Ancient indigenous deoxyribonucleic acid (DNA) and intellectual property rights

Abstract

The ownership/custodianship of extracted ancient indigenous deoxyribonucleic acid (DNA) from ancient indigenous human remains has received little critical legal examination. This article argues that an intellectual property framework would become the likely, however unsuitable, legal framework for the exploitation of ancient indigenous DNA through the vehicle of patents. As yet this is a hypothetical discussion as this new indigenous resource remains unexploited. The dilemma raised for indigenous peoples is this: how can they best control and protect their ancestors DNA extracted from human remains, especially as recently commodified objects. Part 1 highlights the differences between perceptions about property from an indigenous perspective and a ‘Western’ legal perspective. Part 2 examines the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and ownership of ancient indigenous DNA. Part 3 examines the work of the World Intellectual Property Organisation (WIPO) Intergovernmental Committee on Intellectual Property and Traditional Knowledge, Genetic Resources and Folklore (ICG) and the possibility of an indigenised intellectual property framework and/or sui generis protection.