Genetic Resources

Community Intellectual Rights Act

An Act to establish a sui generis system for the protection of the innovations and the intellectual knowledge of local communities.

Interpretation

In this Act the following terms shall bear the following meanings:

(a) 'biological material' refers to the material or any part thereof of plants, animals and micro-organisms, the genes they contain, and in relation to plants or plant varieties, shall include a plant species or category of a lower level or any part thereof or germplasm therein, whether domesticated or not, used in accordance with established customs, practices and laws by local communities for a particular purpose that requires a prior knowledge of a particular property of the plant such as food, medicine and dye.

(b) 'commercial utilisation' occurs when the innovation and any process relating to it or product embodying it is made available for sale in the modern market sector.

(c) 'innovation' shall include any collective and cumulative knowledge or technology of the use, properties, values and processes of any biological material or any part thereof rendered of any, or enhanced, use or value as a result of the said cumulative knowledge or technology whether documented, recorded, oral, written or howsoever otherwise existing including any alteration, modification, improvement thereof and shall also include derivatives which utilise the knowledge of local communities in the commercialisation of any products as well as to a more sophisticated process for extracting, isolating, or synthesising the active chemicals in the composition of biological extracts used by the local communities.

The knowledge is recognised complete with its rituals and sacredness as practised by the community.

(d) 'innovator' shall mean the local community responsible for the innovation.

(e) 'local community' refers to a group of people having a long standing social organisation that binds them together whether in a defined area or howsoever otherwise and shall include indigenous peoples, farmers, and local populations, and shall where appropriate refer to any organisation duly registered under the provisions of this Act to represent their interest.

(f) the 'State' shall refer to the appropriate government ministries or the government as a whole where the context so admits.

1. Custodianship

1.1 The local community shall at all times and in perpetuity be the lawful and sole custodians and stewards of an innovation.

1.2 No innovation shall be sold, assigned, transferred or dealt with in any way whereby the status of the local community as custodians and stewards of the innovation is impaired.

For purposes of removing doubt, any exclusive monopoly rights given in respect of the innovation shall constitute an impairment of the said right.

1.3 Any impairment of the right to the innovation shall be void as against the local community.

2. Free Exchange amongst Communities

2.1 Local communities shall be entitled at all times to grant free access to its innovations and practices in relation thereof to other communities, wherever situate[d], without any payment or reward, provided always that such innovation is not acquired for commercial utilisation.

2.2 Such acquirer shall make the said innovation available to any other community on the same basis and terms as set out in section 2.1 hereof.

3. Use for Commercial Purposes

3.1 Any person, body, organisation or corporation using any innovation or any part thereof for commercial utilisation shall

(a) seek the written consent of the local community;

(b) pay to the local, community which is the custodian or steward of the said innovation a sum representing not less than _______ per centum of the gross sales of any product or process incorporating the said innovation.

3.2 The sum as aforesaid shall be payable even if the said person, body, organisation or corporation uses the said innovation or any part thereof for commercial utilisation without the prior consent in writing of the community PROVIDED always that this is without prejudice to the right of the community to enforce its right to the innovation or any part thereof by injunctive or any other relief it may deem fit to pursue, to prevent or prohibit such commercial utilisation without its consent.

Nothing in this section shall affect the fact that any commercial utilisation without the prior consent of the community is wrongful.

3.3 Any local community may opt to be paid a non-monetary equivalent as may be determined by the local community in accordance with its customs, practices and usages.

3.4 Nothing in this section shall prevent more than one person, body, organisation or corporation from using any innovation or any part thereof for commercial utilisation and at the same or at any other time.

3.5 The payment shall be made:

(a) to an organisation duly registered under the provisions of this Act as representing the local communities;

(b) where no such organisation exists, to the State, which shall hold it in trust for the local community pending its registration under the provisions of this Act;

(c) in respect of an innovation which is, as at the date of the coming into force of this Act, developed by any community, to the State which shall then apply any such monies for the protection, development and maintenance of its genetic resources PROVIDED ALWAYS that if it is possible to identify the local community responsible for the innovation at any time, the payment shall be made to the said local community.

3.6 All monies or their equivalent received by the local community or the State as its trustee shall be applied for such purpose as the local community may decide including but not limited to the protection, development and maintenance of its genetic resource.

4. Registration of Local Community

4.1 Any local community may apply to be registered as an organisation to represent its interests provided that its failure to do so will not prejudice its status as custodians or stewards of its innovation under Section 1.1 hereof.

4.2 Registration shall be affected by the duly authorised representative of the local community attending at the Registry set up under this Act and providing and completing particulars as set out in Form I.

4.3 The Community may change the particulars by attending at the Registry and filing Form II.

5. The Registry of Invention (ROI)

The Community may register its innovation in the ROI provided always that non-registration will not mean that the community was/is not the custodian or steward of the innovation under Section 1 hereof.

6. Proof of Invention

6.1 Upon the duly constituted representatives of the community declaring or acknowledging in a form or manner valid by their laws, customs or practices that they have been using and are the custodians or stewards of an innovation, the innovation shall be deemed to vest in the community.

6.2 Anyone wishing to challenge this will bear the legal evidentiary burden of proof for doing so.

7. Technical Institution

There may be nominated by the communities, technical institutions or any other body, person or persons to help identify and characterise their innovation, as and when they may deem it necessary to do so.

8. Co-ownership

8.1 Nothing in this Act shall prevent any other community or communities wherever situate[d] from establishing their rights to the custodianship or stewardship of an innovation.

8.2 In such event, the community shall be co-stewards or custodians of the innovation.

8.3 The co-stewardship will carry with it the same rights, duties, and obligations as hereinbefore set out save that they shall be co-terminous and enjoyed together with the co-stewards or custodians.

8.4 All benefits that accrue to one co-steward shall enure to the benefit of the other co-steward or co-stewards.

8.5 Each co-steward shall hold in trust all rights, obligations, rewards, remunerations or benefits for the other co-steward or co-stewards.

9. Right to Enforce, Monitor or Further the Innovation

Any State, non-governmental organisation or the local community and/or its duly registered organisation shall have the locus to enforce, monitor and further the local community's right to the innovation and any matters in relation to its utilisation, exchange or impairment, whether in court or elsewhere, provided always that the local community or its duly registered organisation shall have the prior right to do so itself and that the community shall be informed at every stage of the progress of the same.

Acknowledgement

The conceptual framework for these draft laws has been developed by the Third World Network team of scientists and lawyers since January 1994.