Indigenous Peoples’ Rights and Intellectual Property: From the Knowledge Dommons to ABS Agreements (WITHDRAWN)

Abstract

Intellectual property rights (IPRs) on biological resources and traditional knowledge are criticized for increasing corporate control and lacking ethical considerations for Indigenous peoples and local communities. Access and benefit sharing (ABS) agreements are considered useful policy instruments for addressing issues of bioprospecting and biopiracy by securing developing countries and Indigenous peoples’ rights on their biological resources and traditional knowledge. Building on the theory of knowledge commons, we examine the international governance regimes for access to genetic resources and the fair and equitable sharing of benefits arising from their utilization. We then investigate three case studies of bioprospecting and biopiracy in South Africa to examine the processes of designing and implementing ABS agreements in favor of Indigenous peoples. Highlighting the wide-ranging consultation that needs to take place as part of this process, our analysis of these ABS agreements provides useful insights for the development of innovation and intellectual property policies that include traditional knowledge in a spirit of social justice, economic development and biodiversity conservation and sustainable use. In doing so, we contribute to ongoing debates about IPRs impacts by establishing that IPRs can be beneficial for society when provided to Indigenous peoples for protecting their traditional knowledge. Moreover, we provide a more nuanced understanding of the knowledge commons by determining how ABS agreements promote collective forms of ownership that regenerate traditional knowledge commons in line with customary rights.