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Biodiversity part 3.vpBiodiversity & Health: Focusing Research to Policy Use of Traditional Knowledge for University
Research: Conflicts Between Research Ethics
and Intellectual Property Ownership Policies
Abstract: The cultural knowledge of Aboriginal communities has been a long-time interest of social scien-
tists. More recently, researchers from natural sciences and biotechnology have also taken an interest in
“traditional knowledge”, for example, knowledge about medicinal plants. Research that involves the
cultural knowledge of Aboriginal communities — especially that with perceived commercial value — is
demanding an understanding on the part of all university researchers and university administrations of both
ethical and legal issues, as well as how research ethics and intellectual property ownership policies are
interrelated. While research ethics and intellectual property ownership policies in Canada are both evolving
to meet the demands of new and complex situations, a key question is whether they are evolving in isola-
tion of one another — and if so, where continued divergent evolution leads. This paper examines the cur-
rent state of ethical research guidelines and intellectual property ownership policies at universities in
British Columbia, and identifies how these policies may foster, impede, or channel the protection and
promotion of traditional knowledge.
a clear understanding of both the ethical and legal issues, as well as how research ethics and intellectual property owner- The cultural knowledge of Aboriginal communities has long ship policies interrelate. Given the increasingly political di- been of interest to university researchers in social sciences, mensions of research involving traditional knowledge, an such as ethnographers and anthropologists. More recently, understanding here is important for not only university ad- there has been increased interest in traditional knowledge1 ministrations, but for all university researchers — no matter by researchers from natural sciences and biotechnology (e.g., phytochemists, microbiologists, pharmacologists).
Generally, social science is more qualitative and contextual In Canada, academic research ethics and intellectual prop- (e.g., understanding the cultural systems of which traditional erty ownership policies are both evolving to meet the de- knowledge is a part), and social scientists tend to have a mands of new and complex issues. A key question, though, greater awareness of ethical issues in research that involves is whether they are evolving in isolation of one another — humans because working with people is often the nature of and if so, where continued divergent evolution leads. The their research. By comparison, researchers from the natural purpose of this paper is to examine the current state of ethi- sciences and biotechnology tend to be interested in quantita- cal research guidelines and intellectual property ownership tive approaches and the more technical or applied aspects of policies, using as an example the four main universities in cultural knowledge, and usually have less to do with the British Columbia to identify how these policies affect the people who are the knowledge holders. Given the numerous protection and promotion of traditional knowledge. The pa- opportunities for industrial research partnerships these days, per begins with a summary of research ethics policies and natural scientists are usually more aware of issues related to intellectual property ownership policies at universities in intellectual property ownership of their research products.
British Columbia, then discusses issues relating to use of tra- ditional knowledge by university researchers and potential However, research involving traditional knowledge — espe- consequences when ethics and intellectual property owner- cially that with perceived commercial value — is demanding Kelly Bannister. POLIS Project on Ecological Governance, Faculty of Law and School of Environmental Studies, University of
Victoria, University House 4, PO Box 3060, Victoria, BC V8W 3R4, Canada.
Correct citation: Bannister, K. 2005. Use of Traditional Knowledge for University Research: Conflicts between Research Ethics
and Intellectual Property Ownership Policies. In Biodiversity & Health: Focusing Research to Policy. Proceedings of the
International Symposium, held in Ottawa, Canada, October 25–28, 2003. Edited by J.T. Arnason, P.M. Catling, E. Small, P.T.
Dang, and J.D.H. Lambert. NRC Research Press, Ottawa, Ontario. pp. 122–129.
1There is no single agreed definition of “traditional knowledge”. In this paper, the term refers to the knowledge, beliefs, innovations, and practices derived from customary uses and associated cultural practices and traditions of Aboriginal peoplestransmitted through oral tradition and first-hand observation (CBD 1992; Laird 2002).
Bannister: Use of Traditional Knowledge for University Research Academic Ethical Standards
ples include: respect for human dignity, respect for free and informed consent, respect for vulnerable persons, respect for Research ethics standards for Canadian universities are set privacy and confidentiality, respect for justice and inclusive- by the Tri-Council Policy Statement: Ethical Conduct for ness, and balancing of harms and benefits (i.e., minimizing Research Involving Humans (TCPS 1998). This policy state- harm and maximizing benefit). While recognized as impor- ment governs all research at institutions financially sup- tant, an over-emphasis on individual rights of research sub- ported by the three national funding councils: the Natural jects has been cited as a major criticism of the policy from Sciences and Engineering Research Council (NSERC), the the perspective of working with Aboriginal communities or Social Sciences and Humanities Research Council (SSHRC), other self-defined collective groups (Weijer et al. 1999; and the Canadian Institutes of Health Research (CIHR)2.
The mandate of the three councils is “to promote, assist and undertake research” in their respective domains. The Tri- Section 6 of the Tri-Council Policy Statement specifically Council Policy Statement was adopted in 1998 to “promote addresses research involving Aboriginal peoples. As this research that is conducted according to the highest ethical section was based on the extensive literature available rather standards” (TCPS 1998). As a condition of funding, the than on discussions with affected peoples or groups, it has councils require that researchers and their institutions apply been “in abeyance” since its inception in 1998, pending dis- the principles in the Tri-Council Policy Statement as a mini- cussions with Aboriginal representatives and affected com- mum standard. Further, the councils require institutions to munities (TCPS 1998; McDonald 2000). Section 6 have a research ethics board that evaluates all research in- acknowledges that research with Aboriginal communities in- volving human “subjects” through an ethical review pro- volves extra complexities, and suggests incorporation of “ad- cess3. Specifically, ethical review is required for activities in- ditional requirements [rather than separate standards] to volving “research”, defined as “ a systematic investigation to ensure that the rights and interests of the community as a establish facts, principles or generalizable knowledge”. The whole are respected”. Among others, these requirements in- research must also involve “research subjects”, which are broadly defined in article 1.1 but essentially exclude re- • consideration of past harms to individuals and communi- search involving public policy issues, the writing of modern ties incurred by expropriation of cultural properties and history, literary or artistic criticism, critical biographies of the deceased, or research about living people if based exclu- • respect for the culture, traditions, and knowledge of the sively on published works (TCPS 1998). A key element of the ethical review process is the development of a Letter of • consideration of the interests of the Aboriginal group Consent intended for individual research subjects or partici- when property or private information belonging to the pants to sign as evidence of their prior informed consent to be involved in the research. Most institutions will accept jus- tification for verbal consent instead, if written consent is not • conceptualization and conduct of the research as a part- • adjustment of the research to address the needs and con- In theory, implementation of the Tri-Council Policy State- cerns of the Aboriginal peoples involved; ment has involved an elaborate scheme of cooperation be- tween various national and institutional entities, including • willingness to deposit data and other research outcomes in the three councils, their presidents, and respective commit- tees or secretariats, a national advisory council (National • the opportunity for the community to react and respond to Council on Ethics in Human Research, NCEHR4), and indi- vidual research institutions5. In practice, implementation of Section 6 has been subject to criticism by Aboriginal and the Tri-Council Policy Statement has been largely left to in- non-Aboriginal researchers alike, largely for what it lacks dividual institutions, which in turn, rely heavily on the integ- and its ambiguities, and for the length of time it is taking to rity of individual researchers for voluntary compliance, address the shortcomings. Recently, several national initia- facilitated through their institutional research ethics board.
tives have been instigated to respond to general problems Ethical norms for university research have arisen largely with the Tri-Council Policy Statement, although it is unclear from a biomedical model, wherein recognition of the auton- which specific issues will be addressed by each initiative or omy of the individual and protection from harms are key ele- if the initiatives are even coordinated. For example, in No- ments. As such, the Tri-Council Policy Statement requires vember 2001, the Interagency Advisory Panel on Research commitment of researchers to respect some fundamental eth- Ethics (PRE) was created by the three councils to further the ical principles of research and human rights. These princi- evolution and implementation of the Tri-Council Policy 2CIHR was formerly the Medical Research Council of Canada (MRC).
3“Subjects” is the arguably antiquated language retained by the Tri-Council Policy Statement and some institutions. Despite extensivediscussion on alternative terms (e.g., participants), the councils chose to retain “subjects” because “it is they who bear the risks of the re-search” (TCPS 1998).
4NCEHR includes representatives from key organizations in clinical research as well as the public. It serves an advisory role to researchethics boards in interpreting ethical guidelines. See http://www.ncehr-cnerh.org.
5A schematic of implementation was formerly available at http://nserc.ca/programs/ethics/english/tric_chart_e.htm [cited 23 May 2003].
Biodiversity & Health: Focusing Research to Policy Statement, as well as to engage a wider public and expert tent implementation of the Tri-Council Policy Statement, audience on research ethics in Canada (PRE 2002). In addi- these achievements may still be years away. In the mean tion, PRE is establishing a special working committee on so- time, interpretation and implementation are left to individual cial sciences and humanities to respond to gaps, ambiguities institutions, their research ethics boards and special sub- of language, and inadequate treatment of priority issues for committees in some cases, which are often comprised of fac- these disciplines6; undoubtedly research involving Aborigi- ulty members serving in a volunteer capacity9, with little or nal communities and their cultural knowledge will be identi- no means of adequate oversight or enforcement (typically, fied as a priority issue. Furthermore, both SSHRC and CIHR research ethics boards are mandated to approve research have their own, more specific initiatives related to ethics of projects before the project begins and to review annual prog- research involving Aboriginal communities. SSHRC initi- ress reports submitted by the researcher). Concrete and con- ated a national dialogue in 2002 on “research and Aboriginal sistent guidance across academic institutions for research peoples” to identify key funding priorities and outstanding involving Aboriginal communities or their cultural knowl- issues7. The CIHR Institute of Aboriginal Peoples’ Health, edge is still lacking in Canada. More specific guidelines or which funds initiatives to improve the health of Aboriginal protocols that are emerging from individual institutions peoples in Canada, has developed its own guiding principles and/or collaborating communities may provide useful exam- for working with Aboriginal communities and their knowl- ples to inform the national discussion10. In the interim, sig- edge based on the principle of respectful collaboration nificant responsibility resides with individual researchers to (IAPH 2001–2002). Both these initiatives have had rela- interpret the Tri-Council Policy Statement and their institu- tively strong participation and support so far by Aboriginal tional ethics guidelines in ways that are consistent with the peoples from within and outside of academe. In 2004, a national Working Group on Aboriginal Ethics was estab- lished by the CIHR Institute of Aboriginal Peoples’ Health in collaboration with the CIHR Ethics Office to facilitate the Academic Research and Intellectual
development of ethical guidelines for health research funded Property Ownership Policies
by CIHR. The Aboriginal Ethics Working Group will share information and reports with PRE for use in revisions to Unlike research ethics policies in Canada, there is no na- Section 6 of the Tri-Council Policy Statement.
tional body that oversees academic research and intellectual property ownership policies. Each university determines its At the institutional level, some universities in British Colum- own policies, in compliance with Canadian and international bia, such as the University of Victoria (UVic) and the Uni- law and according to its institutional mandate. In general versity of Northern British Columbia (UNBC), are terms, university ownership can be categorized as either “in- developing a special sub-committee on human research eth- ventor as owner” or “institution as owner”. Simon Fraser ics to review research that involves Aboriginal communities University (SFU), UVic, and UNBC can be placed in the or cultural knowledge. Both institutions are developing more former category. Excluding copyright, the University of Brit- specific ethics policies to guide research in an Aboriginal ish Columbia (UBC) falls into the latter category context and/or provide general protocols for involvement of (MacGregor 2003; Tolson 2003; Volker 2003; UBC 1993, Aboriginal Elders or other community members in univer- Policy #88). More specific comparisons of patent and copy- sity courses and events (Brunt 2003; MacGregor 2003). For right policies are provided below as these are typically seen example, a draft document called “Protocols and Principles as most relevant to academic research involving traditional for Research in an Indigenous Context”, originally devel- oped by the Indigenous Governance Program at UVic, is un- der revision for adoption by the Faculty of Human and Copyright
The current state of academic research ethics guidelines is At UBC, ownership of and copyright to most “literary thus both dynamic and fractionated at the national level.
works” produced in connection with the university are New academic funding initiatives, which provide increased vested in the originator, with the exceptions of audiovisual opportunities for research involving Aboriginal communi- and computer materials (i.e., audio and video tapes, slides, ties, are adding incentive for revision of relevant ethical photographs, films, computer programs, and computer- guidelines8. However, while effort is being directed toward stored information). These excluded works are considered more appropriate content, uniform interpretation, and consis- “inventions” and are assigned to the university if there is a 6See http://www.nserc.ca/programs/ethics/english/nomination_e.htm [cited 23 May 2003].
7See http://www.sshrc.ca/web/whatsnew/initiatives/aboriginal_e.asp [cited 23 May 2003].
8For example, through the Community–University Research Alliance funding initiative of SSHRC, the Institute for Aboriginal Peoples’Health funding streams of CIHR, and the new Aboriginal Research pilot program of SSHRC.
9In addition to faculty members, the research ethics board composition of SFU includes a student and two members from the communityoutside the university (SFU 2001, policy r20.01), and that of UNBC includes at least one community member with no affiliation with theuniversity (UNBC 1995, section 4.2).
10For example, the Standard of Conduct for Research in Clayoquot and Northern Barkley Sound Communities developed by the ClayoquotAlliance for Research, Education and Training (available at http://www.clayoquotalliance.uvic.ca/), the Mi’kmaq Research Principles andProtocols (available at http://mrc.uccb.ns.ca/prinpro.html) and the ‘Namgis First Nation Guidelines for Visiting Researchers/Access to Infor-mation (available at http://www.law.ualberta.ca/research/aboriginalculturalheritage/casestudies.htm).
Bannister: Use of Traditional Knowledge for University Research proposal to protect or license them (UBC 1993, Policy #88).
Application of Intellectual Property
By comparison, copyright policy at SFU specifies that only Qwnership Policies to Research Involving
ownership of university-requested and university-sponsored products rests with the university; products arising out of re- Traditional Knowledge
search or other activities involving a university contribution To date, no universities in British Columbia have been in- are subject to joint ownership of copyright by the originator volved with a patent application or other means of intellec- and the university, generally with a equal sharing of royal- tual property ownership or benefit-sharing arrangement with ties or other income, should they arise (SFU 1992, Policy an Aboriginal group in Canada or an Indigenous group else- R.30.01). While less explicitly stated in their policies, the where (MacGregor 2003; Tolson 2003; Volker 2003; Camp- expectations at UVic and UNBC are similar to that of SFU bell 2003). The closest situation that was described involved (MacGregor 2003; Tolson 2003). At all the institutions, an a reciprocal arrangement between an individual Aboriginal exclusive proprietary right is recognized for all graduate stu- Elder and UNBC, as follows. Two UNBC professors worked with a local Elder to produce a book on traditional medicinal knowledge. The authors, who were granted copyright by their institution, chose to retain their moral rights but trans- ferred their copyright to the Elder. The royalties received from the publication were put into a UNBC bursary that sup- ported further research on traditional knowledge by students Patent policies of the three “inventor as owner” universities are generally focused on sharing revenue from commercial- Representatives from the technology transfer offices of all ization rather than ownership. SFU explicitly waives all four universities indicated that if a researcher from their in- rights to patents relating to a discovery or invention by a fac- stitution made a discovery or developed an invention in col- ulty, staff, or student in the course of his/her research at the laboration with an Aboriginal group, joint intellectual university, but requires the university be informed of the dis- property ownership would be considered (MacGregor 2003; covery and any intention to pursue a patent. If the patent ser- Tolson 2003; Volker 2003; Campbell 2003). According to a vices of the university technology transfer office are technology transfer office representative at UBC, the tem- requested, however, all rights to the discovery will be as- plate would involve equal sharing between the universities signed to the university. The university will receive 50% of and the inventor(s), using UBC’s existing model of inter- all income until expenses are recovered, and 20% thereafter institutional agreements. That is, the Aboriginal group (SFU 1995, Policy R 30.02). At UNBC, currently, the Senate would be viewed as “just another party” for assignment of Committee on Research and Graduate Studies determines the patent and sharing of commercial revenues. Whether or whether ownership of a potentially patentable property is re- not any individual(s) from the Aboriginal group would be tained by the university, the employee, jointly by the univer- named as inventors on the patent would depend on their con- sity and employee, or by an outside sponsor (UNBC 1995, tribution to the inventive step. It was noted that a careful as- section 22.214.171.124). However, apparently all research policies at sessment would be needed as to who was named as inventor.
UNBC are currently under revision (MacGregor 2003). UVic While very specialized traditional knowledge was seen to is “committed to balancing any ownership rights” and leaves potentially qualify as know-how, there was concern raised to the inventor both ownership and the decision as to about the possibility of an “obviousness objection” for a pat- whether or not to pursue commercialization through UVic or ent based on traditional knowledge (Campbell 2003). The elsewhere. The university expects to share in revenues for its closest precedent to date described at UBC is a set of patents role in “infrastructure investment” in cases where its tech- on natural compounds with antimitotic properties isolated nology transfer services are used to commercialize a from a marine sponge found in the coral reefs off Papua, product, if the product is related to development of course New Guinea, by Dr. Ray Anderson (UBC Zoology). The materials, or if it the university has an interest in an invention UBC University Industry Liaison Office licensed the product that was developed using UVic funds or facilities but is com- to American Home Products and it is now in clinical phases mercialized elsewhere (UVic 2000, Policy 1180, section 3).
of testing. An inter-institutional agreement was used to share In contrast, UBC faculty, staff, or students who propose to revenues equally between UBC, the University of Papua protect or license a discovery, invention, or audiovisual or New Guinea, and the Papua New Guinean Government. The computer material that used university funds or facilities discovery was based on marine biodiversity prospecting must first complete an invention disclosure form providing a without links to traditional knowledge or any Indigenous full description, and rights must be assigned to the univer- group (Patscan News 2000; UBC 2002).
sity. The university then decides whether to protect or li- By comparison, the representative from the technology cense the product in return for a share of any proceeds, or to transfer office at UVic proposed a more customized ap- reassign rights to the inventor. Generally, the university re- proach to exploring the opportunity of joint intellectual tains 50% of the net income of a patentable invention and property ownership with an Aboriginal group, consistent the remaining 50% is divided among the inventors (UBC with UVic’s “case-by-case” approach to assessing any poten- 1993, Policy #88). When other institutions are involved, the tial intellectual property arrangement. Rather than have an proceeds are typically divided equally among the university, inventor fill out an invention disclosure form to initiate dis- inventor, and other institutions, using an inter-institutional cussions, UVic generally prefers to talk with interested par- ties first, to discuss available options and appropriate Biodiversity & Health: Focusing Research to Policy protection strategies. There is no fee for consultations, nor is “prostratin” isolated from the bark of the Samoan medicinal there a commitment to pursue commercialization through the UVic technology transfer office. Self-described as a “young These two examples demonstrate the potential and illustrate and growing” office, UVic appears to recognize the initial the kinds of connections this kind of applied research has to and ongoing investment in relationship-building and educa- universities. The initial time-intensive research phases (e.g., tion required to develop community-level understanding and field interviews, plant collections, and extractions, bio- support as a basis for effective commercial partnerships in activity screening) are commonly conducted in university future. Again, it was noted that careful consideration would labs, often as part of graduate student theses. Therefore, it is be required as to who was named as inventor, but in this relevant to consider the ethical and legal policy issues that case, the tendency would be to err on the side of inclusive- may arise in the use of traditional knowledge by academic ness so as to prevent a patent from being nullified by omis- researchers. Such considerations may be particularly impor- sion of a legitimate contributor. Anyone who provided a tant given the highly political dimensions of this kind of re- “creative contribution” to the invention would be seen as a search at the international level, where claims of “biopiracy” potential inventor, leaving open the possibility of key indi- have been routinely leveled at university-sponsored bio- viduals from an Aboriginal community to be named (Tolson diversity research and bioprospecting projects13, in some cases resulting in the termination of the project funding Technology transfer office representatives at all four institu- tions indicated that education is now a key component of In the context of research and commercial development of their mandate, although the target audiences for such educa- traditional knowledge and related biological resources, the tion varies, and to date it appears aimed at researchers and disconnection between ethics and IP ownership policies po- potential corporate partners. It is questionable whether or not tentially poses a problem. For example, if a new plant com- invitations to university-based seminars will be sufficient for pound was discovered based on traditional knowledge and very many members of Aboriginal and other communities to the Indigenous source of that knowledge claimed the rights develop a working understanding of intellectual property to any intellectual property derived from it (based on the ar- rights and related issues in research. Consideration of a more gument that proprietary rights to intellectual properties and natural resources are integral parts of cultural heritage) this could pose a conflict between intellectual property owner- ship policies and ethical guidelines, especially in cases Potential Points of Conflict between
where institutions (such as UBC) claim the rights to an in- Intellectual Property Ownership Policies
and Ethical Guidelines
Within the university system, “who owns the results of the There is a general disconnection between university intellec- research” and “who owns the intellectual property arising tual property ownership and ethics policies at the institu- from the research” depends on institutional policies. But tional level, despite the fact that both types of policies some, perhaps many, Aboriginal peoples would disagree.
typically are administered through the Office of Vice- Underlying the question of who ought to have ownership President, Research. This disconnection is becoming in- rights to a discovery or invention based on traditional knowl- creasingly obvious amid a relatively recent surge of aca- edge is whether the intellectual value or creative contribution demic and corporate interest in developing the commercial of the cultural knowledge being disclosed exceeds that of the potential of certain aspects of traditional knowledge and re- research or transcription process. This question is at the lated natural resources. Arguably, the most cogent example heart of Aboriginal claims to intellectual property, as well as is the use of traditional plant knowledge as the basis for de- editorial control and restrictions on publishing. How can this veloping new commercial health or medicinal products.
conflict be addressed? To the greatest extent possible, rights While most efforts to find patentable compounds from plants to research outcomes should be sorted out before the re- based on traditional knowledge have not resulted in commer- search begins. One opportunity is at the stage of developing cial products, two recent examples have emerged: (1) the ap- petite suppressant “P57” made from a patented bioactive As indicated previously, developing a Letter of Consent is an compound derived from the South African succulent plant ethical requirement of research involving humans (e.g., con- Hoodia gordonii11 and (2) the anti-HIV compound ducting interviews about medicinal plants). While some- 11P57 was found based on ethnobotanical information published in the 1930s that documented traditional use of the Hoodia plant by the Sanpeoples, who are indigenous to South Africa. South Africa’s Council for Scientific and Industrial Research (CSIR) holds the patent to P57and licensed commercialization rights to the UK-based pharmaceutical company Phytopharm, who in turn sublicensed to the USA-basedcompany Pfizer (CSIR 2002; Phytopharm 2002; Carroll 2003; Stephenson 2003; Chennells 2003).
12Prostratin was found during a collaboration between researchers at Brigham Young University and the National Cancer Institute, based onthe traditional knowledge of Samoan healers who used the bark of Homalanthus nutans to treat yellow fever. The use of prostratin in AIDStreatment was patented and licensed by the National Cancer Institute to a USA-based non-profit research institute. It has been undergoingsafety and clinical trials with the expectation that it will be eventually licensed to a drug company (Cox 1994; AIDS Research Alliance2001).
13Bioprospecting is the exploration of biological diversity for commercially valuable biological and genetic resources (Laird 2002).
14For allegations of biopiracy, see www.etcgroup.org. For an insightful analysis on biopiracy/bioprospecting discourses, see Svarstad 2000.
Bannister: Use of Traditional Knowledge for University Research times viewed as an inconvenient and time-consuming sion among Canadian research ethics scholars and policy- exercise that delays research for several weeks, developing a Letter of Consent with the input of the Aboriginal partici- Apparently clarification of these ethical and legal policy is- pants can be a vital opportunity to collaboratively assess sues will require initiation of a specific case that challenges positive and negative impacts of research. For example, this the policies in question. Without such clarification in ad- exercise can be used to identify and address some general vance of initiating a case, however, especially at universities concerns about medicinal plant research and bioprospecting that require the submission of an invention disclosure form endeavors, and to discuss specific concerns about how the and assignment of rights to the university to initiate a patent data generated from the research will be used and by whom.
application, it is questionable what incentive exists for an It is also the appropriate time to address ownership of data Aboriginal group that is concerned about such issues to en- and intellectual property rights, if these matters are relevant to the participants’ decision to take part in the research — which is the case for many Aboriginal groups in BC.
Should intellectual property rights be outlined on consent forms? Isn’t stating intellectual property ownership by an Conclusions and Recommendations
Aboriginal group inconsistent with the policies of some uni- The impact of academic research on the promotion and pro- versities, such as UBC? Probably, but it is not inconsistent tection of traditional knowledge is directly related to the pol- with the requirements and recommendations of Section 6 of icies that govern research and research conduct. To help the Tri-Council Policy Statement, which forms the basis of identify how policies may foster, impede, or channel the pro- the principles and guidelines underlying the ethical review tection and promotion of traditional knowledge in Canada, a process required by university research policy. Protecting detailed critical analysis is required of university research Aboriginal interests in intellectual property is not explicitly ethics guidelines and intellectual property ownership poli- mentioned, but the language used in the Tri-Council Policy cies as they apply to research that involves the cultural Statement certainly leaves this possibility open, particularly knowledge of Aboriginal communities.
if the intellectual property is linked to cultural heritage. More specifically, a statement of Aboriginal ownership attempts It is important to note that access and use of traditional knowledge by academic researchers takes place both directly (i.e., through interactions with Aboriginal participants in re- 1. consider past expropriation of cultural properties and search), and indirectly (i.e., through published primary and forestall this situation for the specific research; secondary literature and databases)15. While direct interac- 2. respect the culture, traditions and knowledge of the Ab- tions with research participants are governed by national and original group by adhering to customary norms; institutional ethical guidelines for research involving hu- 3. consider the interests of the group when their knowledge mans, indirect access to traditional knowledge via the pub- lished literature is not. However, in terms of perceived rights 4. conceptualize the research as a partnership with the Ab- to traditional knowledge, many Aboriginal people don’t dif- original group by supporting joint decision-making for ferentiate between what is published and now considered the research process and outcomes; “public domain” and what is not. Given that research involv- 5. adjust the research to address the needs and concerns of ing traditional knowledge can be a means of establishing proprietary rights in the knowledge, it is unsettling that key 6. provide an opportunity prior to research for the commu- issues regarding ownership and control of knowledge are not nity to react and respond to potential research findings explicitly addressed in existing research ethics policies. It is important that this oversight be carefully assessed and ad- If a patentable, commercializable product happened to result dressed at both national and institutional levels.
from the research, then a question that may arise is the legal Conversely, ownership and rights of researchers, their re- weight of a Letter of Consent. Would the rights claimed by search institutions, and their research sponsors are clearly ar- the University supersede those claimed by the Aboriginal ticulated at the institutional level through university research group? Rephrased, this question is really asking which policies, specifically intellectual property ownership poli- policy has priority — university intellectual property owner- cies. These rights vary from institution to institution but fall ship or research ethics policy? It also raises the question of into the two general categories of “inventor as owner” or whether or not a consent form can be considered a contract.
“institution as owner”. In British Columbia, institutions ad- A contract requires “consideration”, an exchange of value hering to the former policy tend to be less established, less (often money) between the contracting parties. Does tradi- experienced, and less active in commercialization of re- tional knowledge with potential commercial value qualify as search products. While no precedent was found in British consideration? Is an honorarium consideration when given Columbia for a joint intellectual property ownership arrange- by a university researcher to an Aboriginal Elder who shares ment between a university and an Aboriginal group, all insti- cultural knowledge? These questions require wider discus- tutions expressed a willingness to explore this possibility if 15For example, published compilations of plants and traditional uses such as Moerman 2000 and electronic databases such as the TraditionalEcological Knowledge Prior Art Database (T.E.K.*P.A.D) at http://ip.aaas.org/tekindex.nsf and the Natural Products Alert (NAPRALERT)database available at http://www.uic.edu/pharmacy/depts/PCRPS/NAPRALERT.htm [cited 18 Jan 2004).
Biodiversity & Health: Focusing Research to Policy it arose through research that was conducted at their univer- data, knowledge, products, and other aspects of research will help to address real world complexities of working in an Based on a review of current institutional policies and dis- intercultural and political environment. Likewise, ambigu- cussions with technology transfer representatives, the less ities in language and terminology in section 6 of the Tri- established technology transfer offices (i.e., UNBC and Council Policy Statement must be addressed with potentially UVic) were more open to discussing potential scenarios and commercializable research in mind. It will likely take collec- interested in the idea of exploring innovative partnerships tive expertise from ethics, law, natural and social sciences, with Aboriginal groups, as well as adapting or creating poli- business and Aboriginal communities to come up with ac- cies to support such collaborations. The most established fa- ceptable university policies for partnerships that can work cility (i.e., UBC) displayed the least flexibility or sense of beyond just corporate contexts. UVic and UNBC may be ex- need to alter current ways of doing things to facilitate poten- amples of institutions in Canada where ethics and intellec- tial partnerships with Aboriginal groups. In some cases, the tual property ownership policies can co-evolve in future, upfront requirement to submit an invention disclosure and which will be important for resolving ownership and other assignment form may pose an insurmountable barrier in issues involved in research on traditional knowledge.
principle for some Aboriginal groups to even consider a col- A timely opportunity exists for Canada to address issues re- lated to access and use of traditional knowledge that are raised by academic research conduct — not just for universi- The educational mandate, shared by all of the technology ties but for governments, industry, non-governmental organi- transfer offices to some degree, seems essential to building a zations, and other institutions that may engage in research foundation of awareness and understanding in Aboriginal involving traditional knowledge. More specific guidelines or communities about intellectual property rights, ownership is- protocols that are emerging from individual institutions may sues, challenges, and opportunities. Other keys to facilitating provide useful examples to inform the national discussion, partnership with Aboriginal groups, perhaps more challeng- as will emerging international instruments, such as the Bonn ing for some of the institutions, will be the ability to take Guidelines. Analysis of more contextual, on-the-ground ex- time upfront to engage in reciprocal cross-cultural learning periences of practitioners are needed to derive lessons, in- and the flexibility to adapt policies and practices accord- form policy changes, and facilitate convergent rather than ingly. Presumably, incentives for universities to reassess divergent policy evolution. Researchers and practitioners in their policies will continue to grow as additional concrete Canada have an opportunity — and responsibility — to help examples emerge of how traditional knowledge can make identify research issues that can be addressed by policy valued contributions toward inventions, and as further prece- dents are established for ownership and profit-sharing by In- digenous groups. New national and international laws and policies on “Access and Benefit Sharing” are emerging from Acknowledgements
commitments to the 1992 Convention on Biological Diver- sity, which Canada has signed and ratified. For example, the I thank H. Brunt, B. Campbell, L. MacGregor, J. Proffett, D.
Bonn Guidelines on Access to Genetic Resources and Fair Tolson, and M. Volker for clarification on their respective in- and Equitable Sharing of the Benefits Arising out of their stitutional policies, and J. Langford for helpful discussions.
Utilization provides added guidance and incentives for aca- This paper is based on a report commissioned by the Cana- demic, industrial and goverment researchers to urgently ad- dian Biodiversity Office, Hull, Quebec, in May 2003.
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