Community Rights to Intellectual Property in Asia—From Rhetoric to Consensus

Abstract

This paper deals with community rights to intellectual property, in light of the individual-style ownership envisaged by the TRIPS Agreement. Community rights could either be the right held by traditional communities to their indigenous knowledge, or the right held by the community at large, to demand access to innovations that are protected by the intellectual property regime. This paper proposes to deal with the latter aspect of community rights. It will argue that the community at large has a stake in innovation, as it provides the foundation from which all innovation springs. The innovator should be given the requisite incentives to continue the good work, without which development cannot take place. However, no innovation can be justified if it does not serve the needs of society. Examining the developments in the pharmaceutical and agro-chemical industries, this paper will advocate that access should be facilitated through a system guaranteeing that vulnerable segments within the community are not disadvantaged due to the delays in the current system, which effectively denies them the opportunity to share in the benefits of innovation. The study will compare various jurisdictions in the Asian region to demonstrate how the lack of community rights negatively impacts on all these communities.Keywords community rights; intellectual property; Asia; access and benefit-sharingThe TRIPS agreement has been operative for almost two decades now.1 One of the stated objectives of its "parent"-the WTO, was the increase in access through the bringing down of barriers to trade.2 Yet, in terms of access to patented items-including essentials such as food and medicines, the level of access has not increased at all. Rather, we may surmise that access is slowly but surely being curtailed.3 If this is true, then what benefit has the TRIPS brought to the people whose lives it was supposed to benefit? How will people who are in dire need of essentials, have access to them? Do they have a right to access these essentials, or should the state intervene in such a case? Does the public/private divide matter when lives are at stake? Is the current system promoting the private appropriation of public wealth? Through a critical analysis of each of these questions, this paper will attempt to shed light on one of the fundamental questions that plagues intellectual property law: where does one draw the line of ownership?The paper addresses these issues by examining IP rights through an ownership model. It considers private and public (or collective) models from a geographical perspective, arguing that the "Western" model promotes the individual right, while the "Eastern" model promotes the collective right. It then analyses how adherence to the Western model (which influenced the contemporary rules on IP) has resulted in a lacuna in the legal framework to support the rights of those who hold traditional knowledge, whether as a traditional community, or as the "community at large", (both found in the developing nations of Asia), and how th...