Respect for Cultural Diversity Day: Intellectual Property and traditional knowledge in Argentina
By Raquel Flanzbaum and Josefina Piñeiro.
On October 12th, the Day of Respect for Cultural Diversity is commemorated in Argentina.
It is a day of reflection on the intercultural dialogue that should exist in all areas of our society. We invite you to review the legal protection:
The Argentine National Constitution recognizes “the ethnic and cultural preexistence of the Argentine indigenous peoples” in its article 75, paragraph 17. It refers to the native peoples, a social group of great relevance. Among their rights we could highlight the ownership of the lands they occupy, the respect for their identity, the right to a dignified education and the development of their natural resources.
In terms of intellectual property, the protection of songs, stories, scientific knowledge, works of art, human remains, landscape features, native plant and animal species is essential[1].
As the country adhered -in 1980- to the World Intellectual Property Organization (WIPO), participates in the negotiations carried out within the framework of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (CIG), which aims to create a single international legal instrument to “effectively protecting traditional knowledge, genetic resources and traditional cultural expressions (folklore)”[2].
Although a specific legal instrument has not yet been created, our country is a part of various international conventions, in which the intellectual property protection of such traditional knowledge is recognized. For example, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), approved by the United Nations General Assembly in 2007, states that “indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, their traditional knowledge, their traditional cultural expressions and the manifestations of their sciences, technologies and cultures” […] (art. 21). Along the same lines, the American Declaration on the Rights of Indigenous Peoples establishes that it is necessary to recognize and respect the cultural, tangible and intangible heritage of indigenous peoples and their intellectual property that arises as a result of the transmission of knowledge through the years, from generation to generation (art. 28).
Likewise, our country is a member of the United Nations Convention on Biological Diversity (CBD). Precisely, the CBD acquires special relevance when distributing the benefits of traditional knowledge related to genetic resources. In this sense, it prescribes that each Member State “shall respect, preserve and maintain the knowledge, innovations and practices of indigenous and local communities that involve traditional lifestyles relevant for the conservation and sustainable use of biological diversity […]” (art. 8). Along the same lines, Convention 169 of the International Labor Organization (ILO), referring to natural resources, enshrines the right of indigenous communities to “participate in the use, administration and conservation of said resources”. (art. 15).
In the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS for its acronym in Spanish), approved by Law 24.425 promulgated on December 23rd, 1994, establishes that the member states of the World Trade Organization (WTO) have “The obligation to provide citizens of another State the same protection that they provide to their own nationals”[3]. This objective will be achieved through the creation of internal rules that effectively regulate the intellectual property of indigenous peoples[4].
Regarding internal legislation, Law 25.517 refers to the mortal remains of native peoples, which make up their cultural heritage based on the intense connection with the spiritual practices of their community[5]. It establishes that “the mortal remains of aborigines, whatever their ethnic characteristics, that form part of museums and / or public or private collections, must be made available to the indigenous peoples and / or communities of belonging that claim it” (art. 1).
Provincial constitutions contain specific cases of protection. Such is the case of the Constitution of Chubut Province, which recognizes the indigenous communities existing in the province “the intellectual property and the economic product on the theoretical and practical knowledge from their traditions when they are used for profit” (art. 34, subsection b). Likewise, Law n° 4000 sanctioned in the year 2003 modifies the ninth article of the Constitution of Misiones Province, referring to “social dignity and equality before the law”. The reform established in its first article that “the cultural heritage and intellectual property of native peoples” will be ensured.
To sum up, the vast majority of the aforementioned conventions promote that indigenous communities, together with the States, adopt measures that are effective to protect the exercise of their intellectual rights, thus guaranteeing the protection and conservation of the cultural heritage of the indigenous people and original towns.
Argentina has begun to walk this path in line with the international community. There is still, undoubtedly, much to do, not only from a legal point of view but also from the cross-cultural perspective.
For further information please contact with: rflanzbaum@ojambf.com.
[1] Cf. Sandra Huenchuan Navarro, Cultural and Intellectual Property of Indigenous Peoples: Objects and Approaches to Protection, Austral Journal of Social Sciences, 2004, p. 83, available online at http://revistas.uach.cl/pdf/racs/n8/art06.pdf
[2] World Intellectual Property Organization (WIPO), Traditional Knowledge and Intellectual Property, available online at https://www.wipo.int/edocs/pubdocs/es/wipo_pub_tk_1.pdf
[3] Among other important instruments related to this issue, we mention the following: International Treaty on Phylogenetic Resources for Food and Agriculture of the Food and Agriculture Organization of the United Nations (FAO); the International Union for the Protection of New Varieties of Plants (UPOV), and the United Nations Convention to Combat Desertification (UNCCD).
[4] World Intellectual Property Organization (WIPO), Booklet No. 12: WIPO and Indigenous Peoples, available online at https://www.ohchr.org/Documents/Publications/GuideIPleaflet12sp.pdf
[5] Cf. Ibidem.
