Technology Acquisition and Promotion (NOTAP); Nigerian Natural Medicine Development Agency (NNMDA); Nigerian Institute for Pharmaceutical Research and Development (NIPRD); Nigerian Scholars and Practitioners of Traditional Knowledge; Representatives of Traditional Communities, attending a Workshop on African Indigenous Knowledge (IK) & Intellectual Property Rights (IPR), held between the 20-24 April 2009, at the Conference Center, University of Ibadan, Ibadan, Nigeria: Acknowledging that Africa has rich cultural heritage and this is often manifested in its body of indigenous knowledge and expressions of folklore; Accepting that as policy and decision makers, practitioners and scholars of traditional knowledge, we have a responsibility to guide our Governments in articulating appropriate policies towards the protection and sustainable use of indigenous knowledge and expressions of folklore; Recognizing that this body of indigenous knowledge and expressions of folklore has contemporary relevance to the world knowledge systems and that its utility traverses the whole gamut of scientific, economic, medical, educational, and environmental spheres which should be built into development policies; Alarmed that the rich cultural heritage of Africa and its indigenous knowledge systems have been negatively affected, and continue to be so affected, by its colonial experience; Aware that there is a relationship between a people’s state of development and their knowledge systems; Noting that in the global knowledge economy, the contributions of indigenous knowledge and expressions of folklore to the global basket of knowledge is not sufficiently recognised and protected; Concerned that the phenomenon of bio-piracy threatens the integrity of indigenous knowledge and inflicts economic harm on the practitioners and their various communities; Regrettably noting that indigenous knowledge and expressions of folklore, and indeed culture as a whole is under threat from multiple fronts, cultural, political, economic and technological; 103

AT OV INN ION

Taking cognizance that university and other centres of learning have important roles to play in the identification, classification, dissemination and preservation of indigenous knowledge and expressions of folklore; Gravely concerned that the dominant regimes of intellectual property rights protection are inadequate for the protection of the various manifestations of indigenous knowledge systems and expressions of folklore. Gratified that indigenous knowledge practitioners are desirous of collaborating and sharing their knowledge with researchers, academic and research institutions, libraries and documentation centres on the identification, gathering, collation, classification, digitization, and dissemination of their knowledge; Hereby Resolve that: 1. There should be more awareness amongst cultural heritage centres and managers on the importance of and threats confronting indigenous knowledge and they should be part of the ongoing discussions in respect of policy formulation on intellectual property, indigenous knowledge and expressions of folklore; 2. That the inadequacy of expertise in the area of intellectual property, indigenous knowledge and expressions of folklore is of grave concern and as such, concerted efforts should be geared towards capacity building; 3. Although the ongoing efforts at different levels to document Nigeria’s indigenous knowledge is commendable, there is need for a coherent endeavor in this regard to ensure that the indigenous knowledge system is not compromised by documentation. Consequently, available best practices in documentation of indigenous knowledge should be adopted. 4. That the biodiversity of Nigeria and its associated indigenous knowledge belong to the State but as a Federation, Nigeria should ensure that the relevant indigenous communities, that possess the resources, are positioned to make effective contributions to their protection, preservation and use. 5. The library is critical in the gathering, processing, preserving and disseminating of indigenous knowledge and expressions of folklore in various forms and therefore should be fully equipped with necessary information and communication technologies for effective performance of its role. 6. Indigenous peoples and various stakeholders in indigenous knowledge must seek all possible avenues to use indigenous knowledge and expressions of folklore as instrument of economic empowerment, political leverage and socio-cultural development. 7. Access to biodiversity and associated indigenous knowledge should be in accordance with the established principles pursuant to the Convention on Biodiversity and emerging Protocols. 8. Researchers, academic and research institutions, libraries and documentation centres should be encouraged to collaborate with the indigenous knowledge holders and communities in the identification, gathering, collation, classification, digitization and dissemination of indigenous knowledge in a framework consistent with international standards.

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9. As an African regional power, Nigeria should work with strategic partners and become a proactive voice at international level for mobilizing African common positions or interests on the subject of protection of African indigenous knowledge. 10. Nigeria should join the global Pan-African and African Diaspora movement for the protection, preservation of and resistance to the exploitation of African cultural heritage in all its manifestations. REQUEST THAT: In order to promote creativity and ensure sustainable use of indigenous knowledge and intellectual property, the school curricula should include a systemic exposure to indigenous knowledge systems and intellectual property . An appropriate legislative framework should be provided for the regulation of access to biodiversity and associated indigenous knowledge as proposed in the Draft Bill on the Protection of Traditional Knowledge, Regulation of Access to Biological Resources and Related Matters, which was initiated and developed by Nigeria National Medicine Development Agency (NNMDA). Having regard to the multiplicity of government agencies with related mandates on indigenous knowledge and the cross-cutting nature of the indigenous knowledge, Nigeria should streamline the institutional framework for greater efficiency. The benefits arising from the exploitation of biodiversity and associated indigenous knowledge should take primary account of the interests of the communities where such biodiversity and associated indigenous knowledge are derived. Thank the following governmental/nongovernmental agencies, organs, and institutions for supporting, sponsoring, and facilitating the Workshop: Dr. Afia Zakiya of AIDIKI; IDRC Canada, CBAAC, NCC, NNMDA, Federal Ministry of Culture, NOTAP, AIDIKI, NICO, NCAC, NIPRD, Bioresources Development and Conservation Programme Dated this 24 April 2009, at IBADAN, NIGERIA

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APPENDIX B

MEDIA COVERAGE

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Media Coverage
http://www.ngrguardiannews.com/arts/achvIndex_html?pdate=230409&fdname=arts http://www.ngrguardiannews.com/arts/article01/230409 http://www.ngrguardiannews.com/arts/article01//indexn2_html?pdate=230409&ptitle=In%20Ibadan, %20campaign%20against%20copyright%20infringement%20hots%20up
Thursday, April 23, 2009

In Ibadan, campaign against copyright infringement hots up
By Anote Ajeluorou A refreshing insight into African indigenous knowledge and its impacts on national development began on Monday at the University of Ibadan Conference Centre. It is at instance of the Indigenous Study Group of the University of Ibadan in collaboration with the Nigerian Copyright Commission (NCC). With the theme African Indigenous Knowledge and Intellectual Property Rights: Implications for Nigeria’s Development, the five-day workshop is designed to examine the place of indigenous cultural knowledge in relations to its developmental prospects for the nation as well as how to protect that heritage from piracy. Declaring the workshop open, the Vice-Chancellor, Prof. Olufemi Bamiro, said indigenous knowledge had begun to receive increased attention not only in the academia, but also from national and international development agencies as a result of its developmental potentials. According to him, indigenous knowledge is an important component of a country’s knowledge system as it encapsulated the skills, experiences and insights of people and applied to maintain or improve their livelihood. “It has therefore been receiving increasing attention from scholars and development practitioners across the globe in virtually every field, ranging from the humanities and social sciences through, science and technology, to human and veterinary medicine,” Prof. Bamiro stated. “Unfortunately, the indigenous knowledge accumulated over generations by local communities is sometimes appropriated by socalled experts without any compensation of the producers of such knowledge in spite its tremendous potential to yield economic returns.” It is in the light of the neglect of the local producers of local knowledge and the need to accord them rights to their property, the Vice Chancellor said that the University of Ibadan was collaborating with the Nigerian Copyright Commission to find a way to redress such rights and protect local economy. The enlightenment about rights of local people to their products, he argued, was “capable of providing redress to the south-north flows of indigenous resources which deprive African nations and communities the benefits of maximum socio-economic, political and cultural development and the University of Ibadan is proud to be part of this endeavour.” He said the timeliness of the workshop was underscored by the university’s “engagement in indigenous knowledge research, teaching and scholarship to advance Nigeria’s sustainable development through the proposed establishment of the Centre for Indigenous Knowledge and Development (CIKAD)”. When it comes on stream, the VC stated, the centre would partner with relevant national and international agencies to ensure that Nigeria reaped from indigenous knowledge resources. 107

Earlier, Prof. Ikechi Mgboeji, associate professor of Law at Osgoode Hall Law School, Canada said it was appropriate to put the historical narratives of culture in perspective for Africans to know their place in the global scheme of things. More often, he explained, Africans were left a the bottom of the knowledge economy because they had been marginalised Western cultural narratives that give little regard to civilisations outside of Western thought system in spite of Africa’s contribution to world cultural heritage. He said it was secret that Africa experienced a period of cultural and political ‘holoccaust’ both from Arab and Western civilisations through Islamisation and the twin evils of Slavery and Colonialism. “Having weakened Africa through the slave trade,” he lamented, “the continent was ripe for cultural conquest. The third holocaust was the frenzied cultural attack of European colonialists on the cultural pillars and foundations of Africa. To this end, the native healer, herbalist, and priest were heathenized, and demonized as ‘sons of Beezelbub’”. The workshop task, he stated, was the need to “unpack the historical injustices and understand how they have shaped our attitude to the critical questions of ‘what is knowledge’? What is African indigenous knowledge? What role, if any, can Africa Indigenous Knowledge play in a digitalized world?” These questions were crucial if African countries were ready to address issues of healthcare and the status of folklores and cultural expressions that define the basis of African identity. “Let us first sketch out the bare bones of what was said to have occurred,” Prof. Mgboeji explained. “In theory, the knowledge economy refers to economy focused on the production and management in the frame of economic constraints. On a second level, the knowledge economy refers to the use of knowledge technologies such as information technology and information management to produce economic benefits. Was this a theory in search of facts? Does the farmhand really work with only his hands while his head was on a restful vacation? What is knowledge? Is the coca farmer in Ilesha really an ignoramus? Whose knowledge deserve a privileged status? Why?” He further stated that the role of elites in African societies did a lot to undermine African indigenous knowledge and possibly paved the way for Western exploitation. “Any fair-minded scholar would concede that the African elite has been the greatest threat to the survival of African culture,” Mgboeji declared. He said Africa was behind the rush for intellectual property discourse in the Western academia as the new form of neo-colonialism with the aim of appropriating unrefined indigenous knowledge in Africa for Western industrial taxonomy. The danger Africa and Nigeria face, he argued, was the turning of the continent to a new haven for bioprospecting and bio-piracy as the continent’s intelligentsia and businesses were yet to see the economic potentials in their environment ably backed by Western-induced property rights that do not favour Africa. “In the process, focus on what could be commodified and sold undercut theoretical research,” he declared. “A huge number of speculative and dubious patents were being granted. As the field of intellectual property expanded, and the research focus of public educational centres shifted, the ambit of the public domain dramatically shrank... Nigeria is currently under the threat of bio-prospectors. What are the responses of government, media, and academia to this new form of domination?” In spite of the gloomy picture he painted, he was, however, positive that the results of the workshop would lead to an end to the cultural attacks Africa faced and being able to fashion a way of repositioning Africa and Nigeria’s cultural heritage, their future well-being and survival.

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On the other hand, Dr. Chidi Oguamanam, director, Law and Technology Institute, Dalhousie University Law School, Halifax, Canada, stated that the workshop was a multi-disciplinary and inter-disciplinary one designed to address issues relating to property rights and the exploitation of indigenous knowledge to benefit local communities. Among other things, he said, the workshop would sensitise interaction on indigenous knowledge, raise awareness on indigenous knowledge as an instrument of wealth creation, economic leverage, national unity, political empowerment and socio-cultural enrichment. Other ways the workshop would benefit the nation included reflect on Nigeria’s actual and potential legal and policy responses to current threats, opening up conversations on options for Nigeria’s legal and institutional frameworks or protocols on the protection of indigenous knowledge, identify and bring together all intellectual property and indigenous knowledge for a critical conversation around the two intersecting areas with a view to partnering in the future shaping policy for the country, and promoting the growth of local manpower in the professions and scholarships and the public service and other policy sectors of relevance in indigenous knowledge and intellectual property. The former NCC Director-General, Moses Ekpo spoke on the economic significance of folklore, traditional knowledge and bio-diversity in Nigeria while John Asein, Director, Nigerian Copyright Institute presented a paper on protection of expressions of folklore and its challenges under Nigeria law. The workshop ends today.
© 2003 - 2007 @ Guardian Newspapers Limited (All Rights Reserved). P. 69

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We need to exploit indigenous knowledge for development, says Bamiro WHY a conference on African Indigenous Knowledge and Intellectual Property Rights? ADDRESSING Indigenous African Knowledge is what the Centre for Indigenous Knowledge Group, UI, is out to address, where Indigenous Knowledge in the various areas that can aid our development. These have not only been articulated not to talk about development. We’re going to identify all the serious indigenous knowledge in all facets of human endeavour, whether in medicine, oral history or agriculture. We will not only articulate them but also develop the knowledge into becoming a tool for development. This is what it is going to be and UI is committed to the centre. What specific area will it address first? It’ll be all-embracing. We’ll have knowledgeable people brought in from the medicinal area, oral history and agriculture to synthesise neglected local, African cultural knowledge. Don’t forget that knowledge in these areas is interrelated and not separate. We must look at them in an integrated manner. Like this workshop, all the different areas are represented to give an idea about the multi-disciplinary nature of the field of local or indigenous knowledge. How old is the Centre for Indigenous Knowledge Group, UI? The centre is just one year old; it was designed to celebrate our 60th anniversary. We’re proud of Prof. Okafor and Dr. Afia Zakiya, who are doing very well at the centre. What is the partnership with the NCC intended to achieve for indigenous knowledge? The forum with the NCC is geared to the fact that indigenous knowledge must be protected. A number of ideas that people have capitalised on in the Western world came from our indigenous people. And this has not been so recognised. So there must be a sense of intellectual property; in other words, you must be able to appreciate and compensate the owners of the knowledge that form the basis of whatever gain you make of that knowledge. That’s why I said in my brief presentation that UI will sign Memoranda of Understanding (MoU) between the Pharmaceutical Research Institute in Abuja and the National Institute of Health in the US to turn such knowledge gained into a beneficial one. This tripartite relationship is to develop drugs that can cure malaria and other diseases using local knowledge. But in doing this, we are quite aware of the need to protect intellectual property because we are looking at indigenous method of providing these cures. We’re going to make sure that the people who are releasing this knowledge that have accumulated over the years are adequately compensated in the scheme of things. This is where NCC comes in, in the area of intellectual property to protect the intellectual content of indigenous knowledge. How will you get the support needed to achieve this objective? We’re quite confident that if we are able to package these things very well and we’re assured of the relevance, we don’t regard funding as going to be any problem at all. Once you are able to have the ideas and people are passionate about them, I’m sure the funding will come. I’m never afraid of funding. First of all, let’s have ideas and let’s have people who are ready to implement the ideas, the funding will come. There used to be the idea of Town and Gown, of universities meeting town for development. Is this idea still current? How can this idea help in this regard?

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In this case, there’s no way we can’t be in town. If you’re talking about indigenous knowledge, you have to be in town, the gown has to meet the town. In this conference, Chief A.A. Monilola, the Ewegbemi of Ede, a traditional medicine practitioner, is joining some other people to advance indigenous knowledge and how to apply it. So, it’s a Gown-Town affair, in which we’re more even in Town to learn from the people for a change. What is the best way to enforce copyright laws? You need the entire justice system to be able to give you support. The police should be active to catch these people; the judges being able to dish out sanctions as appropriate. For those who have been caught, may be the law has not been forthcoming in providing sanctions. After you catch people pirating books and CDs, after the noise, nothing happens and they still continue. And it’s not good for the system because it discourages the development of indigenous knowledge. I believe that the laws are there but to be able to implement them in a way that’ll discourage those who are perpetrating these crimes, a lot of work has to be done. © 2003 - 2007 @ Guardian Newspapers Limited (All Rights Reserved).

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APPENDIX C

WORKSHOP PARTICIPANT LIST & GROUP PHOTO

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UNIVERSITY OF IBADAN INDIGENOUS KNOWLEDGE STUDY GROUP
Intensive Workshop on African Indigenous Knowledge (IK) & Intellectual Property Rights (IPR): Implications for Nigeria’s Development Date: April 20-23, 2009 Venue: University of Ibadan, UI Hotels & Conference Center, Ibadan, Nigeria

Participant Roster
S/N 1. NAME Lady Gloria Chuma-Ibe TITLE & ORGANIZATION CONTACT ADDRESS TEL./FAX/EMAIL Centre For Black And Tel: 234-802-315-1008, Fed. Min of Culture, Centre for 234-803-331-1285; Black & African Arts & Civilization African Arts And Civilization, c/o National Theatre, 234-1-774-4489, (CBAAC) / Deputy Diretor, Iganmu. P.M.B. 12794, 234-1-477-11266 Documentation Svcs Div Lagos, Nigeria. gloriachumaibe@yahoo.com CBAAC Ibadan Outreach Fed. Min of Culture, Centre for Black & African Arts & Civilization Ctr .\, Institute of African Studies, University of (CBAAC) / Deputy Director, Ibadan, Ibadan, Nigeria Information Mgmt 08023147845; funmilads@yahoo.com

2.

Mrs. Funmi Ladele

3.

Mr. Adeola Jegede

Idu Industrial Area, P.M.B. adeolajegede@yahoo.com; Federal Min. of Science & 0806 001 2926, Technology, National Institute for 21 Garki, Abuja, Nigeria 08077758616 Pharmaceutical Research & Devmt. (NIPRD)/ Dept. of Medicinal Plant Research & Traditional Medicine, Research Fellow I IDRC Canada gideonchristian@yahoo.com ; gchristian@idrc.ca mikoqp@yahoo.com ; 08034735471 28 Fernwood Crescent Whetstone, London, UK Ministry of Commerce and Industry Trademark and Patent Office, P.M.B. 88, Garki, Abuja, Nigeria Phone: +234 9 234 02 82, Fax: +234 9 234 15 41 ktogb@yahoo.com ;

4.

Gideon Christian

5.

Ms. Mikang Nancy Longjan Ms. Nkechinyere Ogbonna Mr. Shafi'u Adamu Yauri

University of Abuja/Graduate Law Student University of Leeds/ Research Student Trademarks, Patents & Design Registry, Federal Ministry of Commerce & Industry/ Sr. Asst. Registrar

6.

7.

sayauri@yahoo.com ; 08033204663

8.

Ms. Regina A. Onuoha

Fed. Min of Culture, National Institute for Cultural Orientation, Principal Cultural Officer Fed. Min of Culture, National Institute for Cultural Orientation, Director Traning and orientation Fed. Min of Culture, National Institute for Cultural Orientation, Deputy Director Training and Orientation Fed. Min of Culture, National Institute for Cultural Orientation Fed. Min of Culture, National Institute for Cultural Orientation, Chief Cultural Officer

No 23 Kigoma Cr, Wuse 2, Onuoha.regina@yahoo.com ; 08037901077 Zone 7 Abuja

9.

Mr Dele Olusa

No 23 Kigoma Cr, Wuse 2, princedeleolusa@yahoo.com Zone 7 Abuja

10.

Mrs B.R. Yerima

No 23 Kigoma Cr, Wuse 2, Zone 7 Abuja

11.

Mr. Alex Omijie

No 23 Kigoma Cr, Wuse 2, Zone 7 Abuja No 23 Kigoma Cr, Wuse 2, Zone 7 Abuja 08055249921; 08065811727

12.

Mr. M. O. Ekoko

113

S/N 13.

NAME Mr. Hilary Ogbechie

TITLE & ORGANIZATION Fed. Min of Culture, National Council for Arts & Culture/ Assistant Director

CONTACT ADDRESS

TEL./FAX/EMAIL

Plot 1370, Ukpo Close, larryogbechie@yaoo.com; Off Oro Ago Crescent, Off 0803 3334 306 Muhammed Buhari Way, (by Old CBN) Garki II District, Abuja, Nigeria Fed. Secretariat Phase II, ayanwaledrum@yahoo.com Block B Room 502, Abuja Fed. Secretariat Phase II, Block B Room 502, Abuja 08055252146; alliapat@yahoo.ca, alliapat@yahoo.com 08058253004, 08062704007 samnnjan@yahoo.com aidelojei@yahoo.com; 08028410151

14.

Mr. Ayanwale Ayo Olayanju Mr. Patrick Allia

Ministry of Culture

15.

Ministry of Culture

16.

Mr. Sampson Njan

Ministry of Culture

Fed. Secretariat Phase II, Block B Room 502, Abuja

17.

Mr. Aideloje Ileogben

Ministry of Culture

Fed. Secretariat Phase II, Block B Room 502, Abuja

18.

Mr. David Eyo Offiong

Ministry of Culture

Fed. Secretariat Phase II, daveoffiong@yahoo.com; Block B Room 502, Abuja 08059618880 IPTTO Univ Ibadan (off campus) 08034488036, 08022902800; adedoyin.soyibo@mail.ui.edu.ng or doyinsoyibo@yahoo.com

19.

Prof. Adedoyin Soyibo

Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation

20.

Prof. O. Oladepo

Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation

Univ. of Ibadan, Ibadan, Nigeria

21.

Prof. P. Kassey Garba

Univ. of Ibadan, Ibadan, Nigeria

22.

Prof. Gbemi Oke

Univ. of Ibadan, Ibadan, Nigeria

23.

Dr. Oladunni Arulogun

Univ. of Ibadan, Ibadan, Nigeria

24.

Prof. Morayo Atinmo

Univ. of Ibadan, Ibadan, Nigeria

morayoatinmo2004@yahoo.com

25.

Dr. Adeolu Adedapo

Univ. of Ibadan, Ibadan, Nigeria

26.

Dr. K. Adewumi

Univ. of Ibadan, Ibadan, Nigeria

114

S/N 27.

NAME Dr. O. A. Ogunsiji

TITLE & ORGANIZATION Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation

CONTACT ADDRESS Univ. of Ibadan, Ibadan, Nigeria

TEL./FAX/EMAIL

28.

Dr. T. O. Omobowale

Univ. of Ibadan, Ibadan, Nigeria

29.

Dr. A. O. Adegoke

Univ. of Ibadan, Ibadan, Nigeria

08036381625; jireade@yahoo.com

30. Engr. T. O. Y. Omotosho Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation 31. Mrs. Judith Sokoya Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation

Univ. of Ibadan, Ibadan, Nigeria

Univ. of Ibadan, Ibadan, Nigeria

080340652143; judithsokoya@hotmail.com

32.

Dr. Dickson Dare Ajayi Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Dr. A. O. Raji Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Univ of Ibadan, Univ-Private Sector Collaboration/Mgt Committee Ctr for Entrepreneurship & Innovation Nigerian Copyright Commission (NCC), Director, Nigerian Copyright Institute

Univ. of Ibadan, Ibadan, Nigeria

08056137219; ajayidd@yahoo.com

33.

Univ. of Ibadan, Ibadan, Nigeria

08035850005; abdulgam.raji@mail.ui.edu.ng

34.

Dr. Ayotola Aremu

Univ. of Ibadan, Ibadan, Nigeria

08023351506; ayotk2001@yahoo.com

35.

Dr. T. K. Hamzart

Univ. of Ibadan, Ibadan, Nigeria

08052457016; talkzat@yahoo.com

36.

Dr. Fakolade

Univ. of Ibadan, Ibadan, Nigeria

08023504549; fakolade1@yahoo.com

37.

Mrs. Oluyemisi Bamgbose

Univ. of Ibadan, Ibadan, Nigeria Federal Secretariat, Annex II, P.M.B. 406, Garki, Abuja NIGERIA

08033233204; oluyemisibangbose@hotmail.com aseinjohn@yahoo.com office no. 092903936 ; 08023237677 092906576

38.

Mr. John Asein

39.

Ms. Yemi Lawal

Nigerian Copyright Commission/ Institute (NCC)

Federal Secretariat, Annex 08072795235; II, P.M.B. 406, Garki, yemilawal@yahoo.co.uk Abuja NIGERIA Federal Secretariat, Annex II, P.M.B. 406, Garki, Abuja NIGERIA 0803.305.2007 or 0805.577.7007 tonade@yahoo.com

40. Dr. Adebambo Adewopo

Director General, Nigerian Copyright Commission (NCC)

41.

Mr. Moses Ekpo

Nigerian Copyright Commission (NCC), First Director General

115

S/N 42.

NAME Ms. O. A. Araba

TITLE & ORGANIZATION Fed. Min. of Science & Technology, National Office for Techonology Acquisition & Promotion (NOTAP) / Director Technology Acquisition and Promotion

CONTACT ADDRESS

TEL./FAX/EMAIL

National Office for funkearaba@yahoo.com; Technology acquisition and 08033052166 Promotion (NOTAP); 4, Blantyre Street, off Adetokumbo Ademola Crescent, Wuse II PMB 5074 , Abuja Nigeria. Telephone:09-5239823 Fax:09-5240853 National Office for madesoye@yahoo.com; Technology acquisition and 08028817286 Promotion (NOTAP), 4, Blantyre Street, off Adetokumbo Ademola Crescent, Wuse II PMB 5074 , Abuja Nigeria. Telephone:09-5239823 Fax:09-5240853 University of Ibadan, Ibadan, Nigeria dir_ioas@mail.ui.edu.ng; delelayiwola@yahoo.com; 0803 835 7070 08022981214

43.

Mr. Moshood Adesoye

Fed. Min. of Science & Technology, National Office for Techonology Acquisition & Promotion (NOTAP) / Principal Technology Officer, Monitoring, Extension & Consulting Svcs (MCES)

44.

Prof. Oladele Layiwola

Univ of Ibadan, Director, Institute of African Studies/IK Study Group

45.

Dr. Charles Obafemi Jegede

UI, Faculty of Arts, Dept. of Religion/Institute of African Studies IK Study Group Representative UI, Kenneth Dike Library

University of Ibadan, Ibadan, Nigeria

46.

Ms. Adetoun Oyelude

Univ. of Ibadan, Ibadan, Nigeria Univ. of Ibadan, Ibadan, Nigeria

toyelude@yahoo.com

47.

Dr. Benedict Oladele

UI, Director Kenneth Dike Library

benolak8@yahoo.com librarian@mail.ui.edu.ng; 08033487015 08033831610

48.

Alhaji Chief A. A. Monilola

The Ewegbemi of Ede, Mogaji of Sagun Family Ibadan; Oyo State Advisory Board on Traditional Medicine Practitioners, Ibadan Bioresources Development and Conservation Programme

Ede Ibadan, Nigeria

49.

Ms. Ngozi Aligwekwe

Bioresources Development ngozi@bioresources.org, and Conservation bdcpn@bioresources.org Programme No. 4 Odienna Close, off Libreville Street, Aminu Kano Crescent Wuse 2, Abuja, Nigeria Tel: 234-9-6723041 Nigeria Natural Medicine Development Agency (NNMDA); Fed Min. of Science & Technology, 9 Kofo Abayomi St., Victoria Island, Ikoyi, Lagos skembah@yahoo.com; 08023546561

50.

Ms. Stella N. Mbah

Snr Legal Officer ; Nigeria Natural Medicine Development Agency (NNMDA)

51.

Dr. Afia Zakiya

UI Visiting IK Scholar & Workshop University of Ibadan, Coordinator -AIDIKI Institute of African Studies

azakiya@aidiki.org 08039391349

116

S/N 52.

NAME Dr. Chidi Oguaganaman

TITLE & ORGANIZATION Director, Law & Technology Institute, Dalhousie University Law School, Canada

CONTACT ADDRESS Law & Technology Institute, Dalhousie University Law School Weldon Law Building 6061 University Avenue Halifax, NS B3H 4H9 CANADA

TEL./FAX/EMAIL Tel: +1-902-494-7125 Fax: +1-902-494-1316 Website: http:// lati.law.dal.ca/

53.

Prof Ikechi Mgbeoji

Ikechi Mgbeoji, LL.M., J.S.D., Osgoode Hall Law School Associate Professor, Osgoode Hall 4700 Keele Street, Toronto Law School, Canada M3J 1P3, Canada

Phone: 416 650 8171 Fax: 416 736 5736 website: http:// osgoode.yorku..ca/ ikechimgbeoji stanikaf@yahoo.com

54.

Prof. Stanley Okafor

UI - Dept of Geography; Chairman, IK Study Group UI - Dept. of Urban & Regional Planning; Secr. IK Study Group UI Dept. of Human Nutrition / IK Study Group UI Dept of Geography / IK Study Group Nigeria Natural Medicine Development Agency (NNMDA)

Dept. of Geography, U.I. Dept. of Urban and Regional Planning, U.I.

55.

Prof. Bolanle Wahab

bolanle_wahab@ahoo.com

56.

Dr. Folake Samuel

08077018327

57.

Prof. Lekan Taiwo

58.

Orgah A. Emmanuel

9 Kofo Abayomi St., Victoria Island, Ikoyi, Lagos

08055406951; emmaorgah@yahoo.com

59.

Fabunmi Samuel Kehinde Loveday C. Onyezonwu Dr. A. A. Adedeji

UI, Faculty of Arts, Dept. of Religion UI, Faculty of Arts, Dept. of Religion Nigerian Copyright Commission, Abuja Research Fellow, UI - Dept. of Urban & Regional Planning c/o CEI, UI c/o CEI, UI Herbal Medicine, Ibadan

08024542079; fabunmisk@yahoo.com 08065621039; onyezonwu@yahoo.com 08033587877 woleadedeji2004@yahoo.com 08053603188; ajigbogwadams@yahoo.com 08033241859 08057319396 08066436767 08073017331 Dept. of Urban and Regional Planning, U.I. . 08023278557 07038477322 08034709340 08079863232 sakinfagbemilaw@yahoo.com 08082031221; pcobutte@gmail.com 08023249990;

60.

61.

62.

Mr. J. U. Umar

63. 64. 65.

Prof. G.O.S. Ekhaguse Dr. C.O. Ilori Chief Dr. Afolabi Ayemojuba Chief Isiaka Odebunmi Sola Gbade Mr. Fagbemi Sunday Akinlolu

66.

Native Doctor

67.

Faculty of Law, U.I

68.

Dr. P. C. Obutte

Faculty of Law, U.I

.

69.

Mr. S. O. Akintola

Dept. of Private & Business Law, Faculty of Law, U.I. The Guardian

70.

Mr. Anote Ajewuarai

117

118

Group photo of participants at the University of Ibadan Indigenous Knowledge Study Group Workshop April 20-24, 2009

APPENDIX D

NNMDA DRAFT BILL ON TK

119

A BILL FOR

NNMDA

AN ACT TO PROVIDE FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE, REGULATION OF ACCESS TO BIOLOGICAL RESOURCES AND RELATED MATTERS
Commencement BE IT ENACTED by the National Assembly of the Federal Republic of Nigeria as follows: Short Title 1. This Act may be known as the Traditional Knowledge arid Biological Resources Act. Establishment of the Traditional Knowledge and Biological Resources Management Board 2.(i) There is hereby established a Traditional Knowledge and Biological Resources Management Board, hereinafter referred to as the Board. (ii) The Board shall: (a) grant authorization for the exploitation of biological resources and associated knowledge; (b) negotiate contracts on behalf of communities in a manner that is honest, transparent and equitable to both owners and users of the traditional knowledge and biological resources; (c) assist, where possible and appropriate, holders of traditional knowledge to acquire, use, exercise and enforce their rights over their knowledge; (d) establish a trust fund. The Board shall comprise the following members (a) a Chairman, who shall be a person with considerable knowledge and experience in traditional knowledge and biological resources; (b) one representative each of the following Ministries or Agencies, who shall not be below the rank of Director or its equivalent (i) Federal Ministry of Agriculture and Rural Development; (ii) Federal Ministry of Commerce; (iii) Federal Ministry of Environment; (iv) Federal Ministry of Health; (iv) Federal Ministry of Science and Technology; (v) Federal Ministry of Culture and Tourism; (vi) the agency responsible for traditional medicine development (c) one private legal practitioner of considerable experience in intellectual property law and practice; (d) one representative of traditional medicine practitioners; (e) one representative of traditional rulers; (f) one representative of non-governmental organizations; (g) one representative of the Manufacturers Association of Nigeria; (h) one representative of the Nigerian Bar Association; (i) one representative of universities or research institutions working on traditional medicine or biological resources; (j) the Registrar who shall be Secretary to the Board. 120

(iii)

(iv) (v)

(vi) (vii) (viii) (ix) (x) (xi) (xii)

The Chairman and other members of the Board shall be appointed by the Minister. A person appointed as a member of the Board (not being an ex--officio member) shall hold office for a term of four years and shall be eligible for re-appointment for a further term of four years and no more. The members of the Board other than the Registrar shall be part-time members. The members of the Board shall be paid such remuneration and allowances as the Minister may from time to time determine. The Board may make standing orders regulating its proceedings. The Chairman shall preside at every meeting of the Board and in his absence the members present shall elect one of their number, other than the Registrar, to preside at the meeting. The quorum for meetings of the Board shall be one-third of its members. In considering any application for access to biological resources, the Board shall invite two representatives of the relevant communities to participate in its meetings. The Board may co-opt or call on any person who is not a member of the Commission to attend a meeting of the Board and advise the Board on any matter referred to it by the Commission, but the person shall not count towards the quorum of the meeting and shall not be entitled to vote at any meeting of the Board.

Scope of Protection 3. The protection granted under this Act shall extend to: (i) that traditional knowledge which is: (a) generated, preserved and transmitted in a traditional and intergenerational context; (b) distinctively associated with a community, family or individual, that preserves and transmits it between generations; and (c) integral to the cultural identity of a community or family which is recognized as holding the knowledge through a form of custodianship, guardianship, collective ownership or cultural responsibility which may be expressed formally or informally by customary practices, laws or protocols. (ii) biological resources in both in situ and ex situ conditions including the derivatives of such resources.

Beneficiaries 4.(i) The rights granted in respect of traditional knowledge shall vest in the community, family or recognized individuals within the community, who create, develop, preserve, maintain or transmit knowledge in a traditional and intergenerational context. (ii) Entitlement to the benefits of protection under this section shall be subject to the customary protocols, agreement, laws and practices of the community concerned. Duration 5. The protection of traditional knowledge shall last for so long as it fulfils the criteria of protection set out in section 3 (a) above, except that where traditional knowledge belongs to an individual, protection shall last for 25 years following the first exploitation of the knowledge beyond Its traditional context by that individual or with his consent. Protection of Traditional Knowledge 6. (i) Traditional knowledge shall be protected against the following acts (a) the acquisition, appropriation or use of traditional knowledge by unfair or unlawful means;

121

(b)

(c) (d)

(e)

(f)

(g)

derivation of commercial benefit from the acquisition, appropriation or use of traditional knowledge when the person using that knowledge knows, or is negligent in failing to know, that it was acquired or appropriated by unfair or unlawful means; any other commercial activities contrary to honest practices by which inequitable benefit is derived from traditional knowledge. acquisition of traditional knowledge or exercising control over it in violation of legal measures that require prior informed consent as a condition of access to the knowledge, and any use of traditional knowledge that violates terms that were mutually agreed as a condition of prior informed consent concerning access to that knowledge; false claims of ownership rights in or control over traditional knowledge, including acquiring, claiming or asserting intellectual property rights in traditional knowledgerelated subject matter, when the perpetrator of the act is not the lawful owner of those rights in the light of that traditional knowledge and any conditions relating to access thereto; and commercial or industrial use of traditional knowledge without just and appropriate compensation to the recognized holders of the knowledge, when such use has gainful intent and confers a technological or commercial advantage on the user, and when, considering the circumstances in which the user acquired the knowledge, compensation would be consistent with fairness and equity in relation to the holders of the knowledge. false or misleading representation that a product or service is produced or provided with the involvement or endorsement of traditional knowledge holders, or that the commercial exploitation of products or services benefits holders of traditional knowledge.

(ii)

The acquisition of traditional knowledge shall be deemed unfair or unlawful if it was acquired by theft, bribery, coercion, fraud, trespass, breach or inducement to breach of contract, breach or inducement to breach of trust, breach or inducement to breach of confidentiality, breach of fiduciary obligations or other relations of trust, deception, misrepresentation, or through the provision of misleading information or other unfair or dishonest means when obtaining prior informed consent for access to such traditional knowledge; The application, interpretation and enforcement of protection against unlawful acts, including the determination of equitable sharing of benefits, shall take cognizance of the customary practices, norms, laws and understandings of the holders of the knowledge, including the spiritual, sacred or ceremonial characteristics of the traditional origin of the knowledge.

(iii)

Civil and Criminal Liability 7. (i) Any person who does any of the acts provided in section 6 of this Act shall be liable to the beneficiaries in damages, injunctions, account of profits and any other remedies as may be available in a civil action. (ii) 1. Any person who (a) willfully does any of the acts set out in section 6 of this Act; or (b) willfully misrepresents the source of a traditional knowledge; or (c) commits any other offence under this Act, shall be liable, in the case of an individual to a fine not exceeding N1,000,000 or to imprisonment for a term of 5 years or to both such fine and imprisonment and in the case of a body corporate to a fine not exceeding N50,000,000. (iii) A court before which an offence under this section is tried may order that the infringing or offending articles be delivered to the Commission or otherwise dealt with in any other appropriate manner. 122

(iv)

Notwithstanding the foregoing provisions, the Commission shall have power, after due consultation with the beneficiaries, to act on behalf of the beneficiaries, and to commence and maintain actions for any infringement of the provisions of this Act.

Exceptions 8. Nothing in this Act shall be interpreted to prohibit: (a) the customary practices, exchange, use and transmission of traditional knowledge by their holders; (b) the use of traditional medicine knowledge for household purposes and, subject to fair and adequate compensation, use in the interest of public health; (c) the traditional systems of access, use or exchange of biological resources; and (d) access to, use and exchange of knowledge and technologies by and between local communities, provided that this shall not be taken to apply to any person or persons not living in the traditional and customary way of life of the relevant community. Continuing Use 9. Any person who has been commercially exploiting any traditional knowledge before the commencement of this Act and wishes to continue with such exploitation shall obtain prior informed consent for the continued commercial exploitation of such knowledge from the relevant community through the Board within one year of the coming into force of this Act. Formalities 10. (i) Protection of traditional knowledge under this Act shall not be subject to any requirement of formality. (ii) Notwithstanding the provisions of the foregoing subsection, the Board may for the purposes of identification and documentation require details of traditional knowledge to be maintained in such format and on such terms as may be necessary in the interest of confidentiality and the continued integrity of the traditional knowledge concerned. REGULATION OF ACCESS TO BIOLOGICAL RESOURCES Requirement of Consultation and Prior Informed Consent 11. (1) Access to biological resources and associated knowledge of a community shall be subject to the grant of written prior informed consent by that community, through the Board. (2) Any access to biological resources without the prior informed consent of the relevant community shall be an offence under this Act. (3) The Board may take regulations prescribing the conditions for access to and exploitation of biological resources and associated knowledge. Application Procedure 12. (1) An application for access to biological resources as provided for in the foregoing section shall be made to the Board and shall include the following: (a) the name and address of the applicant and the documents that testify to his legal capacity to contract, including, where appropriate, the name and addresses of his partners; (b) the resources to which access is sought, including the sites from which they will collected; (c) whether any collection of the reources endangers any component of biological diversity and the risks which may arise from the access; (d) the purpose for which access to the resources is requested including the type and extent of research, teaching or commercial use expected to be derived from it. (e) description of the manner and extent of local and national collaboration in the research 123

and development will be carried out; (vi) the identity of any national institutions which will participate in the research or be in charge of the monitoring process; (vii) the identity of the location where the research and development will be carried out; (viii) the primary destination of the resources and their probable subsequent destination(s); (ix) the economic, social, technical, biotechnological, scientifc, environmental or any other benefits that are intended, or may likely accrue to the country, local communities or recognized individuals providing the biological resources as well as the collector and the countries where he operates; (j) the proposed mechanisms and arrangements for benefit sharing; (k) description of any innovations, practices, knowledge or technology associated with the biological resources; (j) an environmental and socio-economic impact assessment covering at least the coming three generations, in cases where the collection of the biological resources is in large quantities; and (m) any other information which the Board may deem necessary for the effective implementation of this legislation. (ii) Every application for access to biological resources shall be advertised in such manner and for such period as may be determined by the Board, so as to be sufficiently accessible to the public. (iii) The Board shall make provision for any person or community to file oppositions and shall have the power to hear and determine all such oppositions. (iv) The decision of the Board shall be subject to appeal to the Federal High Court. Granting of Access 13. (i) Every grant of access under this Act shall be in writing, under seal and shall contain the terms and conditions on which it is granted. (ii) The grant of access shall be subject to the payment of a fee to be determined by the Board. (iii) The terms and conditions referred to in this section shall include commitments and undertakings by the collector: (a) to adhere to a limit set by the Board on the quantity and specification as to quality of the biological resources that the collector may obtain or export; (b) to deposit duplicates or samples of, with complete field information on, each specimen of the biological resources an associated knowledge collected, as may be required by the Board; (c) to promptly inform the Board and the concerned community or recognised individuals of all findings from research and development pertaining to the resources; (d) not to transfer the biological resources or any of its derivatives or any associated knowledge to any third party without the authorization of the Board and the concerned community or recognised individuals; (e) not to apply for any form of intellectual property protection over the biological resources or parts or derivatives thereof and not to apply for intellectual property rights protection over any knowledge associated with the biological resources without the prior informed consent of the Board in consultation with the community or recognised individuals. (f) to provide for the sharing of benefits; (g) to submit to the Board a regular status report of research and development pertaining to the resources concerned and, where the biological resources are to be collected in large quantities, on the ecological state of the source area; and.

124

(h)

to abide by the relevant laws of the country particularly those regarding sanitary control, bio-safety and the protection of the environment as well as the cultural practices, traditional values and customs of the local communities.

(iv)

The grant of access shall be conditioned upon: (a) payment of mutually agreed compensation to individuals, families, communities or local institutions that have facilitated the access to the biological resources; (b) a commitment to contribute economically to the efforts of the State and concerned community in the regeneration and conservation of the biological resources to which access is sought, including the maintenance of associated knowledge;

Terms of grant 14. (i) Notwithstanding the foregoing, the Board may make provision for the compensation of recognised individuals, local communities and institutions. (ii) In granting access, the Board shall convince itself that the research arising therefrom shall, as much as possible, be conducted in the country and in a manner that facilitates the participation as much as possible of actors from the community from which the biological resources were derived. Special Exception Pertaining to Academic and Research Institutions, etc. 15. (i) Nothing in this Act shall be interpreted to prohibit research activities by academic research institutions and public institutions; provided that this exception shall not apply to an institution whose activity, in the view of the Board is predominantly commercial. (ii) The application for access to biological resources for research purposes shall clearly state the objective of the research and no samples collected or any associated knowledge shall be transferred without a material transfer agreement reserving the prior rights of the State, community or recognised individuals as the case may be. Benefit Sharing 16. (i) The State and the relevant community or recognised individuals, shall be entitled to a share of the earnings derived from the use of any biological resources and associated knowledge obtained directly or indirectly from the community or recognised individuals, as the case may be. (ii) The relevant community, and any individuals or institutions who provide information leading to an innovation or a discovery shall be acknowledged in all publications, patents and other intellectual property rights documentations arising from such discovery or innovation. (iii) The Board shall have powers to make regulations on the nature and manner of benefits that shall accrue to the State and the relevant community or recognised individuals. Prohibition of Patents over Life Forms and Biological Processes 17. (i) Notwithstanding any provision in any other law, the grant of patents over life forms and biological processes are hereby prohibited. INSTITUTIONAL ARRANGEMENTS Establishment of the Traditional Knowledge and Biological Resources 18. (i) There is hereby established a Traditional Knowledge and Biological Resources Registry (in this Act referred to as “the Registry”). (ii) The Registry shall be headed by the Registrar of Traditional Knowledge and Biological Resources who shall be appointed by the Commission. (iii) The Registrar shall have an official seal which shall be officially and judicially noticed.

125

(iv)

(v)

There may be appointed one or more Deputy Registrars and one or more Assistant Registrars who shall, subject to the control of the Registrar, have all the powers conferred by this Act on the Registrar, and the most senior of whom shall whenever the Registrar is for any reason unable to perform his duty, act temporarily in his stead. The Registry shall -(a) create and operate a regulatory mechanism that will ensure the effective protection of traditional knowledge and the regulation of access to biological resources; (b) carry out the process of consultation with, and participation of, communities, including families, in the identification of their rights as provided for under this Act or other relevant customary practices and laws; (c) identify types of traditional knowledge and available biological resources; (d) identify and define the requirements and procedures necessary for the recognition of traditional knowledge and biological resources; (e) develop criteria and mechanisms to standardise procedures for the administration of traditional knowledge and access to biological resources; (f) develop a system of documentation and maintain a database on traditional knowledge and available biological resources; (g) maintain a depository of collected and identified samples of biological resources; (h) identify relevant technical institutions that will assist local communities, including families in the identification, categorisation and characterisation of traditional knowledge and biological resources. (i) disseminate information about traditional knowledge and create public awareness; (j) establish a fair and functional reciprocal system of exchange of and sharing of benefits arising from such use

Disclosure of Interest 19. (i) Any member of the Board who has an interest in any matter before the Board, whether pecuniary or otherwise, shall disclose such interest. (ii) A disclosure under subsection (1) of this section shall be recorded in the minutes of the Board, and the member shall not take part after the disclosure, in any deliberation or decision of the Board with regard to the subject matter in respect of which his interest is thus disclosed; (iii) Non-disclosure of interest in accordance with this section shall be deemed to be a serious misconduct for which the member concerned may be removed by the Minister. Database 20. (i) For the purposes of this Act, a database to be known as the Database on Traditional Knowledge and Biological Resources (in this Act referred to as “the Database”) shall be kept at the Registry, in which shall be entered particulars of all identified traditional knowledge that belong to communities and families identified within the territory of Nigeria. (ii) The database shall be kept under the control and management of the Registrar in such manner or form so as to ensure confidentiality and integrity of the knowledge contained therein. Interpretation 21. (i) In this Act, unless the context otherwise requires – “Access” means the acquisition of biological resources, their derivatives and associated knowledge, innovations, technologies or practices. “Benefit Sharing” means the sharing of whatever benefits accrues from the utilisation of biological resources and associated knowledge

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“Biological resources” means genetic resources, organisms or parts thereof, populations, or any other component of ecosystems, including ecosystems themselves, with actual or potential use or value for humanity. “Collector” means any natural or legal person, entity or agent obtaining access to biological resources, local practices, innovations, knowledge or technologies under authority given by the Traditional Knowledge and Biological Resources Management Board. “Community” includes a local or traditional community. “Derivative” means a product developed or extracted from a biological resource and may include such products as plant varieties, oils, resins, gums, proteins etc. “Ex Situ Condition” means the condition in which a biological resource is found outside its natural habitat. “In Situ Condition” means the condition in which a biological resource is found in its ecosystem or natural habitat. In the case of a domesticated or cultivated variety, its condition is in situ when that variety is found in the cultural environment or context in which its specific properties have been developed. “Innovation” means any generation of a new, or an improvement of an existing, collective and/or cumulative knowledge or technology through alteration or modification, or the database use of the properties, values or processes of any biological material or any part thereof, whether documented, recorded, oral, written or in whatever manner otherwise existing. “Prior Informed Consent” means the giving by a collector of complete and accurate information, and, based on that information, the prior acceptance of that collector by the government and the concerned local community or recognised individuals to collect biological resources, or traditional or technologies. “Traditional knowledge” means the content or substance of knowledge that is the result of intellectual activity and insight in a traditional context, and includes the know-how, skills, technologies innovations, practices and learning that form part of traditional knowledge systems, and knowledge that is embodied in the traditional lifestyle of a community or people, or is contained in codified knowledge systems passed between generations.

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