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Proceedings

of

University of Ibadan

Indigenous Knowledge Study Group Workshop

Theme:“AFRICAN INDIGENOUS KNOWLEDGE AND

INTELLECTUAL PROPERTY RIGHTS: IMPLICATIONSFOR NIGERIA’S DEVELOPMENT”

University of Ibadan Conference Center,Ibadan

April 20-24, 2009

Edited by:

Afia S. Zakiya, Ph.D.Ikechi Mgbeoji, LL.M, JD

Chidi Oguamanam, LL.M, Ph.D.

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Copyright © University of Ibadan 2009

ISBN 978 978 902 5251

All Rights Reserved

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recording or otherwise, without the prior permission of the copyright owners.

Published by:BIB PRESS NIG. LTD.

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0803 3960 822 & 0805 2411 770

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Table of Contents

I. Preface

II. Acknowledgements

III. Introduction

IV. Background Document Workshop Agenda

V. Opening CeremonyA. Welcome Address - Prof. Ikechi Mgbeoji, LL.M., J.S.D.

Associate Professor, Osgoode Hall Law School, Toronto, CanadaB. Opening of the Workshop - Prof. Olufemi Bamiro,

Vice Chancellor, University of IbadanC. Recognition of Traditional Leader - Alhaji Chief A. A. Monilola,

The Ewegbemi of Ede, Mogaji of Sagun Family Ibadan; Member,Oyo State Advisory Board on Traditional Medicine Practitioners,Ibadan

D. Workshop Overview and Objectives- Prof. Chidi Oguamanam,LL.M, Ph.D., Director, Law & Technology Institute,Dalhousie University Law School. Halifax, NS, Canada

VI. Workshop Presentations VII. Summary Report of Workshop Sessions

A. Opening CeremonyB. Plenary I: Understanding Intellectual Property Rights (IPR):

Justification & ImperativesC. Plenary II: Folklore, Traditional Cultural Expressions and

Intangible Cultural HeritageD. Plenary III: Indigenous/Local Knowledge and Biological DiversityE. Plenary IV: Indigenous Knowledge in the Global Knowledge

Economy and Intellectual Property OrderF. Plenary V: Biopiracy, and the Protection of IK and Cultural Heritage:

Opportunity and ResponsesG. Plenary VI - Auditing Nigeria’s IK Profile - Folklore, TCE, Biodiversity,

Languages, Science, Technology, k.w.k.H. Roundtable Discussion I: Evaluation of Nigeria’s Potential as

Regional Voice in the Protection of Indigenous Knowledge & Use of IPI. Plenary VII: The Future of Intellectual Property: Practice and Policy

Prescriptions for NigeriaVIII. Workshop Evaluation and Closing IX. Communiqué X. Presentation of Certificates

Appendices: A. Communiqué/AIDIKI Declaration Statement B. Media Coverage & Reports C. List of Participants & Group Photograph D. NNMDA Draft Bill on the Protection of TK

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PREFACE

Indigenous knowledge of the uses of biological and natural resources is perhapsone of Nigeria’s greatest resources. Yet, it is one of the least appreciated and explored.Indigenous knowledge is an important site for the exploration and exploitation of Nigeria’sdiverse cultural heritage and for harnessing its contributions to the so called globalknowledge economy. As a concept and a process indigenous knowledge is implicated invirtually all aspects of Nigeria’s national life in the arts, history, political economy,environmental stewardship and management, health and medicine, agriculture and naturalresources and other forms of expressive culture and folkloric creativity.

The contributions of indigenous knowledge have continued to assume increasedsignificance in the global basket of knowledge. Newly industrializing countries, includingNigeria, are challenged to evolve a strategic response for sustainable leveraging of theircultural assets. This involves critical policy interventions at national, local and global levels.Already at the global stage, protection of indigenous knowledge and intangible culturalheritage in their diverse ramifications, including the subject of access to genetic resourcesand associated knowledge, are issues of ongoing discussions. To effectively contribute andbenefit from these developments, Nigeria is in dire need of expertise in intellectual propertyand diverse multidisciplinary intersections critical for optimization of our indigenousknowledge and rich cultural heritage.

Along these lines, the Indigenous Knowledge Study Group of the University of Ibadanin partnership with a number of stakeholders, including the Nigeria Copyright Commission(NCC), the Canadian International Development Research Commission (IDRC), CBAAC,AIDIKI, and two of Nigeria’s leading experts in indigenous knowledge and intellectualproperty, Professors Ikechi Mgbeoji and Chidi Oguamanam of the Osgoode Hall andDalhousie Law School, respectively, organized a three day training and sensitizationinterdisciplinary workshop on Indigenous Knowledge and Intellectual Property Rights. Thisworkshop which was attending by diverse critical stakeholders in the indigenous knowledgedomain took the form of participatory and open dialogues. The workshop contributes inmapping out the monumental but realizable challenges Nigeria faces as it begins to grapplewith the role of its indigenous knowledge in the new knowledge economy. The diversity ofindividual and institutional participants and the multidisciplinary nature of the presentationsunderscore the complexity of indigenous knowledge and the need for a collaborativeapproach among stakeholders. The workshop recognizes the intensity of global activity inthe indigenous knowledge domain and aligns with the urgency for a comprehensive andpragmatic policy response by Nigeria.

The presentations and deliberations at the workshop are embodied in this report. Itis hoped that the various suggestions made by participants and presenters at the workshopwould form a basis for policy interventions in the area of indigenous knowledge in Nigeria.In particular, it is expected that the issues of empowerment of Nigerians through judiciousand sustainable use of the various types of indigenous knowledge should capture the attentionof policy-makers.

Ikechi Mgbeoji and Chidi OguamanamJune 16, 2009

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ACKNOWLEDGEMENTS

The University of Ibadan Indigenous Knowledge Study Group wishes to greatly acknowledgethe financial supporters of its recently held workshop for which this proceedings reportemanates entitled “African Indigenous Knowledge and Intellectual Property: Implicationsfor Nigeria’s Development” the organizations include: International Development ResearchCenter (IDRC), Nigeria Copyright Commission (NCC), National Institute forPharmaceutical Research and Development (NIPRD), AYA International Development andIndigenous Knowledge Institute (AIDIKI), Nigeria Natural Medicine Development Agency(NNMDA), Center for Black and African Art & Civilization (CBAAC), National Institutefor Cultural Orientation (NICO), National Council for Arts and Culture (NCAC), and theNational Office for Technology Acquisition and Promotion (NOTAP). At the onset, theFederal Ministry of Culture, Tourism and National Orientation showed great enthusiasmand support for this effort.

We could not have done the workshop without the initiative and drive of our workshopcoordinator and visiting IK scholar, Dr. Afia S. Zakiya, from Atlanta, Georgia. Shecollaborated with two of the most renowned IK and IPR scholars and activists, who happento be Nigerian, Professors Ikechi Mgbeoji and Chidi Oguamanam, both located in Canadianlaw schools, to spearhead the workshop training. Their extensive knowledge of culture, thepolitics of knowledge, and globalization proved formidable in shaping the content anddelivery of information that greatly enhanced the capacity of all participants in IK and IPRpolicy matters. Thanks to our UI students, especially Ms. Francisca Adigwe, and otherswho took notes, assisted with registration and other administrative tasks that were necessaryand vital to our success.

Finally, we are indeed humbled by the support from the University of Ibadan’s Vice-Chancellor, Professor Olufemi Bamiro and Deputy Vice Chancellor Prof. Adigun Agbajewho both attended sessions and expressed continued support for the promotion andprotection of Nigeria’s indigenous knowledge and traditional culture and believe suchsystems worthy of academic study and policy considerations.

All errors and omissions in the proceedings are ours, and the opinions presented representthose of the authors and not necessarily our sponsors or the University of Ibadan.

Prof. Stanley Okafor, forUniversity of Ibadan,Indigenous Knowledge Study Group MembersJune 2009

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INTRODUCTION

This proceedings report of the University of Ibadan’s (UI) Indigenous Knowledge Study Group’sworkshop entitled: “African Indigenous Knowledge and Intellectual Property Rights: Implications forNigeria’s Development,” held April 22-25, 2009 on UI’s campus, provides a concise overview of theissues discussed, presentations made, and final resolutions of the participants. The workshop essentiallyfocused Nigeria’s attention on global deliberations of the assertion that the production and processingof knowledge is a key driving force for creating local and global development and prosperity of nationsand as a result, a nation’s ability to convert knowledge into wealth and social good through innovationis believed to determine its future success or demise. Such assertions have not generally gone unnoticedin Africa wherein the response to the challenges of knowledge production has questioned the basis ofwhose knowledge should be prioritized and used in Africa’s development efforts. Gaining prominencein African development and political discourse is the maxim that there must be “African solutions toAfrican problems” to counter centuries of colonial exploitation and failed injections of Western ideasfor Africa’s development. This workshop on Indigenous Knowledge (IK) and Intellectual PropertyRights (IPR) sought to clarify where Nigeria, and the universities that abound and are consideredstrategic centers of knowledge in general, and UI in particular, stand in relation to such convictions anddevelopment policy challenges.

Contemporary efforts to strengthen African universities, particularly in the areas of research andpolicy that widely impact communities, states and regions, have not approached this task in recognitionof the important need for formal education and scientific institutions in Africa to be grounded in Africanindigenous or local knowledge and practices, although they daily influence the decisions of Africans onthe continent. Focus has been elsewhere: inadequate infrastructure, heavy teaching loads of faculty,poor remuneration, and poorly funded graduate schools and trained junior faculty. Training youngscholars, scientists, and indigenous people to carry out research on indigenous or traditional knowledge,or promoting research to better appreciate indigenous/traditional knowledge was just not consideredimportant. Most of the IK writings to date have been academic in nature (examining traditional knowledgefor its own sake, utilizing it for enhanced scientific understanding, and analyzing the relationship betweenknowledge systems), originating with scientists and development practitioners during the 1980s innonacademic contexts, especially in multilateral and bilateral development agencies in Africa and/orparts of the ‘developing world.’ While the focus was initially on the significance of IK for sustainableenvironment and agricultural development, these groups and many other development organizationsnow claim to address a multitude of socio-economic issues using IK due to recognition of the role ofculture in development and because for all intents and purposes, development predicated on western/European culture was not achieving desired results. This IK research done in both the “North” and“South” has primarily been conducted and funded by western donors often without concern for theintellectual property rights of those in the South. (Nooper, 2006)

The primary intent of the workshop held was to chart the contours for a new path of sustainableeconomic and cultural development in Nigeria using IK and where possible, IP regimes such thatgovernments and others intimately involved in formulating national policies, allow a wider use of thesystems and institutions of traditional forms of learning and knowledge, while at the same time ensuringthat its commercialization, where found, benefits those with such IK. When I approached the Universityof Ibadan in Nigeria to consider establishing a research center dedicated to advancing IK, the majorimpetus was a felt need for Nigeria’s emerging scholars in collaboration with indigenous or localcommunities to contribute to philosophical and worldview expositions and understandings in the growingfield of IK as a system of knowledge that could contribute to sustainable national development for all.Africa’s universities continue to provide the vast bulk of its research and train virtually all its researchersdespite the existence and growing prominence of emergent alternate sites of knowledge production:public research institutes, private research centers, firm-based research units, regional and sub-regionalcenters, nongovernmental organizations, and others. These alternative sites do not currently pose a

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significant threat to the dominance of the university as the center of the knowledge generation,reproduction, and dissemination systems in Africa. Thus, Africa’s universities and research institutions,if they properly address their areas of weakness that are outside the scope of this introduction toaddress, can remain viable centers in the political economy of idea production. More important, theycould also encourage younger generations of Nigerians to reclaim their rich culture and traditions aspart of their grounding for engaging the world in an age of ‘cosmopolitanism’.

The workshop was organized around three central themes to explore and build participant’scapacity and awareness of IK and IPR issues: traditional cultural expressions (TCE) and folklore,biodiversity, and the challenges and role of university libraries in the use of information communicationtechnology (ICT) to preserve and share IK scholarship. A focus on resistance to neo-liberal globalizationwhich prioritizes western science and knowledge production over African and other indigenous, non-western peoples knowledge was evident in the presentations by the workshop facilitators. Another aimachieved was the provision of numerous government agencies with the means and professional skills toconsider the technical, legal and policy dimensions of the issues at hand, to better safeguard intangiblecultural heritage, and to advocate for the protection of the rights of indigenous peoples and community-based economic activity and innovation. Certificates of participation were ceremoniously awarded tothose who completed all workshop requirements.

This proceedings report first presents the background document that shaped the theoretical andpractical considerations and objectives of the workshop. Next, the daily program of events is providedfollowed by an overview of the opening ceremony. The presentations made each day by our specialworkshop facilitators and many of our supporters from government and nongovernmental organizationsin Nigeria then follow, and as you will see, all presenters both raised issues to stimulate lively dialogueand shared what they have been doing to promote IK and address IPR policy matters. A summaryreport of the workshop sessions is next, and the proceedings document ends with the workshopcommuniqué of agreed policy prescriptions and actions, to be taken by those in the corridors of powerin Nigeria (AIDIKI Declaration) and a list of participants.

I end with inspiring words from Ayi Kwei Armah that best exemplifies what we tried to conveyto policy makers and our young African men and women who much is expected by this workshop. Hestates in his book Two Thousand Seasons:

“Let US work to turn the forgotten paths into the remembered way. LetUS mix the long memories of a people destroyed with new narratives of

Our own making, as WE move into space of Our own choosing, as WE dreamin images woven from Our people’s best desires, as WE plan on designsdrawn from Our own reflection, then make again the universe that might

have been but was not, here in this place, now in this time freed forOur new creation. I will walk with you away from the superhighways of

forgetfulness onto the paths of remembrance. Together WE shall breatheenergy into faded memories of a people once destroyed. Let US walk

together, invoking the future into now.”

Afia S. Zakiya, Ph.D.Workshop CoordinatorVisiting IK & Development ScholarUniversity of Ibadan, NigeriaJune 2009

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Background DocumentProposal for A Workshop on African Indigenous Knowledge (IK) &

Intellectual Property Rights (IPR): Addressing Global & Local Challengesfor Nigeria

ByIkechi Mgbeoji, Chidi Oguamanam, and Afia S. Zakiya

I. Introduction & Problem Statement

Nigeria and indeed much of Africa faces tremendous challenges to creating diverse means ofeconomic returns based on its production of knowledge, utilization of indigenous resources (cultural,human, natural, etc), and benefits from resultant goods and services. The role of Intellectual Propertyis thought by some to provide an avenue for redress in increasing GDP on the continent within suchareas as patenting of biological substances to copyrighting of traditional cultural expressions and folklore,and providing redress to the ‘south-north’ flows of indigenous resources which deprive African nationsand communities of achieving maximum socioeconomic, political and cultural development. The roleof Information and Communication Technology (ICT) in facilitating the flows of indigenous knowledgeand culture, and contributing to the misappropriation of these forms of potential revenues underscoresanother challenging area IP has been examined without resolve to date when determining the developmenttrajectory of Africa and the role of universities in digitization schemes thought to enhance overall sustainabledevelopment goals. IP regimes in Africa then, accent on those creating a viable sui generis approach,must consider these seemingly disparate yet dialectically related areas which will be discussed in theforthcoming workshop in Ibadan. The timeliness of this workshop is underscored since engagement inIK research, teaching, and scholarship is being proposed by UI to advance Nigeria’s sustainabledevelopment through the establishment of a proposed Center for Indigenous knowledge andDevelopment (CIKAD).1

In the early 1990s, the United States and the rest of the industrialized world re-conceptualizeda global regime for intellectual property rights. That initiative placed intellectual property, a hithertoexotic subject matter, at the centre of world diplomacy intrigue and power play. Perhaps, mostimportantly, the United States’ vision of a uniform intellectual property order placed the subject matterat the core and flashpoint of North-South tensions and highlighted shortfalls of IP systems. A combinationof three primary factors briefly cited below and which this workshop will address, account for thecurrent contentious role intellectual property, biopiracy, and indigenous knowledge (IK), among otherfactors, play in the relationship between developed or industrialized countries and the so-called developingor third world countries, including Nigeria. Following this will be an overview of the second and thirdrelated areas of IK and IPR to be discussed, those of protection of IK, folklore and traditional culturalexpressions (TCE) and IK, IPR and Information, Communication & Technology, and the challengesuniversities in Africa need to address to protect Nigeria’s rich culture and traditional and indigenousknowledge while availing it to global interests in ways that enrich the creators/owners of IK. All areasof inquiry ultimately have implications for creating jobs and businesses one of our concerns, but mostimportantly, they underscore the value of culture in shaping a society’s engagement in global discussionsabout knowledge production and ways of knowing which appreciate Africa’s ingenuity, which indeedexisted long before engagement with Western forms of proprietary rights perspectives.

1 Dr. Afia Zakiya, IK and international development scholar and consultant, initiated talks with UI to engage moresystematically in contemporary IK research, scholarship and preservation activities through formation of CIKAD;she is also the creative planner and organizer of the proposed workshop along with Professors Mgbeoji andOguamanam.

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Intellectual Property, Biopiracy, And Indigenous Knowledge (IK)

First, the United States and other members dubbed the “coalition of the willing” such asJapan, Canada, Australia, and the European Union- pulled a diplomatic coup against the United Nationsspecialized agency on intellectual property, the World Intellectual Property Organization (WIPO). Inthe late 1980s, these countries pressed for shifting attention from WIPO as the central decision-makingbody on intellectual property matters to the Uruguay Round Multilateral Trade Negotiations. Thatsingular action fundamentally shaped the future of intellectual property law making and policy, andresulted in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) under theauspices of the World Trade Organization (WTO). TRIPS then became a new but critical governingorgan in the emerging intellectual property order. Significantly, the induction of intellectual propertyissue into an apex global trade framework marked a conceptual revolution in intellectual propertyjurisprudence. Before this paradigmatic shift, intellectual property was construed as a deliberate andpurposeful instrument in restraint of trade and an exclusive subject matter of national laws. In thepost-TRIPS era, Under the WTO framework, intellectual property is calculated to foster free trade ina scheme in which a states’ ability to legislate in the national interest on the subject matter is nowradically curtailed.

For many discerning intellectual property law and policy experts in the developing countries,including Nigeria, this shift from WIPO to WTO was most worrisome. The natural inclination to have,for example, a lax pharmaceutical and agricultural and agro-chemical patent regimes, as well as theease in the invocation of compulsory licensing options for patents, are now radically leveraged by thenew intellectual property order. Under the global minimum intellectual property regime enshrined in theTRIPS agreement, all the member countries of the WTO, irrespective of their level of technologicaldevelopment, are to observe a common protective regime for intellectual property. Given, that globallymore than 90% of patents on innovations (and more than that percentage of registered patents in thedeveloping countries!) are owned by a few countries of the global North, the TRIPS agreement ensuresthat developing countries are committed to the protection of intellectual property rights of the North.Part of the trade off to this agreement was a promise that developing countries, especially the UnitedStates, would open up its markets to developing countries’ commodity exports. More than 10 yearsafter the TRIPS agreement the US and other industrialized countries have yet to fulfill their promises.Instead, they are steeped in creative devices such as farm subsidies, genetic engineering and other rigidproduct safety regimes designed to shut out developing country exports.

It should be noted that under the WIPO framework, developing countries were vocal andvisible in intellectual property matters, decisions were more democratic under the regime of one nationone vote, and developing countries of the South outnumbered their counterparts in the industrializedworld. For the most part, they insisted in the national character of intellectual property as an instrumentto foster national policy objectives. In comparison, a nation’s influence in the WTO framework ismeasured more by economic and financial clout than by any numeric equality ensured in the WIPO’sdemocratic process. Clearly, in the WTO/TRIPS scheme, developing countries are marginalized. Thesame is true of their expectations from intellectual property as an instrument to foster their nationalinterests. Putting the WIPO at the back stage of the new global intellectual property order now supervisedby the WTO/TRIPS agreement creates a crisis of confidence in the relationship between developedand developing countries.

IK, TRIPS and IPR

A second contentious area of disappointment with the WTO/TRIPS agreement is reflected inprovisions of that agreement as well as in its omissions. With regard to the latter, there is no directprovision for indigenous knowledge (IK) in the TRIPS Agreement. That singular gap in the documentis a reflection of cultural hierarchies of power and politics implicated in the history of IK and theconventional intellectual property system. Indigenous knowledge is the mainstay of intellectual creation

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in many non-western societies such as Nigeria. A global regime for a uniform, albeit minimum,standard of intellectual property that does not account for the indigenous or local knowledgeforms suffers legitimacy deficit.

Ironically, TRIPS inability to accommodate local knowledge represents a blessing in disguisethat Nigeria must be prepared to capitalize upon. This omission has provided a rallying point for manydeveloping countries to chip away on the merits ascribed to TRIPS as they relate to developing countries.It has also provided a flashpoint for counter regime sentiments in direction of a new global intellectualproperty order that accords preeminence to local knowledge. In this regard, the United NationsConvention on Biological Diversity (CBD) through the activities of its Secretariat in Montreal, hastaken the moral high ground in championing the issue of indigenous knowledge. Also, WIPO hassought to re-assert itself by lending support in this regard through a number of initiatives, notably theIntergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledgeand Folklore (IGC/GRTKF).

Similarly, the United Nations Educational, Scientific and Cultural Organization (UNESCO)has stepped up efforts in the arena of protection of indigenous knowledge, and tangible and intangiblecultural heritages in an effort to secure protection for diverse and disparate forms of local knowledgefor a holistic intellectual property order. Nigeria must more concretely and aggressively engage theseforay, and create a national response unique to its context.

Biotechnology & Biopiracy in IK & IPR

The third area of developments, especially from the second half of the 20th century, that havecoalesced to make the subject of intellectual property a contentious subject matter of North -Southrelations is the ascendancy of industrial biotechnology in the exploitation of genetic resources.Biotechnology is simply the use of biological and technological processes in the creation, manipulationand exploitation of the complex chemistry of biological systems for food, pharmaceuticals, cosmetics,health promotion therapeutic applications, environmental management and other industrial ends. Inthese diverse applications, biotechnology’s mainstay is biological diversity. By some accounts, over75% of global biological diversity and biological resources such as plants and animals and their geneticproperties are found in the developing countries of the world, including Nigeria. However, these countrieslack technologies designed to efficiently harness those resources for industrial applications. Even so,the epistemic approaches through which indigenous and local communities engage with their rich biologicalresources and other aspects of their cultural heritages are different from the western scientific andcapitalist industrial paradigm. For convenience, such approaches are founded within the “indigenousknowledge” paradigm in contrast to western scientific industrial epistemic model.

Biotechnology accentuates an unprecedented interest in the rich biological resources of thedeveloping countries like Nigeria. This interest is realized through bioprospecting (the search for geneticresources of economic value) activities in the third world countries which is dominated by external (i.e.,Western/European) interests. In the scramble for the South’s rich genetic resources, unsuspectingindividual members and other custodians of local knowledge are targeted as vehicle for the transfer ofsensitive genetic information, associated knowledge and cultural heritage. Also, even sophisticatedinstitutions such as universities and colleges, specialized research institutions, and NGOs are not exempt.It has become quite possible for external interests to take away important genetic resources and culturalproperty, information and associated knowledge at no cost only for such information to be re-packedas pieces of innovation to be exported in a trendy product name and label back to the originatingcountry at a prohibitive cost. This is in a nutshell a practice now known as biopiracy and is possiblebecause of the discretionary approach the new global intellectual property order adopts against localknowledge in relation to western science and technology. Many developing countries and centres ofbiodiversity, including Nigeria, South Africa, India, Costa Rica, Pakistan, Ethiopia, Mexico, etc havebeen at the receiving end of the practice of biopiracy that supervises a unidirectional transfer of knowledgeand wealth from developing to developed countries. Finally, biotechnology is an integral part of digital

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technology-driven revolution in information of the second half of the last century. Rather than the use ofnotorious briefcases for the smuggling of plant samples or the use of cages for the transportation ofexotic animals, today crucial genetic information and associated local knowledge are collected as meredata in sophisticated computer devices, such as laptops, palmtops and other digital devices like the cellphone and digital pens.

In sum, the bio- and digital revolutions of the second half of the last century are perhaps beinglegally consolidated by TRIPS to the advantage of industrialized countries. This is in terms of theireffect on the accentuation of biopiracy, the rape of indigenous knowledge and the scramble for andappropriation of genetic resources at the centres of biodiversity origin, including Nigeria. The TRIPSAgreement’s glaring omission or disdain for indigenous knowledge not only demonstrates the age longhistoric epistemic racism, in a counterintuitive way, it provides a rallying point for many developingcountries to seek alternative and more friendly fora for challenging not only the legitimacy of the TRIPSregime but also for securing the protection and future of indigenous knowledge forms. The proposedworkshop will outline these issues in more detail through the case study approach, and providerecommendations for countering their negative impact in Nigeria.

IPR, Culture and Folklore: Protection of Indigenous /Traditional Cultural Expressions

The relationship between intellectual property protection regimes and the rights and interestsof indigenous and local communities in expressions of their traditional cultures ( TCE or ‘folklore’) willbe a major focus area of this workshop in addition to biodiversity issues. IP and TCE has been thesubject of international debates and foray for several decades, including whether the term ‘folklore’ isappropriate due to its linkage with indigenous people in condescending ways, while relegating theirways of knowing less scientific, static, and broad, implying an inferiority of the cultural and intellectualproperty of Indigenous peoples to the dominant western culture. Discussion of policy and legal optionsfor the improved protection of TCE or ‘folklore’ as Janke notes, “should be guided as far as possibleby the real needs articulated by Indigenous and local communities and, most importantly, their actualexperiences with the intellectual property system.” (WIPO 1998).

However, as we deliberate in the workshop ahead, economic remedies are the focus of copyrightand trademark actions, not cultural rights. Furthermore, other strategies are being employed such ascontracts, the establishment of collective management systems, the drafting of cultural protocols, theuse of knowledge management systems, and the strengthening of Indigenous customary laws to protectindigenous or traditional knowledge and culture.2 The creations of cultural communities thus are importantto examine to identify ways of protection and preservation of their indigenous knowledge and way oflife as issues of compensation for unauthorized appropriation remain fully unresolved, and cultural harmpossibly done by those without respect for the cultural creations of Africans must be thwarted.

Information Communication Technology, IK, and IP: Sharing Africa’s Culture through the Superhighwayof Information

A growing concern that the University of Ibadan and other African Universities involved inindigenous and traditional knowledge and culture research and scholarship grapple with is how todocument, store, disseminate and publish the knowledge forms investigated. Research on IK atuniversities and elsewhere face knowledge and IPR access challenges to what most local communitiesconsider ‘communal ownership,’ and attempts to turn this into private property. However, As Kawooyanotes: “…ownership claims would be antithetical to the contributive pillar of social justice envisaged inthe collectivist African societies…beyond individual claim to ownership, digitization of ITK presents

2 See Janke's WIPO report "Minding Culture: Case Studies on Intellectual Property and Traditional CulturalExpressions, Geneva: WIPO, 2003.

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moral questions and value judgements, which skew representation of certain groups within countriesand countries in the global knowledge flows.3 Universities also have libraries which are increasinglyutilizing the internet and digitization methods to share knowledge, including indigenous knowledge, andtheir specific nation’s culture, despite financial challenges and lack of infrastructure, trained techniciansand other issues. Yet, Africa is far behind the Western world in providing access to and disseminationof knowledge, and protecting the ownership of such knowledge. Even so, a number of universitylibrarians and scholars of IK and African culture in general, are fearful that their work will be stolen byWestern/European nations, despite UNESCO’s push for virtual libraries in Nigeria and elsewhereciting the need to share Africa’s languages, value systems, etc., to avoid total subjugation of suchknowledge by dominant cultures (Carnegie Reporter, Spr 2005, 19)

The role of African libraries and other centres of documentation in enhancing ICT to bothacquire knowledge from the outside world, and share African cultural genius then, is tempered by thecopyright and intellectual property right challenges that must be resolved to mitigate abuses of AfricanIK scholarship. Ultimately, Africa’s libraries must master digitization opportunities as a means ofpromoting IK scholarship in legally and technologically safe environments across the continent. Theeconomic benefits to the university, IK holders and ultimately national development begs for a solutionto assist university research efforts adequately protect IK research and scholarship. In sum, UI andother existing institutions who seek to protect, preserve, and document IK must decide how it’s proposedresearch center will engage in digitization of Indigenous knowledge based publications.

II. The Nigerian Situation & Significance of the WorkshopNigeria is a regional and continental leader with a unique cultural and biological diversity. As

the most populous Black country in Africa, Nigeria ranks as the topmost culturally rich and diversenation at the global level composed of roughly over 250 nationalities with corresponding numbers oflanguages and cultural practices. Its diversity areas include ecological and biological diversity, language,peoples, history, the arts, architecture, and religion, among others. Like India, it also has a comparativelysophisticated manpower. Nigeria is in a position to show leadership in the protection and preservationof African indigenous knowledge and cultural resources in this era of predatory global intellectualproperty order. However, Nigeria has been and continues to be a victim of documented biopiracy andtheft of its cultural artifacts and other intangible cultural heritage, even though egregious forms of biopiracyare undocumented.4

Furthermore, aside from endorsing the African Union Model Law for the Protection of Rightsof Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resourcesin 2000, Nigeria has not been proactive like several other developing countries and centres of biologicaldiversity on the issue of regulating access to its rich genetic resources and associated indigenousknowledge. From both legal and regulatory perspectives, there is no harmonized regime for the regulationof access to Nigeria’s genetic resources, indigenous knowledge forms or cultural properties. Neither isthere any sophisticated policy on biotechnology. How best could Nigeria strategize in the protection ofits indigenous knowledge in its diverse regimes, especially in the current biotechnology epoch?

Before, during and immediately following the negotiations and coming into effect of the TRIPSAgreement, many developing countries, including Nigeria, lacked relevant or adequate expertise andmanpower on the subject of intellectual property and IK. WIPO has since developed a WorldwideIntellectual Property Academy that, among other things, targets the training of intellectual propertymanpower in the developing countries. Recently, WIPO entered into partnership with the AfricanRegional Intellectual Property Organization (ARIPO) and the Africa University in Harare, Zimbabwe

4 Dick Kawooya, "Copyright, Indigenous knowledge andAFrica's University Libraries: The Case of Uganda."Paper presented at the WLIC, 72nd IFLA Conference, Seoul Korea, 20-24 August, 2006. Accessible at: www.ifla.org/iv/ifla 72/papers/116-Kawooya-en.pdf . Accessed Jan 2008 by A. Zakiya.4 See Dele Jegede's chapter "Nigerian Art as Endangered Species," in Plundering Africa's Past. Peter R. Schmidt andRoderick J. McIntosh, eds. Bloomington: Indiana University Press, 1996, 125-142, and others.

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for a scholarship and training program in intellectual property. The program targets young Africanprofessionals from academic and research and development institutions who are expected to contributeto the manpower development in intellectual property in the continent. In Nigeria alone, ten or fifteenyears ago, only a handful of universities taught intellectual property in one form or another. While someresponse to rectify this situation has begun, including this proposed workshop, at the recent August2008 Nigerian Bar Association conference in Abuja, Director-General of Nigerian CopyrightsCommission (NCC), Mr. Adebambo Adewopo called on lawyers, legislatures, policy makers andother stakeholders to increase their knowledge to prevent piracy in Nigeria, citing the overall lack ofqualified experts in this area. He lamented the low number of practitioners in the field of IPR ascompared with other areas of legal practice in Nigeria due to lack of vigorous teaching of IPR intertiary institutions. Furthermore, few faculties of law regularly offer IPR courses in their law curriculumat the undergraduate level while even fewer offer the programme at the postgraduate level. In fact, hestated that while “many legal practitioners claim to be IP experts in Nigeria, the truth is that theirexpertise is only limited to the filing of papers and forms for Patent, Design and Trademark applicationat the Trademark Registry which in reality does not really requires a deep knowledge of IP. IP law is afield of knowledge that is vast and deep.” 5

Such challenges, and the protection of traditional/indigenous culture and folklore, includingdecisions related to ICT and digitization of IK, are at the forefront of what this proposed workshopwill assess what is to be done as the NCC, IK scholars, Faculties of Law and lawyer associations suchas the Nigerian Bar Association, and cultural resource and property managers within the Ministry ofTourism, Culture and National Orientation and its parastatals, University of Ibadan scholars, andBiodiversity Organs, especially those focusing on Traditional Medicine, among other relevantstakeholders, are targeted for participation. Nigerian participants will greatly benefit from the casestudy examples of how other developing countries, especially regional leaders, have taken strategicsteps to challenge or check biopiracy and the appropriation of indigenous knowledge and culturalforms through innovative national legal regimes and the creation of administrative mechanisms in thisregard. It will be shown how divergent schemes for fair and equitable distribution of the benefit ofgenetic resources and associated local knowledge continue to be negotiated at national and internationallevels.

III. Workshop Design, Aims and ObjectivesThe UI IK Study Group proposed workshop will take place over a four day period. Appendix-

1 is the tentative workshop agenda. Two lead facilitators/instructors, and a number of additionalfacilitators/recorders will assist to conduct the workshop, provide summary notes and a final report,and help facilitate group exercises. The teaching pedagogy and curricula will allow for active participationand learning of attendees through group assignments, case studies, plenary discussions, and review ofreading assignments on targeted subject areas related to IK, intangible and tangible culture, TCE andfolklore, ICT, and IPR. Course materials will be provided, and consist of packaged handouts, articlesand internet resources on a CD/ROM. Certificates of attendance will be issued.

Our principal objectives based on the issues outlined above include the identification/articulationof:

a) Nigeria’s unique position, compelling interests and comparative advantage inchampioning the protection of its intellectual property rights, genetic resources andassociated indigenous knowledge and various of forms cultural heritage;

b) Ways Nigeria can explore and harness its unique cultural wealth in its diverse domainsto seek economic empowerment of its peoples, to leverage its economic strengthoutside of oil and seek political clout in the current global constitutive process;

5 See Guardian Newspaper September 15, 2009 for full speech. Available at:http://www.tribune.com.ng/15092008/mon/law.html

15

c) Existing legal, regulatory and policy mechanisms and options in Nigeria for the protectionand preservation of Nigeria’s rich indigenous knowledge and rich cultural heritage;

d) Specific post-TRIPS, post-CBD policy and legal responses in Nigeria (if any) designedto address the issue of access and benefit sharing and other protocols designed tosupervise external interests in Nigeria’s rich genetic resources;

e) The adequacy of legal regimes on intellectual property in Nigeria for tackling the subjectof protection of rich genetic resources, associated indigenous knowledge and tangibleand intangible cultural heritage, and Information and Communication Technology relatedissues;

f) The status of Nigeria in regard to relevant international treaties dealing with indigenousknowledge, intellectual property, biodiversity conservation and protection of culturalproperties, including tangible and intangible cultural heritage;

g) Specifically, the steps Nigeria has taken at domestic level since 2000 when it endorsedthe African Union Model Law for the Protection of Rights of Local Communities,Farmers and Breeders and for the Regulation of Access to Biological Resources;

h) How best to identify or classify Nigeria’s diverse cultural resources, including its geneticresources for ease of management, protection, preservation and administration of thesubject of access and benefit sharing and sustainability; and,

i) The challenges facing the relevant ministries, agencies, organizations commissions,departmental and interdepartmental units charged directly, indirectly or in part with thesubject of intellectual property, culture and cultural properties, indigenous knowledge,ICT, biodiversity, biotechnology.

In terms of outcome, we aim at:

a) Drawing attention to the urgent need and the benefits for Nigeria to take concretesteps to protect its rich genetic resources, associated indigenous knowledge and allaspects of its rich tangible and intangible cultural heritage;

b) Highlighting the imperative for Nigeria to show regional leadership on the subject ofprotecting genetic resources and associated indigenous knowledge, tangible andintangible cultural heritage in regard to the African continent in general and the WestAfrican region in particular;

b) Identifying diverse stakeholders on the subjects of indigenous knowledge and accessto Nigeria’s genetic resources and rich tangible and intangible cultural heritage;

c) Sensitizing the legislative, executive and judicial arms of the government at federal,state and local levels on the subject of intellectual property, indigenous knowledge andaccess to Nigeria’s genetic resources and rich tangible and intangible cultural heritage;

d) Provoking a nationwide debate in a participatory democratic way on the modalitiesfor determining ownership of genetic resources and associated indigenous knowledgeand the role of different stakeholders;

e) Sensitizing our indigenous and local communities, universities, research institutions,researchers, industries and the private sector and diverse stakeholders on the subjectof intellectual property, ICT, indigenous and local knowledge and access to Nigeria’srich genetic resources and cultural properties;

16

f) Exploring various potential options for comprehensive legal and institutional frameworksfor effective protocols on the protection of Nigeria’s indigenous knowledge and forthe regulation of access to Nigeria’s genetic resources and rich tangible and intangiblecultural heritage;

g) Promoting the growth of local manpower in the professions, university research centersand libraries, bureaucracies and various policy sectors implicated at the intersectionsof intellectual property, indigenous knowledge, ICT and cultural heritage;

h) Prompting the need for legal and educational reform along (a) – (g) above

Achievement of the above aims and objectives will chart a new path for sustainable economicand cultural development in Nigeria as a blue print will be developed to increase its knowledge andeffective local, national and global practice in IP and indigenous knowledge. The time to act is now!

IV. Sponsoring Institution and Key Workshop FacilitatorsThis workshop is being held under the auspices of the UI IK Study Group, at the University of

Ibadan, which seeks to promote, preserve and protect African and Nigerian indigenous knowledgeand harness such for sustainable development. For the proposed workshop, two world renownedNigerian IK & Intellectual Property scholars/lawyers, Professors Ikechi Mgbeoji and Chidi Oguamanamwill co-design and conduct workshop activities in collaboration with Dr. Afia Zakiya, a visiting IK &development Scholar at UI who serves as the activity manager and primary point of contact. Resumesof the two lead facilitators are available on the world wide web.

UI will seek funding from the relevant government agencies, ministries, ngo’s, and other sources for thisworkshop. It is hoped that through acquired funding support, we will be able to provide at least fourscholarships to junior scholars and community activist (2 male, 2 female) to attend this workshop inaims to increase the cadre of young adults interested to study and promote IK, IPR and sustainabledevelopment excellence in Nigeria, with an eye towards overcoming digitization challenges todissemination of Nigeria’s cultural traditions in positive ways whether through the internet, films, festivals,tourism, or other means.

For questions related to the workshop please contact:

Dr. Afia S. ZakiyaVisiting IK & Development ScholarUniversity of Ibadan, Nigeriaikibadan@yahoo.com ; 0803 939 1349

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Time Activity

7.30am - 9.00am

9.00am - 9.10am

Registration

MORNING SESSIONS

Welcome Address: Mr. Ikechi Mgbeoji, LL.MAssociate Professor, Osgoode Hall, Law SchooCanada & Mr. Chidi Oguamanam, LL.M, Ph.DLaw & Technology Institute, Dalhousie UniversSchool, Halifax, NS, Canada.

9.10am - 9.45am Opening of the Workshop

1.

2.

3.

Prof. Olufemi Bamiro, Vice Chancellor, UnIbadan, Opens WorkshopRecognition of Traditional Leader - Alhaji Monilola, The Ewegbemi of Ede, Mogaji oFamily, Ibadan; Member, Oyo State Advison Traditional Medicine Practitioners, IbaWorkshop Overview and Objectives - ChidOguamanam, Ikechi Mgbeoji

UNIVERSITY OF IBADAN INDIGENOUS KNOW

WORKSHOP AGENDA

Intensive Workshop on African IndigenoIntellectual Property Rights: Implications for

Date:Venue:

April 20-23, 2009 University of Ibadan, UI Hotels & Conferen

SUNDAY APRIL 19, 2009: Monday April 20, 2009: DA

ARRIVAL – 4.00p.m - 6.0

18

12.30 pm - 1.30 pm Plenary III: Indigenous/Local KnowledgeDiversity

Topics:

1. Indigenous Knowledge and its RelationsBiological Diversity.

Question and Answer

1.30 pm - 2.15 pm Lunch

AFTERNOON SESSIONS

2.15pm - 4.15pm Plenary IV: Indigenous Knowledge in theKnowledge Economy and Intellectual Pr

Topics:

1.

2.

3.

4.

5.

Understanding the Global Knowledge Ec

The International Legal Framework for t

WIPO/WTO/TRIPS

The CBD, UNESCO, WHO, etc

Biotechnology and Digital Technologies

Question and Answer Session

4.15pm - 4.30pm Closing Remarks & Overview of Day 1

6.00pm - 7.00pm Facilitator’s Meeting

19

4. Status on Nigeria’s Country & LegislaDevelopment on Protection of TraditioMedicine & Biodiversity

“Status of Protection of Traditional MKnowledge & Practice and BiodiversitNNMDA Experience” -

NNMDA 2005 TMP & IPR Workshop Committee Achievement & PresentatDraft Legislation on TMP & BiodiversiProtection for Review:

NNMDA Panel & Paper Presentatio

Mr T. F. OkujaDirector General/Chief Executive NNM

11.00am - 12.30pm Plenary V (con’t): Biopiracy, and the Protection of IK and Cultural HeritageOpportunity and Responses

1.

2.

3.

Prof. Abayomi Sofowora:

Mr. Sam Etatuvie:

Ms. Stella Mbah:

Chairman, DrCommittee on IPR for TK & BR

Deputy Director (Research NNMDA)

Senior Legal Officer (N

Question and Answer

20

� Regional Initiatives: Understanding the Dof State Interests on the subject of IK iand Identification of Strategic Regional Pand setting of Agenda for CollaborationInternational ForumsNational/State/Local Law Reform, incluconstitutional issues relating to ownersstewardship of genetics resources and forms of cultural heritage, capacity buicontinuing professional education, senand mobilization, identification of stakebureaucratic harmonization for efficienceffective coordination.A clearing House for Access to Nigeria’s Resources?Information & Communication TechnoloIPR and Indigenous Knowledge ProtectUniversities: Role of Libraries.

Question and Answer

�

�

�

5.00pm - 5.30pm Closing Remarks & Wrap Up for Day 2

6.00pm - 7.00pm Facilitator’s Meeting

WEDNESDAY, APRIL 22, 2009:

Time Activity

Morning Session

21

Opening Ceremony

Welcome Address by Prof. Ikechi Mgbeoji to Participants at the IntensiveWorkshop on African Indigenous Knowledge & Intellectual Property

Rights, April 20, 2009 UI Hotels and Conference Centre

The Vice Chancellor, University of IbadanDistinguished ladies and Gentlemen,Guests and Participants,

It is with a sense of relief and responsibility that I welcome you all to this occasion: relief that afterseveral months of anxious preparation, debates, and hard-work, this worthy idea has finally takenshape before our eyes. The sense of responsibility derives from knowledge of the enormous taskahead of us, not only during the course of this intensive, but more importantly, after the event of the nextfive days.

A little sense of history and perspective might be useful in situating where we are as Nigerians, Africans,and more importantly, as BLACK PEOPLE, in a world often described as “Knowledge-based”. It isa historical fact that human civilization began in this continent of Black people. We built the first massivestructures-the pyramids in North and East African, the moats and walls of West Africa are a fewexamples. We founded the first cities and resolved the challenges of public hygiene. We created farmsand built viable societies. We were the first chemists, physicists, and biologists. In literature, we werethe first to invent writing. In poetry, our griots and oral historians were second to none. Some of ourgriots have been known to recite the equivalent of a thousand pages of history. It was not for nothingthat Africa is rightly regarded as the cradle of human civilization. We taught the Greeks. The Greekstaught the Romans, the Romans taught the French and the British. And so on, across the world.

Today, where are we? We are at the bottom of the knowledge ladder. What went wrong? How do wegather ourselves and assume our rightful place. It is no longer a secret that what went wrong is primarilywhat one may describe as the cultural and political holocausts visited on Africa in the past eight hundredyears: First was the expansion of the Arabs from Arabia into North Africa and the consequent Arabizationof North and East Africa. By this phenomenon, Black Africa first lost physical control and thus thenarrative of Black genius in creating the pyramids, hieroglyphics, and other manifest expressions ofculture and civilization. Today, a vast majority of the globe wrongly believe that Blacks did not originateand create the civilizations in Egypt, Sudan, and Carthage (Tunis). When you lose possession of yourhistorical achievement, you also lose the narrative. Second, was the slave trade by Arabs, Europeans,and Americans which hollowed out Africa. We lost several hundred years of the most virile, productive,healthy stock of Africans to the global slave trade. Having weakened Africa through the slave trade, thecontinent was ripe for cultural conquest. The third holocaust was the frenzied cultural attack of theEuropean colonialists on the cultural pillars and foundations of Africa. To this end, the native healer,herbalist, and priest was heathenized, and demonized as the “sons of Beelzebub.”

Our task at this workshop will be incomplete if we fail to unpack these historical injustices and understandhow they have shaped our attitudes to the critical questions of “what is knowledge”? What is Africanindigenous knowledge? What roles, if any can African Indigenous Knowledge play in a digital world?These questions are crucial if are to successfully address the pressing issues of the health and status ofAfrican folklore, cultural expressions, and identities. Our cultures, and thus who we are under anexistential threat. We are increasingly becoming like the coconut: brown on the skin and white in theinside. What does it mean to be “Brown”?

22

The task of unpacking what really happened to our culture and civilization and of understanding thatwhat we are witnessing is no mere academic flapdoodle. Speaking from the vantage point of hindsight,I make bold in saying that Nigerian law largely failed in making sense of what it was the changes wereabout, let alone in fashioning out a fair, principled, and sustainable mechanism for dealing with thosechanges.

Let us first sketch out the bare bones of what was said to have occurred. In theory, the knowledgeeconomy refers to an economy focused on the production and management of knowledge in the frameof economic constraints. On a second level, the knowledge economy refers to the use of knowledgetechnologies such as information technology and information management to produce economic benefits.Was this a theory in search of facts? Does the farm-hand really work only with her hands while herhead is on a restful vacation? What is “knowledge”? Is the cocoa-farmer in Ilesha really an ignoramus?Whose knowledge deserves a privileged status? Why? In retrospect, what is more troubling is thecomplicity of the elite in failing to carefully separate the hype from real hope. Any fair-minded scholarwould concede that that the African elite has been the greatest threat to the survival of African culture.

The rush for intellectual property “protection” in virtually sphere of human endeavour and over all faunaand flora could not have proceeded with the same reckless speed without the benevolent prodding andimprimatur of the legal establishment, including the academia. Evidence shows that in the heat of themoment, law school course offerings on matters related to intellectual property increased exponentially.Virtually every law school in Europe and North America have widened their approach to the study ofintellectual property law by hiring new professors and teachers in various courses (real and contrived)in intellectual property law. Of course, there is nothing wrong in studying intellectual property rightslaw. Where are we in this global phenomenon?

The Universities in North America, and to a limited extent in Europe, are increasingly wedded to theindustrial complex by literally converting public research laboratories and institutions into research anddevelopment outposts for the industrial/manufacturing complex. In the process, a focus on what couldbe commodified and sold undercut theoretical research. A huge number of speculative and dubiouspatents were granted. As the field of intellectual property expanded, and the research focus of publiceducational centres shifted, the ambit of the public domain dramatically shrank. Virtually everyconceivable “intellectual” exertion became a product fit for capture and commodification by an aggressiveintellectual property regime. It was the happy state of freedom fries, of stock options, dubious patents,and expansive copyrights. Nigeria is currently under the threat of bio-prospectors. What are the responsesof the government, media, and academia to this new form of domination?

Distinguished guests, ladies and Gentlemen, these are in bold strokes, the type of questions which willagitate and occupy our minds in this workshop. We hope that the solutions and ideas fashioned at thisworkshop will help in fending off the cultural attacks we face and in positioning our heritage and futurewell-being for survival. Thank you and welcome.

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Opening Address

African Indigenous Knowledge and Intellectual Property Rights:Implications for Nigeria’s Development by Prof. Olufemi Bamiro, Vice

Chancellor, University of Ibadan

ALL PROTOCOLS OBSERVED

Indigenous Knowledge (IK) is receiving increasing attention in academia as well as in national andinternational development agencies. This is due largely to the realization of the tremendous potential ofIK in the development process. IK is essentially local knowledge that is unique to a particular cultureor society, and is adapted to the requirements of local people and local conditions. IK is an importantcomponent of a country’s knowledge system. It encapsulates the skills, experiences and insights ofpeople, and is applied to maintain or improve their livelihood.

It has therefore been receiving increasing attention from scholars and development practitioners acrossthe globe in virtually every field, ranging from the humanities and social sciences through agriculture,science and technology, to human and veterinary medicine. Unfortunately, the indigenous knowledgeaccumulated over generations by local communities is sometimes appropriated by so called expertswithout any compensation to the producers of such knowledge in spite of its tremendous potential toyield economic returns.

Intellectual property has an important role in redressing this situation. It is capable of providing redressto the south-north flows of indigenous resources which deprive frican nations and communities thebenefits of maximum socio-economic, political, and cultural development and the University of Ibadanis proud to be part of this endeavour. The timeliness of this workshop is underscored since engagementin IK research, teaching and scholarship is being pursued by the University to advance Nigeria’ssustainable development through the proposed establishment of the Centre for Indigenous Knowledgeand Development (CIKAD). It is hoped that the Centre will come to fruition in the not too distantfuture, and that it will partner with relevant national and international agencies to ensure that Nigeriareaps optimal benefits from its IK resources.

We wish to specially recognize the role played by Dr. Afia Zakiya, a Visiting Scholar, in putting togetherthis workshop, as well as the support of the IK Group, University of Ibadan

It is therefore my pleasure to declare this workshop open and to wish you fruitful deliberations to thebenefit of Nigeria and Africa.

Recognition of Traditional Leader - Alhaji Chief A. A. Monilola, The Ewegbemi of Ede, Mogaji ofSagun Family Ibadan; Member, Oyo State Advisory Board on Traditional Medicine Practitioners,Ibadan

Workshop Overview and Objectives- Prof. Chidi Oguamanam

Objectives, first

Multi- and inter-disciplinary Workshop

� A learning and sensitization interaction on IK as the mainstay of intellectual creation and potentialdriver of development in African societies, with focus on Nigeria.

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� Raising awareness on IK as an instrument of wealth creation, economic leverage, nationalidentity, political empowerment and socio-cultural enrichment.

� Examining the current international IP climate, the new global knowledge economy andtechnological advances, especially in bio and digital technologies and how they facilitate theexploitation of IK and consequently wealth transfer from indigenous and local communities

� Reflecting on Nigeria’s actual and potential legal and policy responses to current threats to IK� Opening up conversation on options for Nigeria’s legal and institutional frameworks or protocols

on the protection of IK, regulation of access to Nigeria’s rich genetic resources, tangible andintangible cultural heritage.

� As far as practicable, identifying and bringing together all stakeholders in IP and IK for acritical conversation around the two intersecting subject areas with a view to partnering in thefuture shaping of policy for our country, our region and continent.

� Promoting the growth of local manpower in the professions, scholarships, and the public serviceand other policy sectors of relevance in IK and IP

� Exploring insights from other developing countries and regions that have successfully exploitedthe opportunity provided by IK and IP for economic empowerment and national development

Overview:

Because of the muti- and inter- interdisciplinary approach of the workshop, we will kick off with:� a primer on the basics of IP and its intersection with IK to bring every participant, especially

non-lawyers, to a functional knowledge of both concepts

� The rest of the sessions will revolve around three thematic areas at the intersection of IP andTK from national and diverse institutional governance perspectives at global levels. They willhighlight the inherent opportunities and drawbacks of TK/IP for Nigerian and African economicempowerment and development

� Folklore, Traditional Cultural Expressions and Intangible Cultural Heritage� Biodiversity, Biopiracy and their relationship with IK and IP� The role of digital and biotechnologies in the new global knowledge economy and

how IP and IK are implicated in that order

� The rest of our program of work for the workshop will be interactive, for the most part,enabling us to receive update account of Nigeria’s ongoing initiatives in specific domains of TKsuch as traditional medicine (Nigeria Natural Medicine Development Agency). Also, buildingon the presentations, we will embark on a process of identifying or auditing Nigeria’s indigenousknowledge profile as well as identifying the domains for generation of IK in Nigeria. We willhear from the Centre for Black African Arts and Civilization (CBAAC) and it experiencearising from use of IP to “protect cultural documents”. Our interactive session with take aroundtable format where we explore Nigeria’s potential as a regional voice in the protection ofIK tapping into insights from multi-pronged approaches and institutional experiences of NOTAP,and views from a University library.

� We will close with participant-led discussions on the future of intellectual property and practice,and IP’s potential for empowerment of IK toward national development and culturalemancipation. The role of various stakeholders and the need for strategic alliances in theadvancement of IK and IP will be the central focus of that discussion.

� Participants will collectively adopt and sign resolutions arising from the workshop withproclamations of support outlining actions going forward.

25

Summary Report of Workshop Sessions

OPENING CEREMONY*

The workshop commenced with an indigenous rendition of the National Anthem by Mr. AyoAyanwale Olayanju of the Nigeria Ministry of Culture. Thereafter, Dr. Afia S. Zakiya, U.I. Visiting IKand Development Scholar and Workshop Coordinator, welcomed all (approximately 50 participants)to the opening ceremony and recognized the following special guests and Indigenous Knowledge (IK)and Intellectual Property (IP) Experts: Prof. Ikechi Mgbeoji, Associate Professor, Osgoode LawSchool, Toronto, Canada, Prof Chidi Oguamanam, Dirctor, Law and Technology Institution, DalhousieUniversity Law School, Halifax, NS, Canada, Mr. Adebambo Adewopo, Director General, NigerianCopyright Commission (NCC), Prof. Olufemi Bamiro, Vice Chancellor, University of Ibadan, AlhajiChief A.A. Monilola, The Ewegbemi of Ede, Mogaji of Segun family, Ibadan; Member, Oyo StateAdvisory Board on Traditional Medicine Practitioners, Ibadan, Mr. Moses Ekpo, First Director General,Nigerian Copyright Commission (NCC), and Prof. Stanley Okafor, Chairman, University of IbadanIK Study Group. Next, Dr. Zakiya gave a brief background of the workshop and the intention of theU.I. study group. She mentioned three key areas of focus for the workshop to include:

- Folklore, traditional cultural expression and tangible/intangible Heritage- Traditional knowledge in the area of Biodiversity- Information, Communication and Technology (ICT) and its relation to TK/IK dissemination

and protection and the role of universities

Before moving to the next session, Dr. Zakiya recognized three emerging Nigerian post-graduatescholars and activist in IK and IP who were sponsored to attend the workshop as part of the organizer’sfuture capacity building efforts in IK and IPR: Ms. Nkechi Ogbonna (Leeds Univ, London, UK), Mr.Gideon Christian (IDRC, Canada) and Ms. MIKang Longjan (Univ. of Abuja). Special note wasmade of the initial support of the workshop by former Hon. Minister of Culture Kayode.

Next, Prof. Mgbeoji delivered the welcome address. He gave a little insight into the history ofthe Black people and observed that:

‘It is a historical fact that human civilization began in this continent of Black people. We builtthe first massive structure – the pyramids in North & East Africa, the moats and walls of WestAfrica. We founded the first cities and resolved the challenges of public hygiene. We createdfarms; built viable societies. We were the first chemists, physicists and biologists. In literature,we were the first to invent writing. In poetry, our griots and oral historians were second tonone’.

He noted that it is rather unfortunate that Africa, which is rightly regarded as the cradle ofhuman civilization, is positioned at the bottom of the knowledge ladder and emphasized the fact thatNigeria and other African countries (seemingly) have nothing to show for the resources and knowledgesystems which they have in abundance. Three key factors for this setback was identified to include:

- The expansion of Arabs from Arabia into North Africa and East Africa.- The slave trade by Arabs, Europeans and Americans which hollowed out Africa, and;- Colonization which affected the cultural foundations of Africa such that any discussion on

traditional knowledge became a sign of primitivism.

* Note that the full text of most presentations is provided in this proceedings document for review.

26

Thus, native healers, herbalist and priest were heathenized and demonized in his words as ‘sons ofBeelzebub’. Prof. Ikechi criticized the Nigerian law in its failure to provide a fair, principled andsustainable mechanism for dealing with the protection of traditional/indigenous knowledge and geneticresources when compared to what is available in the western world. In general, he asked for theresponses of the government, media and academia to address this new form of domination of IK inAfrica. In conclusion, he encouraged all to participate actively so that the solutions and ideas fashionedat the workshop will help in fending off the cultural attacks faced and in positioning our heritage andways of knowing to improve our future well being for sustainable survival.

Opening AddressProf. Olufemi Bamiro, the Vice chancellor of the University of Ibadan, on behalf of the entire

University Community, welcomed all to the University and to the workshop. He acknowledged thecontributions and supports of IDRC, NCC, NCAC, NIPRD, NNMDA, NICO, CBAAC, AIDIKI,towards the funding and success of the workshop. He observed that IK is receiving national andinternational attention in development agencies due to the realization of the tremendous potential of IKin the development process, its uniqueness to a particular culture and society and its adaptation to therequirements of local people and conditions.

He observed again that unfortunately, IK is appropriated by experts without compensation tothe producers despite the tremendous potentials of IK to yield economic returns. He challengedIntellectual Property Rights experts to play their roles at addressing the South – North flow of indigenousresources which deprives African nations and communities of the benefits of maximum socio-economic,cultural and political development.

The Vice Chancellor noted that although more than eighty percent (80%) of Nigerians rely ontraditional medicine, Western science and its civilization curiously referred to such IK/TK as ‘alternativemedicine’. At such, he emphasized the University’s commitment to the promotion and development ofIK by the establishment conclusively through a proposed center for IK and sustainable development atthe University which can help in addressing this misconception.

Opening RemarksThe Ewegbemi of Ede, Mogaji of Sagun family, and member, Oyo State Advisory board on

traditional medicine practitioners, Alhaji Chief A.A. Monilola who spoke in indigenous Yoruba tongue,positing that indigenous language is also a part of indigenous knowledge; remarked that a lot has to bedone by the universities and research institutes especially in the area of Traditional Medicine. Heexpressed the fear of IK in TM Practices becoming extinct if not used, promoted and made significantin the development of Nigeria. He encouraged the Universities on the need to design a curriculum forTM, with such knowledge not limited to the reading of books alone but to include an exploration of thepractical aspects of TM. In his view, the potency and efficiency of TM is incontestable. Therefore, headvocates the need for western medical practices and indigenous or traditional medical practices tocomplement each other.

Alhaji Monilola concluded with a song promoting IK in the area of TM. It is interpreted thus:‘Disease will cripple the world without the knowledge of black traditional herbalist.’

WORKSHOP OVERVIEW AND OBJECTIVESProf. Chidi Oguamanam

According to Prof. Oguamanam, the workshop adopts a multi and inter-disciplinary workshopapproach. Experts in various disciplines have come together to tackle issues revolving around threethematic areas at the intersection of IP and TK from national and diverse institutional governanceperspectives which ultimately must relate to global dynamics. The subject of indigenous knowledge isinherently an interdisciplinary one, and is best explored from such diverse disciplinary perspectives.The workshop will highlight the inherent opportunities and drawbacks of TK/IP for Nigerian and

27

African economic empowerment and development especially as it concerns the following thematicthrust:

- Folklore, Traditional Cultural Expressions and Intangible Cultural heritage.- Biodiversity, Biopiracy and their relationship with IK and IP.- The role of digital and bio-technologies in the new global knowledge economy and how IP

and IK are implicated.

Prof. Oguamanam also indicated that the workshop will benefit from interaction betweenworkshop participants and resource parsons since it is generally a learning and sensitization intiative.Overall, he heighted the objectives of the workshop to include but not limited to the following:

- Providing a primer on the basics of IP and its intersections with IK to bring every participant,especially non-lawyers to a functional knowledge of both concepts.

- A learning and sensitization interaction on IK as the mainstay of intellectual creation andpotential driver of development in African societies.

- Raising awareness on IK as an instrument of wealth creation, economic leverage, nationalidentity, political empowerment and socio-cultural enrichment.

- Reflecting on Nigeria’s actual and potential legal and policy responses to current threats toIK.

- Opening up conversation on options for Nigeria’s legal and institutional frameworks orprotocols on the protection of IK, regulation of access to Nigeria’s rich genetic resources,tangible and intangible cultural heritage.

- Identifying and bringing together all stakeholders in IP and IK as far as practicable, with aview to partnering in the future shaping of policy for our country, our region and continent.

- Promoting the growth of local manpower in the professions, scholarships and the publicservice and other policy sectors of relevance in IK and IP.

- Exploring insights from other developing countries and regions that have successfullyexploited the opportunity provided by IK and IP for economic empowerment and nationaldevelopment.

The workshop will also aide the ability of participants to examine Nigeria’s potential as anAfrican regional power and a strategic country for IK protection. He indicated that the workshop willend on a reflective note with participant–led discussions on the future of IP for empowerment ofAfrican IK for national development and cultural emancipation. In addition, the workshop will reflecton the role of various stakeholders and the need for strategic alliances in the advancement of IK and IP.Thereafter, the participants will collectively adopt and sign resolutions and issue a communiqué arisingfrom the workshop.

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PLENARY I

Understanding Intellectual Property Rights: Justification/ Imperative.

Topic: Theoretical and Conceptual Issues in IPRs and IK/TKSpeaker: Prof. Chidi Oguamanam

Prof Oguamanam recognized the fact that no one definition is sufficient enough in the descriptionof the term IP. He outlined a few competing and but often inclusive definition of intellectual property toinclude:

- A convenient reference to various legal regimes that regulate use of ideas or works of theintellect in general.

- “Propertization of talents”, innovation and various forms of creative endeavour.- Rights for exploitation in information.- Mechanism for allocation of rights over knowledge and its products.

The concept of IP presupposes a distinction in categories of property into Tangible and Intangibleproperties. He outlined the characteristics these distinct categories of property as well as the justificationsfor IP. Tangible property includes real estate (houses), factories, farmlands etc. It is physical, tangible,rivalrous, exhaustible, and naturally scarce/limited. Uses, access and ownership or proprietary claimsto tangible properties are minimally curtailed by reason of public policy.

Intangible properties on the other hand include: original ideas, their expressions, thoughts and“products of the human intellect” in general. Unlike tangible properties, intellectual property categoriesare for the most part non-rivalrous, inexhaustible. They are artificially made scarce/limited as basis forwealth creation. Ownership and proprietary claims to intellectual property is ideally constrained orcurtailed by reasons of public policy perhaps more than the case with tangible property.

After providing examples of IP and traditional and non traditional regimes of IP, it was shownhow promoters of IP argue that without the latter’s guarantee of economic reward, the pool of creativitywill run dry. Apart from the provision of incentives or motivation for creativity, IP rights are justified ona number of other grounds, including but not limited to reasons of moral, economic and contractualimperatives. Generally, intellectual property rights are recognized as an important legal mechanism toensure sustainable progress of science, innovation, creativity and promotion of useful arts.

Next, Prof. Oguamanam examined the conceptual issues in IP and the gulf between WesternIP and IK/TK and IP in the new knowledge order, especially as implicated in the contexts of food,agriculture, medicine, environmental sustainability, digital technology, traditional cultural expressions,intangible cultural heritage, tourism etc. Accordingly to him given the emphasis on “western formalscience” as central plank of knowledge generation in Western societies, conventional intellectual property,especially the patent system, does not adequately accommodate the process of knowledge generationin non-Western societies, including Africa.

He noted that one of the challenges confronting Global Knowledge Economy (GKE) is theneed of an IP system that accommodates the process of creativity outside the capitalist non-marketsocieties. Given the undenied and undeniable contributions of IK to innovation, there is an urgent needfor an intellectual property system that recognizes the peculiar process of innovation in non-westernsocieties, the nature of communal knowledge system and the contributions of IK to global basket ofinnovation. Thus, the main tasks for Nigeria in the global knowledge economic order, in a nutshell,include exploring a deliberate strategy for:

- Resisting the transfer of intellectual products in TK from Nigeria to external interests oninequitable terms.

- Positioning Nigeria not as supplier of genetic resources but a strategic partner for innovationarising from TK.

- Optimizing TK as an instrument for economic and cultural leverage.

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PLENARY II

Folklore, Traditional Cultural Expressions and Intangible CulturalHeritage

Chairman: Mr. Adebambo Adewopo, Director General, Nigerian Copyright Commission (NCC).Topic: No Room for Grandma: Traditional IPRs Regimes and (Non) Protection of Folklore.Speaker: Prof. Ikechi Mgbeoji

Prof Mgbeoji began by using an analogy of a mother who traveled abroad to visit her son,(who was still at the office). She was asked by the wife and kids to remain in the living room, becausethere was ‘no room for grandma’. This was not as a result of hatred or disgust for the mother, but theircultural ideology which did not understand communality i.e., that a room can be shared or vacated bythem for use by the grandma. Prof. Ikechi opined that the lack of a mechanism protecting folklore inAfrica is traceable to the attitudinal and institutional problems arising from European colonization ofAfrica which does not leave room for others to thrive.

Before the Europeans came to Africa, the indigenous peoples had complex systems of laws,norms, and practices governing the acquisition, sharing, possessing and transmission of IK. After definingIK, he went on to show how European colonization was unique and radical in justifying itself on thegrounds of racial and ‘biological’ superiority which instituted a mutilation of indigenous people’sknowledge across the world. It demonized and erased pre-existing indigenous protocols for theproduction, sharing, dissemination and revitalization of knowledge and information, describing suchprotocols negatively as ‘unscientific’ and ‘folklore’. Thus, IK in Africa, including the overwhelmingbasket of IK derived from women, was effectively marginalized. Subsequently, an alien system for therecognition, identification, classification and protection of knowledge was imposed, and today’sglobalization and perpetuation of international IPR institutions deliberately shuts out non-traditionalrights to which Folklore and other intangible property belongs.

With particular reference to Folklore (notwithstanding past critiques on the usefulness of theterm), the debate across national, regional and global institutions have focused on the question – shouldfolklore be protected? If yes, which aspects of folklore should be protected and how? This is with aview that the realm of folklore is, like many manifestations of IK, holistic and thus difficult tocompartmentalize.

Prof. Mgbeoji lamented the fact that the criteria and dominant IPR regimes for the identification,classification and protection of knowledge are EUROCENTRIC. Thus, indigenous peoples have atbest, been recipients of norms; not active co-participants or equal partakers in the development,interpretation, implementation and revision of laws on IPRs at both municipal and international levels.

He emphasized the need for taking charge and recognized the current trends of emergingcritical scholars, institutions, and international treaties (CBD, FAO, WIPO, UNESCO) sympathetic tothe causes of indigenous people and their attempts to facilitate the legitimation of indigenous people’sknowledge. They have also questioned the arrogance of Western empiricisms and argued that indigenousmethods of inquiry were often as empirical as the dominant science.

The session was concluded by urging Nigeria’s policy makers and stakeholders in this domainto set the pace, and not just by adopting an approach that ignores the traditional structures and codesof regulations, but, by being humble enough to engage traditional knowledge holders on means ofprotecting, preserving, learning and documenting our indigenous and traditional knowledge.

Topic: The Economic Significance of Folklore, Traditional Knowledge and Biodiversityin Nigeria and Beyond

Speaker: Mr. Moses Ekpo, the first Director General, Nigerian Copyright Commission (NCC)

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Mr. Ekpo started his discussion by acknowledging the uniqueness and appropriateness of theworkshop especially its timeliness with the celebration of the twenty years anniversary of the NigerianCopyright Commission (NCC) and its role at protecting creativity. Next, his introductory remarksextensively discussed the nature of folklore, traditional knowledge and biodiversity, looking at theirinterconnectivity and challenges.

Mr. Ekpo noted that the mistaken belief that everyone has to earn money from a white collarjob has increased the level of poverty and reduced the incentive to be creative. He sees traditionalknowledge as having a number of subsets, designated by expressions such as IK, folklore, traditionalmedicinal knowledge etc. while Biodiversity is the resources upon which these traditional knowledgesystems are dependent. (Note: not all scholars subsume IK under TK)

Evidently, the interest in Nigeria’s intangible cultures has grown outside its environment, due totheir value as sources of aesthetic enjoyment and the challenges they pose to the creative imagination.It follows therefore, that contemporary Nigeria should not sit back and ignore the need for the legalprotection of such intangible properties for commercial exploitation by the originators. Rather, it shouldpromote indigenous innovation, knowledge and creativity and create awareness on the economic valueof the knowledge systems existing within Nigeria.

Mr. Ekpos argued that the presumption that all aspects of traditional knowledge are sacred isa misrepresentation of the social and economic structure of Nigerian communities. He believes howeverthat, while some aspects of TK cannot be commercialized because of the link to traditional religion orthe classification of certain objects as sacred, other objects can be sold for economic purposes. Thus,an overgeneralization that the commercialization of knowledge could be destructive to the developmentof any society should be disregarded. In his view, our forefathers knew and taught us how to think andtrade for survival and they passed it on. Undoubtedly, commerce in such products as medicinal plants,traditional crop varieties and handicrafts can and does benefit Nigerians.

He concluded that based on the above, the Nigerian government should look into possibleways by which indigenous knowledge holders acquire the commercial and legal tools needed to collectthe value of their novelty, particularly by having access to the markets and control over the pricing oftheir goods without any third party who would take the biggest piece of the pie. Furthermore, theconservation, preservation and dissemination of expressions of intangible heritage must continue to beimproved upon.

Topic: Protection of Expressions of Folklore and its Challenges under Nigerian LawSpeaker: Mr. John O. Asein, Director, Nigerian Copyright Institute

According to Mr. Asein during his opening remarks, while the attempts at the international levelfor an international instrument to protect Folklore exists, it is pertinent that national and regional effortsshould be used, not only as catalysts to the international process but also to give the countries andregions concerned flexible but effective options as a prelude to any international regime.

Next, Mr. Asein gave elaborate definitions of the word ‘protection’ and classified it under twobroad subjects: positive protection and defensive protection. Positive protection gives TK holders theright to take action or seek remedies against certain forms of misuse of TK while Defensive protectionsafeguards TK against the acquisition of illegitimate IP rights by others over the subject matter of TK.

At the international level, article 15 of Berne Convention was the first to apply IPR to folklore.It was a response to recommendations by delegates of the African working session on copyright heldin Brazzaville, 1963. African initiatives includes: 1964 UNESCO/WIPO committee of African experts,1967/1973 Draft model law, which provided for an economic and moral rights in ‘works of Africanfolklore’ and authorization for exploitation. Also, the OAPI 1977 Bangui Agreement that entered intoforce in February, 1982. Like most countries with provisions on Expressions of Folklore (EOFs),Nigeria adopted the Tunis model. It aims at protecting EOFs against:

- reproduction

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- communication to the public by performance, broadcasting, distribution by cable or othermeans; and,

- adaptations, translations and other transformations.That said, Asein surmised that expressions of folklore are faced with the following challenges under theNigerian law:

- Definition of terms which is often muddled up when lawyers, anthropologists andstakeholders meet.

- Constitutional provisions and ethnic delineation- Width of exemptions and limitations as the formulation of the exceptions and limitations

under the Act does not discriminate between local and international users.- Lack of ownership and contending enforcement priorities. Very few African countries are

thinking of folklore because there are other priorities pressing upon them.- Absence of clear directions and guidance from the international level and other counties

that have the provisions. Here, the Ghanaian experience is instructive.- Others (fear of the unknown) i.e. how do you treat expression that have crossed cultural

political boundaries.- Gradual but persistent and deep erosion of traditional values and protective structures.

In conclusion, Mr. John Asein advised that unless there is a rethink of the values and priorities even abetter protective regime locally or internationally may just as well be to the benefit of the same peoplefrom whom we want to deliver these cultural assets.

Q & A / DISCUSSION SESSIONThe chairman of the session, Mr. Adebambo Adewopo thanked the presenters and called for

questions, comments and contributions for the audience.

1. Lady Gloria Chuma – Ibe (CBAAC)(i) Why does NCC only identify cases of copyright and not assist the copyright owner at

court?(ii) Needs a clearer definition of folklore as distinct from expression of folklore?

2. Hilary Ogbechie (NCAC)(i) In what era can we claim to have succeeded more in protecting folklore – pre or post

colonial eras?(ii) How can we encourage investors in the areas of culture and folklore?

3. Adetoun Oyelude (U.I. library): “You mentioned that “communal ownership is a fiction” pleaseexplain.

4. Christian Gideon (IDRC): Adapting folklore into technological forms to benefit economically,which community lays claim to it, which particular individual within the said community owns it, what/how will the benefits accrued be equitably distributed?

5. Ayanwale Ayo Olayanju (Ministry of Culture). It is said that from works of art, an artist canmove from poverty to affluence. How long can an artist who has sold his work across cultural andeconomic boundaries, claim royalty to a work? (He gave example of a Nigerian (Yoruba) artist (Mr.Fakeye) whose work of art is on display in Cuba where it constitutes an enduring precious work of artthat attracts many tourists annually] He noted, however, that the artist sold the work at a time he had noclue regarding the potential value his creation.

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6. Dr. Femi Jegede (U.I, IK study Group) How do we emerge from the standpoint of folklore notmonetarily based but humanly and communally based?

Mr. John Asein responded to Question 1:The burden of enforcement is shared between the owner and government. The owner of such

right primarily has the responsibility to institute a civil action against an infringer. That owner can alsomake a report to NCC. The latter, in turn, acts by investigating and if need be initiate prosecution. Veryoften the problem is that copyright owners are not vigilant in regard to matters of enforcement of theirrights.

Using the FESTAC mask as an example, he argued that folklores and expressions of folkloreshave gone beyond issues of preservation; there is an increased focus on wealth generation. NCC andCBAAC should forge a continuing dialogue on the issue of preservation, protection and economicexploitation of folklore.

In contributing his response to the question, Mr. Ekpo added:

Why preserve something that you cannot benefit from? Preserved in the British Museum, the FESTACemblem can generate tourist income for that country. But what is needed to resolve is how such amask, emblem or device can be protected in a way that benefits the indigenous people who created it,whose cultures are reflected in the emblem or masks. Sadly, today, the Benin people who were theprogenitors of the FESTAC mask and emblem and whose cultural symbols are therein implicated havenothing to show for it.

Prof. Ikechi and Mr. Ekpo responded to Question 2

A large majority of the elites believe one is civilized when one lives, behaves, and reasons like thewestern people. This has led to the loss of our cultural values i.e., people no longer feel civilized whentheir native/mother tongue is spoken. Parents encourage children to speak the English language anddisregard their local or traditional mother tongues. This is a case of being brown on the outside andwhite on the inside. If one does not have mastery of indigenous language, one definitely can not pass iton to the next generation. The aim therefore is to change our attitudes to these ideologies.

Those who are business inclined should invest in cultural enterprise. They can get government’s assistancewhere necessary thus, government needs to come in and collaborate with holders of such knowledgeto ensure protection and value for their novelty.

Mr. John Asein responds to Question 3:

Somebody somewhere in Africa has the capacity to originate something that can be termed folklore.Overtime there are now embellishments; innovations to such works from inspiration by the community,this does not in any way imply communal ownership as communal/folk mind is not an empirical entitycapable of taking credit for the authorship of such work of art. When we use the axiom ‘Our fatherssaid’, it is a sign of respect to the ancestors and also a copyright heritage acknowledgement.

Mr. Ekpo responded to question 4:

An expression of folklore at the traditional society was not for free. There were incentives or economicunderpinnings involved. The praise singer at a chieftaincy or wedding ceremony was rewarded insomeway. Some reward come in form of recognitions and whoever dramatizes or initiates the storygets the reward.

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Prof. Oguamanam also commented:

IP and IK are each dynamic. The history of IP and its evolution demonstrate flexibility to accommodatediverse and newer forms of knowledge system. If we are consist with the dynamism of these concepts,we would have no problem using intellectual property to empower folklore. We need to match thatlegal imperative with the political will. He argues the as part of its dynamism, traditional medicinalpractitioners are now adopting their service delivery to realities of modern market place and sophisticationof their patrons. Traditional medicine practitioners now sell their drugs in well packaged and labeledforms. It may not be out of place if they use lap or desk top computer to manage their stock of herbalmedicines and provisions. We must not shy away from the economic promises and potentials of IKand expressions of folklore.

Mr. John Asein on Question 5

Under the law, there is nothing much he can get as the system itself is unfair. However, nothingstops the government of the said country to reward him by way of an award or monitory incentive.

Mr. Ekpo on Question 6:

Amongst other things, NCC has prepared a model agreement for an art work and if they are accuratelyanswered, the agreement enables the owner to earn something from the work.

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PLENARY III (Brief Introduction to IK and Biological Diversity)

Indigenous/Local Knowledge and Biological Diversity

Chairman of Session: Prof. Chidi OguamanamTopic: Indigenous knowledge and its Relationship with Biological DiversitySpeaker: Prof. Ikechi Mgbeoji

Biologists define biological diversity as species genius diversities found in flora and fauna. Sofar, they have been able to identify 250,000 different plant life forms from those of little complexities togreater ones. Only about ten percent (10%) of these plants have been officially endorsed for medicinalpurposes. In fact, plants possess a complex property of chemical that have aided their survival foryears.

Researchers have discovered a direct relationship between human cultural diversity and plantdiversity as people of different cultures can breed the same types of plant to suit different purposes.Therefore, it is important to understand and know how to use any part of a plant which often involvesan interaction of the human body and the plant; in indigenous societies there is a view that some plantsneed rituals to cultivate and harvest them. Such a view constitutes a belief that closer ecologicalrelationship with plants provides the basis for intimacy in human-plant relationship. However, Mgbeojithen stated that our knowledge of plants is eroded by population pressure and negative religious influences.It is commonplace in Nigeria for adherents of the Christian religion to label traditional forests thatpreserve medicinal plants as evil forest and consequently proceed to destroy them in an act of “liberation”.

Another significant problem to the sustainability of IK is biopiracy. The appropriation of IK bywestern research institutions, entities, and commercial bodies threaten the integrity and survival of IK.Finally, he ended with the submission that in this age of biotechnology where we are in a rush to be partof its evolution, we can harm ourselves if we do not poses the necessary knowledge and value over theissues of plants, and protect our own African contextual indigenous knowledge of biodiversity.

Q & A / DISCUSSION SESSIONMs. Ngozi Aligbue (NNMDA) - Ms. Aligbue observed that when discussing IK, there is a tendency toconcentrate on flora alone and little attention to fauna. She identified poverty, oil pollution andindustrialization as the main threats to biological diversity which, as we have noted, is the mainstay ofIK. In her contribution/comment, Dr. Afia Zakiya used various illustrations to underscore the issue ofindigenous belief in the spiritual relationship between humans, plants and animal life forms that shouldnot be overlooked and cautioned against embracing neo-Malthusian perspectives of which includes afocus on poverty and overpopulation among ‘third world’ people as reasons for resource scarcity andenvironmental degradation as these tend to denigrate indigenous peoples culture when in fact, free-market environmentalism, the colonial enterprise and other factors are threats to biological diversity.

Contributing to the discussion, and providing information all participants were excited to learn about,Alhaji, Chief A. A. Monilola stated that in traditional medicine practitioners have researched and observeddespite their importance as food and medicine, maize pepper can have adverse consequences if usedin different ways. The root of maize and pepper are inherently poisonous and lethal when consumed.This is to stress on the fact that the closer you are to the plants, the more intimates you get and the moreyour understanding of the various usefulness of such plant.

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PLENARY IV

Topic: Indigenous Knowledge in the Global Knowledge Economy and the IntellectualProperty Order

Speaker: Prof. Chidi OguamanamChair: Prof. Stanley Okafor

Prof. Oguamanam began this session by emphasizing the role of women as the drivers of ourIK. He called them ‘the force strongly promoting our IK’. He described IK and listed a number of itsfeatures such as inherent complexity, inexhaustible in its caterories, holistic in its outlook, resistance tofragmentation, culture specific, innovative, dynamic, penetrable and penetrating other knowledge systems,and not lacking in scientific character. IK is manifested in the following forms amongst others: Arts,design, music, language and other forms of expressive culture, agriculture, medicinal knowledge,recordings, education – oral and written, religious and diverse cultural rituals, history, political craft,social relations etc.

According to Professor Oguamanam, the Global Knowledge Economy (GKE) is an offshootof globalization. The later depicts the global harmonization of legal and economic regulatory frameworksand the breaking down of barriers to trade to promote capitalist interests. GKE also involves the fusionof the local and the global. It is characterized by the power of information/knowledge in life science(biotechnology) and TK (biological resources) with a focus on Bio-resources which is the site ofconflict of interest between TK, western science (biopiracy), and intellectual property rights.

Technological trends and transitions at the cusp of GKE include digitization, the internet/cyberspace, information revolution ICT, and the “GSM phenomenon”. These trends also involve theimplosion biotechnologies and the life sciences industry which have led to intense prospecting inbiodiversity, biological resources and increased bio-piracy. In fact, GKE is a paradigm shift in innovationi.e. from physical sciences to life sciences. Information is now at the centre of wealth creation andconstitutes the new focal point on innovation as evident in the increasing important of cutting edgedisciplines such as molecular/microbiology (genetics, genomics), organic chemistry, biochemistry,physiology, pharmacology, and bio-informatics, among others. Thus, we observe that Biotechnology(an interdisciplinary endeavour and critical player in the knowledge of economy) has a symbioticrelationship with digital technology (electronic or computerized representation of information regardingan object, document, image or signal).

Accounts have it that Indigenous communities are home to an estimated seventy five (75%) ofthe world’s biological resources, the mainstay of IK. IK system are critical in the new innovationfrontier — i.e., reliance on TK increases discovery of marketable pharmaceutical by seventy eightpercent (78%). For example:

- Fifty percent (50%) of all prescription drugs in the US are based on drugs derived from naturalsubstances.

- Twenty five percent (25%) of US prescription drugs contain active ingredients derived fromIK.

IK is a serious ‘science” and often more meticulous than what happens in formal sciencelaboratories. In the GKE, generation, ownership, management and manipulation of information/knowledge is critical. IP then becomes ‘the currency of choice, the instrument of power andempowerment in the GKE’.

Prof. Oguamanam indicated that the issue of IK knowledge and IP is tackled from differentperspectives as a subject matter of international law and policy. Overall, he argued that the globalgovernance framework for intellectual property and IK remain critical aspects of policy debates at onelevel or another at the WTO/TRIPS, WIPO, UNESCO, FAO, WHO, global level. He singled out the

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Convention on Biological Diversity (CBD) and its secretariat in Montreal Canada, as a major instrumentand institution that provided a boost on the subject of IK. Despite extensive international initiativesaround the intersection of IK and IP, there is little responsive domestic initiative in Nigeria to align withthe state of progressive international developments on the subject. This vacuum is felt more whencognizance is taken of Nigeria’s profile as an important political and economic voice in sub-SaharanAfrica, combined with its rich cultural heritage. Also, as indicated, Nigeria is a significant user andsupplier of genetic resources and has one of Africa’s most unique biological diversity in flora and fauna.

The lack of dedicated and responsive domestic regimes on emerging roles of IK in the GKEneeds addressing as a matter of urgency. Professor Oguamanam argues that there is a need to reappraiseNigeria’s legal and bureaucratic infrastructure in a manner that aligns with the critical importance ofTK, its complex relationship with IP and its significance in the new global knowledge economy. Hesuggests that Nigeria may need to reach out to key developing countries such as India and Brazil whorepresent credible voices on the issue of IK, IP and biological diversity.

Q & A / DISCUSSION

(i) Do we have such an example of a country with SUCCESSFUL IPR in IK?

(ii) The knowledge of biodiversity – How do we reach out to others?

ANSWERSProf. Ikechi started with a response to Ms Ngozi’s observation at the former session. He pointed outthat as a subject “plants” are central in the discourse about IK. But he also noted the role of animalsand minerals. He made analogy to a bank robber who was asked why he always robbed banks. Therobber looked at the questioner surprisingly reminding him how stupid the latter was by not realizingthe obvious: “the bank is where the money is”. On the second question, Professor Mgbeoji indicatedthat traditional medicine practitioners cultivate medicinal plants around their homes. Over the years,they have acquired the knowledge of how to cultivate and preserve those plants which are part of theircultural heritage.

Prof. Oguamanam:In responding to the first and second questions, Professor Oguamanam pointed out that India

is a very good example of a country that has promoted its IK. It made sure that all knowledge systemon its traditional medicine has been computerized. India’s initiative has led to some critical changes ininternational patent classification in a way that has resulted in impoved accommodation of traditionalknowledge categories. Also India has dedicated laws on biodiversity, geographical indications thataim at maximizing that country cultural and economic advantage from its traditional knowledge resources.India continues to be a credible and respectable voice and a model for developing countries on how totacke the issue of IK and IP for national empowerment. He concluded by remaking that his workingtrip to India revealed that there is a lot to learn from that country on the subject of IK and IP.

CLOSING: Prof. Okafor commended all and gave an overview of the day’s activity highlighting thechallenges of IK and TK.

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DAY IITUESDAY APRIL 21, 2009

PLENARY V

Biopiracy and the Protection of IK and Cultural Heritage: Opportunityand Responses

Chairman of Session: Dr. Afia Zakiya

First Topic: Biopiracy and Bio-prospecting in Perspective: Local and Global DimensionsSpeaker: Prof. Ikechi Mgbeoji

The debate on whether the appropriation of a given people’s knowledge of the uses ofbiodiversity amounts to theft may be analyzed at different levels. First, there is the pervasive claim thatcommunities own the rights to biological resources and the knowledge of such resources. It followstherefore that individuals in the society who create something innovative are not recognized. Althoughthe community creates values using insights from shared cosmological experiences, the individual’scontribution in knowledge expression cannot be discountenanced. Individual contributions add valuesto even shared communal resources.

It is obvious that there is a huge array of area of specialization in IK/TK. Sometimes, it takesa long period of tutelage, experience, learning and studentship. Unfortunately, this universe of knowledgeis being lost as there are no longer initiates in this field of endeavour. If science is said to be rigorous inexpression of theories, it follows that since there is rigour in the long period of scholarship and diverseareas of specialization, IK/TK is worthy of IPR.

After this analysis, Prof. Mgbeoji gave an illustration on the subject of biopiracy with case ofAngharad Gatehouse, researcher of the University of Durban who received a patent on cowpeas hecollected from the local farmers at Ibadan on a sponsored trip by IITA. He was aided by localinstitutions and his office facilitated access to local farmers who handed him their improved cow peaseeds. Unknown to them, Dr. Gatehouse patented the insect-resistant cowpeas which they haddeveloped through their own ingenuity and efforts.

He identified the following undercurrents that made the Gatehouse biopiracy experience inIbadan possible:

- The power, cultural and epistemic gap between the farmers and Gatehouse- The power imbalance and institutional imbalances- The conflict between the patent system and traditional protocols, and,- The indulgence of the system which does not even accredit the lone ranger farmers.International law has firmly concluded that a country has undeniable rights to control and

regulate access to their biological resources that are leaving their society. Thus, the era of taking plantsand other resources without proper consent is over.

(The Deputy Vice Chancellor-Academics of UI, Prof. Agbaje was introduced and welcomedby workshop coordinator Dr. Zakiya. The DVC acknowledged and thanked the organizers, sponsorsand agencies, especially the IDRC that were once partners with the University of Ibadan. He encouragedthe organization to continue in its efforts at IK and IPR research development. He also re-stated that acentre is being put in place soon to promote IK and TK at the University of Ibadan.)

Continuing, Prof. Mgbeoji distinguished Biopiracy from bioprospecting. He stated thatbioprospecting is not illegal per se; when done properly, it is necessary and permissible. It is the searchfor biological resources of useful value which may often include associated traditional knowledge. Themain challenge, however, is in articulating a viable, fair and informed framework regulating access toand benefits sharing.

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Q & A / DISCUSSIONChief Isiaka O. Sholagbade, a Traditional Medicine Practitioner, highlighted the fact that there aresome knowledge and discoveries in IK that are yet to be acknowledged. He craved the indulgenceand assistance of the government and stakeholders to assist the traditional medical practitioners whenthey report these discoveries in order to enable development in the area.

Hilary Ogbechie NCAC:- Can a person claim knowledge that he/she is not aware of?- He seem to have disputed the idea that that a community cannot lay claim to an area of

specialization. He points out that there is a community in his ancestral area where even childrenas young as four year old are skilled in the art bone setting as part of the community’s culturalheitage.

Mr Ogbechie also expressed reservation about the role of local intermediaries in the exploitation of IK/TK

Adeola Jegede NIPRD Informed the group that there is a department presently in the Faculty ofPharmacy that is interested in Traditional Medicine –Pharmacognosis.

Dr. A.O. Adegoke Faculty of Pharmacy, University of Ibadan asked: How can we ensure that theemerging momentum on IK issues is not undermined by government bureaucracy and interventions?He mentioned the red tape and what he called ‘the Nigerian factor’ has crippled genuine efforts increating a Nigeria Pharmacopeia for years.

Dr. Femi Jegede U.I : Gave two examples of biopiracy:- A traditional leaf used to wrap food (name the leaf) has been discovered to reduce the sugar

or carbohydrate expression in wrapped food but has it has now been replaced by non-biodigradable nylon wraps. He mentioned that the leaf is now endangered and there seems tobe external interests that have “discovered” the same medicinal value of the leaf.

- He also indicated that ‘Oriata’ which is associated with the reduction or treatment of sickle cellanemia crisis is fast vanishing. Instead of cultivating the values of these local knowledge formsthat address endemic situations, we would rather allow ourselves to be exploited by externalinterest that are committed to taking away the vital biological resources, recycling the localknowledge and exporting them back to us (in forms local people cannot afford to purchase).

He surmised that we need to be more vigilant before things because totally irreparable.

Another participant asked/noted: In the case of IPR in biomedical research and the position of theresearch participants, do we quantify their efforts as being acknowledged i.e. Fitzer case, Moore’scase? Since we do not have much case law in this area and given a clue from the presentation, shouldthis be the position in Nigeria?

ANSWERSIt is impossible to claim property over knowledge where the said knowledge is lacking. It is

also not possible to generalize knowledge by individuals to all in the indigenous community.Cultural and institutional power imbalances have caused even the intermediaries to part with

their heritage.One must get participant’s consent in research and acknowledge such consent. Not certain

whether the domestic regimes have put this into law. The undeniable fact from an academic realmremains that credit and acknowledgement be given to persons whose IK/IT is used.

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PLENARY V (CONTINUED)

Speaker: Prof. Chidi OguamanamTopic: Status on Nigeria’s Country and Legislative Development on Protection of

Traditional Medicine and Biodiversity

While it certainly is not as if nothing has been done in Nigeria in response to current internationalor global momentum on the protection of TK and the preservation/exploitation of biological resources,one must still reflect on how determined or committed is Nigeria to addressing such issues and ascertainingto what extent has any responsive initiative translated into concrete results? Also, what is the plangoing forward?

In 2000, the AU raised a model law for the protection of local communities, farmers, andbreeders, which was to serve as a template for African countries on the diverse subject matters coveredin that document. It is not clear to what extent Nigeria has stepped down the letter and spirit of the AUinitiative into its domestic legal regime. The AU initiative underscores the importance of a regionalinitiative on the subject of TK/IP. It provides a good starting pint for Nigeria to show concrete leadershipby re-engineering its relevant domestic laws. Such a move will ensure not only a comprehensive approachto the subject of TK/IP, but it would have positive impact regionally in regard to other African countries.Regrettably, a cursory look at Nigerian statute books shows a scattered and incoherent approach tothe issue of IK /IP and biodiversity conservation. In order to determine legal or policy modalities forNigeria’s compliance with the Convention on Biodiversity and its protocols on access to geneticresources, biosafety, etc. one has to navigate complex and incomplete legal labyrinth traversing legislationon National Parks, Agricultural Seeds, Agricultural (Control of Importation), Animal Diseases (Control),and various environmental and complex regulatory regimes to mention the few. These do not includeother layers of inter-jurisdictional ministerial bureaucracies that compete for a regulatory stake andclout. What is the most viable thing to do?

Prof. Oguamanam concluded his presentation by stating that Nigeria/we all should study othersocieties or countries that have made positive policy and regulatory impact on these subjects at domesticand international levels. We must also pay attention to those who have failed, to the factors that accountedof their failure and to the lessons to be learned. India’s success is an enviable example. The country hasa robust domestic initiative on the digitization of its traditional medicinal knowledge which has had amonumental global impact attracting the interest of many developing countries and regional bodies.India has an innovative Biodiversity Act which establishes biodiversity authorities at the national, stateand local levels. The Act also created a National Bodiversity Fund run by a group of stakeholdersfocused on re-distribution of benefits of biodiversity exploitation in sustainable ways. India’s success ispremised on the background of a huge sensitization drive, competitive literacy level of stakeholdersand an inclusive approach in policy elaboration.

Topic: Protecting traditional knowledge and Biological resources in Nigeria: NNMDAexperience.

Speaker: Mr. Emmanuel Orgah: Representing Mr. T.F Okujagu, Director General/ChiefExecutive NNMDA.

Mr. Orgah began with apologies for the CE’s (Okujagu) absence. He then noted that traditionalknowledge cuts across numerous issues and the transfer of this knowledge form from generation togeneration is traditionally done orally. Where documentation exists, it is available in the local dialect ofthe community, however, improper documentation of the practices have led to gaps in the transfer ofsuch knowledge. When TK is protected, it could give benefits to the custodian of such knowledge andsome recognition and control over how it is used. This in turn can help in raising the standard of livingfor locals, particularly in the developing world.

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Several intergovernmental organizations and agencies have enacted laws to protect TK anddeal with access to generic resources and benefit sharing both at the regional and international levels:TRIPs, CBD, WIPO, AU. The NNMDA in its attempt to develop and protect traditional medicine incollaboration with national and international stakeholders, has taken the following steps:

- In December 2005, NNMDA organized a 3-day international workshop on IPR for TMPwith NOTAP.

- Set up a committee co-chaired by Prof. Abayomi Sofowora and Prof. Maurice Iwu whichproduced a draft policy and legal instrument for an IPR regime for traditional medicine knowledgeand practice. Copies of the document entitled “Traditional Knowledge and Biological ResourcesProtection Act” were given to participants. Inputs are sought from experts throughout Nigeria,and amongst those gathered at the current workshop to be subsequently provided to NNMDA.

- Conducts continual interactive sessions with TMPs in order to stimulate active participation.To date 30 interactive sessions nationwide with 9000 TMPs participating have been held.

Most importantly, NNMDA has developed a Digital Virtual library on TM to serve as a dedicatedfocal reference centre for research development and promotion of TM. These are some of the highlightsof NNMDA’s activities.

Q & A / DISCUSSIONChristian Gideon IDRC: Are there ways IK can be digitized? What precautions are taken to spreadthe knowledge and protect it?

ANSWERS:Mr. Orgah: NNMDA’S digital library has a free open access unit but knowledge on information isnot easily accessible or documented fully to grant protection to IK on TMPs.

Prof. Oguamanam: Even in India, access to the digital record in its TKDL is not open as such. It islimited only to those who have legitimate basis to have the information such as patent officers andoffices who have to conduct searches for the determination of prior art. Also, other persons interestedin having access to the information must sign a simple one page agreement that outlines the terms ofsuch access. Essentially, apart from using the TKDL project to starve off biopiracy, India seeks to usethat initiative to position itself in a place of strength to strategically partner with anyone who is interestedin researching into the area of its traditional medicinal knowledge on mutually agreed terms.

T.K Hamzart college of Medicine, U.I: When research is conducted, its findings are to be documentedin journals some of these journals are not accessible, the best one can get at times is an abstract. Atother times, one is asked to subscribe or meet with the author who usually asks for a token payment.This supports the issue that open is not entirely or totally open to all.

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PLENARY VI

Topic: CBAAC And The Challenges Of Protecting Black And African People’s CulturalExpression And Folklore, Accent On Video Productions From FESTAC AndOther Documentation Materials.

Speaker: Lady Gloria Chuma - Ibe.

CBAAC was established by the Federal Government of Nigeria in response to the need tostore, preserve and conserve for better utilization the invaluable cultural property bequeathed to Nigeriain trust by all participating countries of FESTAC 77 after the festival. It also serves as a vital organ forthe study, propagation and promotion of understanding of Black and African ideals and civilization.

As a centre in the position of preserving diverse cultural property, it has faced the followingchallenges:

- Lack of adequate legal and institutional framework of protection for cultural property in Nigeria.- Lack of personnel with training in the protection of cultural property.- Lack of comprehensive list of items in the Heritage reserve- Most practitioners are not aware on the IPR and rights especially on intangible heritage (proverbs

etc)- Inadequate financial support for cultural heritage centers- Theft, fire etc.

CBAAC’s challenge has also been to move beyond overprotection of its cultural resources fromFESTAC 77 and other activities engaged so that the public is better educated on the culture of Africansthroughout the continent. The Legal and institutional framework for the protection of cultural propertymust be better entrenched in CBAAC, training is needed in this regard along with a stronger partnershipwith NCC, UI IK Center and others empowered to discern heritage laws - common law copyright,IPR and their relationships to the work of CBAAC management and staff. Another area of focus isthat of cultural property buildings or heritage reserves such as palaces, forts and shrines, and how tomake them suitable to preserve their content. Most critically, CBAAC is concerned that heritagemanagers have been ‘slow’ to preserve identified intangible cultural assests (folklores,, idioms, proverbs,norms, myths, etc) to ensure access and use by future generations of Nigerians and others interested inNigerian quo African culture.

Topic: Information And Communication Technologies (ICT), Intellectual PropertyRights And Indigenous Knowledge Protection At Universities—The Role OfLibraries.

Speaker: Mrs. Adetoun Oyelude, Sr. Librarian Kenneth Dike Library, U.I.

Ms. Oyelude started with an overview and definition of IK and its characteristics which include:- IK is a product of its environment.- It is by nature oral – handed down from generation to generation through word of mouth.- IK resides in the memory of the holder and relies on this memory for it to be kept or preserved

in the community.- IK is a body of knowledge communally owned i.e., hunting, mode of worship, agriculture,

naming etc.

Some aspects of TK/IK are in the private domain, restricted to a limited number of professionals orgroups e.g. priests, cults, etc.

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Role of librariesBy nature, the library assumes responsibility for any knowledge collected or gathered and

should acknowledge the source of the knowledge acquired. The library relies on knowledge acquiredthrough:

- researchers or field workers,- the library itself going on an acquisition bid into the field to collect the information, and,- purchase of literature in which indigenous knowledge has already been recorded in one form

or the other.

Since libraries have a role in indigenous knowledge management, they face the challenge ofputting the IK in language that makes it more widely acceptable. In many libraries the scarcity of suchresources and the cost to manage its acquisitions are problems.

There is also the issue of training of staff in ICT use to ensure continuity of protection. In thisregard, libraries face such issues as the security of the IK collected and ensuring sustainability of use.Recording and disseminating IK elevates the risk of piracy and inappropriate use. The multimediatechnologies used to reproduce what IK or other forms of knowledge has been documented or recordedopens up access (legal or illegal) and changes of misuse of knowledge. Yet, the role of libraries inpreserving knowledge for posterity is evident. The wise use of ICT within an informed framework ofIPR to help protect IK is thus mandatory. ICT helps one to capture IK, proecess the IK, preserve theIK and organize it by extracting metadata with which to provide access and finally to disseminate IKregarless of time, location or physical barriers to ICT. ICT thus is a way to manage IK, and engage ininformation literacy and education.

That said, the challenges of IPR issues and digitization throughout Nigeria and indeed all ofAfrica must be addressed. Universities struggle to get funding to buy computers, lay the technology totransmit data, and train staff, faculty and students to use ICT effectively. All issues must be overcomeurgently to make Nigerian citizens competitive in the global knowledge economy.

In conclusion, libraries need to be adequately funded and used as a knowledge base orrepositions for African indigenous knowledge.

Q & A / DISCUSSIONProf. Oguamanam

I have noticed potential duplication of mandate and overlap in the jurisdiction of NIPRD,NNMDA and also potentially other agencies not represented here. Such duplication tends to becounterproductive in terms of results and efficiency. My question then is to what extent does NIPRD,NNMDA and other such agencies harmonize their activities in order to ensure effective coordinationand results oriented outcomes in the conduct of their programs of work?

Dr. Hamzat, UI Ctr for Entrepreneurship:It might be difficult to label a particular thing with IP given the example where the chinlop

slippers is used as collar support for accident victims, who owns the IPR? is it the producer of theslippers or the initiator of its use for emergency purposes?

Mr. Fagbemi Faculty of Law, U.I.:If an IK practitioner dies with the knowledge, it is like a library of knowledge is burnt down.

What do we do to encourage sustainability?

Hilary Ogbechie NCAC:NCAC takes people ground for exhibition and these people get incentives but in the process,

pholographs are taken. How do help to protect such rights and seek necessary remedies when violatedas money is being made on their IK/TK:

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- How will the incantations of the TMPs be interpreted when subjected to scientificexperimentations?

- What is the difference between FESTAC and Abuja Festival/carnival?

ANSWERSBoth agencies used to be with the Ministry of Science and Technology. Information on natural

medicine is usually sent from NNMDA to NIPRD at such we notice a kind of interconnectivity. Otheragencies and stakeholders are encouraged to join in achieving a unified goal.

NIPRD is planning, a meeting with TMPs next month to note their opinions on the way forwardfor natural medicine and IPRNIPRD is encouraged to build a lot of courage in the TMPs so as to encourage more discoveries thatwill aid the community.

Abuja carnival is an awareness creation festival for arts that can bring in money, create awarenessfor products while festac is not limited to Nigeria but international. In fact, it has been planned to takeplace in Senegal twice, but failed. It is to promote Black peoples culture and to discuss their commonproblem. It involves people in continental and diasporic Africa. It is not necessarily for economic gains.

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DAY III

PLENARY VII

The Future of Intellectual Property: Practice and Policy Prescription forNigeria.

All participants were involved in a round table discussion on the future of IPR, its practice andfindings of the workshop. A communiqué of resolutions, subsequently dubbed the “AIDIKI Declaration”was jointly adopted. It is contained in an appendix to this proceedings report.

WORKSHOP EVALUATION & CLOSINGAn oral evaluation of the workshop was solicited at the end of the final session. Additionally,

participants were sent an email communication asking for feedback. The overwhelming consensuswas that the workshop achieved its objectives, was worthwhile, informative and educative on theissues of IK and IPR. New relationships were formed between University of Ibadan which seeks tobecome a leader on research and policy on IK and all participants. Other linkages created was thatbetween the Ministry of Culture and MDAs that had not otherwise engaged the NCC (NCC &CBAC, for instance). Futhermore, emerging scholars and activist on IK and IPR were identified tocontinue the promoting the importance of the need for Nigeria to become a leading force in Africa andglobally to protect, promote and preserve IK in general, and in relation to IPR in particular, and thetraditional healers/TMP and leaders invited were pleased with discussions that valued their ingenuityand knowledge. The challenges facing Nigerian NGOs, academics, community development agentsand government-at the local, national, and regional levels, and the broad policy prescriptions providedduring the workshop were agreed upon in the declaration statement and continued dialogue on the wayforward is anticipated.

The workshop ended as it began, with traditional music calling the participants forward toceremoniously receive their certificates of participation which were handed out by the special guest ofhonor, Alhaji Chief A.A. Monilola, The Ewegbemi of Ede, Mogaji of Segun family, Ibadan, and member,Oyo State Advisory Board on Traditional Medicine Practitioners.

A testimony of the success of the IK & IPR workshop is cited below:“ since I came back and starting implementing the things I gathered from the seminar inmy research, its amazing how helpful the workshop has been. I cannot believe the littlethings one picks up just by listening to others speak…Thanks for the materials on theCD already had some and came across many news ones, so well done!

Nkechi Ogbonna, University of Leeds, London, and Sponsored Workshop Graduate

Student

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Workshop Presentations

Plenary I: Understanding Intellectual Property Rights (IPR): Justification/ Imperative

Theoretical and Conceptual Issues In IPR and Indigenous/Traditional Knowledge - Chidi Oguamanam

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Some Checks on IP

� Balancing private and public interests � Discoveries

� Laws of nature, scientific principles, abstract theorem, etc

� Term limitation

� Overriding public interest

� Compulsory disclosure

� Preservation of personal interests

� Residual power of state

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Regimes of IP

� Traditional Regimes� Patent

� Copyright/Neighboring Right

� Trademark� Design

� Non-Traditional Regimes� Chips (integrated circuits)

� Geographical Indications� Sui generis rights (e.g. Plant Breeders Rights)

� IP Regimes & Subject Matters Not Closed� Dynamic and continues to evolve as human ingenuity

thrives

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Plenary II: Folklore, Traditional Cultural Expressions and Intangible Cultural Heritage

Traditional and Modern Mechanisms of Protecting Folklore: African & Western views on IP & TheDomains of Creativity - Prof. Ikechi Mgbeoji

No Room for Grandma:

Traditional IPRs Regimes and (Non) Protection of Folklore

Prof. Ikechi Mgbeoji

Osgoode Hall Law School,York University, Canada

Take The Long Way Home!• The marginalization of the artistic and

cultural expressions of non-European peoples by the dominant regimes for the protection of IPRs is not a coincidence.

• To the contrary, it is a deliberate and required consequence of the hierarchical construct of peoples and civilizations which animated and underpinned the colonial enterprise.

Take The Long Way Home!

• The European colonization of “other”civilizations and peoples was neither the first nor only instance of colonization in human history but it was UNIQUE in one radical manner; that is, the justification of itself on the grounds of racial and “biological” superiority.

• Certain paternalistic doctrines of international law such as “discovery”, “guardianship” etc, enabled the dispossession of indigenous peoples and the savage attack on their systems of knowledge and inquiry.

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Take The Long Way Home!

• The colonial enterprise operated on the bizarre logic that history is a linear, unidirectional progression with the “superior” and “scientific” Western civilization leading and paving the way for others to follow. This instituted a mutilation of indigenous peoples knowledge across the world.

The Colonial Encounter and Indigenous Protocols on IK

• Some of the enduring legacies of the colonial encounter are:

• A) The demonization and erasure of pre-existing indigenous protocols for the production, sharing, dissemination, and revitalization of knowledge and information.

• B) The imposition of alien systems for the identification, recognition, classification, and protection of “knowledge”.

• C) The Gate-Keeper Role assumed by Western forms of IP protection.

• D)The globalization and perpetuation of international IPRs institutions

The Gold Standard vs. “The Other”

• The racial and racist construction of “scientific” knowledge facilitated and legitimated the dispossession, appropriation, and erasure of IK.

• Dominant IPRs regimes operated on the hypothesis that indigenous peoples across the world were devoid of intellectual ability and therefore incapable of generating protectable “intellectual property.”

• IK systems were thus dismissed as “irrational” or “unscientific” or “folklore”

Eurocentricity of Dominant IPRs Regimes

• It is often assumed that dominant IPRs regimes represent global consensus and universal values. This is a myth and a fallacy.

• The criteria for the identification, classification, and protection of “knowledge” are EUROCENTRIC!

• The assumption is that WHATEVER is good for EUROPEAN CULTURE should be good enough for other cultures regardless of their histories, experiences, and needs.

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Facts About IK

• Not always in the “public domain”;• It is not necessarily a “legacy” in the

sense of being a dead or dormant expression of culture;

• The knowledge is dynamic and innovative;

• The insights and products are often holistic and cannot be fragmented into “useful” and “ceremonial” components.

Before They Came

• In the pre-colonial age, indigenous peoples had complex systems of laws, norms, practices governing the acquisition, sharing, possessing, and transmission of IK.

• IK is best understood within the context of colonialism and irruption of the development of indigenous peoples’legal systems.

Xteristics of IK

• What makes IK “traditional” is the way and context in which it is learned, improved, transmitted and conserved;

• An overwhelming number of IK is derived from the efforts and intelligence of women;

• Sexism and gender (dis)empowerment often enable the non-recognition of IK (cloth-weaving, dyeing, songs, etc)

We Should Be There!

• Legal scholars of the constitutive theory of law have long recognized that law protects the interests and worldviews of those who participate in it. The converse is that law can be and has been an exclusionary and (dis)empowering institution.

• At best, indigenous peoples have been recipients of norms; not active co-participants or equal partakers in the development, interpretation, implementation, and revision of laws on IPRs at both municipal and international levels.

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Current Trends

• It is remarkable that a significant number of international treaties, conventions, etc favourably disposed to IK are to be found in environmental law treaties, not in IP treaties.

• Art. 27 of Int. Covenant on Civil and Political Rights

• Art. 8 (j) of the CBD• Farmers’ Rights in FAO Instruments• FAO Treaty on Plant Genetic Resources

Taking Charge

• It is equally significant that while new volumes of laws have been created in the past 20 years to accommodate and protect computer programmes, databases, integrated circuit topography, plants, indications of origins, business methods, etc, IK is said to be too “problematic” and “complex” to be protected by law.

Current Trends and Approaches

• It is not a coincidence that the formal end of colonialism in the mid-half of the last century brought with it a change in how international IP law perceives of and engages with IK.

• The participation of decolonized “states” in the deliberations of the UN and its agencies such as the FAO, UNCTAD, UNESCO, WIPO, have been chipping away at the monolithic structure of international IP protection.

Current Trends

• The emergence of critical scholars sympathetic to the causes of indigenous peoples facilitated the legitimation of indigenous peoples’knowledge. They questioned the arrogance of Western empiricism and argued that indigenous methods of inquiry were often as empirical as the dominant science.

• Instead of parroting antiquated ideas about IP rights, our academia should borrow a leaf from progressives.

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One Size Fits All?

• The platitudes and exhortations in a number of treaties requesting the recognition of IK by states has led to some new legislation on the issue.

• However, a significant number of the new laws on IPK seek to adopt western concepts of property, ownership, and control of “intellectual property.”

Folklore and Int’ IP Regimes

• With particular reference to folklore, the debate across national, regional, and global institutions have focused on:

• 1. should folklore be protected?;• 2. If yes, which aspects of folklore

should be protected?;• 3. How should it be protected?

Folklore and IP Protection

• The realm of folklore is, like many manifestations of IK, holistic and thus difficult to compartmentalize.

• Folklore often traverses a wide range of experiences. If it is a textile design, the scope and relevance may extend well beyond the design itself. What then happens in terms of legal protection.

Let Those Who Know Decide

• My suggestion is that the deep cultural roots of folklore compel the need to AVOID a syncretic approach which ignores the traditional structures and codes of regulation.

• Ideally, the identification, classification, and protection of folklore should be anchored on the traditions and codes of its true practitioners.

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The Economic Significance of Folklore, Traditional Knowledge andBiodiversity in Nigeria and Beyond

Mr. Moses Ekpo, Former Director General Nigerian Copyright CommissionIntensive Workshop on African Indigenous Knowledge & Intellectual Property Rights:

Implications for Nigeria’s Development, University of Ibadan Conference CenterApril 20 – 23, 2009.

Introduction

Traditional or rural communities in Nigeria are finding it ever more necessary to secure a reliable flowof income so that they can achieve greater self-sufficiency. A more appealing option is to establishmarket links for locally produced intangible properties. People indigenous to Nigeria may take theinitiative of selling local resources, manufactured goods and artworks in local and regional markets, asit was done from generation to generation for centuries before western interference and dominance.The failure of a large percentage of Nigerians to think of ways to earn an income increases the numberof poor people in Nigeria. Poverty is no longer synonymous to local or rural communities; it is visibleacross the country. Thus, folklore, traditional Knowledge and biodiversity are useful in benefiting thepoor. The development of a field of cultivating entrepreneurs, who ultimately serve national economicgrowth, will ease poverty.6

The mistaken believe that everyone has to earn an income from a white collar job has increased thelevel of poverty and reduced the incentive to be creative. It is easily forgotten that knowledge is powerand knowledge is not limited to western knowledge. The proper use of information indigenous toNigeria can result in wealth. The time has come for Nigeria to promote indigenous innovation, knowledge,and creative skills and create awareness on the economic value of the knowledge systems in existencewithin Nigeria. It is about the knowledge we own, create, and sell, which is an attempt to increaseearnings from indigenous knowledge. The interest in Nigeria’s intangible cultures has grown outside itsenvironment, both on account of their value as sources of aesthetic enjoyment and the challenges theypresent to the creative imagination.7 It seems, therefore, that contemporary Nigeria cannot sit backand ignore the need for the legal protection of intangible cultural items for commercial exploitation bythe originators.

Commercially relevant traditional knowledge includes wild plant resources, domesticated plants withinteresting genetic properties, musical instruments producing evocative sounds, new ingredients forcosmetics, new foods and spices, art designs and their potential use on all manner of salable products,mythic elements and stories, and sites for tour organizers.8 The commercial exploitation of works ofart, craft, and knowledge of traditional societies should be beneficial to the originators.9 Numerous artand other objects from traditional communities are already openly displayed in local markets andtourist centers stretching across Nigeria and beyond. Indigenous music and dance should be promotedas part of the Nigerian entertainment industry. Local pharmaceutical companies and even government

6 Tirfe Mammo, The Paradox of Africa's Poverty: The Role of Indigenous Knowledge, Traditional Practices andLocal Institutions - The Case of Ethiopia (Eritrea: Red Sea Press Inc 1999).7 J. H. Kwabena Nketia. Safeguarding Traditional Culture and Folklore in Africa (International Centre for AfricanMusic and Dance University of Ghana School of Performing Arts Accra, Ghana) http://www.folklife.si.edu/resources/Unesco/nketia.htm8 Tom Greaves, IPR: A Current Survey, in INTELLECTUAL PROPERTY RIGHTS FOR INDIGENOUS PEOPLES: ASOURCEBOOK 3-4 (Tom Greaves ed., 1994) [hereinafter SOURCEBOOK].9 Adebambo Adewopo, Protection and Administration of Folklore in Nigeria <http://www.law.ed.ac.uk/ahrc/SCRIPT-ed/vol3-1/editorial.asp> accessed 10 April 2009.

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agencies should tap into local knowledge of the medicinal value of plants that could in turn be useful incuring priority diseases. Thus, the commercial exploitation of traditional knowledge through advancedtechnological processes should not be left to appropriators from the Western world.10

Attention should be called to a broader range of knowledge that has commercial potential in Nigeria,as it has been done in some developing countries, and bring an economic dimension into the discussionof traditional knowledge. The incentives for and concerns of traditional knowledge holders which maybe different from those of corporate research, nongovernmental organizations (NGOs), or alreadysuccessful entertainment stars should be highlighted. The answer to the reduction of poverty in Nigeriais often commercial rather than legal (for example, obtaining a formal patent or copyright protection),although in some instances standard legal approaches have been effective and it is useful to identify theproblems in which legal innovation is really needed. Indeed, there are many income-earning dimensionsof culture and indigenous people still respect tradition and use traditional protection mechanisms suchas trade secrets to keep their information confidential.

The economic dimension of traditional knowledge should not be placed second to the legal analysis ofthis knowledge system rather they should be at par. Nonetheless, the need to protect traditional knowledgeand the rights of traditional knowledge holders are often at the forefront of international debates. Theprotection of expressions of folklore, traditional knowledge and biodiversity are classified as globalissues. These issues are considered as matters linked to the laws and practices covering intellectualproperty use and protection. Folklore and aspects of traditional knowledge are deemed protectable asintellectual properties because there is some overlap between the intellectual property system and themeans of protection in indigenous communities.

Intellectual property is a legal concept which deals with creations of human ingenuity. Thus theinternational community has paid more attention to, the defence of traditional knowledge againstmisappropriation by industrial country interest and the policing of bio-piracy or exploitation of biodiversitythat exists in developing countries to develop products based on biodiversity biological and geneticresources without proper compensation to traditional communities that first discovered the usefulnessof these materials. Global sales of pharmaceuticals derived from genetic resources link back to knowledgethat traditional communities possess on how to use natural materials as medicines, foods, andpreservatives.11

Traditional knowledge is useful information that is passed on by the members of the society fromgeneration to generation. It develops incrementally, with each generation adding to the stock ofknowledge.12 It could be creations, whether they be inventions, designs, trademarks or artistic works,such as music, books, films, dances, sculpture protectable as property. Folklore on the other handcovers some of these creations and it is often linked to copyright works. The role folklore plays or canfurther play in the Nigerian copyright industry is very promising.

Culture and commerce more often complement than conflict. The economic value of traditionalknowledge brings out instances in which more or less standard legal approaches can be effective. The

10 Paul Kuruk, Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the TensionsBetween Individual and Communal Rights in Africa and the United States11 Kerry ten Kate and Sarah A Laird (2004): Bioprospecting Agreements and Benefit inSharing with Local Communities in Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn fromtheir Knowledge (World Bank and Oxford University Press).12 Preetha Sadasivan, Protection of Traditional Knowledge Under Biodiversity Act 2002: A Critical Analysis http://articles.manupatra.com/PopOpenArticle.aspx?ID=553bf547-703a-47fb-94d5 41ee79fb5a32&txtsearch =Ms.%20Preetha%20Sadasivan

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assumption that commercialization of knowledge to indigenous communities could be destructive tothe development of any society should be crushed. While some aspects of traditional knowledgecannot be commercialized because of the link to traditional religion or the classification of certainobjects as sacred objects others can. Indigenous people in Nigeria have been involved in buying andselling of both tangible and intangible properties without jeopardizing their religion. The presumptionthat all aspects of traditional knowledge are sacred is a misrepresentation of the social and economicstructure of Nigerian communities. Our forefathers knew and taught us how to think and trade forsurvival and they passed it on. Undoubtedly, commerce in such products as medicinal plants, traditionalcrop varieties and handicrafts can and does benefit Nigerians.13 This paper explores the idea of makingtraditional knowledge make economic sense to traditional communities and how this can be achieved.It is about promoting the innovation, knowledge, and creative skills indigenous to Nigeria and otherAfrican countries, and particularly about improving the earnings of indigenous people from suchknowledge and skills. The objective is to shift discourse from the international community to activitiesat the domestic level and examine the role of intellectual property rights in the commercialization offolklore, traditional knowledge and biodiversity.

The Nature of Folklore, Traditional Knowledge and Biodiversity

Traditional knowledge has a number of different subsets, some of them designated by expressions suchas indigenous knowledge, folklore, traditional medicinal knowledge and others.14 Biodiversity is theresources upon which traditional knowledge systems are dependent. Folklore includes literary worksof all kinds, dances, musical productions of all kinds, dramatic, dramatic-musical, choreographic andpantomime productions, styles and productions of fine art and decorative art by any process andarchitectural styles.15 The protection of both tangible and intangible properties pushed traditionalknowledge and intellectual property issues into limelight; however, it has become essential toconceptualize this knowledge system as an economic asset. ‘Traditional knowledge never was and isnot an end in itself but a means to achieve a greater object. Therefore, advocates for protection oftraditional knowledge ought to see beyond the instruments of protection but engage in further enquirywith regards to the question of development and improvement in the socio-economic conditions of thetraditional communities’.16

Contrary to common perception within and outside Nigeria, traditional knowledge is not wholly ancient.It is evolving all the time, a process of periodic, even daily creation as individuals and communities takeup the challenges presented by their social and physical environment. In many ways therefore, traditionalknowledge is actually contemporary knowledge. Traditional knowledge is embedded in traditionalknowledge systems, which each community has developed and maintained in its local context. It is thecommercial and other advantages deriving from use that has given rise to intellectual property questionsthat could in turn be linked to international trade and cultural exchange.17

Folklore is itself the product of the creative ideas of the people who express such creativity throughverbal, artistic or material forms, which is in turn transmitted orally, or in written form, or through someother medium, from one generation to the other, belonging to a literate or non-literate society, tribal ornon-tribal, rural or urban people. Although usually involving low technological activities, some culturalproducts require great creativity, involving intricate detail and complexity reflecting not only great skill,

13 Graham Dutfield, Protecting Traditional Knowledge: Pathways to the Future http://www.iprsonline.org/unctadictsd/docs/Graham%20final.pdf accessed 8 April 2009.14 http://www.wipo.int/about-ip/en/studies/publications/genetic_resources.htm15 Article 67, Revised Bangui Agreement of 199916 ibid17 http://www.wipo.int/about-ip/en/studies/publications/genetic_resources.htm

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18 Graham Dutfield, Protecting Traditional Knowledge and Folklore: A Review in Progress in Diplomacy and PolicyFormulation (UNCTAD/ICTSD project on IPR October 200219 ibid20 Michael Blakney, 'What is traditional knowledge? why should it be protected? who should protect it? for whom?:understanding the value chain', 3 WIPO Doc. WIPO/IPTK/RT/99/3, available at http://www.wipo.int/eng/meetings/1999/folklore/index_rt.htm21 Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank andOxford University Press).22 ibid23 World Intellectual Property Organization (WIPO) website, see also http://www.wipo.int/about-ip/en/studies/publications/genetic_resources.htm.24 Section 28 Nigerian Copyright Act (Cap 28 Laws of the Federation 1999)

but originality as well. Some of the cultural products express or convey some form of symbolic meaning,which endows them with a cultural value or significance distinct from whatever commercial value theymay possess.

According to an eminent scholar ‘the terms “traditional knowledge” (TK) and “folklore” are frequentlyused as if they are discrete categories of culturally-specific knowledge. ‘Since “folk” means peopleand “lore” is defined in the Oxford English Dictionary as “a body of traditions and knowledge on asubject or held by a particular group”, the two are not obviously different in meaning. And yet, forcertain reasons the two are differentiated, as should soon become clear’.18 Categories and embodimentsof folklore and traditional knowledge include knowledge of current use, previous use, or potential useof plant and animal species, as well as soils and minerals; knowledge of preparation, processing, orstorage of useful species; handicrafts, works of art, and performances.19

As earlier mentioned traditional knowledge commonly refers to knowledge associated with theenvironment rather than knowledge related to, for example, artworks, handicrafts and other culturalworks and expressions (which tend to be considered as elements of folklore). The expression ‘TraditionalKnowledge’ accommodates the concerns of those observers who criticize the narrowness of ‘folklore’.However, it significantly changes the discourse. Folklore was typically discussed in copyright or copyright-plus terms. Traditional knowledge would be broad enough to embrace traditional knowledge of plantsand animals in medical treatment and food. In this circumstance the discourse would shift from theenvirons of copyright to those of patent law and biodiversity rights.20

As for folklore, it is worth noting that folklore predates traditional knowledge as a subject for discussionat the international level, going back to the 1970s, when it was classified as a copyright-related matter.21

UNESCO recognizes folklore as living and evolving, handed down from generation to generationorally rather than in fixed form, and it is an essential aspect of cultural identity in many countries.22 Inaddition, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources,Traditional Knowledge and Folklore (IGC) was established by the WIPO General Assembly in October2000 as an international forum for debate and dialogue concerning the interplay between intellectualproperty, and traditional knowledge, genetic resources, and traditional cultural expressions / folklore.23

Folklore in traditional societies takes various forms. It is not limited to certain types of society but onthe contrary may be found in all societies no matter how modern they might appear to be and howuntraditional much of the knowledge in circulation within them is. The urbanization and westernizationprocesses that have transformed many of the world’s societies are unlikely to have resulted in thecomplete eradication of folk ways even in those countries which have experienced these phenomenathe most comprehensively.

The protection of folklore is recognized under the Nigerian Copyright Act.24 Folklore means a group-oriented and tradition based creation of groups or individuals reflecting the expectation of the community

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as an adequate expression of its cultural and social identity, its standards and values as transmittedorally, by imitation or by other means including

a. Folklore, folk poetry, and folk riddlesb. Folk songs and instrumental folk musicc. Folk dances and folk playsd. Productions of folk arts in particular, drawings, paintings, carvings, sculptures, pottery, terracotta,

mosaic, woodwork, metal ware, jewelry, handicrafts, costumes, and indigenous textiles.

As part of the effective administration and enforcement of the provisions of the Nigerian Copyright Acton expressions of folklore, the Nigerian Copyright Commission initiated the “Documentation of NigerianIndigenous Folklore Resources”. This project is meant to provide a source of revenue to both governmentand the local communities while ensuring the preservation of Nigeria’s vital artistic and cultural heritage.Given the size and cultural diversity of Nigeria, this project is to be executed in phases over a numberof years. Three states, namely, Rivers, Kogi, and Nassarawa, out of the 36 states of Nigeria have beenselected both as the first phase and as the pilot scheme. The project will be carried to other states ofthe Nigerian Federation when the first phase is completed.25

Many people tend to apply the term traditional knowledge more narrowly to the knowledge held bytribal populations that are outside the cultural mainstream of the country in which these peoples live andwhose material cultures are assumed to have changed relatively little over centuries or even millennia.Those who use the term this way consider traditional knowledge as referring primarily to the knowledgeof indigenous and tribal peoples as defined under the International Labour Organization Convention169 Concerning Indigenous and Tribal Peoples in Independent Countries.

According to the Convention “tribal peoples” refers to those whose social, cultural and economicconditions distinguish them from other sections of the national community, and whose status is regulatedwholly or partially by their own customs or traditions or by special laws or regulations. Indigenouspeople refers to those peoples who are regarded as indigenous on account of their descent from thepopulations which inhabited the country, or a geographical region to which the country belongs, at thetime of conquest or colonization or the establishment of present state boundaries and who, irrespectiveof their legal status, retain some or all of their own social, economic, cultural and political institutions.Because it is so common to characterise TK holders as being members of such societies, the termindigenous knowledge is sometimes used instead of, interchangeably with, or as a sub-set of, traditionalknowledge.26

Protecting Traditional Knowledge for Economic Reasons: Make Knowledge Make Naira

Indeed, Nigeria and other African countries are rich in expressions of folklore, traditional knowledgeand biological resources, which are an important part of cultural and natural heritage.27 Local andindigenous communities depend on traditional knowledge for their livelihoods and well-being. Eventoday, many of the local and indigenous communities in Nigeria meet their basic needs from the productsthey manufacture and sell based on their traditional knowledge. The economic significance of theseresources has played a role in the need to protect it. For years or better still centuries these resourceshave been traded within and outside Nigeria.

25 Nigerian Copyright Commission website www.nigcopyright.org.26 Graham Dutfield, Protecting Traditional Knowledge and Folklore: A Review in Progress in Diplomacy and PolicyFormulation (UNCTAD/ICTSD project on IPR October 2002).27 Statement by the African Group (Third Session of the WIPO Intergovernmental Committee of Intellectual Propertyand Genetic Resources, Traditional Knowledge and Folklore June 13 -21, 2002).

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The commercialization of expressions of folklore, traditional knowledge and products of biodiversityhas often not benefited the countries of origin, particularly in the fields of music, film, video production,visual arts, crafts and performing arts and dance. Despite their economic potential, these productshardly feature in national economic statistics. The production, distribution, exhibition and preservationof cultural products should be a source of inspiration and creativity for cultural industries, generatingconsiderable income and employment fuelled by the growing demand for cultural goods and services inan expanding marketplace.

Many businesses today, small, medium and large, create wealth using the forms and materials oftraditional cultures. Local cooperatives have been formed in some countries to produce and markethandmade crafts, textiles that employ traditional designs, audio recordings of traditional music,pharmaceuticals that use indigenous knowledge of healing plants, and entertainment that employs variousforms of traditional representations for motion pictures, amusement theme parks and children’s toys.28

Music, dance and other performing arts are, in traditional communities, vital expressions of a livingculture. Performances may be purely for entertainment or they may be carried out for religious or otherreasons. Some performances may be open to the whole community, whereas others may be restricted,with initiated people only permitted to enact, listen to or see them. Traditional handicrafts and artworkscan be important sources of income. They are the products of individual artisans and artists steeped inthe culture of the society to which they belong.29

Cultural products consist of characteristic elements of the traditional artistic heritage developed andmaintained by a community or by individuals reflecting the traditional artistic expectations of such acommunity. A society’s creative expression and artistic forms, as well as its traditional knowledge andpractices, often leads to the production of numerous articles and other things such as paintings, sculptures,cravings and textiles. African cultural products are found all over the continent, deriving from the wealthof cultures on the continent and the ingenuity of the people of Africa. However, African cultural productsare increasingly being made in other parts of the world without deference to the African originators.30

It is worth mentioning that economic exploitation where desired by the holders should be on termsagreeable and acceptable to them, without losing respect for cultural products. Trade in cultural productscan contribute to the quality of life in the places they are produced, and can enhance the image andprestige of the local area. Some cultural products can also play an important role in community foodsecurity, nutrition and health. Their benefits are relatively more important for poorer households, womenand disadvantaged groups.31

Economics of FolkloreHandicrafts provide a modest livelihood to large numbers of poor people, particularly to the rural poor.In India, about 9.6 million people earn about US$3.3 billion a year, or just under US$400 per person.32

There is no such statistics available in Nigeria. The part-time rural nature of much crafts activity

28 Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions,WIPO/GRTKF/IC/5/3, May 2 2003. International Network on Cultural Policy (INCP) October 2002, www.incp-ripc.org.29 Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank andOxford University Press).30 The Promotion and Protection of Africa's Cultural Products (Advocacy Statement) African Union http://w w w. t h e c o m m o n w e a l t h . o rg / S h a r e d _ A S P _ F i l e s / U p l o a d e d F i l e s / 0 D D 2 D 9 D E - E 7 3 7 - 4 8 3 9 -B5F111F4B3B53102_Cultural_products_protection_advocacy_statement_2.pdf31 Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank andOxford University Press).32 Maureen Liebl and Tirthankar Roy (2004): Handmade in India: Traditional Crafts in Skills in a Changing World inMichael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank andOxford University Press).

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complements the lifestyles of many craft workers and provides supplementary income to seasonalagricultural workers and part-time income to women. Engaging in this type of work often provides themeans for people to remain in their traditional villages rather than migrate to the city. Handicrafts havevalue beyond their capacity to generate income. Myriad craft traditions and living craft skills are rareand irreplaceable resources, generally acknowledged as living links to the past and a means of preservingcultural meaning into the future. Due to the natural evolution of societies it is neither possible nordesirable to preserve every single piece of the past. Except in a museum setting, no traditional craft skillcan live on unless it has a viable market.

Artisans in different region in Nigeria have been making distinctive products, made entirely from localresources for years. The capacity of the Congolese group is basically their design capacity. Theirproduction to now has been by hand in small lots. If they obtain a large order they would need assistanceto arrange for production to be handled by third parties and to ensure that they were compensated fortheir design elements. With a view to the long run, such an order might be a step toward building amarket awareness of their design style and thus lead to further earnings from design.

Indigenous music has significant business potential. It currently makes up about half of the fast-growingworld music segment of recorded music, and music industry experts suggest that African music todaymay be at the jumping-off point where country music and rock and roll were in the United States in the1950s. Africa has to see itself as succeeding in activities that have some glamour. The music industryhas the potential to be an important symbol as well as a substantive element in bringing a poor societyforward.33

The use of reproductions of traditional aboriginal designs to decorate mundane products for the touristtrade, such as key rings, T-shirts, and drink coasters, is a matter of increasing concern to aboriginalpeoples. Aboriginal customary law provides for collective ownership of paintings and other artisticworks, but that collective ownership does not carry over into Australian law. Even so, Australian courtshave found ways to defend aboriginal artistic creations against exploitation from outside the aboriginalcommunity while at the same time recognizing the spiritual and sacred significance of the images andrespecting the community’s sense of communal ownership.34

Large Scale Production and Exportation of Products of Traditional Knowledge: Challenges

Taking advantage of opportunities in the market for intellectual properties involves skills different fromthose necessary for the production and marketing of products that embody traditional knowledge. Anindigenous product that sells well is quickly followed by a machine-made copy distributed by a massretailer.35 Indigenous products are often produced on a small scale while copycats produce on a largescale. There are problems of cheap knockoffs, extensive copying among artisans, artisans who passalong (and sometimes sell) designs belonging to a client, and buyers who have a sample designed andproduced in the country of origin, then manufactured in bulk somewhere else. People in the craftsbusiness in some developing countries are pessimistic about obtaining design and process protectionthrough enforcement of patent and copyright laws by government.

The modern economic system has penetrated indigenous societies, affecting traditional economic systemsto varying degrees. Indigenous economic systems are under increasing pressure to conform to a globally-

33 Frank J. Penna, Monique Thormann, J. Michael Finger (2004): The Africa Music Project in Michael J. Finger, PoorPeoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank and Oxford University Press).34 ibid35 Ron Layton (2004): Enhancing Intellectual Property Exports through Fair Trade in Michael J. Finger, Poor PeoplesKnowledge: Helping Poor People to Earn from their Knowledge (World Bank and Oxford University Press).

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defined system. Whereas this has provided opportunities for some it has meant severe challenges formany. Although forms of market economy are part of both modern and traditional societies, the emphasisis very different. Traditional systems need to move away from subsistence production to more commercialforms of production and integration into the market economy. Access to markets is still limited, andcommunities that want to market their goods very often have to operate through third parties who takethe biggest piece of the pie. Indigenous producers have little control over the pricing of their goods astheir bargaining power is limited, and they are subjected to the fluctuations of the market. All thesechallenges should be faced. However the support of the government is required in facing such challenges.Traditional knowledge as a means of economic development and poverty reduction requires legitimization.

The Way Forward

The Nigerian government should look into possible ways to improve the situation for traditionalknowledge and those dependent on it for livelihood:

(1) To increase the income of crafts producers; the prerequisites are adaptation of skills and productsto meet new market requirements and improvement in market access and supply.

(2) To sustain the traditional skill base and protect traditional knowledge resources. The priority inthis area is development of appropriate legislation and implementation. 36

On the whole, economic and noneconomic uses should be portrayed as complements, which they areand not substitutes. The Nigerian culture evolves better with economic support.

Regulations attempting to limit commercial use can end up destroying rather than supporting culture.The development dimension lies in helping poor people to master the commercial/legal tools needed tocollect the value of their novelty. This is about entrepreneurship, about finding clever ways to repackagetraditional knowledge into products useful for consumers in mass markets, and about developing thecapacity to produce and deliver these products in sufficient quantity and quality as to satisfy suchmarkets. It is also about building local business infrastructures, overcoming corruption, and overcomingdisproportionate tax burdens.37

ConclusionThe Economic value of traditional knowledge is important to the economic development of Nigeria.Creating a market for products based explicitly on indigenous economic activities may provide a nichefor indigenous products. If a successful market niche for indigenous products is to be created, producersneed to be formally recognized and respected. More significantly, legal recognition would mean respectfor indigenous products and traditional knowledge holders. Nonetheless, the conservation, preservation,and dissemination of expressions of intangible heritage must continue to be important components.

36 Michael J. Finger, Poor Peoples Knowledge: Helping Poor People to Earn from their Knowledge (World Bank andOxford University Press).37 Jannie Lasimbang, Indigenous Peoples and Local Economic Development (Issue No. 5 2008)

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Protection of Expressions of Folklore and its Challenges UnderNigerian Law

Mr. John Asein, Director Nigerian Copyright Institute/NCC

Protection of Expressions of Folklore and its Challenges

under Nigerian Law

JOHN O. ASEIN

Director, Nigerian Copyright InstituteNigerian Copyright Commission, Abuja

aseinjohn@yahoo.com

Foreword . . .

� Acknowledging the cultural and social importance of expressions of folklore and traditional knowledge, their value as economic resources, developing countries have sought the protection of these materials at the international level within the framework of the intellectual property system.

� . . . While the attempts at the international level for an international instrument it is pertinent that national and regional efforts should be used, not only as catalyst to the international process but also to give the countries and regions concerned flexible but effective options as a prelude to any international regime.

Definition of Terms. . . Protection

“Protection” is often used to refer to the whole panoply of regulatory mechanism for the protection of rights and the sustenance of the integrity and value of traditional knowledge.

� Positive Protection: Gives TK holders the right to take action or seek remedies against certain forms of misuse of TK

� Defensive Protection: Safeguards TK against the acquisition of illegitimate IP rights by others over the subject matter of TK.

Definition of Terms. . . Protection

� Some Questions that come to mind in “Protection”

� What does it mean to protect?

� Protect what?

� Protect from what?

� Protect for whose benefit?

� Why protect?

� Were any of these considered (deeply) at the introduction of the provisions of expressions of folklore in the Nigerian Copyright Act?

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Definition of Terms. . . Protection

� Some form of protection existed in traditional societies for creative expressions including Expressions of Folklore (EoF) but much for the protective regime has been lost

� Any decision on appropriate protection regime mustcomplement existing traditional mechanisms

� It is ill-advised, if not worthless to dwell only on the spiritual and superstitious aspects of EoF

� There is a consensus that the primary beneficiaries of protection should be the holders of the EoF.

Definition of Terms. . . EoFs

The definition of “Expressions of Folklore” (EoF) has been evolving with little change in character. The present definition which isnot far from the Nigerian definition is:

� any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof:� verbal expressions, such as: stories, epics, legends,

poetry, riddles and other narratives; words, signs, names, and symbols;

� musical expressions, such as songs and instrumental music;

� expressions by action, such as dances, plays, ceremonies, rituals and other performances,

whether or not reduced to a material form; and

Definition of Terms . . .

� tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewelry, baskets, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms; which are:� (a) the products of creative intellectual activity,

including individual and communal creativity;� (b) characteristic of a community’s cultural and social

identity and cultural heritage; and� (c) maintained, used or developed by such community,

or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community.

Limitations of Protection under Classical IP

� Available options under classical copyright:

� Collections of expressions of folklore

� Adaptations

� Producers’ neighbouring rights

� Performers’ neighbouring rights

� Problems with direct protection via copyright:

� Fixation requirement

� Originality

� Authorship and Ownership

� Duration

� Available options under Industrial Property Rights:

� Designs, Trade marks, Geographical indications and Unfair competition

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International Protection? – Art 15 Berne

� Art. 15 of Berne Convention – First application of IPR to folklore at International level

� Inserted at the1967 Stockholm Diplomatic Conference

� Response to recommendation by delegates of the African Working Session on copyright held in Brazzaville, 1963:

“Inclusion in the list of works protected under the Berne Convention of “special regulations protecting the interests of the countries of Africa in the field of their folklore.”

� Did not go as accepting suggestion by the Indian delegation to include folklore works in the list of works under the Berne Convention.

International Protection? – Art 15

� Working Group proposed addition of new paragraphs 4(a) and (b) to Art. 15 [Right to Enforce Protected Rights]:

� (4) (a) In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.

� (b) Countries of the Union which make such designation under the terms of this provision shall notify the Director General bymeans of a written declaration giving full information concerning the authority thus designated. The Director General shall at once communicate this declaration to all other countries of the Union.

International Protection? – Berne Art 15

� Grants ownership to Competent Authority designated by country of which author is presumed to be national

� Found to be largely unsatisfactory

� Treats folklore as special category of anonymous work

� No information on how the competent authority is to discharge its functions

� No duration – some argue that the 50 year duration of anonymous works should apply from date of publication

� For the formality to be applicable the country must recognize folklore as protected subject matter and authorize a competent authority to enforce vested rights

� Article 15 applies so long as the work is unpublished

� Only one notification (India) has been made under Art. 15

� Hesitation to use the provision often ascribed to its complicated nature

International Protection? –Related Rights

� Uncertainty with Rome Convention

� WPPT is thought to eliminate any ambiguity

� The conclusion of the WPPT saw a renewal of the political will to protect folklore.

� Protection of performers and phonogram producers incorporating expressions of folklore

� Limitation

� Application limited to EoFs that are capable of being performed e.g. songs, tales and dances

� Beneficiaries would be restricted to individuals or groups and may exclude large sections of community

� It is doubtful if the introduction of “expressions of folklore”in the definition of performances benefits holders of EoFs

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The African Initiative

� Most African countries gained independence only in the second half of the 20th Century

� With independence came a wave of cultural renaissance and resurgence of national identities.

� Stronger sense and bond of affinity on the Continent

� 1963 Brazzaville – African Study Meeting on Copyright

� Noted the need for a form of protection for “native music and folk-lore in the absence of a material fixation thereof.” –Represents the earliest categorical statement on the need to give special attention to the delicate subject of unfixed expressions of folklore.

� Considered the possibility of “inventorization” and clear definition of the various categories of folklore as a first step in the determination of their paternity.

� Recommended special provisions to safeguard interests of African countries in their own folk-lore, on the one hand, and the permission of free use of protected works for educational and school purposes.

African Initiative

� 1964 UNESCO/WIPO Committee of African Experts – Came up with a draft model which included “works inspired by folklore”within the framework of copyright – an unsuccessful experiment.

� 1967/1973 Draft Model Law provided for economic and moral rights in “works of African folklore” and authorization for exploitation.

� Primary aim: “to give African countries an opportunity to supervise and benefit financially from the exploitation of theirfolklore heritage,”

� Rationale for protection (like the present):

� Folklore represents an important part of the living cultural heritage of the nation, the dissemination of which may lead to improper exploitation;

� A abuse or distortion is prejudicial to the cultural and economic interests of the people.

� Folklore constitutes manifestations of intellectual creativity deserving of protection.

Africa Initiative

� OAPI 1977 Bangui Agreement (Annex VII on Copyright)

� Entered into force in February 1982

� Amended in 1999 with folklore mentioned as part of the non-exhaustive list of works protected by copyright

� Despite uncertainties at the international and regional levels many national laws in Africa grant protection to folklore

� Often not clear if copyright based or sui generis

� Algeria, Angola, Benin, Burkina Faso, Burundi, Cameroon, Central Africa Republic, Congo, Cote d’Ivoire, Gabon, Ghana, Guinea, Kenya, Lesotho, Madagascar, Malawi, Mali, Morocco, Nigeria, Rwanda, Togo, Tanzania, Tunisia, Senegal, Sudan, Zambia, Zimbabwe

The Nigerian Protective Regime

� Like most other countries with provisions on EoFs, Nigeria adopted the Tunis model

� See Copyright Act sections 31 – 33 (old 28 – 30)� Protect EoFs against:� (a) reproduction;

� (b) communication to the public by performance, broadcasting, distribution by cable or other means;

� (c) adaptations, translations and other transformations,

. . . . when such expressions are made either:for commercial purposes oroutside their traditional or customary context.

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Protection under Nigerian Act

� The following are expressly excluded:

1. the doing of any of the acts by way of fair dealing for private and domestic use, subject to the condition of acknowledgment of title and source;

2. the utilisation for purposes of education;

3. utilisation by way of illustration in an original work of an author:Provided that the extent of such utilisation is compatible with fair practice;

4. the borrowing of expressions of folklore for creating an original work of an author:Provided that the extent of such utilisation is compatible with fair practice;

5. the incidental utilisation of expressions of folklore.

Protection under Nigerian Act

The right to authorise acts referred to under the Act vests in the Nigerian Copyright Commission.

Any breach may result in civil and/or criminal infringement�

�Civil Infringement�Any person who, without the consent of the Nigerian Copyright Commission, uses an expression of folklore in a manner not permitted by section 31 of this Act shall be in breach of statutory duty and be liable to the Commission in damages, injunctions andany other remedies as the court may deem fit to award in the circumstances.

Protection under Nigerian Act

� Criminal Infringement(a) the doing of any of the acts set out in section 31 without the

consent or the NCC(b) non-compliance with the requirement of acknowledgement of

source(c) willfully misrepresents the source of an expression of folklore; or

(d) willfully distorts an expression of folklore in a manner prejudicial to the honour, dignity or cultural interests of the community in which it originates

� Act provides for the following penalties(a) in the case of an individual, to a fine not exceeding N100,000

and/or 12 months imprisonment(b) in the case of a body corporate, to a fine of N500,000.

(c) Order of delivery up to the NCC of infringing or offending articles�

Challenges

Challenge 1: Definition of terms�The definition of expressions of folklore is often muddled up when lawyers, anthropologists and stakeholders meet�The notion of community authorship is probably a fiction. There is no such thing as a folk mind as an empirical entity capable of taking credit for the authorship of a work of art.

Challenge 2: Constitutional provisions and ethnic delineation�By section 15 of the Constitution, the Nigerian state is founded on Unity and Faith, Peace and Progress and accordingly

1. national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion,status, ethnic or linguistic association or ties shall be prohibited.

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Challenges

2. For the purpose of promoting national integration, it shall be the duty of the State to:

� provide adequate facilities for and encourage free mobility of people, goods and services throughout the Federation;

� secure full residence rights for every citizen in all parts of the Federation.

Challenge 3: Width of exemptions and limitationsThe formulation of the exceptions and limitations under the Act

does not discriminate between local and international users

Challenge 4: Lack of ownership and Contending enforcement priorities

It has been argued that the “conferment” of the right on a national authority separates it from the immediate owning communities

Challenges

Challenge 5: Absence of clear directions and guidance from the international level and other countries that have the provisions.

� The belief of many countries is that an international instrument is a prerequisite for the protection of EoFs.

� The question is how far can we go with enforcement without a critical buy or the absence of an international norm-setting instrument

� No country in Africa (and indeed the world) has effectively implemented the provisions on EoFs

� The Ghanaian Experience is instructive

Challenges

Challenge 6: Others (The fear of the unknown)

� How do you treat expressions that have crossed cultural/political boundaries

� Addressing EoF questions with an IP-centric mind set had not helped the case for protection.

� Many of those that are perceived as abusing EoFs are not comfortable with the emergence agitations for protection in a field that is hardly predictable and has economic consequences

� The demands for protection has run into the perpetual wheel: domestic implementation before international norm setting vs.–international norm setting before domestic implementation

Challenges

Challenge 7: Gradual but persistent and deep erosion of traditional values and protective structures

The law has effectively relegated and almost paralyzed the customary law system to a point where is can give much teeth forthe protection of EoFs

The abandonment of our culture by their owners who in one breathare not eager to transmit their culture and in another breath want protection for the expressions of that culture

The gradual undervaluing of the cultural sector while at the same time agitating for more protection for the products of that sector.

Unless there is a rethink of the values and priorities even a better protective regime locally or internationally may just as well be to the benefit of the same people from whom we want to deliver these cultural assets

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Final Word

I believe that this generation of Nigerians – nay Africans – is traumatized, disorientated ,

dispossessed but I hope also that it has not become confused or rudderless. . . If my fears are founded then the earlier we found a way out of this morass the better for us and generations

yet unborn

Final Word

Thank you

John O. AseinNigerian Copyright Institute

Nigerian Copyright Commission

aseinjohn@yahoo.com

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Plenary IV

Indigenous Knowledge in the Global Knowledge Economy and IntellectualProperty Order

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Day 2

Plenary VBiopiracy, and the Protection of IK and Cultural Heritage: Opportunity and Responses

Prof. Mgbeoji: Biopiracy & Bio-prospecting in Perspective: Local and Global Dimensions

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NNMDA Panel & Paper Presentation

PROTECTING TRADITIONAL KNOWLEDGE AND BIOLOGICALRESOURCES IN NIGERIA: NNMDA EXPERIENCE

ByTF Okujagu, Director General/Chief Executive, Nigeria Natural Medicine Development

Agency (NNMDA)

A paper presented in a workshop organized by Center for Indigenous Knowledge andDevelopment (CIKAD) of University of Ibadan from April 20-24, 2009, at conference

Center, University of Ibadan, Oyo State.

With the theme:

Intensive Workshop on African Indigenous Knowledge & Intellectual Property Rights:Implications for Nigeria’s Development.

INTRODUCTION

The concept of traditional knowledge is fully clear or understood but is generally considered to coverthe knowledge, innovations, creations and practices of indigenous and local communities (CBD Articles8(j) and 18). These can be in the fields of agriculture, science, technology, ecology, medicine, andinclude expressions of folklore, names, geographical indications and symbols and movable culturalproperty (World Intellectual property Organization Report on Fact-Finding Missions on IntellectualProperty and Traditional Knowledge, 1998-1999)

Traditional Knowledge cuts across numerous issues including food and agriculture; biological diversity;desertification and the environment; human rights, especially the rights of indigenous peoples; culturaldiversity; and trade and economic development. Transfer of this knowledge from generation to generationis traditionally done orally. Where documentation exists, it is available in the local dialect of the community.Improper documentation of these knowledge and the practices have led to gaps in the transfer of suchknowledge.

Patents of such knowledge are many a time granted to parties who are traditionally not the owners ofthe knowledge, thereby leading to conflict in trade interests of the parties involved. Moreover, a part ofthe profits made by the patent holders also does not flow back to the originators/holders of traditionalknowledge, thus leading to discontent.

In issues affecting bioresources, a fall out of this is the responsibility of conserving this traditionalknowledge which remains undefined between the patent holders and holders of the knowledge. As aresult, sustainable management of the resources suffer, large-scale exploitation of these resources occurdue to profit maximization by patentee, thereby leading to the extinction of many of the species withmedicinal value and many more becoming endangered.

Other issues stem from the growing economic, commercial and scientific value of genetic resources,biodiversity and associated traditional knowledge systems which call for their protection.

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The provisions of Trade Related Aspects of Intellectual Property Rights (TRIPs) and Convention onBiological Diversity (CBD) have tried to develop a system of protection of traditional knowledgeglobally, which needs to be further strengthened in terms of providing incentives for disclosure anddissemination of valuable traditional knowledge.

The disclosure and dissemination of traditional knowledge is to be achieved by linking the grassrootsknowledge systems with the global opportunities for financing the commercial use of biological diversity.Moreover, the regulation of the extent of such dissemination of traditional knowledge is also essential.For instance this kind of regulation has been aimed at in India by designating a regulatory Board underthe promulgated Biodiversity Act, 2000.Documentation of indigenous and local knowledge systems is, therefore not only critical, but of primeimportance, especially for the developing countries, which have a rich abundance of this knowledgeand mostly undocumented. This documentation in electronic format would not only serve as a databankfor searching for information before granting of patent but also would register the traditional use patternsand most importantly their preservation.

BENEFITS FROM PROTECTION FOR TRADITIONAL KNOWLEDGE

Protection of traditional knowledge could give to custodians of such knowledge some recognition forthe contribution of the knowledge to new developments, and some control and benefits over how it isused. Benefits that could flow from this include:

1. Removal or reduction of a perceived injustice.2. Prevention of use of knowledge in a way objectionable to the originators (e.g. publication of

details of sacred rites).

3. Greater recognition of the value of traditional knowledge, and respect for those who havepreserved it.

4. More resources for the custodians, raising standards of living and degrees of development, inparticular in the developing world.

5. Wider application of useful traditional knowledge throughout the world;

6. Preservation of traditional lifestyles (as promoted by article 8j of the Convention on BiologicalDiversity)

7. Protection or preservation of the environment.

No doubt there are others, and views will certainly differ widely about their respectiveimportance or relevance. Discussion is needed to explore possible areas of consensus.

WHAT IS TO BE CONSIDERED FOR THE PROTECTION OF TRADITIONALKNOWLEDGE (TK)Two main options for the protection of traditional knowledge are being discussed:

� The application of existing intellectual property rights to traditional knowledge,� Possible creation of new rights adapted to the specific characteristics of traditional knowledge.

TK has moved towards the center of policy debate about intellectual property (IP). This leads to somechallenging questions:

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� Is the IP system compatible with the values and interests of traditional communities – or doesit privilege individual rights over the collective interests of the community?

� Can IP booster the cultural identity of indigenous and local communities, and give them greatersay in the management and use of their TK?

� Has the IP system been used to misappropriate TK, failing to protect the interests of indigenousand local communities?

� What can be done – legally, practically – to ensure that the IP system functions better to servethe interests of traditional communities?

� What forms of respect and recognition of TK would deal with concerns about TK and givecommunities the tools they need to safeguard their interests?

To develop a legal framework for the protection of traditional knowledge, a number of choices need tobe made. These include:

1. What kinds of knowledge should be protected: If any protection system is to be workable,it is essential that the subject matter of that protection can be identified. Perhaps confiningtraditional knowledge protection to a specific narrow scope such as medicine, food andagriculture might be a good start. While this would not satisfy all aspirations, introducing specificprotection in priority area would be a useful opportunity to test the concept. Presumably, allprotected knowledge will need to be documented in some way.

2. What uses of such knowledge should be controlled: ( publication, possession, orcommercial use)

3. What rights will traditional knowledge give: Will it be rights to exclude or even to suppress,or just to compensate, or to no more than an acknowledgement of origin. Will derivation(copying) be a condition of infringement.

4. 4. What conditions would be applied to it: Novelty as in patents, uniqueness etc.5. Who will own it: An individual, family, clan, tribe, indigenous people or a nation. How will

they establish that they own it. How will third parties become aware of their obligations.6. Where will the rights have effects: Will they be valid world-wide or have territorial limitations.

Who will enforce them and how. Will they require registration. (Most of those who mightbenefit from traditional knowledge rights have no money even for a simple registration process,let alone litigation.

7. How long will the rights last: for a limited term starting when or indefinitely.

Clearly there are innumerable possible combinations of conditions, leading to an unlimited variety ofpossible schemes. While some conditions cause more problems than others, each scheme would needto be judged as a whole. For any scheme there will be a difficult decision as whether its benefits tosociety as a whole outweigh its drawbacks for specific sectors.

WHAT KIND OF LEGAL PROTECTION FOR TK?

The protection of TK is important for communities in all countries, particularly in developing and leastdeveloped countries. National laws are currently the prime mechanism for achieving protection andpractical benefits for TK holders.

A comprehensive strategy for protecting TK should therefore consider the community, national, regionaland international dimensions. The stronger the integration and coordination between each level, themore likely the overall effectiveness. Many communities, countries and regional organizations are workingto address these levels respectively. For instance, Brazil, Costa Rica, India, Peru, Panama, the Philippines,Portugal, Thailand and the United States of America have all adopted sui generis laws that protect at

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least some aspect of TK (sui generis measures are specialized measures aimed exclusively at addressingthe characteristics of specific subject matter, such as TK).

Protection should reflect the aspirations and expectations of TK holders and should promote respectfor indigenous and customary practices, protocols and laws as far as possible. Some intellectual propertymechanisms (such as patents, copyrights, trademarks and trade secrets) exist, but do not adequatelyprotect traditional knowledge.

INTERNATIONAL AND REGIONAL MEASURES

There has been a global focus on IPR for the protection of Traditional Knowledge. Several Agreementsand treaties have been signed by different countries. The most important of these is highlighted below:

1. Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs)TRIPS is an important international agreement, which:-

· Obliges new standard for various types of IPRs.· Includes the multilateral trading system in which trade law and jurisprudence are taken in

consonance with Intellectual Property Law and provides for effective dispute settlement processby WTO.

· Includes detailed standards for domestic enforcement of IPRs, both within as well as acrossthe borders of a country.

· Obliges protection on IPRs related to food, medicine and drugs in developing countries.· Provides for higher level of protection for geographical indications and reversal of burden of

proof for process patentees.

2. Convention on Biological Diversity (CBD)The prime objective of CBD is to conserve biological diversity, provide appropriate access to thisresource for utilization and encourage equitable sharing of benefits, thereby making the indigenouscommunities stakeholders in benefits arising out of the utilization of knowledge, innovation and practices.The provisions of TRIPs and CBD have tried to develop a system of protection of traditional knowledgeglobally, which needs to be further strengthened in terms of providing incentives for disclosure anddissemination of valuable traditional knowledge.

3. WIPO Intergovernmental Committee and Roundtables on Intellectual Property andGenetic Resources, Traditional Knowledge and FolkloreThe World Intellectual Property Organization (WIPO) is working with different nations, organizations,indigenous and local communities to address the policy/legal issues with traditional knowledgeprotectionism through the Intergovernmental Committee on Intellectual Property and Genetic Resources,Traditional Knowledge and Folklore. This Secretariat of the Committee has produced numerous excellentcomparative reviews of existing intellectual property tools for protective traditional knowledge andproviding benefit sharing. As of March 2008, there are still large disagreements among countries as towhether there should be a binding or non-binding (voluntary) international legal regime.

4. Regional Measure: At the regional level, several intergovernmental organizations andassociations have enacted laws or model laws to protect traditional knowledge and deal with access togenetic resources and benefit-sharing.The African Union passed the African Model Law for the Protection of the Rights of LocalCommunities, Farmers and Breeders, and for the Regulation of Access to Biological Resourcesin 2000. This Model Law aims to:

� To prevent loss of traditional medicinal plants (the basis of health care), seed and natural fibresand colours (basis of arts and crafts of local communities)

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� Ensure that local communities, farmers and plant breeders can contribute to and benefitfrom the sustainable development of the region

� Provide the basis to enable Member States to enact national law in accordance with theirnational interest, economic development objective and political orientation.

� Prioritize the need for regulating access to biological resources, community knowledge andtechnologies and the implications of intellectual property rights as entrenched in the TRIPSagreement.

NNMDA EXPERIENCE

Nigeria has a vast biodiversity, bioresources and knowledge which are fast disappearing because thecustodians are not disclosing as they pass on. Importantly, also the knowledge is being exploited bylocal and especially international researchers and entrepreneurs without any benefit to the originalcustodians and communities in particular, and the country in general. As it affects bioresources, inaddition to the above, there is excess loss caused by unsustainable utilization and other human andcorporate activities (oil exploitation, construction, logging) and environmental activities.

Traditional Medicine Knowledge and Practices (TMKP) are often handed down from generation togeneration and have no clearly identifiable individual inventor. Internationally, the IPR laws regimes orframeworks as presently constituted are not adequate for the protection of TMKP.

According to World Health Organisation, one of the organizational arrangements required forinstitutionalizing Traditional Medicine (TM) into health care delivery system, amongst others includethe creation of appropriate IPR to protect Traditional Knowledge (TK).

As a result of this inadequacy in the IPR law in the protection of TMKP, both the African Group ofWorld Trade Organisation Council for Trade Related Aspects of IPRS (TRIPS) in their review ofArticle 27.3(b) of TRIPS Agreement, and the Centre for International Environment Law (CIEL)recommended, that countries should establish proper IPR framework for the protection oftheir TMKP.

In Nigeria, the issue of IPR in relation to Traditional Medicine needs to be adequately addressed.Before 2004, there had been little effort to address the IPR regime in Nigeria with reference to TK.

However, the Nigeria Natural Medicine Development Agency, in its attempt to develop and promoteTraditional Medicine in collaboration with national and international stakeholders, is taking steps toattempt to institutionalize and provide a protective mechanism for TK as well as create awareness andsensitize stakeholders on this issue.

As ways to assist address some of these challenges, the Agency has focused activities that:- Create public awareness on the value and potentials of Medicinal Plants and Traditional Medicine

in Nigeria and the inestimable roles of Traditional Medicine Practice and Products in healthcaredelivery especially at the primary healthcare.

- Highlight the Wealth and Job creation potentials of Traditional Medicine- Build the capacity of Traditional Medicine Practitioners with a view to enhancing their practices,

quality and safety of their products, and utility as agents for positive change in the communitieswhere they practice and the nation as a whole

- Collate, Document, Research, Develop and Promote all aspect of Natural Medicine –(Indigenous (Traditional) Health System, Medication and Non Medication healing arts, Sciencesand Technologies.

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In December 2005, the Agency jointly organized a 3-day International workshop on IPR for TMKPwith the National Office for Technology Acquisition and Promotion (NOTAP) both parastatals of theFederal Ministry of Science and Technology along with other national and international stakeholderswith the theme: “Appropriate Intellectual Property Right Regime, a necessity to maximize thepotentials of Traditional Medicine for Improved Healthcare Delivery, National EconomicGrowth and Development”.

An International consultative Committee composed of experts co-chaired by Prof. Abayomi Sofoworaand Prof. Maurice M. Iwu, was constituted to develop and produce a draft policy and legal instrumentfor an Intellectual Property Right (IPR) regime for Traditional Medicine Knowledge and Practice(TMKP).

The Committee met severally and has developed a draft policy as well as a draft legal framework,titled: “TRADITIONAL KNOWLEDGE AND BIOLOGICAL RESOURCES PROTECTIONACT” The policy is made up two parts: Part one is the general background which includes:

� Brief introduction and history of traditional knowledge in Nigeria.� Overview of the need for the policy.� Objectives of the protection of traditional knowledge.� Vision.� Mission.� Expected Outcome of the Policy.� Goals

Part two covers issues that will form the basis for the bill such as:� Recognition of the value of traditional knowledge.� Promotion of respect for traditional knowledge systems and holders.� Meeting the needs of communities and holders of traditional knowledge.� Empowering communities and individual holders of traditional knowledge.� Support for traditional knowledge system.� Preserving and safeguarding traditional knowledge.� Preventing unlawful acts.� Consistency with relevant international agreements and processes.� Promoting innovation and creativity.� Promoting intellectual and technological exchange.� Promoting equitable benefit sharing.� Promoting community development and legitimate trading activities.� Precluding the granting and exercising of improper IP rights.� Enhancing certainty, transparency and mutual confidence.� Complementing the protection of expressions of folklore.� Intellectual Property Rights and Indigenous Knowledge of traditional medicine.� Technical cooperation among countries.� Allocation of financial resources.� Statement on implementation strategy for the Policy.

The draft bill is divided into various sections and covers the following major areas:� The short title� Establishment of the Traditional Knowledge and Biological Resources Management Board.� The scope of Protection.� Beneficiaries.� Duration.

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� Protection of Traditional Knowledge.� Civil and Criminal Liability.� Exception clause.� Regulation of Access to Biological Resources.� Benefit Sharing.� Institutional Arrangements.

To ensure joint ownership and acceptance by all stakeholders, these documents are at present, beingsubjected to wider critical review and input by stakeholders nationally before its finalization and onwardtransmission to the Federal Executive Council for consideration and approval and subsequently to theNational Assembly for enactment into law.

As at April 2009, stakeholder’s forum on IPR has been conducted in the following geopolitical zonesof the country: South-West, North-East, and South-East Zones.

The outcome of these forums indicate tremendous acceptance by stakeholders.

The Agency also uses these forums to educate Traditional Medicine Practitioners on IPR and TraditionalMedicine Knowledge and Practices, providing them with the general view of the practice whileenlightening them on the need and benefit of protecting their knowledge, practices and products.

In order to stimulate active participation of Traditional Medicine Practitioners for the development andpromotion of Traditional Medicine, the Agency conducts continual interactive sessions structured tocover the six geopolitical zones of the Nation. The Agency is presently in its second Phase of thetraining sessions. To date the Agency has had 30 interactive sessions nationwide with 9000 TMPsparticipating.

The Agency maintains linkages and collaborations with TMPs and stakeholders of Traditional Medicinethrough the Consultancy & Extension Services Unit. This is to bridge the gap between TMPs,stakeholders and the Government, build trust and promote Public Private Partnership initiatives.

To further aid the conservation and preservation of the Nation’s bioresources, the Agency conductssurveys to collate and document the nation’s bioresources aimed at developing a dedicatedcomprehensive national inventory of Medicinal, Aromatic and Pesticidal Plants of Nigeria. From thesesurveys, the Agency is developing a Herbarium and has published an inventory of Medicinal Plants inNigeria (South West, North Central and South East Volumes I). A summary of the publication isavailable on Pictorial canvasses.

The Agency through its Product Development Unit will assist promote value addition to TMPs byassisting to develop, formulate and produce pilot/sample herbal medicines, galenicals, nutraceuticals,health foods, dietary supplements based on established scientific research findings in line with GoodManufacturing Practices (GMP).

Most importantly, the Agency has developed a Digital Virtual Library on TM to serve as a dedicatedFocal Reference Centre for Research Development and Promotion of Traditional Medicine andMedicinal, Aromatic and Pesticidal Plants (MAPP) of Nigeria. Through this, we collate, develop,manage and disseminate information on TMKP nationally and internationally. Data on research,documentation and collation will be domiciled here for ease of referencing and reduce research anddevelopment duplication.

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CONCLUSIONThe importance of protecting the knowledge, innovations and practices of indigenous local communities(TK) is increasingly recognized in international forums. The immediate task is to ensure that the benefitsof cumulative innovation associated with TK accrue to their holders while enhancing their socio-economicdevelopment. Frequently TK is used and appropriated without the prior informed consent of the holders.Although some aspects of traditional knowledge may be protected under existing IPR such as patents,other aspects may require tailored intellectual property regimes. Consequently, there have also beenproposals to develop sui generis systems of protection — that is, systems specially suited to thecharacteristics of traditional knowledge, including traditional medicine.

TK is valuable first and foremost to TK-holding local communities who depend upon it for their livelihoodsand wellbeing, as well as for enabling them to sustainably manage their local ecosystems. According toWorld Health Organization, up to 80 percent of sub-saharan Africa depend on traditional medicine forits primary health care needs. Over 90 percent of food in sub-Saharan Africa is produced using customaryfarming practices.

TK benefits national economies and has the potential to benefit them still further. Possible instrumentsfor the protection of TK include traditional/customary law, modern intellectual property rights instruments,sui generic system, documentation of TK, and instruments directly linked to benefit-sharing.

While protection of TK is necessary, it is not sufficient to foster its preservation and further development.To harness TK for development and trade, developing countries need assistance to build nationalcapacities in terms of raising awareness on the importance and potential of TK for development andtrade; developing institutional and consultative mechanisms on TK protection and TK-based innovation;and facilitating the identification and marketing of TK-based products and services.

The stronger the integration and coordination between each level (i.e. the community, national, regionaland international dimensions), the more likely the overall effectiveness of an IP regime.

The need for Nigeria to protect its rich bioresources cannot be overemphasized. The draft IPR legalinstrument is presented in this forum for participants to study and make input that would further enrichthe documents and urge you to partner with the Agency to ensure the successful development of anappropriate IPR mechanism for Nigeria. Protection here is not secrecy but put in the right perspectivefor the benefit of all. It is thus an IPR regime for development and promotion of our indigenous knowledgeto allow for its contribution to national economic growth and development.

Traditional Medicine Knowledge development, promotion and utilization in Nigeria would be on theway to contributing to economic growth and development with an appropriate mechanism for itsprotection.

THANK YOU

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NIPRD Nigeria as a Case Study: Best Practices in identifying and protection of I/TK - Dr.U.S. Inyang, Director General/CEO NIPRD, presented on his behalf by Mr. Adeola

Jegede, Research Fellow I, NIPRD

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CBAAC Nigeria as Case Study: IPR, CBAAC and FESTAC 77: Challenges &Opportunities in Cultural Documents Protection using IP Regimes

LADY CHUMA SP? PAPER

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INFORMATION AND COMMUNICATION TECHNOLOGIES,INTELLECTUAL PROPERTY RIGHTS AND INDIGENOUS

KNOWLEDGE PROTECTION AT UNIVERSITIES: ROLE OFLIBRARIES

ByBenedict A. Oladele, PhD

University Librarian, Kenneth Dike Library, University of Ibadan&

Adetoun A. OyeludeSenior Librarian, Kenneth Dike Library, University of Ibadan

ABSTRACTThe framework for understanding Intellectual Property Rights and Indigenous Knowledge isstudied in this paper. Discussion of acquisition of materials oral, written and archival revealsthat knowledge gathering for purposes of conservation and preservation is one that needs urgentattention especially on the African Continent. Current Indigenous Knowledge gathering practicesare examined and the role of the librarian or archivist in this process is highlighted. The impactof the environment in which the indigenous knowledge comes from on the Library, Archive orCollection Centre is reviewed, noting Intellectual Property Rights, Copyright issues and sanctionsinvolved. Recommendations on the way forward for Africa in building up a formidable IK contentand protecting it in libraries are made.

Definition and Characteristics of Indigenous KnowledgeIndigenous Knowledge (IK) is the body or corpus of knowledge that is peculiar or indigenous to acommunity, locality, ethnic group or nationality. This knowledge is a product of the people’s culture andbelief system. It may be written and unwritten. The general understanding of IK for our paper is in thecontext of that in a non-literate society.

IK is a product of its environment. It is the environment in which a community lives that defines the IKit produces e.g. equine (horse) with the Hausa people of Northern Nigeria. Hausas are expected toknow more about this than others because they live in the environment conducive to horse breedingunlike the Yorubas who do not usually have horses in their environment.

By conventional understanding Indigenous Knowledge is by nature oral which means that it is a bodyof knowledge handed down from generation to generation through word of mouth. It resides in thememory of the holder and relies on this memory for it to be kept or preserved in the community.By nature still, IK is a body of knowledge communally owned. It covers virtually all aspects of thesociety or community some of which may be agriculture related, norms and control, hunting, businesstransaction, governance and spiritual or mode of worship including health care of the community.Members of the general community have access to knowledge in the public domain through dailyinterpersonal interactions or through consultation with designated individuals in the community chargedwith the custody of such knowledge. These aspects are ones generally known, for example, knowledgeabout farming, preparing the soil for planting and so on.

Some aspects of the knowledge however are in the private domain, restricted to a limited number ofprofessionals or groups e.g. to the priests and cults like the Ogboni, the kingmakers and the artisanse.g. guild of bronze and brass casters in Benin and Bida respectively. The knowledge in the privatedomain may be accessed through membership of groups and associations provided such members

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have been initiated. This is the case with known societies that may not necessarily be opened tomembers of the public. Above all, the intellectual property rights (IPRs) in a technical sense cannot beascribed to individuals but instead such rights are common assets of the community. The knowledge ismore exclusive, for example the ‘babalawo’ (diviner) in traditional medical care is consulted and hegives remedies, but not the principles behind it. In herb gathering for the remedies, he may pick wellknown ones, but one never knows how he picked them, as some herbs are only efficacious whenpicked at certain times of the day, say after or before sunset. Pawpaw leaves for example are used intreating malaria but not everyone knows that it is the leaves that drop naturally that are most useful notthe one deliberately plucked. In some cases however, such rights may by convention or tradition bevested in the traditional head of the community since they are seen as the embodiment of the totality ofthe Indigenous Knowledge, holding it in trust for the people.

Another issue is that in traditional names. The names given indicate some indigenous or cultural aspectthat is obvious to an indigene but may be foreign to one who does not understand. The name ‘Awani’in Kogi State indicates indigenous bonesetters and no matter the age of a child from that family, thetraits of orthopedic training are there. For those from a warrior family, the name ‘Balogun” for examplegives away that information as they are believed to have knowledge of protective charms. Any namewith ‘Ayan” indicates belonging to a family of drummers. Where does knowledge stop and mythbegin?

The role of the libraryJoranson (2008) alluded to the fact that IK is part of a knowledge commons and describes the importanceof preserving and disseminating IK. She also notes that “with recording and disseminating IK comesthe risk of piracy and inappropriate use” (pg. 67). There are problems with data gathering andpreservation here. The multimedia technologies in reproducing what has been recorded open up access(legal or illegal), to the use or misuse of the knowledge.

The library by nature, assumes responsibility for any knowledge collected or gathered if it hasacknowledged the source of the knowledge acquired. If a book is acquired and procured, the libraryhas the responsibility to protect the intellectual property of the author. There are restrictions as to howmuch of the work can be photocopied for academic purposes for example. The responsibility toprotect Intellectual Property of information sources in the library is at the level of post procurement, butfor Indigenous knowledge, how do you protect the intellectual property rights of what is acquired,especially those in oral form? Two main sources of Indigenous Knowledge acquisition in libraries are:1.) Depending on researchers or fieldworkers to acquire the knowledge content, or2.) The library going on an acquisition bid into the field to collect the information.3.) Purchase of literature in which indigenous knowledge has already been recorded in one form

or the other.

With any of these options the question of ethics comes in. Whom does the library ascribe the IntellectualProperty Rights to? Is it the author or researcher that has the copyright of the knowledge? The researcheris just repackaging what the community has given. Is it ethical for one or two to arrogate copyright tothe researcher? Take Ifa Divination as an example. Who owns it? The issue is if someone writes aboutIfa, the copyright law applies, but not in the case of ‘Odu Ifa’ (the Ifa Corpus) since the ‘babalawo’ isholding the knowledge in trust.

But there is no doubt that the library’s role is to preserve the knowledge itself – for posterity and futureuse. It is expected that the researcher or library that goes into the field adds value to the knowledgegathered by transcribing what is recorded and at the same time leaving the knowledge recorded in asclose to the original form in which it was given as possible. The library after repackaging performs itstraditional role and makes the knowledge available to the public. The format in which IK is stored in

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modern times adds value to the IK gathered. The oral nature of IK makes it necessary for therepackaging. ICT is therefore necessary. The pen, the tape recorder, the transcription, the preservationprocedure like putting it in a database, on CD ROM or podcasting it are done with Information andCommunication Technology. ICT helps one to capture Indigenous Knowledge, process the IK, preservethe IK and organize it by extracting metadata with which to provide access, and finally to disseminateIK regardless of time, location or physical barriers. ICT is a tool for the management of IK.

Indigenous Knowledge is most useful in effective information literacy education. The knowledge canbe stored in various formats and the user of the information can get to use it in the library after adequatetraining or explanation on how to use the technology, with which it is stored, organized, and from whichit can be retrieved. The collector of Indigenous Knowledge thus makes use of Contemporary Knowledgeso to say, and can further refine it to develop the Nation.

The diagram below illustrates the relationship between Indigenous Knowledge, ContemporaryKnowledge, the Library and National Development. It is a modification of Dorman and Gorman (2007)who discussed Indigenous Knowledge and Information Literacy Education.

Challenges to indigenous knowledge protection in libraries

Since libraries have a role in Indigenous Knowledge Management, they face the challenge of puttingthe IK in language that makes it more widely acceptable. Translation of the knowledge gathered has tobe done. Software that has the capability for translation needs to be used. In many libraries, thescarcity of such and the cost where available is a problem. Unfortunately also, except for the Yorubalanguage that has indigenous typing keyboard, other local Nigerian languages are left out for now andtherefore documenting knowledge in the local languages is difficult.

The librarian, archivist or field researcher gathering IK has to understand the language of Informationand Communication Technology, to be acceptable. As such, libraries where staff ICT appreciation anduse is of low level cannot adequately cope with IK protection. Lack of appropriate technology andknow-how prevents prompt and efficient service in the libraries. Inadequate infrastructure and trained

Indigenous Knowledge(Technology, Socialization, Agriculture,Governance, Economy, Healthcare, etc)

ContemporaryKnowledge (ICTs, NationalEducation, etc) Development

(Modification of Dorman & Gorman, 2007; pg 4)

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staff also compounds the problem and makes IK especially the oral forms out of the reach of theresearcher, librarian, anthropologist, tourist or whoever needs the knowledge.

Security of the IK collected is a problem. Artifacts, recordings and other valuable collections havebeen known to be stolen and carted off by unknown persons from libraries and Documentation Centres.How best can the IK be physically protected? Backups of whatever is electronically preserved areessential. The space and location for these could be problematic especially in a small library. Forelectronically preserved IK, the challenge is that of providing security measures through passwords,digital signatures, encryption and others to ensure that unauthorized access is not permitted.

The sustainability of IK projects is another challenge that needs to be faced. Some IK Centres havebeen started and the interest in them has dwindled over the years. Konandu ( n.d) lamented theinability of the Bonoman Resource Centre for Indigenous Knowledge (BORCIK) in Ghana to besustained. The ARKIC programme in the Nigerian Institute of Social and Economic Research (NISER)is also one that has not been sustained. In the Department of Library, Archival and Information Studies,University of Ibadan teaches a course in Oral Archives where the students go into the field to gatheroral information of various subjects. These recordings are there, nothing is being done about them. Thesame applies to indigenous music, dance and drama that is recorded and kept in the Institute of AfricanStudies, University of Ibadan. A lot needs to be done to systematically organize these collections,preserve and protect them.The issue of whether priority should be given to Indigenous Knowledge protection or its promotionwas discussed in South Africa at a Conference on African Information Ethics in 2007. It was decidedthat Africa needs to do both, and however focus on IK in the areas of medicinal plants, game reserves,environment and so on is necessary to add value to the knowledge before it is protected (Msuya,2007). Libraries have to face the challenge. Ways have to be found to create databases that will beregularly updated and made available. IK has to be protected and promoted by libraries.

In conclusion, libraries need to be adequately funded and used as knowledge base or repositories forAfrican Indigenous Knowledge. The classification of IK rests with the libraries, librarians, and archivists and information managers. Above all, the intellectual property rights of Indigenous Knowledge holdersshould be protected especially in these libraries.

REFERENCES1. Dorman & Gorman (2007).2. Joranson, Kate (2008). Indigenous Knowledge and the knowledge commons. The

International Information and Library Review, 40, 64-72.3. Konandu, Kwasi (n.d). Indigenous Knowledge Archives in a West African Society. Msuya, J.

(2007).

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INFORMATION AND COMM

INTELLECTUAL P

A

INDIGENEOUS KNOWLEDGE

ROLE OF

Benedict A

University Librarian, Kenneth

Adetoun

Senior Librarian, Kenneth D

Definition and Characteristics of Definition and Characteristics of

Indigenous KnowledgeIndigenous Knowledge

IK is:

� * A product of its

environment

� * By nature oral

� * Communally owned

� * Domained publicly or

privately

The role of the libraryThe role of the library

• * Collect the IK

� * Process the IK

� * Preserve and protect the IK

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Library

Indigenous Kn(Technology, SocAgriculture, GoveEconomy, Health

Contemporary Knowledge(ICT, Education, etc.)

Modification of Dorman & G

The library, IK, Contempoand National Deve

THE UNIVERSITY OF THE UNIVERSITY OF

IBADAN IBADAN

At the Gate

BACK ENTRANCE OF BACK ENTRANCE OF

KENNETH DIKE LIBRARYKENNETH DIKE LIBRARY

ENTRANCE TO ENTRANCE TO

KENNETH DIKE KENNETH DIKE

LIBRARYLIBRARY

FILES AWAITING FILES AWAITING

PROCESSINGPROCESSING

Materials in the Archives Building

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Challenges to Indigenous

Knowledge Protection in Libraries

� Translation (Language)

� Training of Staff in ICT use

� Security of the IK

� Sustainability

� Setting priorities

Conclusion

� Libraries need to be adequately funded and used as a knowledge base or repository for African Indigenous Knowledge. The classification of IK rests with the libraries, librarians, and archivists and information managers. Above all, the intellectual property rights of Indigenous Knowledge holders should be protected especially in these libraries.

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Day 3

Plenary VII: The Future of Intellectual Property: Practice and PolicyPrescriptions for Nigeria

Communiqué: Resolutions Adopted & Proclamations of Support and Government PolicyRecommendation (SEE APPENDIX A)

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APPENDIX A

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AIDIKI Declaration from Participants at the University of Ibadan Indigenous KnowledgeStudy Group Workshop on:

AFRICAN INDIGENOUS KNOWLEDGE AND INTELLECTUAL PROPERTY RIGHTS:IMPLICATION FOR NIGERIA’S DEVELOPMENT,

April 20-24, 2009, Ibadan, NIGERIA

We Senior Officials from the Ministries of Culture; Health; Science & Technology; Commerce;Education; the Nigerian Copyright Commission & Institute(NCC/I); the Centre for Black & AfricanArts and Civilization (CBAAC); National Institute for Cultural Orientation; National Council for Artsand Culture; National Office for Technology Acquisition and Promotion (NOTAP); Nigerian NaturalMedicine Development Agency (NNMDA); Nigerian Institute for Pharmaceutical Research andDevelopment (NIPRD); Nigerian Scholars and Practitioners of Traditional Knowledge; Representativesof Traditional Communities, attending a Workshop on African Indigenous Knowledge (IK) &Intellectual Property Rights (IPR), held between the 20-24 April 2009, at the Conference Center,University of Ibadan, Ibadan, Nigeria:

Acknowledging that Africa has rich cultural heritage and this is often manifested in its body of indigenousknowledge and expressions of folklore;

Accepting that as policy and decision makers, practitioners and scholars of traditional knowledge, wehave a responsibility to guide our Governments in articulating appropriate policies towards the protectionand sustainable use of indigenous knowledge and expressions of folklore;

Recognizing that this body of indigenous knowledge and expressions of folklore has contemporaryrelevance to the world knowledge systems and that its utility traverses the whole gamut of scientific,economic, medical, educational, and environmental spheres which should be built into developmentpolicies;

Alarmed that the rich cultural heritage of Africa and its indigenous knowledge systems have beennegatively affected, and continue to be so affected, by its colonial experience;

Aware that there is a relationship between a people’s state of development and their knowledgesystems;

Noting that in the global knowledge economy, the contributions of indigenous knowledge and expressionsof folklore to the global basket of knowledge is not sufficiently recognised and protected;

Concerned that the phenomenon of bio-piracy threatens the integrity of indigenous knowledge andinflicts economic harm on the practitioners and their various communities;

Regrettably noting that indigenous knowledge and expressions of folklore, and indeed culture as awhole is under threat from multiple fronts, cultural, political, economic and technological;

nccProtecting Creativity

AiDiKiCBAAC

112

Taking cognizance that university and other centres of learning have important roles to play in theidentification, classification, dissemination and preservation of indigenous knowledge and expressionsof folklore;

Gravely concerned that the dominant regimes of intellectual property rights protection are inadequatefor the protection of the various manifestations of indigenous knowledge systems and expressions offolklore.

Gratified that indigenous knowledge practitioners are desirous of collaborating and sharing theirknowledge with researchers, academic and research institutions, libraries and documentation centreson the identification, gathering, collation, classification, digitization, and dissemination of their knowledge;

Hereby Resolve that:

1. There should be more awareness amongst cultural heritage centres and managers on theimportance of and threats confronting indigenous knowledge and they should be part of theongoing discussions in respect of policy formulation on intellectual property, indigenousknowledge and expressions of folklore;

2. That the inadequacy of expertise in the area of intellectual property, indigenous knowledge andexpressions of folklore is of grave concern and as such, concerted efforts should be gearedtowards capacity building;

3. Although the ongoing efforts at different levels to document Nigeria’s indigenous knowledge iscommendable, there is need for a coherent endeavor in this regard to ensure that the indigenousknowledge system is not compromised by documentation. Consequently, available best practicesin documentation of indigenous knowledge should be adopted.

4. That the biodiversity of Nigeria and its associated indigenous knowledge belong to the Statebut as a Federation, Nigeria should ensure that the relevant indigenous communities, that possessthe resources, are positioned to make effective contributions to their protection, preservationand use.

5. The library is critical in the gathering, processing, preserving and disseminating of indigenousknowledge and expressions of folklore in various forms and therefore should be fully equippedwith necessary information and communication technologies for effective performance of itsrole.

6. Indigenous peoples and various stakeholders in indigenous knowledge must seek all possibleavenues to use indigenous knowledge and expressions of folklore as instrument of economicempowerment, political leverage and socio-cultural development.

7. Access to biodiversity and associated indigenous knowledge should be in accordance with theestablished principles pursuant to the Convention on Biodiversity and emerging Protocols.

8. Researchers, academic and research institutions, libraries and documentation centres shouldbe encouraged to collaborate with the indigenous knowledge holders and communities in theidentification, gathering, collation, classification, digitization and dissemination of indigenousknowledge in a framework consistent with international standards.

113

9. As an African regional power, Nigeria should work with strategic partners and become aproactive voice at international level for mobilizing African common positions or interests onthe subject of protection of African indigenous knowledge.

10. Nigeria should join the global Pan-African and African Diaspora movement for the protection,preservation of and resistance to the exploitation of African cultural heritage in all itsmanifestations.

REQUEST THAT:In order to promote creativity and ensure sustainable use of indigenous knowledge and intellectualproperty, the school curricula should include a systemic exposure to indigenous knowledge systemsand intellectual property.An appropriate legislative framework should be provided for the regulation of access to biodiversityand associated indigenous knowledge as proposed in the Draft Bill on the Protection of TraditionalKnowledge, Regulation of Access to Biological Resources and Related Matters, which wasinitiated and developed by Nigeria National Medicine Development Agency (NNMDA).

Having regard to the multiplicity of government agencies with related mandates on indigenous knowledgeand the cross-cutting nature of the indigenous knowledge, Nigeria should streamline the institutionalframework for greater efficiency.

The benefits arising from the exploitation of biodiversity and associated indigenous knowledge shouldtake primary account of the interests of the communities where such biodiversity and associatedindigenous knowledge are derived.

Thank the following governmental/nongovernmental agencies, organs, and institutions forsupporting, sponsoring, and facilitating the Workshop:

Dr. Afia Zakiya of AIDIKI;IDRC Canada,CBAAC,NCC,NNMDA,Federal Ministry of Culture,NOTAP,AIDIKI,NICO,NCAC,NIPRD,Bioresources Development and Conservation Programme

Dated this 24 April 2009, at IBADAN, NIGERIA

114

APPENDIX B

MEDIA COVERAGE

115

Media Coverage

http://www.ngrguardiannews.com/arts/achvIndex_html?pdate=230409&fdname=arts

http://www.ngrguardiannews.com/arts/article01/230409

http://www.ngrguardiannews.com/arts/article01//indexn2_html?pdate=230409&ptitle=In%20Ibadan,%20campaign%20against%20copyright%20infringement%20hots%20up

Thursday, April 23, 2009

In Ibadan, campaign against copyright infringement hots upBy Anote Ajeluorou

A refreshing insight into African indigenous knowledge and its impacts on national development beganon Monday at the University of Ibadan Conference Centre. It is at instance of the Indigenous StudyGroup of the University of Ibadan in collaboration with the Nigerian Copyright Commission (NCC).

With the theme African Indigenous Knowledge and Intellectual Property Rights: Implications for Nigeria’sDevelopment, the five-day workshop is designed to examine the place of indigenous cultural knowledgein relations to its developmental prospects for the nation as well as how to protect that heritage frompiracy.

Declaring the workshop open, the Vice-Chancellor, Prof. Olufemi Bamiro, said indigenous knowledgehad begun to receive increased attention not only in the academia, but also from national and internationaldevelopment agencies as a result of its developmental potentials.

According to him, indigenous knowledge is an important component of a country’s knowledge systemas it encapsulated the skills, experiences and insights of people and applied to maintain or improve theirlivelihood.

“It has therefore been receiving increasing attention from scholars and development practitioners acrossthe globe in virtually every field, ranging from the humanities and social sciences through, science andtechnology, to human and veterinary medicine,” Prof. Bamiro stated. “Unfortunately, the indigenousknowledge accumulated over generations by local communities is sometimes appropriated by so-called experts without any compensation of the producers of such knowledge in spite its tremendouspotential to yield economic returns.”

It is in the light of the neglect of the local producers of local knowledge and the need to accord themrights to their property, the Vice Chancellor said that the University of Ibadan was collaborating withthe Nigerian Copyright Commission to find a way to redress such rights and protect local economy.The enlightenment about rights of local people to their products, he argued, was “capable of providingredress to the south-north flows of indigenous resources which deprive African nations and communitiesthe benefits of maximum socio-economic, political and cultural development and the University ofIbadan is proud to be part of this endeavour.”

He said the timeliness of the workshop was underscored by the university’s “engagement in indigenousknowledge research, teaching and scholarship to advance Nigeria’s sustainable development throughthe proposed establishment of the Centre for Indigenous Knowledge and Development (CIKAD)”.When it comes on stream, the VC stated, the centre would partner with relevant national and internationalagencies to ensure that Nigeria reaped from indigenous knowledge resources.

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Earlier, Prof. Ikechi Mgboeji, associate professor of Law at Osgoode Hall Law School, Canada saidit was appropriate to put the historical narratives of culture in perspective for Africans to know theirplace in the global scheme of things. More often, he explained, Africans were left a the bottom of theknowledge economy because they had been marginalised Western cultural narratives that give littleregard to civilisations outside of Western thought system in spite of Africa’s contribution to worldcultural heritage. He said it was secret that Africa experienced a period of cultural and political ‘holoccaust’both from Arab and Western civilisations through Islamisation and the twin evils of Slavery andColonialism.

“Having weakened Africa through the slave trade,” he lamented, “the continent was ripe for culturalconquest. The third holocaust was the frenzied cultural attack of European colonialists on the culturalpillars and foundations of Africa. To this end, the native healer, herbalist, and priest were heathenized,and demonized as ‘sons of Beezelbub’”.

The workshop task, he stated, was the need to “unpack the historical injustices and understand howthey have shaped our attitude to the critical questions of ‘what is knowledge’? What is African indigenousknowledge? What role, if any, can Africa Indigenous Knowledge play in a digitalized world?” Thesequestions were crucial if African countries were ready to address issues of healthcare and the status offolklores and cultural expressions that define the basis of African identity.

“Let us first sketch out the bare bones of what was said to have occurred,” Prof. Mgboeji explained.“In theory, the knowledge economy refers to economy focused on the production and management inthe frame of economic constraints. On a second level, the knowledge economy refers to the use ofknowledge technologies such as information technology and information management to produceeconomic benefits. Was this a theory in search of facts? Does the farmhand really work with only hishands while his head was on a restful vacation? What is knowledge? Is the coca farmer in Ilesha reallyan ignoramus? Whose knowledge deserve a privileged status? Why?” He further stated that the role ofelites in African societies did a lot to undermine African indigenous knowledge and possibly paved theway for Western exploitation. “Any fair-minded scholar would concede that the African elite has beenthe greatest threat to the survival of African culture,” Mgboeji declared.

He said Africa was behind the rush for intellectual property discourse in the Western academia as thenew form of neo-colonialism with the aim of appropriating unrefined indigenous knowledge in Africafor Western industrial taxonomy.

The danger Africa and Nigeria face, he argued, was the turning of the continent to a new haven for bio-prospecting and bio-piracy as the continent’s intelligentsia and businesses were yet to see the economicpotentials in their environment ably backed by Western-induced property rights that do not favourAfrica.

“In the process, focus on what could be commodified and sold undercut theoretical research,” hedeclared. “A huge number of speculative and dubious patents were being granted. As the field ofintellectual property expanded, and the research focus of public educational centres shifted, the ambitof the public domain dramatically shrank... Nigeria is currently under the threat of bio-prospectors.What are the responses of government, media, and academia to this new form of domination?”

In spite of the gloomy picture he painted, he was, however, positive that the results of the workshopwould lead to an end to the cultural attacks Africa faced and being able to fashion a way of repositioningAfrica and Nigeria’s cultural heritage, their future well-being and survival.

117

On the other hand, Dr. Chidi Oguamanam, director, Law and Technology Institute, Dalhousie UniversityLaw School, Halifax, Canada, stated that the workshop was a multi-disciplinary and inter-disciplinaryone designed to address issues relating to property rights and the exploitation of indigenous knowledgeto benefit local communities. Among other things, he said, the workshop would sensitise interaction onindigenous knowledge, raise awareness on indigenous knowledge as an instrument of wealth creation,economic leverage, national unity, political empowerment and socio-cultural enrichment.

Other ways the workshop would benefit the nation included reflect on Nigeria’s actual and potentiallegal and policy responses to current threats, opening up conversations on options for Nigeria’s legaland institutional frameworks or protocols on the protection of indigenous knowledge, identify andbring together all intellectual property and indigenous knowledge for a critical conversation around thetwo intersecting areas with a view to partnering in the future shaping policy for the country, and promotingthe growth of local manpower in the professions and scholarships and the public service and otherpolicy sectors of relevance in indigenous knowledge and intellectual property.

The former NCC Director-General, Moses Ekpo spoke on the economic significance of folklore,traditional knowledge and bio-diversity in Nigeria while John Asein, Director, Nigerian CopyrightInstitute presented a paper on protection of expressions of folklore and its challenges under Nigerialaw. The workshop ends today.

© 2003 - 2007 @ Guardian Newspapers Limited (All Rights Reserved). P. 69

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We need to exploit indigenous knowledge for development, says Bamiro

WHY a conference on African Indigenous Knowledge and Intellectual Property Rights?

ADDRESSING Indigenous African Knowledge is what the Centre for Indigenous Knowledge Group,UI, is out to address, where Indigenous Knowledge in the various areas that can aid our development.These have not only been articulated not to talk about development. We’re going to identify all theserious indigenous knowledge in all facets of human endeavour, whether in medicine, oral history oragriculture. We will not only articulate them but also develop the knowledge into becoming a tool fordevelopment. This is what it is going to be and UI is committed to the centre.

What specific area will it address first?

It’ll be all-embracing. We’ll have knowledgeable people brought in from the medicinal area, oral historyand agriculture to synthesise neglected local, African cultural knowledge. Don’t forget that knowledgein these areas is interrelated and not separate. We must look at them in an integrated manner. Like thisworkshop, all the different areas are represented to give an idea about the multi-disciplinary nature ofthe field of local or indigenous knowledge.

How old is the Centre for Indigenous Knowledge Group, UI?

The centre is just one year old; it was designed to celebrate our 60th anniversary. We’re proud of Prof.Okafor and Dr. Afia Zakiya, who are doing very well at the centre.

What is the partnership with the NCC intended to achieve for indigenous knowledge?

The forum with the NCC is geared to the fact that indigenous knowledge must be protected. A numberof ideas that people have capitalised on in the Western world came from our indigenous people. Andthis has not been so recognised. So there must be a sense of intellectual property; in other words, youmust be able to appreciate and compensate the owners of the knowledge that form the basis of whatevergain you make of that knowledge. That’s why I said in my brief presentation that UI will sign Memorandaof Understanding (MoU) between the Pharmaceutical Research Institute in Abuja and the NationalInstitute of Health in the US to turn such knowledge gained into a beneficial one. This tripartiterelationship is to develop drugs that can cure malaria and other diseases using local knowledge. But indoing this, we are quite aware of the need to protect intellectual property because we are looking atindigenous method of providing these cures. We’re going to make sure that the people who are releasingthis knowledge that have accumulated over the years are adequately compensated in the scheme ofthings. This is where NCC comes in, in the area of intellectual property to protect the intellectualcontent of indigenous knowledge.

How will you get the support needed to achieve this objective?

We’re quite confident that if we are able to package these things very well and we’re assured of therelevance, we don’t regard funding as going to be any problem at all. Once you are able to have theideas and people are passionate about them, I’m sure the funding will come. I’m never afraid offunding. First of all, let’s have ideas and let’s have people who are ready to implement the ideas, thefunding will come.

There used to be the idea of Town and Gown, of universities meeting town for development.Is this idea still current? How can this idea help in this regard?

119

In this case, there’s no way we can’t be in town. If you’re talking about indigenous knowledge, youhave to be in town, the gown has to meet the town. In this conference, Chief A.A. Monilola, theEwegbemi of Ede, a traditional medicine practitioner, is joining some other people to advance indigenousknowledge and how to apply it. So, it’s a Gown-Town affair, in which we’re more even in Town tolearn from the people for a change.

What is the best way to enforce copyright laws?

You need the entire justice system to be able to give you support. The police should be active to catchthese people; the judges being able to dish out sanctions as appropriate. For those who have beencaught, may be the law has not been forthcoming in providing sanctions. After you catch people piratingbooks and CDs, after the noise, nothing happens and they still continue. And it’s not good for thesystem because it discourages the development of indigenous knowledge. I believe that the laws arethere but to be able to implement them in a way that’ll discourage those who are perpetrating thesecrimes, a lot of work has to be done.

© 2003 - 2007 @ Guardian Newspapers Limited (All Rights Reserved).

120

APPENDIX C

WORKSHOP PARTICIPANT LIST &GROUP PHOTO

121

UNIVERSITY OF IBADAN INDIGENOUS KNOWLEDGE STUDYGROUP

Intensive Workshop on African Indigenous Knowledge (IK) &Intellectual Property Rights (IPR): Implications for Nigeria’s Development

Date: April 20-23, 2009Venue: University of Ibadan, UI Hotels & Conference Center, Ibadan, Nigeria

Participant RosterNAME

Lady Gloria Chuma-Ibe

Mrs. Funmi Ladele

Mr. Adeola Jegede

Gideon Christian

Ms. Mikang NancyLongjan

Ms. NkechinyereOgbonna

Mr. Shafi'u Adamu Yauri

Ms. Regina A. Onuoha

Mr Dele Olusa

Mrs B.R. Yerima

Mr. Alex Omijie

Mr. M. O. Ekoko

TITLE & ORGANIZATION

Fed. Min of Culture, Centre forBlack & African Arts & Civilization

(CBAAC) / Deputy Diretor,Documentation Svcs Div

Fed. Min of Culture, Centre forBlack & African Arts & Civilization

(CBAAC) / Deputy Director,Information Mgmt

Federal Min. of Science &Technology, National Institute for

Pharmaceutical Research & Devmt.(NIPRD)/ Dept. of Medicinal PlantResearch & Traditional Medicine,

Research Fellow I

IDRC Canada

University of Abuja/Graduate LawStudent

University of Leeds/ ResearchStudent

Trademarks, Patents & DesignRegistry, Federal Ministry of

Commerce & Industry/ Sr. Asst.Registrar

Fed. Min of Culture, NationalInstitute for Cultural Orientation,

Principal Cultural Officer

Fed. Min of Culture, NationalInstitute for Cultural Orientation,Director Traning and orientation

Fed. Min of Culture, NationalInstitute for Cultural Orientation,

Deputy Director Training andOrientation

Fed. Min of Culture, NationalInstitute for Cultural Orientation

Fed. Min of Culture, NationalInstitute for Cultural Orientation,

Chief Cultural Officer

CONTACT ADDRESS

Centre For Black AndAfrican Arts And Civiliza-tion, c/o National Theatre,

Iganmu. P.M.B. 12794,Lagos, Nigeria.

CBAAC Ibadan OutreachCtr .\, Institute of African

Studies, University ofIbadan, Ibadan, Nigeria

Idu Industrial Area, P.M.B.21 Garki, Abuja, Nigeria

28 Fernwood CrescentWhetstone, London, UK

Ministry of Commerce andIndustry Trademark and

Patent Office, P.M.B. 88,Garki, Abuja, Nigeria -

Phone: +234 9 234 02 82,Fax: +234 9 234 15 41

No 23 Kigoma Cr, Wuse 2,Zone 7 Abuja

No 23 Kigoma Cr, Wuse 2,Zone 7 Abuja

No 23 Kigoma Cr, Wuse 2,Zone 7 Abuja

No 23 Kigoma Cr, Wuse 2,Zone 7 Abuja

No 23 Kigoma Cr, Wuse 2,Zone 7 Abuja

TEL./FAX/EMAIL

Tel: 234-802-315-1008,234-803-331-1285;

234-1-774-4489,234-1-477-11266

gloriachumaibe@yahoo.com

08023147845;funmilads@yahoo.com

adeolajegede@yahoo.com;0806 001 2926,08077758616

gideonchristian@yahoo.com; gchristian@idrc.ca

mikoqp@yahoo.com ;08034735471

ktogb@yahoo.com ;

sayauri@yahoo.com ;08033204663

Onuoha.regina@yahoo.com; 08037901077

princedeleolusa@yahoo.com

08055249921;08065811727

S/N

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

122

NAME

Mr. Hilary Ogbechie

Mr. Ayanwale AyoOlayanju

Mr. Patrick Allia

Mr. Sampson Njan

Mr. Aideloje Ileogben

Mr. David Eyo Offiong

Prof. Adedoyin Soyibo

Prof. O. Oladepo

Prof. P. Kassey Garba

Prof. Gbemi Oke

Dr. Oladunni Arulogun

Prof. Morayo Atinmo

Dr. Adeolu Adedapo

Dr. K. Adewumi

TITLE & ORGANIZATION

Fed. Min of Culture, NationalCouncil for Arts & Culture/

Assistant Director

Ministry of Culture

Ministry of Culture

Ministry of Culture

Ministry of Culture

Ministry of Culture

Univ of Ibadan, Univ-PrivateSector Collaboration/Mgt

Committee Ctr forEntrepreneurship & Innovation

Univ of Ibadan, Univ-PrivateSector Collaboration/Mgt

Committee Ctr forEntrepreneurship & Innovation

Univ of Ibadan, Univ-PrivateSector Collaboration/Mgt

Committee Ctr forEntrepreneurship & Innovation

Univ of Ibadan, Univ-PrivateSector Collaboration/Mgt

Committee Ctr forEntrepreneurship & Innovation

Univ of Ibadan, Univ-PrivateSector Collaboration/Mgt

Committee Ctr forEntrepreneurship & Innovation

Univ of Ibadan, Univ-PrivateSector Collaboration/Mgt

Committee Ctr forEntrepreneurship & Innovation

Univ of Ibadan, Univ-PrivateSector Collaboration/Mgt

Committee Ctr forEntrepreneurship & Innovation

Univ of Ibadan, Univ-PrivateSector Collaboration/Mgt

Committee Ctr forEntrepreneurship & Innovation

CONTACT ADDRESS

Plot 1370, Ukpo Close,Off Oro Ago Crescent, OffMuhammed Buhari Way,(by Old CBN) Garki IIDistrict, Abuja, Nigeria

Fed. Secretariat Phase II,Block B Room 502, Abuja

Fed. Secretariat Phase II,Block B Room 502, Abuja

Fed. Secretariat Phase II,Block B Room 502, Abuja

Fed. Secretariat Phase II,Block B Room 502, Abuja

Fed. Secretariat Phase II,Block B Room 502, Abuja

IPTTO Univ Ibadan (offcampus)

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

TEL./FAX/EMAIL

larryogbechie@yaoo.com;0803 3334 306

ayanwaledrum@yahoo.com

08055252146;alliapat@yahoo.ca,

alliapat@yahoo.com

08058253004,08062704007

samnnjan@yahoo.com

aidelojei@yahoo.com;08028410151

daveoffiong@yahoo.com;08059618880

08034488036,08022902800;

adedoyin.soyibo@mail.ui.edu.ngor

doyinsoyibo@yahoo.com

morayoatinmo2004@yahoo.com

S/N

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

123

NAME TITLE & ORGANIZATION CONTACT ADDRESS TEL./FAX/EMAILS/N

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

Dr. O. A. Ogunsiji

Dr. T. O. Omobowale

Dr. A. O. Adegoke

Engr. T. O. Y. Omotosho

Mrs. Judith Sokoya

Dr. Dickson Dare Ajayi

Dr. A. O. Raji

Dr. Ayotola Aremu

Dr. T. K. Hamzart

Dr. Fakolade

Mrs. OluyemisiBamgbose

Mr. John Asein

Ms. Yemi Lawal

Dr. Adebambo Adewopo

Mr. Moses Ekpo

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Univ of Ibadan, Univ-Private SectorCollaboration/Mgt Committee Ctrfor Entrepreneurship & Innovation

Nigerian Copyright Commission(NCC), Director, Nigerian

Copyright Institute

Nigerian Copyright Commission/Institute (NCC)

Director General, NigerianCopyright Commission (NCC)

Nigerian Copyright Commission(NCC), First Director General

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Federal Secretariat, AnnexII, P.M.B. 406, Garki,

Abuja NIGERIA

Federal Secretariat, AnnexII, P.M.B. 406, Garki,

Abuja NIGERIA

Federal Secretariat, AnnexII, P.M.B. 406, Garki,

Abuja NIGERIA

08036381625;jireade@yahoo.com

080340652143;judithsokoya@hotmail.com

08056137219;ajayidd@yahoo.com

08035850005;abdulgam.raji@mail.ui.edu.ng

08023351506;ayotk2001@yahoo.com

08052457016;talkzat@yahoo.com

08023504549;fakolade1@yahoo.com

08033233204;oluyemisibangbose@hotmail.com

aseinjohn@yahoo.comoffice no. 092903936 ;

08023237677092906576

08072795235;yemilawal@yahoo.co.uk

0803.305.2007 or0805.577.7007

tonade@yahoo.com

124

NAME TITLE & ORGANIZATION CONTACT ADDRESS TEL./FAX/EMAILS/N

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

Ms. O. A. Araba

Mr. Moshood Adesoye

Prof. Oladele Layiwola

Dr. Charles ObafemiJegede

Ms. Adetoun Oyelude

Dr. Benedict Oladele

Alhaji Chief A. A.Monilola

Ms. Ngozi Aligwekwe

Ms. Stella N. Mbah

Dr. Afia Zakiya

Fed. Min. of Science &Technology, National Office for

Techonology Acquisition &Promotion (NOTAP) / Director

Technology Acquisition andPromotion

Fed. Min. of Science &Technology, National Office for

Techonology Acquisition &Promotion (NOTAP) / PrincipalTechnology Officer, Monitoring,

Extension & Consulting Svcs(MCES)

Univ of Ibadan, Director, Instituteof African Studies/IK Study Group

UI, Faculty of Arts, Dept. ofReligion/Institute of African

Studies IK Study GroupRepresentative

UI, Kenneth Dike Library

UI, Director Kenneth Dike Library

The Ewegbemi of Ede, Mogaji ofSagun Family Ibadan; Oyo StateAdvisory Board on TraditionalMedicine Practitioners, Ibadan

Bioresources Development andConservation Programme

Snr Legal Officer ; Nigeria NaturalMedicine Development Agency

(NNMDA)

UI Visiting IK Scholar & WorkshopCoordinator -AIDIKI

National Office forTechnology acquisition and

Promotion (NOTAP); 4,Blantyre Street, off

Adetokumbo AdemolaCrescent, Wuse II PMB

5074 , Abuja Nigeria.Telephone:09-5239823

Fax:09-5240853

National Office forTechnology acquisition and

Promotion (NOTAP), 4,Blantyre Street, off

Adetokumbo AdemolaCrescent, Wuse II PMB

5074 , Abuja Nigeria.Telephone:09-5239823

Fax:09-5240853

University of Ibadan,Ibadan, Nigeria

University of Ibadan,Ibadan, Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Univ. of Ibadan, Ibadan,Nigeria

Ede Ibadan, Nigeria

Bioresources Developmentand Conservation

ProgrammeNo. 4 Odienna Close, offLibreville Street, AminuKano Crescent Wuse 2,

Abuja, NigeriaTel: 234-9-6723041

Nigeria Natural MedicineDevelopment Agency

(NNMDA); Fed Min. ofScience & Technology, 9

Kofo Abayomi St., VictoriaIsland, Ikoyi, Lagos

University of Ibadan,Institute of African Studies

funkearaba@yahoo.com;08033052166

madesoye@yahoo.com;08028817286

dir_ioas@mail.ui.edu.ng;delelayiwola@yahoo.com;

0803 835 7070

08022981214

toyelude@yahoo.com

benolak8@yahoo.comlibrarian@mail.ui.edu.ng;

08033487015

08033831610

ngozi@bioresources.org,bdcpn@bioresources.org

skembah@yahoo.com;08023546561

azakiya@aidiki.org08039391349

125

NAME TITLE & ORGANIZATION CONTACT ADDRESS TEL./FAX/EMAILS/N

52.

53.

54.

55.

56.

57.

58.

59.

60.

61.

62.

63.

64.

65.

66.

67.

68.

69.

70.

Dr. Chidi Oguaganaman

Prof Ikechi Mgbeoji

Prof. Stanley Okafor

Prof. Bolanle Wahab

Dr. Folake Samuel

Prof. Lekan Taiwo

Orgah A. Emmanuel

Fabunmi SamuelKehinde

Loveday C.Onyezonwu

Dr. A. A. Adedeji

Mr. J. U. Umar

Prof. G.O.S. Ekhaguse

Dr. C.O. Ilori

Chief Dr. AfolabiAyemojuba

Chief Isiaka OdebunmiSola Gbade

Mr. Fagbemi SundayAkinlolu

Dr. P. C. Obutte

Mr. S. O. Akintola

Mr. Anote Ajewuarai

Director, Law & TechnologyInstitute, Dalhousie University

Law School, Canada

Ikechi Mgbeoji, LL.M., J.S.D.,Associate Professor, Osgoode Hall

Law School, Canada

UI - Dept of Geography;Chairman, IK Study Group

UI - Dept. of Urban & RegionalPlanning; Secr. IK Study Group

UI Dept. of Human Nutrition / IKStudy Group

UI Dept of Geography / IK StudyGroup

Nigeria Natural MedicineDevelopment Agency (NNMDA)

UI, Faculty of Arts, Dept. ofReligion

UI, Faculty of Arts, Dept. ofReligion

Nigerian Copyright Commission,Abuja

Research Fellow, UI - Dept. ofUrban & Regional Planning

c/o CEI, UI

c/o CEI, UI

Herbal Medicine, Ibadan

Native Doctor

Faculty of Law, U.I

Faculty of Law, U.I

Dept. of Private & Business Law,Faculty of Law, U.I.

The Guardian

Law & TechnologyInstitute, Dalhousie

University Law SchoolWeldon Law Building

6061 University AvenueHalifax, NS

B3H 4H9 CANADA

Osgoode Hall Law School4700 Keele Street, Toronto

M3J 1P3, Canada

Dept. of Geography,U.I.

Dept. of Urban andRegional Planning, U.I.

9 Kofo Abayomi St.,Victoria Island, Ikoyi,

Lagos

Dept. of Urban andRegional Planning, U.I.

.

.

Tel: +1-902-494-7125Fax: +1-902-494-1316

Website: http://lati.law.dal.ca/

Phone: 416 650 8171Fax: 416 736 5736

website: http://osgoode.yorku..ca/

ikechimgbeoji

stanikaf@yahoo.com

bolanle_wahab@ahoo.com

08077018327

08055406951;emmaorgah@yahoo.com

08024542079;fabunmisk@yahoo.com

08065621039;onyezonwu@yahoo.com

08033587877woleadedeji2004@yahoo.com

08053603188;ajigbogwadams@yahoo.com

08033241859

08057319396

0806643676708073017331

0802327855707038477322

0803470934008079863232

sakinfagbemilaw@yahoo.com

08082031221;pcobutte@gmail.com

08023249990;

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Group photo of participants at the University of IbadanIndigenous Knowledge Study Group Workshop

April 20-24, 2009

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APPENDIX D

NNMDA DRAFT BILLON TK

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A BILL

FOR

AN ACT TO PROVIDE FOR THE PROTECTION OFTRADITIONAL KNOWLEDGE, REGULATION OF ACCESS TO

BIOLOGICAL RESOURCES AND RELATED MATTERS

CommencementBE IT ENACTED by the National Assembly of the Federal Republic of Nigeria as follows:

Short Title1. This Act may be known as the Traditional Knowledge arid Biological Resources Act.

Establishment of the Traditional Knowledge and Biological Resources Management Board2.(i) There is hereby established a Traditional Knowledge and Biological Resources Management

Board, hereinafter referred to as the Board.

(ii) The Board shall:(a) grant authorization for the exploitation of biological resources and associated knowledge;(b) negotiate contracts on behalf of communities in a manner that is honest, transparent

and equitable to both owners and users of the traditional knowledge and biologicalresources;

(c) assist, where possible and appropriate, holders of traditional knowledge to acquire,use, exercise and enforce their rights over their knowledge;

(d) establish a trust fund.

(iii) The Board shall comprise the following members -(a) a Chairman, who shall be a person with considerable knowledge and experience in

traditional knowledge and biological resources;(b) one representative each of the following Ministries or Agencies, who shall not be below

the rank of Director or its equivalent -(i) Federal Ministry of Agriculture and Rural Development;(ii) Federal Ministry of Commerce;(iii) Federal Ministry of Environment;(iv) Federal Ministry of Health;(iv) Federal Ministry of Science and Technology;(v) Federal Ministry of Culture and Tourism;(vi) the agency responsible for traditional medicine development(c) one private legal practitioner of considerable experience in intellectual property law

and practice;(d) one representative of traditional medicine practitioners;(e) one representative of traditional rulers;(f) one representative of non-governmental organizations;(g) one representative of the Manufacturers Association of Nigeria;(h) one representative of the Nigerian Bar Association;(i) one representative of universities or research institutions working on traditional medicine

or biological resources;(j) the Registrar who shall be Secretary to the Board.

N N M D A

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(iv) The Chairman and other members of the Board shall be appointed by the Minister.(v) A person appointed as a member of the Board (not being an ex--officio member) shall hold

office for a term of four years and shall be eligible for re-appointment for a further term of fouryears and no more.

(vi) The members of the Board other than the Registrar shall be part-time members.(vii) The members of the Board shall be paid such remuneration and allowances as the Minister

may from time to time determine.(viii) The Board may make standing orders regulating its proceedings.(ix) The Chairman shall preside at every meeting of the Board and in his absence the members

present shall elect one of their number, other than the Registrar, to preside at the meeting.(x) The quorum for meetings of the Board shall be one-third of its members.(xi) In considering any application for access to biological resources, the Board shall invite two

representatives of the relevant communities to participate in its meetings.(xii) The Board may co-opt or call on any person who is not a member of the Commission to

attend a meeting of the Board and advise the Board on any matter referred to it by theCommission, but the person shall not count towards the quorum of the meeting and shall not beentitled to vote at any meeting of the Board.

Scope of Protection3. The protection granted under this Act shall extend to:(i) that traditional knowledge which is:

(a) generated, preserved and transmitted in a traditional and intergenerational context;(b) distinctively associated with a community, family or individual, that preserves and

transmits it between generations; and(c) integral to the cultural identity of a community or family which is recognized as holding

the knowledge through a form of custodianship, guardianship, collective ownership orcultural responsibility which may be expressed formally or informally by customarypractices, laws or protocols.

(ii) biological resources in both in situ and ex situ conditions including the derivatives of suchresources.

Beneficiaries4.(i) The rights granted in respect of traditional knowledge shall vest in the community, family or

recognized individuals within the community, who create, develop, preserve, maintain or transmitknowledge in a traditional and intergenerational context.

(ii) Entitlement to the benefits of protection under this section shall be subject to the customaryprotocols, agreement, laws and practices of the community concerned.

Duration5. The protection of traditional knowledge shall last for so long as it fulfils the criteria of protection

set out in section 3 (a) above, except that where traditional knowledge belongs to an individual,protection shall last for 25 years following the first exploitation of the knowledge beyond Itstraditional context by that individual or with his consent.

Protection of Traditional Knowledge6. (i) Traditional knowledge shall be protected against the following acts -

(a) the acquisition, appropriation or use of traditional knowledge by unfair or unlawfulmeans;

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(b) derivation of commercial benefit from the acquisition, appropriation or use of traditionalknowledge when the person using that knowledge knows, or is negligent in failing toknow, that it was acquired or appropriated by unfair or unlawful means;

(c) any other commercial activities contrary to honest practices by which inequitable benefitis derived from traditional knowledge.

(d) acquisition of traditional knowledge or exercising control over it in violation of legalmeasures that require prior informed consent as a condition of access to the knowledge,and any use of traditional knowledge that violates terms that were mutually agreed asa condition of prior informed consent concerning access to that knowledge;

(e) false claims of ownership rights in or control over traditional knowledge, includingacquiring, claiming or asserting intellectual property rights in traditional knowledge-related subject matter, when the perpetrator of the act is not the lawful owner of thoserights in the light of that traditional knowledge and any conditions relating to accessthereto; and

(f) commercial or industrial use of traditional knowledge without just and appropriatecompensation to the recognized holders of the knowledge, when such use has gainfulintent and confers a technological or commercial advantage on the user, and when,considering the circumstances in which the user acquired the knowledge, compensationwould be consistent with fairness and equity in relation to the holders of the knowledge.

(g) false or misleading representation that a product or service is produced or providedwith the involvement or endorsement of traditional knowledge holders, or that thecommercial exploitation of products or services benefits holders of traditionalknowledge.

(ii) The acquisition of traditional knowledge shall be deemed unfair or unlawful if it was acquiredby theft, bribery, coercion, fraud, trespass, breach or inducement to breach of contract, breachor inducement to breach of trust, breach or inducement to breach of confidentiality, breach offiduciary obligations or other relations of trust, deception, misrepresentation, or through theprovision of misleading information or other unfair or dishonest means when obtaining priorinformed consent for access to such traditional knowledge;

(iii) The application, interpretation and enforcement of protection against unlawful acts, includingthe determination of equitable sharing of benefits, shall take cognizance of the customarypractices, norms, laws and understandings of the holders of the knowledge, including the spiritual,sacred or ceremonial characteristics of the traditional origin of the knowledge.

Civil and Criminal Liability7. (i) Any person who does any of the acts provided in section 6 of this Act shall be liable to the

beneficiaries in damages, injunctions, account of profits and any other remedies as may beavailable in a civil action.

(ii) 1. Any person who -(a) willfully does any of the acts set out in section 6 of this Act; or(b) willfully misrepresents the source of a traditional knowledge; or(c) commits any other offence under this Act,shall be liable, in the case of an individual to a fine not exceeding N1,000,000 or to imprisonmentfor a term of 5 years or to both such fine and imprisonment and in the case of a body corporateto a fine not exceeding N50,000,000.

(iii) A court before which an offence under this section is tried may order that the infringing oroffending articles be delivered to the Commission or otherwise dealt with in any other appropriatemanner.

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REGULATION OF ACCESS TO BIOLOGICAL RESOURCES(iv) Notwithstanding the foregoing provisions, the Commission shall have power, after due consultation with

the beneficiaries, to act on behalf of the beneficiaries, and to commence and maintain actions for anyinfringement of the provisions of this Act.

Exceptions8. Nothing in this Act shall be interpreted to prohibit:

(a) the customary practices, exchange, use and transmission of traditional knowledge by their holders;(b) the use of traditional medicine knowledge for household purposes and, subject to fair and adequate

compensation, use in the interest of public health;(c) the traditional systems of access, use or exchange of biological resources; and(d) access to, use and exchange of knowledge and technologies by and between local communities,

provided that this shall not be taken to apply to any person or persons not living in the traditionaland customary way of life of the relevant community.

Continuing Use9. Any person who has been commercially exploiting any traditional knowledge before the commencement of

this Act and wishes to continue with such exploitation shall obtain prior informed consent for the continuedcommercial exploitation of such knowledge from the relevant community through the Board within oneyear of the coming into force of this Act.

Formalities10. (i) Protection of traditional knowledge under this Act shall not be subject to any requirement of formality.(ii) Notwithstanding the provisions of the foregoing subsection, the Board may for the purposes of identification

and documentation require details of traditional knowledge to be maintained in such format and on suchterms as may be necessary in the interest of confidentiality and the continued integrity of the traditionalknowledge concerned.

likely accrue to the country, local communities or recognized individuals providing the biological resources as wellas the collector and the countries where he operates;

(j) the proposed mechanisms and arrangements for benefit sharing;(k) description of any innovations, practices, knowledge or technology associated with the biological

resources;(j) an environmental and socio-economic impact assessment covering at least the coming three

generations, in cases where the collection of the biological resources is in large quantities; and(m) any other information which the Board may deem necessary for the effective implementation of this

legislation.(ii) Every application for access to biological resources shall be advertised in such manner and for such period

as may be determined by the Board, so as to be sufficiently accessible to the public.(iii) The Board shall make provision for any person or community to file oppositions and shall have the power

to hear and determine all such oppositions.(iv) The decision of the Board shall be subject to appeal to the Federal High Court.

Requirement of Consultation and Prior Informed Consent11. (i) Access to biological resources and associated knowledge of a community shall be subject to the

grant of written prior informed consent by that community, through the Board.(ii) Any access to biological resources without the prior informed consent of the relevant community

shall be an offence under this Act.(iii) The Board may make regulations prescribing the conditions for access to and exploitation of biological

resources and associated knowledge.

Application Procedure

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12. (i) An application for access to biological resources as provided for in the foregoing section shall bemade to the Board and shall include the following:

(a) the name and address of the applicant and the documents that testify to his legal capacityto contract, including, where appropriate, the name and addresses of his partners;

(b) the resources to which access is sought, including the sites from which they will be collected;(c) whether any collection of the resources endangers any component of biological diversity

and the risks which may arise from the access;(d) the purpose for which access to the resources is requested including the type and extent of

research, teaching or commercial use expected to be derived from it;(e) description of the manner and extent of local and national collaboration in the research and

development of the biological resources concerned;(f) the identity of any national institutions which will participate in the research or be in charge

of the monitoring process;(g) the identity of the location where the research and development will be carried out;(h) the primary destination of the resources and their probable subsequent destination(s);(i) the economic, social, technical, biotechnological, scientific, environmental or any other

benefits that are intended, or may likely accrue to the country, local communities orrecognized individuals providing the biological resources as well as the collector and thecountries where he operates;

(j) the proposed mechanisms and arrangements for benefit sharing;(k) description of any innovations, practices, knowledge or technology associated with the

biological resources;(l) an environmental and socio-economic impact assessment covering at least the coming

three generations, in cases where the collection of the biological resources is in largequantities; and

(m) any other information which the Board may deem necessary for the effective implementationof this legislation.

(2) Every application for access to biological resources shall be advertised in such manner and forsuch period as may be determined by the Board, so as to be sufficiently accessible to thepublic.

(3) The Board shall make provision for any person or community to file oppositions and shall havethe power to hear and determine all such oppositions.

(4) The decision of the Board shall be subject to appeal to the Federal High Court.

Granting of Access

13. (i)Every grant of access under this Act shall be in writing, under seal and shall contain the terms andconditions on which it is granted.

(ii) The grant of access shall be subject to the payment of a fee to be determined by the Board.

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(iii) The terms and conditions referred to in this section shall include commitments and undertakingsby the collector:(a) to adhere to a limit set by the Board on the quantity and specification as to quality of

the biological resources that the collector may obtain or export;(b) to deposit duplicates or samples of, with complete field information on, each specimen

of the biological resources an associated knowledge collected, as may be required bythe Board;

(c) to promptly inform the Board and the concerned community or recognised individualsof all findings from research and development pertaining to the resources;

(d) not to transfer the biological resources or any of its derivatives or any associatedknowledge to any third party without the authorization of the Board and the concernedcommunity or recognised individuals;

(e) not to apply for any form of intellectual property protection over the biological resourcesor parts or derivatives thereof and not to apply for intellectual property rights protectionover any knowledge associated with the biological resources without the prior informedconsent of the Board in consultation with the community or recognised individuals.

(f) to provide for the sharing of benefits;(g) to submit to the Board a regular status report of research and development pertaining

to the resources concerned and, where the biological resources are to be collected inlarge quantities, on the ecological state of the source area; and.

(h) to abide by the relevant laws of the country particularly those regarding sanitary control,bio-safety and the protection of the environment as well as the cultural practices,traditional values and customs of the local communities.

(iv) The grant of access shall be conditioned upon:(a) payment of mutually agreed compensation to individuals, families, communities or local

institutions that have facilitated the access to the biological resources;(b) a commitment to contribute economically to the efforts of the State and concerned

community in the regeneration and conservation of the biological resources to whichaccess is sought, including the maintenance of associated knowledge;

Terms of grant14. (i) Notwithstanding the foregoing, the Board may make provision for the compensation of

recognised individuals, local communities and institutions.(ii) In granting access, the Board shall convince itself that the research arising therefrom shall, as

much as possible, be conducted in the country and in a manner that facilitates the participationas much as possible of actors from the community from which the biological resources werederived.

Special Exception Pertaining to Academic and Research Institutions, etc.15. (i) Nothing in this Act shall be interpreted to prohibit research activities by academic research

institutions and public institutions; provided that this exception shall not apply to an institutionwhose activity, in the view of the Board is predominantly commercial.

(ii) The application for access to biological resources for research purposes shall clearly state theobjective of the research and no samples collected or any associated knowledge shall betransferred without a material transfer agreement reserving the prior rights of the State, communityor recognised individuals as the case may be.

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Benefit Sharing16. (i) The State and the relevant community or recognised individuals, shall be entitled to a share of

the earnings derived from the use of any biological resources and associated knowledge obtaineddirectly or indirectly from the community or recognised individuals, as the case may be.

(ii) The relevant community, and any individuals or institutions who provide information leading toan innovation or a discovery shall be acknowledged in all publications, patents and otherintellectual property rights documentations arising from such discovery or innovation.

(iii) The Board shall have powers to make regulations on the nature and manner of benefits thatshall accrue to the State and the relevant community or recognised individuals.

Prohibition of Patents over Life Forms and Biological Processes17. (i) Notwithstanding any provision in any other law, the grant of patents over life forms and biological

processes are hereby prohibited.

INSTITUTIONAL ARRANGEMENTS

Establishment of the Traditional Knowledge and Biological Resources18. (i) There is hereby established a Traditional Knowledge and Biological Resources Registry (in

this Act referred to as “the Registry”).(ii) The Registry shall be headed by the Registrar of Traditional Knowledge and Biological Resources

who shall be appointed by the Commission.(iii) The Registrar shall have an official seal which shall be officially and judicially noticed.(iv) There may be appointed one or more Deputy Registrars and one or more Assistant Registrars

who shall, subject to the control of the Registrar, have all the powers conferred by this Act onthe Registrar, and the most senior of whom shall whenever the Registrar is for any reasonunable to perform his duty, act temporarily in his stead.

(v) The Registry shall --(a) create and operate a regulatory mechanism that will ensure the effective protection of

traditional knowledge and the regulation of access to biological resources;(b) carry out the process of consultation with, and participation of, communities, including

families, in the identification of their rights as provided for under this Act or otherrelevant customary practices and laws;

(c) identify types of traditional knowledge and available biological resources;(d) identify and define the requirements and procedures necessary for the recognition of

traditional knowledge and biological resources;(e) develop criteria and mechanisms to standardise procedures for the administration of

traditional knowledge and access to biological resources;(f) develop a system of documentation and maintain a database on traditional knowledge

and available biological resources;(g) maintain a depository of collected and identified samples of biological resources;(h) identify relevant technical institutions that will assist local communities, including families

in the identification, categorisation and characterisation of traditional knowledge andbiological resources.

(i) disseminate information about traditional knowledge and create public awareness;(j) establish a fair and functional reciprocal system of exchange of and sharing of benefits

arising from such use

Disclosure of Interest19. (i) Any member of the Board who has an interest in any matter before the Board, whether pecuniary

or otherwise, shall disclose such interest.

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(ii) A disclosure under subsection (1) of this section shall be recorded in the minutes of the Board,and the member shall not take part after the disclosure, in any deliberation or decision of theBoard with regard to the subject matter in respect of which his interest is thus disclosed;

(iii) Non-disclosure of interest in accordance with this section shall be deemed to be a seriousmisconduct for which the member concerned may be removed by the Minister.

Database20. (i) For the purposes of this Act, a database to be known as the Database on Traditional Knowledge

and Biological Resources (in this Act referred to as “the Database”) shall be kept at the Registry,in which shall be entered particulars of all identified traditional knowledge that belong tocommunities and families identified within the territory of Nigeria.

(ii) The database shall be kept under the control and management of the Registrar in such manneror form so as to ensure confidentiality and integrity of the knowledge contained therein.

Interpretation21. (i) In this Act, unless the context otherwise requires –“Access” means the acquisition of biological resources, their derivatives and associated knowledge,

innovations, technologies or practices.

“Benefit Sharing” means the sharing of whatever benefits accrues from the utilisation of biologicalresources and associated knowledge

“Biological resources” means genetic resources, organisms or parts thereof, populations, or any othercomponent of ecosystems, including ecosystems themselves, with actual or potential use orvalue for humanity.

“Collector” means any natural or legal person, entity or agent obtaining access to biological resources,local practices, innovations, knowledge or technologies under authority given by the TraditionalKnowledge and Biological Resources Management Board.

“Community” includes a local or traditional community.

“Derivative” means a product developed or extracted from a biological resource and may include suchproducts as plant varieties, oils, resins, gums, proteins etc.

“Ex Situ Condition” means the condition in which a biological resource is found outside its naturalhabitat.

“In Situ Condition” means the condition in which a biological resource is found in its ecosystem ornatural habitat. In the case of a domesticated or cultivated variety, its condition is in situ whenthat variety is found in the cultural environment or context in which its specific properties havebeen developed.

“Innovation” means any generation of a new, or an improvement of an existing, collective and/orcumulative knowledge or technology through alteration or modification, or the database use ofthe properties, values or processes of any biological material or any part thereof, whetherdocumented, recorded, oral, written or in whatever manner otherwise existing.

“Prior Informed Consent” means the giving by a collector of complete and accurate information, and,based on that information, the prior acceptance of that collector by the government and the

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concerned local community or recognised individuals to collect biological resources, or traditionalor technologies.

“Traditional knowledge” means the content or substance of knowledge that is the result of intellectualactivity and insight in a traditional context, and includes the know-how, skills, technologiesinnovations, practices and learning that form part of traditional knowledge systems, andknowledge that is embodied in the traditional lifestyle of a community or people, or is containedin codified knowledge systems passed between generations.

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