Cusco Law on Indigenous Knowledge and Biopiracy

The regional government of Cusco, the former capital of the Inca Empire, has enacted laws (O.R. Nº048-2008-CR/GRC) to regulate against biopiracy and protect indigenous knowledge at the regional level.

Alejandro Argumedo, Director of Cusco-based indigenous organisation, Asociacion ANDES, describes the law as "a good example of how local governments can create the appropriate legal and institutional framework, as well as the mechanisms to implement it, to ensure that biopiracy does not prey on the creativity of indigenous peoples and local communities." He explains further, "Worldwide, national governments and international bodies such as the World Trade Organization and the World Intellectual Property Organization have failed to protect indigenous people's traditional knowledge and associated genetic resources from biopirates."

The laws include provisions for prior informed consent from indigenous and local communities, benefit-sharing with communities, and limiations upon the creation of patent rights over genetic resources. The laws are based on the understanding that such communities have sustained and protected the species for centuries through their traditions and practices, and acknowledge this guardianship in the duties to those communities, as recognised in the law, as well as providing for communities to rely on customary laws to develop and implement registers for genetic resources and protocols and procedures for the access to those resources.

The International Institute for Environment and Development (IIED), long-time partner of Asociacion ANDES, praises the passage of the law. Dr Michel Pimbert of IIED (pictured at left) notes the relationship between protecting biodiversity and conserving cultural knowledge: "Biopiracy of traditional knowledge and associated native crops, medicinal plants and microorganisms has been common, depriving poor indigenous people and farming communities of their ancestral rights to natural resources."

Although the law provides for a local infrastructure to challenge national procedures on bioprospecting, the law may conflict with national laws on the recording of indigenous knowledge. The provision for locally produced and controlled registers for traditional knowledge may conflict with the National Register of Indigenous Knowledge, created by the National Institute for the Protection of the Consumer and Intellectual Property. This capacity of local and indigenous communities not only to create but also to control their knowledge registers according to customary rules is of critical importance. To reconcile the two systems, Maria Scurrah, a Peruvian scientist specialising in farmers' rights, suggests to SciDev.net that a cooperation between local communities and the national register is necessary: "I believe that ancient knowledge should be kept by the community and be brought to a national registry to ensure payment to each community for each variety and species registered. That is the only way to pay for each community to be the guardian of biodiversity."