Sustaining Local Food Systems,Agricultural Biodiversity and Livelihoods

Protecting IndigenousKnowledge againstBiopiracy in the Andes

Biodiversity registers – a weapon against biopiracy

For centuries Andean communities have beenpillaged for profit by outsiders, and despite recentprogress in recognising the rights of indigenouspeople, these same communities are now dealingwith a powerful new modern threat: biopiracy.Laws designed to protect the ‘intellectualproperty rights’ of inventors are being abused todeprive the rightful owners of generations ofinnovative plant breeding of the fruits of theirlabour.

Peru is one of the most biologically rich areasof the world. It is the region of origin of some180 food crops, including Andean tubers likepotato, oca, olluco, and mashua, as well as Andeangrains and legumes like quinoa, kañihua, kiwicha,tarwi, and pajuro. While this richness is due inpart to the country’s geographic diversity andcomplexity, its cultural diversity has played anequally important role in preserving anddeveloping plant diversity. For centuries, Andeancivilizations and their descendants have beenusing and cultivating wild plants, selectingparticular strains for desirable qualities and

breeding them. New crosses enabled useful plantsto be grown in a wider variety of Andeanmicroclimates, making the communities’ foodsupplies more secure and stable.

But today commercial interests, encouraged bygovernments and international organisationswhose priorities are very different from those ofindigenous peoples, are making the rules. Theyare doing precisely what their rhetoric about freeand open trade condemns. Instead of counting onthe market to buy the best product available,companies are securing their place in the marketby using intellectual property rights to preventothers from competing fairly. Even where patentlaws are designed to encourage innovation anddevelopment and prevent the patenting of lifeforms in their natural state, those with the moneyand the lawyers are able to stretch the limits ofthe law – and even break it. What they arebanking on – usually successfully – is that therightful owners of the germplasm will not havethe money or the contacts to fight back.

Peru should be safe from biopiracy. It is asignatory to both the International Conventionon Biological Diversity and Convention 169 ofthe International Labour Organization. Both

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Protecting Indigenous Knowledge against Biopiracy in the Andes

agreements should provide some protection forindigenous peoples, and some benefits from thecommercial use of traditional knowledge.However, Peru has yet to implement effective,corresponding national legislation.

Specifically, steps need to be taken toimplement Peru’s Law 27811, the Law for theProtection of the Collective Knowledge of IndigenousPeoples Related to Biological Diversity, which hasbeen in effect since September 10, 2002. Similarly,the government also needs to implement theAndean Communities’ Decision 391 whichestablishes a Common Access Regime to GeneticResources (October 21, 1993) that recognises therights of indigenous peoples over knowledge,innovations, and practices; establishes priorinformed consent requirements for indigenouscommunities; and guarantees monetary and non-monetary benefit sharing.

Unfortunately for indigenous peoples in theAndes – whose food security depends on theintegrity of their traditional knowledge systems –national legislation to implement theseinternational and regional commitments has beenstrongly undermined by the recent signing of thebilateral free trade agreement (FTA) between Peruand the United States. Despite Peru’s seeminglyunfaltering advocacy in multilateral fora forprovisions such as prior informed consent,disclosure of origin, and equitable benefit sharing,the FTA fully contradicts such a stance by allegingthat access to genetic resources or traditionalknowledge can be adequately addressed throughcontracts.

This exclusion of any kind of provision toensure that no patents are granted in the USwithout the authorisation of traditionalknowledge holders (the result of strong lobbyingin the US by the biotech and pharmaceuticalindustries) leaves the door wide open for avigorous scaling-up of biopiracy in the Andes. Italso signals the need for innovative approaches toprotect local food systems and to restore localcontrol and rights over traditional knowledge.

The IIED–ANDES Sustaining Local FoodSystems, Agrobiodiversity, and LivelihoodsProgramme in Peru is chiefly concerned withintensifying sustainable agriculture; making localeconomies viable and equitable; sustainablymanaging natural resources; enabling localinstitutions; and creating a supportive policyenvironment for conservation and developmentinitiatives. The abusive exercising of intellectualproperty rights by multinational companies toprivatise indigenous-bred germplasm andassociated ancestral knowledge jeopardises theachievement of all of these objectives and callsfor a locally conceived and driven response thathas repercussions on national and internationalfronts. The Indigenous Biocultural HeritageRegisters are just such a response.

What is biopiracy?

Biopiracy is the illegal appropriation of life –micro-organisms, plants and animals (includinghumans) – and the traditional cultural knowledgeassociated with it. Biopiracy is illegal because, inviolation of international conventions and (wherethese exist) corresponding domestic laws, it doesnot recognise, respect or adequately compensatethe rightful owners of the life forms appropriatedor the indigenous knowledge related to theirpropagation, use and commercial benefit.1

How does it happen?

An inventor, usually a company, claims their‘intellectual property rights’ over a particularproduct, usually by taking out a patent thatprotects their product by allowing the inventor toprevent other people from making, using orselling the product without permission (see Box1). The inventor applies for a patent from thegovernments of the territories over which hewants to assert his rights to prevent others fromusing his invention. Territories can be individualcountries or regions such as the European Union,or the inventor can use the Patent Co-operationTreaty (PCT), administered by the WorldIntellectual Property Organization (WIPO), toapply for an international patent that will apply inas many countries as the inventor chooses. This isall perfectly legal. The problem arises when theproduct is based on plants whose unusual orunique properties are the result of years ofbreeding by farmers whose investment and workis unacknowledged and unrewarded – stolen, ineffect. In these cases the patent holders have failedto both obtain the farmer’s permission – or PriorInformed Consent (PIC) – and agree adequatecompensation.

In some cases, the farmers have unwittinglyhelped outsiders to profit from their work. Areaslike the Peruvian Andes are rich sources ofbiodiversity, but it is estimated that only onespecimen in a collection of 10,000 randomsamples has an identifiable commercial use.2

Consultation with indigenous peoples doublesthis success rate. Searching biological resources 3

Box 1: What is a patent?A patent for an invention is granted by government to the inventor,

giving the inventor the right for a limited period to stop others frommaking, using or selling the invention without the permission of theinventor. When a patent is granted, the invention becomes theproperty of the inventor, which – like any other form of property orbusiness asset – can be bought, sold, rented or hired.

To see the full description of what can and cannot be patented, goto www.patent.gov.uk/patent/whatis/definition.htm.

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and their accompanying indigenousknowledge for commercial exploitationis known as bioprospecting. While notinherently harmful – for example,indigenous peoples have willinglycontributed their knowledge of somemedicinal plants that have led tocommercial medicines – where thereare inadequate safeguards, indigenouspeople have been exploited.

Increasingly corporations arebioprospecting in collaboration withintermediaries, such as universities,governments, and non-governmentorganisations, which are able tocontribute expert yet relatively low-

cost field research and knowledge, andto gain access to biodiversity ‘hotspots’. These intermediaries oftenreceive project funding, scholarships,or technical hardware, while thecorporations retain the vast share ofthe profits. Recently someenvironmental organisations, includingConservation International, havebecome involved in bioprospectingactivities, lending a degree of‘credibility’ to the ventures but alsocasting doubt upon the integrity ofthese organisations’ commitment tosocial justice and environmentalpreservation.3

Box 2: CGIAR protectionThe 15 international agricultural research centres that make up the CGIAR network

encourage the development of agriculture that will benefit all humankind. They recognise thatpatents are often counterproductive to their aims, so all genetic material that is held in theircollections is explicitly unpatentable. Anyone who wants access to any of their materialsmust sign a Material Transfer Agreement, which includes the following clauses:

‘The material is held in trust under the terms of this agreement, and the recipient has norights to obtain Intellectual Property Rights (IPRs) on the material or related information.’

‘The recipient may utilise and conserve the material for research, breeding and trainingand may distribute it to other parties provided such other parties accept the terms andconditions of this agreement.’

‘The recipient, therefore, hereby agrees not to claim ownership over the material, nor toseek IPRs over that material, or its genetic parts or components, in the form received. Therecipient also agrees not to seek IPRs over related information received.’

Nevertheless, as evidenced by the US patent granted to a laboratory cross of Andeannuña bean varieties – some of which belonged to the collection of accessions of CIAT, aColombia-based CGIAR institute – companies that obtain genetic material outside of CGIARgenebanks are succeeding in patenting material that is supposedly ‘in trust’ for the benefitof all humanity.Source: www.cgiar.org/pdf/mta2003_en.pdf

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The biopirates’ booty

Maca extract

A US company, Pureworld Botanicals, has succeededin patenting the isolated composition and processused to produce an extract of maca, a very nutritiousAndean root that has been used for centuries as afood supplement and to increase stamina andfertility. Pureworld markets its product as a ‘naturalViagra’. ‘Andean indigenous communities have beenusing maca for food and medicinal purposes sincebefore the Conquest’, explains Alejandro Argumedoof ANDES, the Quechua-Ayamara Association forSustainable Livelihoods and IIED’s project partners.‘Ironcially, we are now in danger of losing maca – notto extinction – but to predatory US patents.’

You can buy the real thing freshly prepared fromstands in the streets in the Andes, where the roots areblended with water or fruit juice and then mixedwith ‘aguardiente’, a type of alcohol. It is alsoavailable in a dried powder form. But should thepatents ever have been granted? Is Pureworld’sproduct really new and non-obvious? According toProfessor Carlos Cuirós of the University ofCalifornia, Davis, the process patented by Pureworlddiffers very little from the standard procedures thatanyone would use to make an alcohol-based extract,and the end product is not very different to thetraditional product. Pureworld remove the cellulose,but this is likely to make only an aesthetic difference.

Pureworld have at least two US patents onmaca extract, and have patents pending inAustralia, Europe, and at the World IntellectualProperty Organization.

Nuña beans

All germplasm held in the collections of all theCGIAR institutes are held ‘in trust’, and cannot bepatented (see Box 2). Despite this, however, UScompany Appropriate Engineering and Technologyhas been awarded a patent in the US and fromWIPO for a cross of an Andean nuña bean whichinvolves the use of nine accessions from thecollection of CIAT, a Colombia-based CGIARinstitute. All 33 Andean varieties that they cite inthe patent have been bred and developed forcenturies in Peru, Bolivia, Ecuador, and Colombia.

The nuña bean ‘pops’ when it is heated, much thesame as popcorn, and the patent-holders want to sellit as a snackfood. Their development involvedcrossing many strains of nuña bean to produce aplant that can be grown in the US and has the rightshape for industrial agriculture, that is it can beharvested mechanically. In addition to the injusticethat the company is capitalising on hundreds ofyears of development courtesy of Andean farmerswithout asking, acknowledging or compensatingthem, the worry is that this patent will discourage orprevent others – perhaps even the Andean farmerswho are the rightful owners of the knowledge –from developing potentially useful new beans.

Box 3.Can registers bestandardised?

As awareness about the potential ofregisters to protect indigenous knowledgehas grown, so have calls to develop aninternational standard for the data.Inevitably, suggestions for these standardsare often based on the standardsdeveloped for IPR and patenting. Thesestandards are rarely appropriate fortraditional knowledge, however, and arenot flexible enough to include the verythings that make traditional knowledgeunique – not only the social, economic,cultural and environmental dimensions, butalso the spiritual dimensions.

To include all the dimensions oftraditional knowledge any standardisationwill have to involve a flexible frameworkthat is adaptable and sensitive to localrealities. There is also a danger that rushingto agree standards would pre-emptnecessary debate on what form sui generisprotection should take. It would be amistake to agree any standards beforethere is an agreed international regime forsui generis protection of traditionalknowledge.

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Defending indigenous people’straditional knowledge

Given that the indigenous people with whomIIED and ANDES are working do not want andcould not afford to apply for patents on a largescale, other ways to protect their traditionalknowledge are being pursued. One response thatis proving popular and effective in other cases, forexample in India, is the compilation andregistration of traditional knowledge in databases.Each of these databases has been adapted to localneeds, knowledge, and laws. The aim of theseexercises is to thwart the appropriation oftraditional knowledge (TK) by making it publicand accessible, which means that it becomes‘prior art’, and unpatentable.

When a patent application is made, the‘inventor’ must prove that their invention is newand innovative, not simply a discovery, notalready publicly known, and not based on theuncompensated inventions of others. Creatingdatabases of traditional knowledge and makingthem available to patent authorities will ensurethat any false claims of novelty and inventivenesscan more easily be quashed. This will help to

prevent people from patentingknowledge that alreadybelongs to indigenous people,but it is not without its risks.

Some people fear that suchdatabases will simply provideincreased access to traditionalknowledge for the privatesector, without actuallyestablishing the rights ofindigenous people to owntheir knowledge. For this

reason such databases are considered a type of‘defensive protection’, rather than the ‘positiveprotection’ that would be provided by legalrecognition of the rights of indigenous people toown their traditional knowledge.

‘Positive protection’ can only happen when thelegal rights of indigenous peoples to theirtraditional knowledge is recognised. There aretwo ways to assert these rights – through existingIPR regimes or sui generis regimes. There are twotypes of sui generis regimes, declaratory orconstitutive.

Peru has a declaratory regime that recognisesthat rights over traditional knowledge derive fromancestral rights rather than any act ofgovernment, so that knowledge does not have tobe in a declaratory register to qualify.

Panama, however, has a rights regime that goesfurther, granting exclusive property rights overtraditional knowledge to indigenous people.There is a constitutive register, and registration ofTK makes the public aware that indigenouspeople have rights over such knowledge.

The state acquires obligations once it acceptsthat traditional knowledge is cultural patrimony –and as such is inalienable and indefeasible, andshould be protected from third parties wishing toexpropriate or exploit it. Even greater progresswould involve using customary law and practiceas the basis for protecting TK, including definingthe parameters of protection. The case for usingcustomary law is even stronger where treaties orlaws give indigenous peoples or localcommunities rights to full or partial self-governance and/or control access to and use oftheir resources and TK.

Box 4. Why don’t indigenouspeoples use patents themselves?

The concept among Andean indigenous peoples of patentingtheir own knowledge, resources and products is virtually non-existent, and is unlikely to be successful for two main reasons:extremely high costs and, more significantly, cultural values.

Poor farmers cannot pay hundreds of thousands of dollars to winand defend patents as a means of protecting their knowledge andresources. Even if they did pursue intellectual property, businesseswill still be encouraged to isolate, purify, or modify existing biologicalproducts and processes to win patents that are, at least in part, anappropriation and exploitation of someone else’s innovation.

For indigenous peoples whose traditional values and lifestyle arerooted in communal living, shared resources, and theinterdependence of all living things, patenting life is anathema to thevery value system upon which their culture is based. Patents are atool of western societies and reflect values of private ownership andthe pursuit of wealth, which are not paramount in indigenouscultures. Contrary to what the World Intellectual PropertyOrganization and others are promoting, patent regimes are incapableof recognising or rewarding the traditional knowledge and informalinnovations of indigenous people.

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Local Registers in the Potato Park

Quechua subsistence farming communities in theprovinces of Calca and Paucartambo, includingthe ANDES-supported communities in Pisaq,Lares, and Q’eros, are rich in biological andgenetic resources and associated indigenousknowledge. To protect and promote thisbiocultural heritage, during the last four years thesix communities of the Potato Park, anIndigenous Biocultural Heritage Area (IBCHA) inPisaq, have been collecting, documenting, andadministering these traditional resources using amodel fashioned on the work of the DeccanDevelopment Society (DDS) and a women’smedia collective – the Community Media Trust(CMT) – from Andhra Pradesh, India.

In 2002 a group of women from the CMTvisited Cusco as part of the farmer’s exchangesegment of IIED’s Sustaining Local Food Systemsproject. Their visit provided an unprecedentedopportunity for the marginalised Andeancommunities of the Potato Park to learn how toregister indigenous knowledge according theDDS’s model – a Community BiodiversityRegister (CBR). In Andhra Pradesh, the CMTcollaborates with the DDS to encourage andregister local democratic processes and thetraditional knowledge of farmers and other usersof plant and animal biodiversity. A crucial featureof their work is the design of a multimedia

database that enables highly participativeprocesses of both information gathering andrecording. During their time in Cusco, womenfrom the CMT shared their experience and know-how with the Potato Park communities whoreciprocated with productive feedback based ontheir own experience.

The farmer’s exchange led to the furtherrefinement of the Community BiodiversityRegister model for the benefit of bothQuechua people in the Potato Park and womenfrom the CMT. The Potato Park has sincedeveloped its own Indigenous BioculturalHeritage Register (IBCHR) that reflects thedistinct Quechua identity of the Potato Parkcommunities. This local register is based on thetraditional Andean system of khipus, whichwere used in pre-Hispanic times to document awide variety of biological, cultural, economicand demographic information. The Registerplays a key role in contributing to meeting thePotato Park’s management objectives as anIBCHA (see Box 5).

An Indigenous Biocultural Heritage Registercan be defined as ‘a database into whichindigenous peoples put information regarding keycomponents of their indigenous bioculturalheritage (see Box 5) – particularly those resourcesthreatened by biopiracy – in order to gain legalrights relating to that information’.

The Potato Park’s Indigenous Biocultural

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Heritage Register has the following objectives: • To promote respect for and the protection,

preservation, wider application, anddevelopment of the diverse components ofIBCH, especially the collective knowledge ofQuechua peoples and associated native speciesthreatened by biopiracy.

• To serve as a mechanism to claim the Quechuapeople’s collective property rights to theirknowledge and resources; and to identifycollective rights holders.

• To promote the fair and equitable distributionof the benefits derived from the use of theircollective knowledge and resources; and toidentify who might be entitled to benefitsharing.

• To promote the use of IBCH for the benefit ofindigenous peoples and mankind in general.

• To ensure that the use of their collectiveknowledge and resources takes place with theprior informed consent of indigenous peoples.

• To defend against biopiracy and thecommodification of their collective knowledgeand resources.

• To identify resources that can be used to createa local economy using IPR tools such ascollective trademarks and denominations oforigin.

• To promote respect for and the continued useof the Quechua language and customary law, aswell as traditional systems of communicationand information sharing.

• To enable the transmission of IBCH to futureQuechua generations and authorised thirdparties.

• To serve specific, locally identified educational,

social, cultural, spiritual and other purposes.

Key principles upheld by the Register include:• Existing living organisms, including all plants

and animals as well as their genes, are no one’sinvention and should never be patented andput under private control.

• Genetically modified organisms present adanger to the diverse components of IBCH,including traditional knowledge and biologicaldiversity, and should be banned from furtherresearch, development, and commercialisation.

• Free sharing of biological resources,knowledge, and culture should be promoted inrecognition of the inalienable rights ofindigenous peoples.

• To uphold the Andean principle of duality,both scientific and traditional knowledge aswell as positive and customary law should beemployed in a complementary fashion todefend indigenous people’s rights.

Box 5: The Potato Park as an Indigenous Biocultural Heritage Area(IBCHA)

The Potato Park focuses on protecting and preserving the critical role and interdependency of indigenous biocultural heritage(IBCH) for local rights, livelihoods, conservation and sustainable use of agrobiodiversity. IBCH refers to a wide range of traditionalresources – both tangible and intangible – including land, biogenetic resources, traditional knowledge, customary law, spiritual values,and landscapes which are passed down from preceding generations and confer rights to current ones. The Park is located in an areaknown as a microcentre of origin and diversity of potatoes, one of the world’s major food crops which has been protected for centuriesby the deeply rooted local food systems of Quechua peoples. The Potato Park, as its name denotes, celebrates the tremendousdiversity of native potato varieties and other native Andean crops characteristic of Andean food systems. The Potato Park is dedicatedto safeguarding and enhancing these food systems and native agrobiodiveristy using the adaptive and holistic approach described bythe IBCHA model. In the case of the Potato Park, the epistemological bridges prescribed by the IBCH approach link traditional andscience-based understandings of the multiple functions of agricultural biodiversity – including the close interaction between wild anddomestic plant and animal diversity – and how they sustain local livelihoods. The traditional knowledge, innovations, and practices ofQuechua peoples are showcased in the Park for their essentially modern significance and utility including for the purposes ofnutraceuticals, pharmaceuticals, biotechnologies, agroecotourism activities, and community-based conservation. In terms of therights-based approach prescribed by the IBCH approach, the Potato Park is concerned with indigenous peoples’ self determinationand securing Quechua people’s tenure and rights to agricultural biodiversity, local products, traditional knowledge, and relatedecosystem good and services.

The IBCHA model describes a community-led and rights-based approach to conservation which ensures local livelihoods using theknowledge, traditions, and philosophies of indigenous peoples related to the holistic and adaptive management of their landscapes,ecosystems and biological and cultural assets. An IBCHA also incorporates the best of contemporary science and conservation modelsand rights-based governance approaches, including the IUCN’s Category V Protected Areas and Community Conserved Areas (CCAs).As IBCHA, the Potato Park has been proposed as a sui generis system for the protection of traditional knowledge because it aims toprotect TK systems within its cultural, temporal and spatial dimensions using a combination of positive and defensive protection tools.

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Modern technology enlisted in theservice of tradition

The use of computer technology is arguably farremoved from traditional indigenous practices ofmanaging information. Nevertheless, in recentyears indigenous communities around the worldhave come to appreciate the role that computerscan play in documenting, sharing, and protectingtheir collective heritage and history.

While the presence of computers inindigenous communities may seem like a threat totradition, if they are used in a way that isrespectful of customary law and practices, thenthey may instead present an importantopportunity for indigenous culture and values toadapt to and benefit from this technology. TheIndigenous Biocultural Heritage Register in thePotato Park hopes to capitalise on thisopportunity.

On the one hand, the register uses altogethermodern tools for collecting, documenting,storing, and administering the contents of theregister. These tools include:

• A personal computer• Free/open source software• Audiovisual equipment and records• Geographic information systems (GIS)

technology

On the other hand, the register is entirelybased on traditional Andean science andtechnology, with customary laws regulating accessand use both within communities and by externalthird parties. Ensuring that the register iscompatible with the Quechua worldview is notonly a means of promoting respect for and thecontinued use of indigenous knowledge, but isalso essential for creating a system that is easilyunderstood, appreciated, and used by communitymembers in the Potato Park.

The following features of the register make ituniquely compatible with the Quechua worldview:

• Data for the register is first processed using alocally conceived tool (a simple matrix based

on the abacus-like recording device used by theIncas called the yapana) which uses the samelogic and design of the khipu (knot) systemused by the Incas for recording information.The user interface when entering the data intothe computer database reflects the localtaxonomy for organising information in theAndes.

• The programme for entering data into theregister is web-based free/open source software(FOSS) which is compatible with the Quechuacustomary practices of free and open sharingof knowledge.

• The FOSS programme is compatible with thebinary code command sequences that giveorder to the khipu system and uphold theAndean principle of duality.

• The FOSS programme regulates access usingRights Expression Language (REL) that issensitive to Quechua customary law.

The complementary use of both scientific andtraditional knowledge and technologies is inspiredby the Andean principle of duality, an importantpillar of the Quechua worldview according towhich objects, concepts and social structuresnaturally belong in pairs.

This same principle also prescribes the use ofboth positive law (IPR and Traditional ResourceRights) and customary law to reinforce localrights over IBCH and promote the local economy.Although IPR protection of traditionalknowledge is largely considered an inappropriatemechanism to strengthen and empowerindigenous peoples, certain IPR tools whichrespect the communally shared and owned natureof traditional knowledge and property may beused strategically to serve indigenous people’sinterests. The IPR tools employed to protectinformation within the Register include:

• Collective Trademark• Denomination of Origin• Copyrights• Certificate of Origin

By and large, however, the purely economicnature of IPR protection, which implies theprivatisation and commoditisation of traditionalknowledge, does not mesh with indigenouspeople’s own concepts of intellectual propertyand resource rights. Furthermore, the economichardship faced by indigenous peoples and theunequal power relations between themselves andbiopiracy-prone corporations would make it verydifficult for communities to defend their IPR.Traditional Resource Rights (TRR) have beenproposed as a means to provide adequateprotection and compensation for the use of thetraditional knowledge and resources ofindigenous peoples. TRR, while including IPR

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protection, also provide for a protection oftraditional resources – both tangible andintangible – covered under a significant numberof international agreements. The TraditionalResource Rights concept refers to a broad rangeof rights guaranteed by several binding and non-binding international agreements. Some of theTRR most relevant for the protection offered bythe Register include:

• Human rights• Rights to self-determination• Collective rights• Right to development• Right to privacy• Prior informed consent• Environmental integrity• Intellectual property rights• Cultural property rights• Recognition of customary law and practice

Finally, customary law in conjunction withDigital Rights Management is used to establishpre-defined policies for controlling access todigital data in the register (see the section onFOSS below).

Each of the register’s features is discussedbelow, beginning with an overview of the khipusystem which provides the logic and design forthe documentation and registration of collectiveknowledge and uses a binary coding consistentwith the computer technology used to store andadminister this knowledge.

The khipu system

Believed to have been invented by Andeanpeoples sometime during what historians term theMiddle Horizon period (600–1000 AD) andsurviving even the Spanish Conquest, thiscomplex and colourful device of knotted cordsknown as a khipu remains one of the mostremarkable yet elusive communication systemsthat humanity has ever invented4. Remarkablebecause, according to one anthropologist, thekhipu-making process had the capacity to encode26 x 24 (for the 24 colours) = 1,536 distinctinformation units which might have correspondedto detailed information about goods and services,natural resources, taxes, statistics, demographics,laws, norms, ceremonies and rituals, and historicevents. Elusive, because controversy persistssurrounding just how detailed this informationwas, whether or not it verged on the conceptualclarity of written language, and the significance ofproperties such as colour, spin and knotdirection, and decimal and non-decimal notation.

Khipus were created and managed byspecialised Inca accountants, called khipucamayocs.They were spun and tied using cotton and wool,or sometimes both, and were different coloursaccording to the four natural cottons produced bythe Incas – white, light, medium brown, and green– and the diverse pigments of alpaca and llamawool. Dyes were also used to increase the range ofcolours. A khipu consisted of one long ‘primarycord’ to which a series of pendent cords were

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attached. These pendent cords were encoded withinformation in the form of carefully placed knotsas well as additional, knot-bearing, subsidiarypendent cords. Some khipus have up to 10 or 12levels of subsidiary cords. Knots of different sizesand shapes were tied along the cords to registerinformation in integer quantities as well inmultiples of tens, hundreds, thousands, and tensof thousands. Believed by some anthropologiststo be based on a combination of binary anddecimal systems, khipus could record extensiveinformation while avoiding a messy overcrowdingof knots. The final product of the khipucamoyocscould be appreciated for its aesthetic qualities asmuch as for its practical use.

The Yapana Matrix

Although indigenous communities in theAndean highlands of Peru no longer use khipus,the same accounting logic that gave order to thekhipus is very much alive in Quechua communitiesand manifests itself in other record-keepingdevices. For example, anthropologist EnriqueMayer, during his field research in Tangor,described record-keeping using pebbles toestablish who had contributed to communitypublic service. Everyone who had served wascounted by putting a pebble on a poncho placedon the floor by two commissioned record-keepers.According to Mayer, ‘What I saw was socialbehaviour consistent with quipu record-keeping…The commissioned men were not only counting,they were memorising the names and the servicesrendered. Their memories constituted the record,and they remained available as expert witnesses incase of disagreement… Pebbles had replacedknots of the quipu strings’.5

Similarly, although khipus have disappearedfrom the Potato Park communities, the same

rationale of organising information, of whichkhipus were ultimately only one manifestation,remain a fundamental part of a continuouslyevolving body of Andean knowledge alive in thePotato Park today. In order to advance theirobjective of registering indigenous knowledge, thePotato Park communities have developed a simpletool called the Yapana Matrix (as it is based onthe Inca’s abacus-like yapana), which is drawn orlaid out on the floor using chalk or colouredstrings. Although until now the matrix has beenused primarily to document potato varieties,medicinal plants, and associated knowledge, thematrix could be used to document a range ofother traditional resources including otherecosystem goods and services, culturalexpressions, and customary law.

Much like the khipu system, the matrix consistsof rows and columns that quantify informationaccording to the decimal and binary systems. Toquantify information about potatoes, medicinalplants, and associated knowledge, for example, thematrix uses seeds of various colours, shapes, andsizes, similar to the way knots vary in the khipusystem. Additional cultural symbols and Quechualanguage are used in the matrix to indicate specificproperties of the resource or knowledge,including spiritual significance and accessprivileges. Potatoes are classified according tomedicinal, edible, ornamental, ceremonial andritualistic uses. Medicinal plants are classifiedaccording to traditional categories, such as cold,warm, and hot, and uses related to plant andanimal diseases.

Once the collective knowledge and resourceshave been categorised with the matrix, thisinformation is transferred to the web-basedregister in the computer located in the PotatoPark’s interpretation centre. Data entry into thecomputer is made user-friendly for community

members by the user-interface, which reflects thelocal taxonomy of how information is organisedin the Andes. This input is complemented bygraphics, maps, photographs, relevant history andfolklore, and video records prepared in Quechuaby the Potato Park’s video collective. Trained inthe use of video equipment and cameratechniques, the video collective documents therecord-keeping process from start to finish,beginning with the exact place where the resourcewas collected (or with the person from whom theknowledge was retrieved) and ending with thecategorisation of this information within thematrix and subsequent input into the register.

The FOSS for registration of biocultural heritage

In keeping with the Andean ethos of free andopen sharing of information for the greater andwidest possible good and rejecting theprivatisation and commodification ofknowledge, the Indigenous Biocultural HeritageRegister of the Potato Park uses web-basedfree/open source software to administer dataentry, access, and use. The nature of suchsoftware allows it to be adapted to the specificneeds of Quechua knowledge protection andadministration as well as to be shared freely –including through the internet – with otherindigenous communities in and beyond theregion.

Because the web server is administered fromwithin the Potato Park, local communities retainfull control of the software and can be sure thatthe information guarded by the register remainsopen and free according to customary practice.

Like standard computer software, the FOSSwill use sequences (bytes) of eight adjacentbinary digits (0 or 1) which are read as singleunits by the computer. These bytes may bestrikingly compatible with the sequencesencoded in khipus. According to a recentinterpretation by anthropologist Gary Urton,who argues for khipus as an early form ofwriting, the sequences encoded in khipus arebased on a binary code similar to the language oftoday’s computers. Urton hypothesises thatvarying combinations of binary (either-or)options of material, colour, directions in which acord is spun, and the size, shape, and placementof knots could represent values, objects, orevents, much like graphic signs do in writingsystems. Urton sees this binary system as areflection of the underlying Andean principle ofduality. While computers use eight-digitsequences of 1s and 0s, khipus appear to becoded in seven-bit sequences. Such aninterpretation reveals that computers, by usingsequences of binary digits as data units, arereconcilable on a fundamental level with theAndean worldview.

In addition to enabling the input and storageof collective knowledge and resources, theFOSS programme also has as one of its crucialfunctions the regulation of access to thisinformation. In regulating access, theprogramme must negotiate a balance betweenthe Register’s objective of promoting the useof the stored information for the benefit ofindigenous peoples and mankind in general,and its other objectives of respecting Quechuacustomary law, claiming collective propertyrights, and defending against biopiracy. The key

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to striking this balance lies in developing aprogramme that enables free and open accessto the extent that Quechua customary laws arerespected and upheld. Since the Register willbe connected to the internet where webbrowsers operate on Markup Languages –mainly HTML and increasingly, in the future,XML – that provide instructions to computerson how to handle or display the contents of afile, these languages must be capable ofdescribing the rights to the Register’s digitalresources in a manner consistent with Quechuacustomary law.

Moving Picture Experts Group (MPEG), anISO/IEC working group, has already donesignificant work to establish standardised XML-based Rights Expression Languages (RELs) forthe management and protection of intellectualproperty associated with multimedia content.However, these languages – mainly XrML andODRL – have been designed and based oncurrent copyright regimes which fail toadequately protect indigenous knowledge.Building on the work of the University ofQueensland to harmonise RELs withrequirements expressed by the AustralianAboriginal and Torres Strait Islandercommunities for the protection of theirtraditional knowledge, the Register in the PotatoPark will use REL components that can expresscollective ownership, perpetuity of rights, thepayment of royalties to traditional owners, and

access privileges established by Quechuacustomary law.

Access privileges will be expressed usingXML, XML Schema language, and XPath asextensions to existing RELs. These extensionscan condition access to information in theRegister according to a number of factors towhich customary law applies. These include:

• the user’s residency in a particular communityor membership of a particular kinship group;

• the user’s status within the community(president, varayoc, etc.);

• the user’s gender;• the user’s customary role within the

community or kinship group;• the relationship of the user to people,

traditional resources, or knowledge depictedin the information file;

• the death of people recorded in theinformation file; and

• the context in which the information will beused or reproduced.

While the above factors apply to users withinQuechua communities, external third partiesmay also gain on-line access to information inthe database according to a three-level (green,yellow, red) security system also based on RELextension languages. The security systemadministers all content of the Registeraccording to the principle of copyleft, which 13

Five basic steps for registering resources

Step 1 The registration process begins with a bioculturalmapping of the area to identify what resources are to beentered into the register.

Step 2 The resources identified by the mapping activity arethen evaluated using the Yapana matrix tool. Thisevaluation establishes the specific uses of the resource(medicinal, food, and ceremonial) and also determinesthe level of necessary protection.

Step 3 Next the resource is documented using photographs,maps, drawings, and any relevant history or folklore.

Step 4 The next crucial step in the registration process isdocumentation through video of the uses and practices(know how) associated with the resource. A clip,recorded in Quechua, is created that demonstrates (a)the various uses of the resource, alone or incombination with other resources, (b) the know-how orinnovative step of knowledge associated with thisresource, and (c) the applications resulting from the useof this resource. The clip is usually one to two minutesin length.

Step 5 Finally, all the information accumulated in the abovesteps is entered into the computer database as a datafile for the particular resource at hand.

makes the content free and requires allmodified and extended versions of the contentto be free as well.

• Green level access means that information isaccessible to any internet user that enters theRegister’s webpage. Prior Informed Consent(PIC) is implicit. Upon access, users agree tofully recognise the rights of Quechua peoplesover their traditional knowledge andresources, including sui generis property rightsafforded by Peru’s declaratory regime. Usersmust also commit to the sharing of thebenefits derived from the use of theinformation with indigenous peoples.

• Yellow level access means that information isnot available to external third parties withoutthe PIC of Quechua peoples. Only once PIC isgranted can external third parties gain accessto the specific information requested. Uponaccess, users agree to fully recognise the rightsof Quechua peoples over their traditionalknowledge and resources, including sui generisproperty rights afforded by Peru’s declaratoryregime. Users must also commit to the sharingof the benefits derived from the use of theinformation with indigenous peoples.

• Red level access means that information isentirely off limits to external third parties.This information is of a classified nature,accessible only to select individuals inQuechua communities. The REL extensionlanguage’s sensitivity to customary law limitswhich users may access this level ofinformation.

Sacred and secret nature knowledge is notstored in the register. Also, as long as a conditionfor recognising traditional knowledge as prior artis that it be placed in the public domain whereindigenous peoples cannot claim rights over this

knowledge, the Register in the Potato Park willnot serve as a source of evidence of prior art.All levels of access assert Quechua people’s legalrights over their traditional knowledge andresources in accordance with Peru’s sui generisdeclaratory regime.

Lessons learned

The research partners have been working since2000, reviewing existing biodiversity registers inIndia and in other countries and developing thePotato Park register with the community inPeru. During this time a number of importantlessons have been learned that can be applied toall registers that seek to record the traditionalknowledge of indigenous peoples in order toprotect it.

Local systems for managing knowledge andinnovations and for registering, storing andmanaging such information are the mostappropriate tools to protect indigenousknowledge and associated genetic resources. Theblending of traditional knowledge systems andtechnologies with modern ones enables cultureand values to be nurtured for future generations,ensuring equity and Quechua dignity.

The main objective of the register should beto ensure the conservation, protection andpromotion of indigenous peoples’ knowledgesystems for sustaining their livelihoods andtraditional resource rights.

The local register should not be an intellectualproperty tool, but rather a tool to combat thesystem with the system’s own tools. If localregisters served as a source of evidence of priorart this would mean that poor farmers andindigenous peoples would be subsidising the IPRsystem (indigenous peoples would have to investtheir spare resources to make registers for theuse of patent lawyers working for corporateinterests), strengthening a system that we knowis corrupt and predatory of traditionalknowledge systems. Playing such a role wouldmean that the local register would have to bemanaged by a national authority (and managedusing the IPR system to allow patent officers tosearch for prior art), taking away the rights oflocal communities and indigenous peoples to usetheir own institutions and customary laws. Sucha system would allow prior art to become acondition for recognising traditional knowledgesystems. Accepting prior art would also meanthat traditional knowledge systems’ place is inthe public domain, an IPR construct whereindigenous peoples cannot claim rights over thisknowledge.

The body of traditional knowledge in thepublic domain has been placed there mostly bythe unethical knowledge-mining activities ofanthropologists, priests, and other researcherswho never recognised the rights of indigenous14

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peoples. The public domain system does notrecognise any of the core expressions oftraditional knowledge systems (e.g. spiritual,collective nature).

In the past couple of years, traditionalknowledge has been included in free tradeagreement processes and specific provisions ontraditional knowledge have been signed. In theprocess the US was defining their own legalsystems of ‘rights’ to traditional knowledge –framing it as intellectual property – a commodityto be bought and sold under the conventionalrules of exclusive private property. Linking thelocal registers to prior art/public domain wouldreinforce this process rather than protecting itsintegrity. By contrast, indigenous communitiesmay respond to the failure of the state to protecttheir traditional knowledge by using tools, suchas the local register in the Potato Park, based ontraditions of collective use and ownership andguided by the Andean principles of reciprocity,equilibrium, and duality.

Linking the internet commons paradigm (e.g.copyleft) with customary laws in thedevelopment of multimedia database opensource software to protect traditional knowledgemay prove to be more effective than the publicdomain/prior art tools. Internet commonsparadigm and customary laws used to buildRights Expression Languages (RELs) to manageand protect intellectual property associated withmultimedia content would make the open sourcesoftware a strong weapon against biopiracy andstrengthen community rights, autonomy, and selfdetermination.

The Biocultural local register containscomprehensive information on availability andknowledge of local varieties of native potatoesand medicinal plants, prepared at the communitylevel with full participation of knowledgeholders. It also organises and manages

information on the potatoes repatriated from theInternational Potato Centre (CIP). Thisinformation will be maintained by a localcommittee which will provide access to thisinformation under conditions establishedaccording to customary laws.

The Indigenous Biocultural Heritage Registersdescribed here are part of a more comprehensiveapproach to the protection of TraditionalResource Rights in the Peruvian Andes (see thePeru country paper in this series). Indeed, thepreservation of traditional knowledge is unlikelyto be achieved by focusing only on theintellectual component of knowledge systems.Approaches for indigenous knowledgeprotection must be based on a goodunderstanding of the distinct cultural, biologicaland ecological character of traditionalknowledge systems. Moreover, just as intellectualproperty rights facilitate and encourageindustrial innovation through market incentives,mechanisms to protect traditional knowledgeshould be designed to facilitate and encouragetraditional innovations. This means respectingand strengthening the distinct holistic characterand integrity of traditional knowledge systems,including the genetic and biological resources,landscapes, cultural values and customary lawswhich often form an integral part of such diversesystems.

Footnotes1 ‘Bioprospecting/Biopiracy and Indigenous Peoples’, ETC Group, November 30,

1994, www.etcgroup.org/article.asp?newsid=212

2 ‘The Value of Plants Used in Traditional Medicine for Drug Discovery’, Daniel S.Fabricant and Norman R. Farnsworth, March 2001,http://ehp.niehs.nih.gov/members/2001/suppl-1/69-75fabricant/fabricant-full.html

3 ‘Conservation International: Privatizing nature, plundering biodiversity’, AzizChoudry, Grain, October 2003, www.grain.org/seedling/?id=272`

4 For more information about khipu, see http://khipukamayuq.fas.harvard.edu.

5 Enrique Mayer. The Articulated Peasant, Westview Press, Boulder, Colorado,2002. p.128, 129

Box 6. Repatriating the potatoAs part of their efforts to re-establish their rights over the

unique potato varieties that they have grown and bred forthousands of years, the Association of Communities of the PotatoPark approached the International Potato Centre (CIP), which hadheld the rights over native varieties. The result was the signing ofthe landmark Agreement on the Repatriation, Restoration andMonitoring of Agro-biodiversity of Native Potatoes andAssociated Community Knowledge Systems, signed between CIPand the Association of the Communities of the Potato Parkrepresented by the Association for Nature and SustainableDevelopment (ANDES).

The signing of the agreement has so far led to the repatriation ofmore than 400 varieties of potatoes that had been held by CIP. Thesevarieties have been distributed in the Potato Park and replanted inthe area, where they are used for local food security, medicines andceremonies. CIP agreed to pay for the cost of reintroduction as anacknowledgment of the benefits the organisation has derived fromthe indigenous knowledge of the region.

At IIED:

Dr Michel Pimbert Director of the Sustainable Agriculture,Biodiversity and Livelihoods Program, Overall project coordinator IIED – International Institute for Environment and Development 3 Endsleigh Street, London, WC1H 0DD, UK Tel: +44 (0)20 7388 2117 E-mail: michel.pimbert@iied.org Websites: www.iied.org

www.diversefoodsystems.org

In Peru:

Ingeniero Alejandro Argumedo Country Coordinator, ANDES –Asociacion Kechua-Aymara para Comunidades Sustenables Apartado 567, Cusco, Peru Tel: +51 (0)84 245021 E-mail: andes@andes.org.pe

slfsal-peru@terra.com.pe

How – and under what conditions – can diverse, localised food systems be sustained in the twenty-firstcentury? Who gains and who loses when local food systems are strengthened? These are some of thequestions examined by the Sustaining Local Food Systems, Agricultural Biodiversity and Livelihoods project.

This project combines a political ecology perspective on food systems and livelihoods with action researchgrounded in local practice. As such it seeks to bridge the gap between the academic orientation of politicalecology and the largely activist focus of food sovereignty, human rights and environmental justice movements.

The decentralised management of agricultural biodiversity by farmers and their communities is increasinglyseen as a prerequisite for sustaining food systems, livelihoods and environments. Although the internationalcommunity does emphasise the need to involve farming and local communities more centrally in themanagement of agricultural biodiversity, there are huge gaps in knowledge and institutional constraints that limitnational capacities to scale up these approaches. In order to help fill these gaps, this research seeks to analysehow and under what conditions can decentralised governance, farmer participation and capacity buildingpromote the adaptive management of agricultural biodiversity in the context of localised food systems andlivelihoods.

The project is working with partners in four different countries, India, Iran, Indonesia and Peru. The researchadopts an international, action-oriented, interdisciplinary and case study approach that builds on the expertiseof local resource users and national and international partners. Throughout, the emphasis is on doing researchwith, for and by people – rather than on people – for learning and change.

PERU The action research facilitated by ANDES (Quechua–Aymara Association for Sustainable Livelihoods) andIIED emphasises participatory and people-centredprocesses in sustaining local food systems, diverseecologies, livelihoods and culture.

INDONESIAWorking with a new foundation, FIELD – FarmersInitiatives in Ecological Literacy and Democracy – theproject builds on the pioneering approach to farmertraining, the Farmer Field School, and their work oncommunity integrated pest management (CIPM),which depends heavily on both using functionalbiodiversity to control rice pests and co-ordinatingaction by farmers to sustain local livelihoods andchange policies.

IRANDialogues with partners identified in Iran have focusedon a ‘learning by doing’ project aimed at revivingnomadic pastoralism and associated livelihoods andagricultural biodiversity. The Centre for SustainableDevelopment (CENESTA) is IIED’s project partner inthis endeavour.

INDIALocal control over biodiversity important for food andagriculture in the drylands of Andhra Pradesh is thefocus in India. IIED’s partner is the DeccanDevelopment Society, and joint work between localfarming communities and women’s collectives(sanghams) has grown out of village-level dialogueswhere farmers identified priorities and opportunitiesfor this participatory action research.

CONTACTS:

ISBN (13) 978-1-84369-645-2 ISBN (10) 1-84369-645-2