SARCHi Law, Society, & Technology Biodiversity Conservation and Management: Intellectual Property Aspects of Indigenous Medicinal Plants Related Innovations in Central Africa Dr. C. J. Nwabueze SARCHi Law, Society, & Technology College of Law UNISA

Biodiversity Conservation and Management: Intellectual Property Aspects of Indigenous Related Medicinal Plants Innovations in Central Africa CONTENTS 1. Introduction 2. Geographical Overview 3. State of Biodiversity & Medicinal Plants in the Region 4. The International Intellectual Property Legal Framework TRIPS Agreement CBD Convention: Trends of Protection WIPO - IGC OAPI: Bangui Agreement Scope of Protection 5. Issues arising from unbalanced IP Standards 6. Imperative for appropriate standards 7. Recommendations and Conclusion

I. GEOGRAPHICAL OVERVIEW

BACKGROUND The World Health Organization (WHO) defines traditional medicine as “the sum total of the knowledge, skills and practices based on the theories, beliefs and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health, as well as in the prevention, diagnosis, improvement or treatment of physical and mental illnesses”. It is thought that Central Africa has the highest number of plant species per unit area of any region in the world. Forests in Gabon for example are richer in plant species than those in West Africa. Traditional medicine that has been adopted by other populations (outside its indigenous culture) is often termed complementary or alternative medicine. The World Health Organization (WHO) reported that 80% of the emerging world’s population relies on traditional medicine for therapy.

BIODIVERSITY & MEDICINAL PLANTS IN CENTRAL-WEST AFRICAN REGION Central Africa Forest: Source of economic for wealth for indigenous/Medicinal Plants

Centella asiatica (L.) Urb. (Apiaceae)—Centella SOME MEDICINAL PLANTS WITHIN THE AFRICAN ORGANISATION OF INTELLECTUAL PROPERTY MEMBER STATES Centella asiatica (L.) Urb. (Apiaceae)—Centella Senegal Gum Arabic Apocynaceae Madagascan Periwinkle

GEOGRAPHICAL OVERVIEW: Bayaka Pygmies in Central Africa Forest, Important knowledge holders

II. STATE MENT OF THE PROBLEM

BIODIVERSITY & MEDICINAL PLANTS Biodiversity is defined here as “the variability among living organisms in the terrestrial and aquatic ecosystems of the Central African forests”. This includes diversity within species, between species and of ecosystems (according to hooper et al., 2005). The use of medicinal plants as a fundamental component of the African traditional healthcare system is perhaps the oldest and the most assorted of all therapeutic systems. Traditional medicine is the sum total of knowledge, skills, and practices based on the theories, beliefs, and experiences indigenous to different cultures that are used to maintain health, as well as to prevent, diagnose, improve, or treat physical and mental illnesses Today several medicines owe their origin to medicinal plants. Natural substances have long served as sources of therapeutic drugs, where drugs including digitalis (from foxglove), ergotamine (from contaminated rye), quinine (from cinchona), and salicylates (willow bark) can be cited as some classical examples.

Participation of communities, groups and individuals Indigenous Intellectual Property Empowerment : Enabling Legal standards or not? Participation of communities, groups and individuals Within the framework of its safeguarding activities of the intangible cultural heritage, each State Party shall endeavour to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management.. Art. 15. UNESCO Convention,for the Safeguarding of ICH,, 2003.

LEGAL RECOGNITION OF INDIGENOUS UNDER THE INTELLECTUAL PROPERTY SYSTEM IN MEDICINAL PLANTS? Intellectual Property Laws= Reward of creations of the mind ISSUE: Has the IP System at the international Level and in Central Africa integrated the indigenous in medicinal plants so as to enhance economic growth? Image placeholder

III. Legal Framework: International IP rights and Biodiversity, Can the two co exist?

Several Issues Arising in the course of Use of Medicinal Plants Indigenous access/control over drugs resulting from exploitation of medicinal plants resulting from their communities. Illegal collection and Patent application without the prior consent /recognition of concerned indigenous. Sharing of benefits Etc.

IV. INTERNATIONAL AND REGIONAL INTELLECTUAL PROPERTY LEGAL FRAMEWORKS

KEY ISSUE Plants are always considered as a primary source of drugs in traditional and alternative system of medicine: Patentability And Ownership could enhance development. Intellectual property laws influence innovation and technological changes drives. But Is the international IP legal system an enabling tool for indigenous development?

Convention on Biological The IP System in medicinal plants and Intellectual Property Rights (IPRs) Dispositions not taking into account particularity of traditional medicinal plants . Plant Patentability . Databases - TRIPS - OAPI Intellectual Property existing laws Statutory Requirements No constraint in case of IP infringement Biodiversity Law Convention on Biological Diversity Specialised legislations Colour scheme for graphics / charts Oriented Towards Biodiversity security

TRIPS Agreement: The Agreement on Trade-Related Aspects of Intellectual Property Rights Non Suitability of TRIPS standards to the recognition/protection of traditional medicinal plants under IP existing regime Art. 27.3 (b) Members may exclude plants and animals other than micro organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes Limitations to the patentability of medicinal plants Art. 27.1.Issue of the requirement of novelty non suitable for medicinal plants used over centuries in Central Africa region.

CBD Convention: The Convention on Biological Diversity Principle of States’ Protection of IPRs in Biodiversity related matters. Art.16.5 Contracting Parties shall cooperate to ensure that IPRs are supportive of and do not run counter to the CBD's objectives. Lack of constraint from CBD convention in case of non recognition of IPRs in Biodiversity related matters. - Art.22 :The provisions of the CBD Convention will not affect rights and obligations of countries to other existing international agreements, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.

Regional Framework (OAPI): Non Integration of Traditional Knowledge Holders in the Regional Patent System Annex III, Bangui Agreement Art. 2 (1) An invention that is new, involves an inventive step and is industrially applicable may be the subject of an invention patent. Art. 3(1) An invention shall be new if it has not been anticipated by prior art. Art.3 (2) Prior art shall consist of everything made available to the public, in any place and by any means or method… The Regional Intellectual Property Code regulating IP matters in Central has not taken into account the particular features of traditional knowledge.

AFRICAN ORGANISATION OF INTELLECTUAL PROPERTY (OAPI) Patent Legislation molded after western standards Provision for blocking access to tradional knowledge holders to the Patent System Prohibition of patentability of disclosed knowledge Prohibition of patentability of ancient knowledge Bangui Agreement Failure to integrate the features of TK FOLKLORE Copyright Law Cultural Heritage Specialised related legislations Colour scheme for graphics / charts Not meeting the needs of TK HOLDERS

v. ISSUES ARISING FROM AN UNBALACEND IP SYSTEM

The issue of management of natural resources Biodiversity refers to the existence of many different kinds of plants and animals in an environment. The Central African forest is an important source of food, materials and medicine for more than 80 million people who live in the region. Economic growth and poverty alleviation are dependent on the effective and sustainable use and sound management of natural resources. “Traditional” means that the knowledge is created in a manner that reflects community traditions; it is often inter-generational and created and held collectively. The way in which the knowledge is created, preserved and transmitted such as prescribed under international standards is contrary to African traditional standards

IP Laws v/ Traditional Medicinal Plants: State of Contrasts Requirement under existing IP Laws Novelty and Non Disclosure Plant must be quality new, original, or unusual. Inventive Step and Non-Obviousness The medicinal plant should be sufficiently inventive. Industrial Applicability The medicinal plant must be used at the industrial level. Traditional medicinal Plants Used for generations Inherited, not discovered or invented. Disseminated in Local Communities Part of traditional cultural heritage. Collectively managed. Documented in publicly available sources This defeats the requirement of non disclosure under existing IP laws. Do not satisfy requirements under existing IP laws

EXPLOSION IN IMPORT/EXPORT TRADITIONAL MEDICAL DRUGS IN CENTRAL-WEST AFRICA Will Intellectual Property Laws meet the needs of traditional medical knowledge holders?

V. Recommendations & Conclusion

Recommendations & Conclusions The TRIPS Agreement should be amended to enlarge the scope of patent protect and welcome the patentability of plants. WIPO under the IGC Committee for the protection of Traditional Knowledge could consider an international binding instrument considering traditional holders’ perspective, not limited to western view of rights. 3. The African Organisation of Intellectual Property could follow the examples of India, South East Asia and enact sui generis laws for the IP protection of traditional medicinal plants. 4. Documentation should be considered.