Tangled Webs, Blurred Lines and Distal Horizons. Investigating the justifiable downstream limits to the positive protection of traditional knowledge associated with genetic resources (TKAGR): the impact of treating TKAGR as Intangible Cultural Heritage.

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International initiatives, such as the Nagoya Protocol to the United Nations Convention on Biological Diversity (the “Protocol”), have created (or are creating) “access and benefit sharing” rights which seek to ensure that genetic resources and traditional knowledge associated with such genetic resources (“TKAGR”) cannot be used without the consent of rights holders. These initiatives (including the Protocol) are unclear on how far non-consensual “use” extends to man-made downstream derivatives of the products of genetic expression. It also gives no guidance as to the degree to which control over TKAGR should extend throughout the drug discovery process. This paper demonstrates how such TKAGR entering into a drug discovery programme will be diluted with other information, used as an inspiration for further research, or for the development of research tools which may, in turn, lead to further discoveries. Accordingly, useful drugs may be very distal from the original inspiration provided by the TKAGR. This work also examines the causal link between an original piece of TKAGR and remote “downstream” uses of that information within drug discovery.
The paper examines the high level normative justifications for these rights, and in particular uses consequentialist/utilitarian, contribution/desert and distributive justice (Rawlsian maximin) claims to test their justifiable scope.
Although TKAGR can potentially be perceived as being something apart from “classic” Intangible Cultural Heritage (“ICH”), this author argues that such an approach is flawed. Many of the justifications for the protection of TKAGR have focused on the consequentialist argument that such protection encourages the preservation of biodiversity (and indeed the Protocol is a creature of the UN drive to preserve biodiversity), or on broader utilitarian arguments based on enhancement of an indigenous people’s, or a nation state’s, economic position. The author explores these approaches, but highlights the separate and discrete arguments for the existence of rights to protect TKAGR which arise out an indigenous people’s inherent rights, or out of the “direct” effect such rights have on the utility of the indigenous holders of the rights. These latter justifications might be said to be closer in spirit to arguments for the preservation of ICH, and the author goes on to discuss their impact on the justifiable scope of downstream protection of the rights to control TKAGR within the Protocol.
Finally, the author goes on to address the affect of the arbitrary imposition of national boundaries across the territories of indigenous groups on the justification for, and the assertion of, these rights to control TKAGR.
Original languageEnglish
Publication statusAccepted/In press - 25 Mar 2018
EventAssociation of Critical Heritage Studies 4th Biennial Conference: Heritage Across Borders - Zheijiang University, Hangzhou, China
Duration: 1 Sep 20187 Sep 2018


ConferenceAssociation of Critical Heritage Studies 4th Biennial Conference
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