Post-Literacy through TV

Subject: Re: [IKD] Post-Literacy through TV

Date: Thu, 29 Apr 1999 14:26:32 -0400 (EDT)

From: Sabine Grund <Sabine_Grund@public.uni-hamburg.de>

Reply-To: ikd@jazz.worldbank.org

To: ikd@jazz.worldbank.org

CC: brij@iimahd.ernet.in

 

What a wonderful idea to subtitle more movies. This could also be used

much more in parts of Europe, like Germany where dubbing takes all the

original feeling out of foreign language movies.

 

In some cultural contexts subtitling movies is widely practiced and can

be cited as good example.

For instance

- many Chinese films are subtitled, also due to the different dialects

spoken in the communities worldwide.

- French films shown in TV 5 in the francophone parts of the world are

subtitled, which I find very helpful to pick up on the speed of the

spoken language.

 

Good luck to Brij Kothari !

 

Sabine E. Grund

 

Subject: [IKD] invitation to join an electronic discussion

Date: Fri, 30 Apr 1999 17:20:49 -0400

From: Kmcnamara1@worldbank.org

Reply-To: ikd@jazz.worldbank.org

To: ikd@jazz.worldbank.org

 

Invitation from the World Bank to join an electronic discussion

on the Comprehensive Development Framework

 

The World Bank invites you to join an electronic discussion of the

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Subject: [BIO-IPR] IPR in traditional ecological knowledge

Resent-Date: Sat, 1 May 1999 00:41:10 -0700

Resent-From: bio-ipr@cuenet.com

Date: Sat, 01 May 1999 14:13:12 +0800

From: GRAIN Los Banos <grain@baylink.mozcom.com>

To: bio-ipr@cuenet.com

 

--

 

BIO-IPR docserver

________________________________________________________

 

TITLE: The Public and Private Domains: Intellectual Property Rights in

Traditional Ecological Knowledge

AUTHOR: Graham Dutfield

PUBLICATION: Oxford Electronic Journal of Intellectual Property Rights,

WP 03/99

DATE: March 1999

SOURCE: Oxford Intellectual Property Research Centre, University of Oxford

URL: http://users.ox.ac.uk/~mast0140/EJWP0399.html

NOTE: This is a revised draft version of a paper presented at the Oxford

Intellectual Property Research Centre seminar series on "Intellectual

Property in the New Millenium" on 2 March 1999. The author, contact details

below, welcomes all comments.

________________________________________________________

 

THE PUBLIC AND PRIVATE DOMAINS: INTELLECTUAL PROPERTY

RIGHTS IN TRADITIONAL ECOLOGICAL KNOWLEDGE

 

by Graham Dutfield

St. Peter's College & Oxford Centre for Environment, Ethics and Society

University of Oxford

March 1999

__________________________________

 

Contents

1. Traditional Ecological Knowledge (TEK): What it is and why it's Useful

2. The Legal Status of Traditional Ecological Knowledge: TEK and the

Biodiversity Convention

3. TEK in the Public and Private Domains

4. Conclusions

__________________________________

 

 

1. TRADITIONAL ECOLOGICAL KNOWLEDGE (TEK): WHAT IT IS AND

WHY IT'S USEFUL

 

According to Martha Johnson of the Dene Cultural Institute in Canada,

Traditional Ecological Knowledge can be defined as: "a body of knowledge

built by a group of people through generations living in close contact with

nature. It includes a system of classification, a set of empirical

observations about the local environment, and a system of self-management

that governs resource use." [1]

 

Following this definition, it would be incorrect to assume that the word

‘traditional’ necessarily implies ‘outdated’. Indeed, the term ‘traditional

innovation’ should not be regarded as an oxymoron since, as noted by the

Canadian indigenous peoples organisation, the Four Directions Council [2]:

 

"what is ‘traditional’ about traditional knowledge is not its antiquity, but

the way it is acquired and used. In other words, the social process of

learning and sharing knowledge, which is unique to each indigenous culture,

lies at the very heart of its ‘traditionality’. Much of this knowledge is

actually quite new, but it has a social meaning, and legal character,

entirely unlike the knowledge indigenous people acquire from settlers and

industrialised societies."

 

In the context of TEK, two issues are hotly debated by anthropologists and

continue to be controversial. The first is whether traditional knowledge and

western science are clearly distinguishable or not [3]. The second issue

concerns the alleged inherent environment-friendliness of traditional

knowledge systems and livelihood practices. Without discussing in detail the

merits and demerits of the range of views expressed in the literature, it is

worth considering these issues briefly. With respect to the first, Johnson

identifies various characteristics of TEK and of how it is generated,

recorded and transmitted. Some but not all of these differ from Western

scientific approaches [4]. Thus, traditional ecological knowledge:

 

* is recorded and transmitted through oral tradition

* is learned through observation and hands-on experience

* is based on the understanding that the elements of matter have a life

force. All parts of the natural world are therefore infused with spirit

* does not view human life as superior to other animate and inanimate

elements: all life-forms have kinship and are interdependent

* is holistic (whereas Western science is reductionist)

* is intuitive in its mode of thinking (whereas Western science is

analytical)

* is mainly qualitative (whereas Western science is mainly quantitative)

* is based on data generated by resource users. As such it is more inclusive

than Western science, which is collected by a specialised group of

researchers who tend to be more selective and deliberate in the accumulation

of facts

* is based on diachronic [5] data (whereas Western science is largely based

on synchronic [6] data)

* is rooted in a social context that sees the world in terms of social and

spiritual relations between all life-forms. In contrast, Western science is

hierarchically organised and vertically compartmentalised

* derives its explanations of environmental phenomena from cumulative,

collective and often spiritual experiences. Such explanations are checked,

validated, and revised daily and seasonally through the annual cycle of

activities.

 

In the academic and activist literature dealing with this issue, perhaps the

most commonly drawn distinction between the two lies in the tendency of

non-Western traditional science to be holistic and of Western science to be

reductionist.

 

Turning to the second issue, the view that a conservation ethic is a

prevalent feature of the subsistence and resource management practices of

present-day indigenous or native peoples and traditional communities is

supported by a large number of field studies [7]. But some anthropologists

claim that in many such societies, this ethic is either not observed by many

of their members or is entirely non-existent [8]. Roy Ellen [9] argues that

the many traditional societies observed to impact minimally on the

environment do so merely because they are the smallest and most isolated

ones. Kent Redford and Allyn Stearman [10] are also sceptical of the

‘ecologically noble savage’ hypothesis. They feel it is inappropriate to

generalise about native peoples and traditional communities and make broadly

applicable assertions about their environmental values. They also argue that

expecting them to continue using only traditional technologies and

low-impact subsistence strategies places an unfair burden of responsibility

on them and implicitly denies the right of such peoples to develop according

to their own preferences [11].

 

Nevertheless, academic studies of such communities provide ample evidence

that the protection of traditional ecological knowledge will provide

significant environmental benefits as well as possible commercial

applications. For example, in many forest areas, indigenous peoples plant

forest gardens and manage the regeneration of bush fallows in ways which

take advantage of natural processes and mimic the biodiversity of natural

forests. Researchers are increasingly aware of the extent to which

traditional natural resource management can enhance biodiversity, and in

this way have realised the extent of anthropogenic landscapes even within

‘pristine’ tropical forests [12]. Much of the world’s crop diversity is in

the custody of farmers who follow age-old farming and land use practices

that conserve biodiversity and provide other local benefits, such as: the

promotion of diet diversity, income generation, production stability,

minimisation of risk, reduced insect and disease incidence, efficient use of

labour, intensification of production with limited resources, and

maximisation of returns under low levels of technology. These ecologically

complex agricultural systems associated with centres of crop genetic

diversity include traditional cultivars or ‘landraces’ that constitute an

essential part of the world’s crop genetic heritage, and non-domesticated

plant and animal species that serve humanity in various ways.

 

While scientific and commercial interest in TEK and resource management

practices have never been greater, human cultural diversity is eroding at an

accelerating rate as the world steadily becomes more biologically and

culturally uniform. According to the IUCN Inter-Commission Task Force on

Indigenous Peoples [13], "cultures are dying out faster than the peoples

associated with them. It has been estimated that half the world’s languages

-- the storehouses of peoples’ intellectual heritages and the framework for

their unique understandings of life -- will disappear within a century".

According to the Task Force, the main threats include genocide, uncontrolled

frontier aggression, military intimidation, extension of government control,

unjust land policies, cultural modification policies, and inappropriate

conservation management. Awareness of the destruction of traditional

knowledge systems is increasing but there is some debate concerning the most

appropriate way to respond. Many academics and development workers have

urged that traditional knowledge be documented before it disappears. While

recording traditional knowledge before it falls out of use may often be the

only way to prevent it from being lost completely there are potential

dangers with archiving traditional knowledge in national and international

databases to the exclusion of locally-based initiatives.

 

1. Traditional knowledge is not static but evolves. Storing it in ex situ

collections fixes it temporally so its relevance will diminish over time

unless it is constantly updated. As Arun Agrawal argues [14], "divorced in

archives from their cultural context, no knowledge can maintain its vitality

or vigour".

2. Such an approach is problematic in the sense that it may deflect

attention from the far more important priority of protecting traditional

knowledge in situ which requires that urgent attention be given to the

cultural, spiritual and physical well-being of the knowledge holders and

their communities.

3. Documenting traditional knowledge is unethical and counter-productive if

the intellectual property rights of the generators and holders of such

knowledge are ignored by those doing the recording and if the archives are

inaccessible to the communities providing the knowledge to the archives. It

seems paradoxical but it is often the case that traditional knowledge is

respected more than the people who generate and share it. According to Akhil

Gupta [15], "‘natives’ serve as informants and sometimes collaborate in

eliciting data; significantly, they are rarely the ‘experts’ who compile,

systematise, and store the data in retrievable form".

 

It is perhaps out of such concerns that representatives of indigenous

peoples attending the Workshop on Traditional Knowledge and Biological

Diversity organised by the Secretariat of the Convention on Biological

Diversity in November 1997 went so far as to call for "a moratorium on the

registering of [traditional] knowledge". Fortunately, some scientific

organisations are sensitive to the concerns of indigenous peoples. The

International Society for Ethnobiology recently drafted a set of Guidelines

for Research, Collections, Databases and Publications. According to these

Guidelines no research, collection, database or publication shall be

undertaken without the prior informed consent of "all potentially affected

communities of indigenous peoples or traditional societies". Also,

 

"no member of the International Society for Ethnobiology (ISE) or affiliated

organizations of ISE shall undertake any research, collection, database or

publication derived or obtained from information or materials from any

community that has requested a moratorium on any relevant research,

collection, database or publication."

 

2. THE LEGAL STATUS OF TRADITIONAL ECOLOGICAL KNOWLEDGE :

TEK AND THE BIODIVERSITY CONVENTION

 

The Convention on Biological Diversity is the first international treaty to

acknowledge the vital role of traditional knowledge, innovations and

practices in biodiversity conservation and sustainable development as well

as the need to guarantee their protection, whether through IPR protection or

other means. Article 8 (j) requires the State Parties of the CBD to

"respect, preserve and maintain knowledge, innovations and practices of

indigenous and local communities embodying traditional lifestyles relevant

for the conservation and sustainable use of biological diversity and promote

the wider application with the approval and involvement of the holders of

such knowledge, innovations and practices and encourage the equitable

sharing of the benefits arising from the utilisation of such knowledge,

innovations and practices."

 

Use of the terms ‘knowledge’, ‘innovations’ and ‘practices’ in addition to

‘traditional’ is very significant. As suggested earlier, there is a tendency

to assume that ‘traditional’ implies any or all of such notions as

‘time-honoured’, ‘historical’, ‘inflexible’ and ‘static’. On the contrary,

‘traditional innovations’ is not an oxymoron. Perhaps the most significant

word of all, though, is ‘holders’, which may not imply ownership but

minimally suggests the existence of legal entitlements. [16] The Article

seems to affirm, then, that the holders have rights over their knowledge,

innovations and practices, whether or not they are capable of being

protected by IPRs. If they are not capable of being protected by the

existing IPR system, there is at the very least a moral obligation for

governments to safeguard these entitlements either through a new IPR law or

by other legal means. These moral obligations should also extend to users of

traditional knowledge, innovations and practices. Minimally giving effect to

these obligations should be through prior informed consent and observation

of codes of conduct, such as those developed by some scientific

organisations. [17]

 

3. TEK IN THE PUBLIC AND PRIVATE DOMAINS

 

It is frequently assumed that ownership and property rights, including

intellectual property rights, are alien concepts in indigenous and

traditional societies. [18] Such communities and peoples, it is said, are

characterised by a strong sharing ethos with respect to biological resources

and biodiversity-related knowledge. In fact, the anthropological literature

reveals that such concepts -- or at least close equivalents to them -- may

well be no less common than the sharing ethos. [19] Proprietary systems do

exist in many traditional societies, but it would be erroneous to assume

that there is a generic system of collective intellectual rights which is

common to them all. Being locally specific, these systems display a far

greater diversity than those that are available to protect the valuable

intangibles of industrial firms. According to the Canadian indigenous

peoples organisation, the Four Directions Council [20]:

 

"Indigenous peoples possess their own locally-specific systems of

jurisprudence with respect to the classification of different types of

knowledge, proper procedures for acquiring and sharing knowledge, and the

rights and responsibilities which attach to possessing knowledge, all of

which are embedded uniquely in each culture and its language."

 

This suggests that it may not be correct to suppose that patents,

copyrights, trade secrets and trademarks are entirely unfamiliar concepts to

native peoples and traditional rural communities. The Indian ecologist

Madhav Gadgil finds that "IPRs…date right from the hunter-gathering stage.

The way in which these were enforced is analogous to the institutions of

‘trade secrets’ of today".

 

In an anthropology literature review by a recent Oxford University

postgraduate, Tom Griffiths, some fascinating findings are revealed by

studies on traditional knowledge and intellectual property:

 

* The Shuar view shamanic knowledge as an ‘exchangeable commodity’ which can

be purchased. The tangible, alienable nature of specific items of shamanic

knowledge is revealed by the fact that this knowledge can be bought, sold,

lent and subject to theft. (Griffiths 1993, based on Hendricks 1988)

 

* Miskito healers value their cures as ‘private property’ (see Dennis 1988)

 

* ‘Secrets turn knowledge into property that can be exchanged … people

throughout Melanesia swap or sell their secrets and/ or their knowledge

copyrights for pigs, money, and other goods’. (Lindstrom 1990)

 

* The personalised nature of healing knowledge can induce a de facto private

knowledge of botanical resources . For the healer, these secret plants are a

symbolic extension of his secret knowledge. Langdon (1986) states that each

Siona shaman owns his personal cultivar of yagé which is co-owned by his

spirit guide.

 

* In Australian aboriginal societies ritual knowledge is directly associated

with the rights in a geographic territory and rights in women (e.g. Bell

1983; Moyle 1979; Bern 1979)

 

As in Western societies the acknowledged creators are not necessarily the

intellectual property owners. For example, in referring to Australian

Aborigines Golvan (1992) states:

 

"Under Aboriginal law, the rights in artistic works are owned collectively.

Only certain artists are permitted within a tribe to depict certain designs,

with such rights being based on status within a tribe. The right to depict a

design does not mean that the artist may permit the reproduction of a

design. This right to reproduce or re-depict would depend on permission

being granted by the tribal owners of the rights in the design."

 

Even so, it is quite another matter to suggest that IPRs, particularly

patents, are suitable mechanisms to protect traditional knowledge. A great

deal of traditional knowledge cannot be traced to a specific community or

geographical area. Thus, no identifiable group of people may exist in which

rights to such knowledge can be vested. In those cases where the sources of

knowledge can be attributed to single individuals or communities, or to

kinship or gender-based groups, there are practical obstacles which make

patenting an unattractive option. While TEK of this kind may be patentable

in theory, it is most unlikely that the potential applicants could bear the

cost of acquiring and then defending a patent. Tremendous controversy has

arisen because while the patent system is to all intents and purposes

unavailable for indigenous communities to use, there have been numerous

cases of inventions derived from TEK being patented. This is why a lot of

indigenous peoples’ representatives condemn the patent system as being

predatory. Are they right to think so? On balance I think they have a very

good point, and this issue is what I would now like to talk about.

 

Let’s consider the case for the defence. First, one might reasonably argue

that the high expense of acquiring and enforcing patents does not make the

system inherently unjust if these high costs are unavoidable. The patent

system can hardly be blamed for the fact that many potential users either

lack sufficient financial resources or are unwilling to take the risks of

applying for patents in exchange for future gains that may never

materialise.

 

Second, companies holding patents derived from knowledge acquired from

indigenous communities cannot prevent members of these communities from

continuing to use their knowledge, and as far as I know such companies have

never attempted to do so. So just because a United States company holds a

patent for, say, a stable storage form of neem pesticide, this does not

prevent Indian farmers from continuing to use neem tree seeds as a pesticide

as they have done for generations. As long as the patent requirements of

usefulness, novelty and inventive step are strictly upheld by patent offices

there is no reason for traditional communities to feel exploited since if

their knowledge were simply copied there would be no invention to patent.

 

Third, some of those who condemn the corporate ‘biopirates’ weaken their

position by failing to build their case on the existence of traditional

proprietary systems, while assuming that all TEK is communally shared and

traceable to no entity more specific than the (usually anonymous) ‘local

community’ or ‘Third World farmers’. In effect, they seem to be saying that

traditional knowledge is, by its very nature, a part of the public domain.

This surely is just what the pharmaceutical and seed companies want to hear.

If traditional knowledge is not secret and is not even considered by the

holders themselves to be anybody’s legal property, then it is reasonable to

assume that nobody’s rights are being infringed by publishing this knowledge

or commercially exploiting it. These advocates of indigenous rights are then

forced to resort to moral arguments to claim that traditional knowledge

should enjoy a privileged legal status vis-à-vis other public domain

knowledge originating from non-traditional sources such as public or private

sector research programmes. This position is quite difficult to sustain. To

take the example again of neem seeds, at least some (and possibly most) of

the 150 plus neem-related inventions embody uses identical to those of the

farmers but the products and/or methods of extraction are different. In such

cases it can safely be assumed that the existence of relevant traditional

knowledge was one of the essential intellectual inputs for the inventions to

happen. Does this mean that the knowledge of Indian farmers is being pirated

by the holders of these 150 patents? To be consistent, those arguing in

favour would also have to agree that a temporary monopoly right to an

incremental improvement is inherently exploitative of all people that had

contributed to the state of the art (or more accurately all the states of

the arts) relevant to the patent. This position is difficult to sustain on

both theoretical and practical grounds. The state of the art in this case

includes not only the knowledge that neem seed extracts are an effective

pesticide, but also the industrial techniques that can be applied to produce

neem derivatives that are in one way or another more useful than the natural

product. [21]

 

Two political philosophers, Anthony Stenson and Tim Gray [22], in their

paper on "Cultural Communities and Intellectual Property Rights in Plant

Genetic Resources" made evident how difficult it is to argue convincingly in

favour of compensating communities when advocates view traditional knowledge

as if it is the property of nobody. Taking at face value the same conception

of traditional knowledge as these advocates, they concluded that moral

entitlement theories do not justify indigenous communities’ property rights

over traditional knowledge, by which of course they really mean ‘public

domain collective traditional knowledge’.

 

Three responses to Stenson and Gray’s position can be made from a

pro-indigenous rights perspective. But before providing these, we must --

conceptually speaking -- take much of the so-called public domain TEK back

to where it belongs, in the private domain of native peoples and traditional

communities. Figure 1 shows how Western law treats knowledge existing in the

world either as private knowledge that is protected by IPRs, or public

domain knowledge constituting an intellectual commons.

 

[Fig 1: Everything known in the world]

 

Supporters of a strong IPR system argue that a legal system which

temporarily excludes knowledge from the public domain will result in a

long-term increase in the size of the public domain. This is due, it is

said, to the fact that IPR monopolies establish legal incentives to create

and innovate. Without these incentives less creation and innovation will

happen. Ironically, many critics of the IPR system, while disagreeing about

the positive effects of IPRs, appear to hold to this IPR-protected/public

domain dichotomy of global knowledge. Instead, I argue that there are other

private domains, and that it is the failure of the law to respect these that

is the real problem with the IPR regime (see Figure 2).

 

[Fig 2: The private/public domains in the real world]

 

1. Not all TEK is in the public domain.

The first response, then, is that while Stenson and Gray’s opinion may have

merit in the case of widely-distributed and long-documented traditional

knowledge, it does not apply to more localised knowledge held by small

numbers of people or an individual. These people have rights to this

knowledge that are recognised in an international treaty with over 170 state

parties (i.e. the CBD).

 

2. Unconsented placement of knowledge into the public domain does not in

itself extinguish the legitimate entitlements of the holders and may in fact

violate them.

Second, the question of how traditional knowledge usually falls into the

public domain cannot be overlooked. When we consider that the basic human

rights of indigenous peoples have been abused for centuries, and that they

continue to be politically, economically and socially marginalised, it would

be naïve to suppose that it has ever been normal practice for their

knowledge to be placed in the public domain and disseminated, with their

prior informed consent and with respect for their customary laws and

regulations concerning access, use and distribution of knowledge. Unless

they have agreed to share such knowledge and are fully aware of the legal

implications of doing so, documenting and/or disseminating their knowledge

is surely morally wrong.

 

3. TEK holders should be compensated for the wider benefits of doing so.

Third, with respect to collective traditional knowledge that has been in the

public domain for so long that no legitimate rights claimants exist, it is

still possible to argue that indigenous peoples and traditional communities

should be compensated as an incentive for maintaining their

biodiversity-friendly knowledge and resource management systems. This need

not be justified on moral grounds at all, since the industrial users of

plant genetic resources would benefit as would the biosphere and humankind.

 

Following a more critical perspective, it is tempting to draw an analogy

between the taking of indigenous peoples’ knowledge without permission and

patenting inventions based upon this knowledge, and seizing their

territories and displacing them from their homelands. In each case, it seems

that territories, ecosystems, plant varieties (whether domesticated or not)

and traditional knowledge, are treated as if they are res nullius (the

property of nobody) before their "discovery" by explorers, scientists,

governments, corporations, and conservation organisations [23]. During the

Colonial period, sparsely populated "wildernesses" were regarded as being to

all legal intents and purposes vacant prior to colonisation. Settler

societies, such as in Australia, built up legal systems based upon the terra

nullius (the land of nobody) doctrine. According to such a view, open access

is the rule for land, traditional knowledge and resources, whereas enclosure

is the rule as soon as these are proved to have economic value.

 

The analogy is powerful, but can be faulted on the grounds that whereas

lands and territories are finite, new knowledge is constantly being

generated and is, at least in theory, inexhaustible. Moreover, although it

is often said that for indigenous peoples knowledge, resources and

territories are tightly linked in both cultural and spiritual terms, it

seems doubtful that use of another person’s (or community’s) knowledge harms

that person or community in a way that colonising their land would so

obviously do. Nevertheless, it does seem to reflect indigenous peoples’

views -- based as they are upon bitter historical experience -- more

accurately than can be achieved by appeals to the conventional arguments

favouring intellectual property rights for holders of useful knowledge. The

outrage felt by many indigenous peoples in South America about the US plant

patent on a sacred plant, ayahuasca, is legitimate, and makes clear that

resorting to the arguments of Western thinkers who justify IPRs, like Hegel

and Locke, is not always fruitful or even relevant.[24] Also, it accurately

reflects the sentiments of indigenous peoples who see Western law as an

imposition which seems to cancel out their own custom based regulations.

After all, if indigenous peoples in WTO member states are required to accept

the existence of patents that they are economically prevented from availing

themselves of, why shouldn’t their own knowledge-related regimes be

respected by others. It is perhaps this point, that one type of IPR system

is being universalised and prioritised to the exclusion of all others, that

causes the most legitimate disquiet among those who are unable to see how

they can benefit from this system.

 

One last but very important point to make is that farmers in most developing

countries (and in some industrialised countries as well) still tend either

to save their own seeds or acquire them from other farmers. In countries

where neither the public or private sectors play a dominant role in seed

production or distribution, such as in many African countries, seed saving

and sharing will probably continue to be prevalent means of seed acquisition

for several years to come. To attempt to eradicate these practices through

expansive IPRs would very likely cause serious economic and social impacts

for farming communities. It should be noted in this context that according

to the IPR systems of the industrialised countries, the private property

rights afforded by patents and plant variety rights to a varying extent

restrict or even eliminate the right to continue such customary practices of

seed acquisition and exchange, and the trend is very much towards complete

elimination.

 

4. CONCLUSIONS

 

In conclusion, I would argue that if the purpose of an IPR system is to

protect the rights of knowledge holders for the public good, it should be

possible for all those who create useful knowledge with economic value to

secure its protection. To the extent that present-day IPR systems cannot

protect traditional knowledge whose dissemination is beneficial to the wider

community [25] and that has industrial application, these systems are

failing to operate optimally in terms of their public function. It is fully

understandable that the disproportionate legal treatment of commercially

useful knowledge held by companies and similarly useful knowledge held by

indigenous peoples, seems unjust to the latter. When large industrial

concerns in new technological fields find the IPR system cannot protect

their innovations, it seems that new forms of IPRs are created in response.

Traditional knowledge holders, on the other hand, do not have the political

influence to change the system.[26] Also, they are rarely successful in

ensuring that their own custom-based intellectual property rights systems

are observed by others. Nevertheless, holders of traditional knowledge have

rights over this knowledge which governments and potential users of it are

required to respect. It is up to each government to decide whether this

should be done through their intellectual property laws or by other means

such as support for local capacity building or some form of communal rights

system.

 

It is difficult to imagine how an intellectual property rights system can be

designed that could adequately protect traditional knowledge, innovations

and practices knowledge, especially when so much has limited if any

commercial application. Trademarks and geographical indications may be

appropriate forms of protection for some products based on traditional

knowledge even if they cannot protect the knowledge per se. But it is

important to be culturally flexible. Policy makers schooled in Western legal

systems are apt to suppose that the only IPRs that exist are the ones

referred to in TRIPS and the WIPO-administered conventions. Unfortunately,

many activists say nothing to disabuse them of this misconception. In fact,

as I have shown, traditional societies often have very complex custom-based

intellectual property systems. Just as members of these societies can

benefit from learning about the western IPR tradition, it behoves lawyers

and policy makers also to learn about how traditional communities generate,

use, manage and control their own knowledge.

 

It is very important finally to point out that respect, preservation and

maintenance of traditional knowledge not be justified solely by its

instrumental value. In other words, traditional knowledge should not be

respected, preserved and maintained merely because it is relevant to

biodiversity conservation and sustainability; even less because some of it

has industrial application. A great deal of traditional knowledge has no

commercial potential whatsoever, but this does not make it any less worthy

of respect or protection. The disappearance of traditional knowledge may be

a tragedy for the world, but above all, it is a tragedy for those peoples

and communities of the world that depend upon the integrity of their

knowledge systems for their cultural and even physical survival.

 

APPENDIX 1.

 

HOW CAN IPRS PROTECT TRADITIONAL KNOWLEDGE?

 

Some Recent Proposals:

 

1. Changing IPR law: Certificates of origin have been proposed by a Peruvian

environmental law NGO in order to make patent law more compatible with

provisions in the CBD on national sovereignty, prior informed consent, and

the rights of indigenous peoples and local communities. Administrative

requirements for filing patent applications based on use of genetic

resources and/or traditional knowledge should require inclusion of: (i) a

sworn statement as to the genetic resources and associated knowledge,

innovations and practices of indigenous peoples and local communities

utilised, directly or indirectly, in the research and development of the

subject matter of the IPR application; and (ii) evidence of prior informed

consent of the country of origin and/or indigenous or local community, as

appropriate.

 

International standardisation of these conditions would be achieved through

an international certification system. Accordingly, countries providing

resources and/or traditional knowledge would issue certificates indicating

that all obligations to the source country and the relevant indigenous

people or local community had been fulfilled such as prior informed consent,

equitable benefit sharing, and perhaps other conditions imposing limitations

on the use of the genetic material or knowledge. Patent applications would

then need to include these certificates without which they would

automatically be rejected. The system would not affect indigenous

communities’ right to veto access to and use of their knowledge or

resources.

 

2. Using IPRs as they are: Transforming traditional knowledge into trade

secrets is the title of an InterAmerican Development Bank-supported project

based in Ecuador, the aim of which is to enable indigenous peoples to

benefit from bio-prospecting though effective IPR protection of their

knowledge (Vogel 1997). Knowledge from communities wishing to participate in

the project will be catalogued and deposited in a restricted access

database. Each community will have its own file in the database. Checks will

be made to see whether each entry is not already in the public domain and

whether other communities have the same knowledge. If communities with the

same knowledge were to compete rather than collaborate, there would be a

price war that would benefit only the corporate end-users. To overcome this

danger, the project envisages the creation of a cartel comprising those

communities bearing the same trade secret. The trade secret can then be

negotiated in a Material Transfer Agreement with the benefits shared between

the government and the cartel members.

 

3. Local Innovations Databases: The Society for Research and Initiatives for

Sustainable Technologies and Institutions (SRISTI) in India, has for several

years been developing databases of traditional knowledge and innovations in

close collaboration with local community members. Anil Gupta, SRISTI’s

Director, advocates the establishment of a global registration system of

local innovations. Such a system would enable individual and collective

innovators to receive acknowledgment and financial rewards for commercial

applications of their knowledge, innovations and practices, make it possible

to build links between small investors, entrepreneurs and innovators for

mutual financial benefits, and in some cases enable individuals or

communities to seek IPR protection in such forms as inventors certificates

and petty patents. Gupta also proposes that all national patent offices

should be able to access local innovation databases when carrying out prior

art searches and examinations in order that patent applications which

appropriate knowledge contained in these databases may be properly tested

for novelty and inventive step. [27]

 

But it seems to me that serious consideration must be given to the question

of who should own the databases and of how far access to them should be

restricted. In seems logical that access restrictions lessen the possibility

of information within them being misappropriated. On the other hand, keeping

database information out of the public domain could in some situations make

it harder to challenge misappropriation than if such knowledge were made

publicly available. For example, a company might acquire knowledge about a

medicinal plant from an indigenous group and then patent this knowledge.

Depending on how ‘prior art’ and ‘the public domain’ are interpreted in the

legal jurisdiction where the patent is held, challenging the patent could be

less effective because the knowledge had only been recorded in a private

database and not made available to the public through publication. It is

essential that organisations co-ordinating traditional knowledge register

initiatives explain to local communities the full implications of sharing

their knowledge with all outsiders including themselves.

 

Graham Dutfield

St. Peter's College

Oxford OX1 2DL   UK

Tel: (44-1865) 27 89 00

Email: wgtrr.ocees@mansfield.oxford.ac.uk

Web: http://users.ox.ac.uk/~wgtrr

 

Footnotes :

 

[1.] Johnson, M. "Research on Traditional Environmental Knowledge: Its

Development and Its Role". In M. Johnson (ed.) Lore: Capturing Traditional

Environmental Knowledge (IDRC, Ottawa), p.4, 1992.

[2.] Four Directions Council Forests, Indigenous Peoples and Biodiversity:

Contribution of the Four Directions Council. Submission to the Secretariat

for the Convention on Biological Diversity, 1996.

[3.] For example see Agrawal, A. "Dismantling the Divide Between Indigenous

and Scientific Knowledge". Development and Change, 26, pp.413-439, 1995.

[4.] Op cit., at pp.7-8.

[5.] Location-specific and cumulative.

[6.] At one point in time.

[7.] E.g. Bodley, J. Anthropology and Contemporary Human Problems (Benjamin

Cummings Publishing, Menlo Park), 1976; Clad, J. "Conservation and

Indigenous Peoples: A Study of Convergent Interests" Cultural Survival

Quarterly 8, pp. 68-73, 1984; Martin, C. Keepers of the Game (University of

California Press, Berkeley), 1978; Reichel-Dolmatoff, G. "Cosmology as

Ecological Analysis: A View from the Rain Forest" Man 11: pp.307-318, 1976.

[8.] Hames, R. "Wildlife Conservation in Tribal Societies". In: Oldfield,

M.L. and Alcorn, J.B. (eds.) Biodiversity: Culture, Conservation, and

Ecodevelopment (Westview Press, Boulder, San Francisco and Oxford),

pp.172-199, 1991; Kalland, A. "Indigenous - Local Knowledge: Prospects and

Limitations". In: Hansen, B.V. (ed.) Arctic Environment: Report on the

Seminar on Integration of Indigenous peoples Knowledge, Reykjavik, September

20-23, 1994 (Ministry for the Environment (Iceland), Ministry of the

Environment (Denmark) and The Home Rule of Greenland (Denmark Office),

Reykjavik and Copenhagen), pp.150-167, 1994.

[9.] Ellen, R. "What Black Elk Left Unsaid: On the Illusory Images of Green

Primitivism". Anthropology Today 2, pp.8-12, 1986.

[10.] Redford, K.H. "The Ecologically Noble Savage". Cultural Survival

Quarterly 15, pp.4648, 1991; Redford, K.H. and Stearman, A.M.

"Forest-Dwelling Native Amazonians and the Conservation of Biodiversity:

Interests in Common or in Collision?" Conservation Biology 7, pp. 248-255,

1993; Stearman, A.M. "Neotropical Hunters and their Neighbors: Effects of

Non-Indigenous Settlement Patterns on Three Native Bolivian Societies". In:

Redford, K. H. and Padoch, C. (eds.) Conservation of Neotropical Forests:

Building on Traditional Resource Use, pp.108-128. Columbia University Press,

New York, 1992.

[11.] Redford op cit.; Kalland op cit.

[12.] For example, see Hecht, S.B. and Posey , D..A. "Preliminary Results on

Soil Management Techniques of the Kayapo Indians". Advances in Economic

Botany, 7, pp.174-188, 1989; Posey, D.A. "The Science of the Mebengokre".

Orion, Summer, pp.16-23, 1990.

[13.] IUCN Inter-Commission Task Force on Indigenous Peoples, Indigenous

Peoples and Sustainability: Cases and Actions (IUCN & International Books,

Utrecht), 1997, p.60.

[14.] Agrawal, A. op cit. at 429.

[15.] Gupta, A. Postcolonial Developments: Agriculture in the Making of

Modern India (Durham & London, Duke University Press), at 173, 1998.

[16.] "[W]hen the Convention discusses knowledge, innovations and practices

and entitles local and indigenous communities to be their holders, it links

these concepts with the vocabulary for the definition of the proprietor of

an intellectual property right" Costa e Silva E. da "The Protection of

Intellectual Property for Local and Indigenous Communities". European

Intellectual Property Review, 17(11), pp. 546-549, 1995.

[17.] A good example is the International Society for Ethnobiology’s "Code

of Ethics and Standards of Practices", and the Biodiversity and Ethics

Working Group of Pew Conservation Fellows’ "Proposed Guidelines for

Researchers and Local Communities Interested in Accessing, Exploring and

Studying Biodiversity".

[18.] See Biothai & Genetic Resources Action International, Road Maps to a

Peoples’ Sui Generis Rights Plan of Action (Biothai and GRAIN), 1998.

[19.] Cleveland, D.A. & Murray, S.C. "The World’s Crop Genetic Resources and

the Rights of Indigenous Farmers". Current Anthropology, 38(4), pp. 477-496,

1997; Griffiths, T. Indigenous Knowledge and Intellectual Property: A

Preliminary Review of the Anthropological Literature. (Unpublished paper

commissioned by Working Group on Traditional Resource Rights, Oxford), 1993.

[20.] Four Directions Council op cit.

[21.] Having made this point, it should still be noted that two of the most

controversial neem patents – US patents 4,556,562 ("Stable anti-pest neem

seed extract") and 5,124,349 ("Storage stable azadirachtin formulation") --

both describe fairly basic chemical processes that could conceivably render

the invention "obvious" to one who is skilled in the art (see Kadidal op

cit).

[22.] Stenson, A. and Gray, T. "Cultural Communities and Intellectual

Property Rights in Plant Genetic Resources". In: Hayward, T. and O’Neill, J.

(eds.) Justice, Property and the Environment: Social and Legal Perspectives

(Ashgate Publishing, Aldershot and Brookfield), pp.178-193, 1997.

[23.] Dutfield, G. (ed.) "Rights, Resources and Responses. In: Posey, D.A.

(General Editor) Cultural and Spiritual Values of Biodiversity. United

Nations Environment Programme, Nairobi. (Chapter 11), forthcoming.

[24.] It is in fact very difficult to avoid ethnocentricity in discussing

the application of IPRs to non-Western systems of knowledge. According to

Thurow "[t]he idea that people should be paid to be creative is a point of

view that stems from the Judeo-Christian and Muslim belief in a God who

created humankind in his own image. It has no analogue in Hindu, Buddhist,

or Confucian societies." Thurow, L. "Needed: A New System of Intellectual

Property Rights. Harvard Business Review, Sept.-Oct., pp. 95-103, 1998.

[25.] As acknowledged in the CBD, at least that knowledge which is relevant

to biodiversity and sustainable use of biological resources.

[26.] According to Drahos: "[w]hile new forms of intellectual property in

the form of protection for semiconductors or plant varieties have readily

been minted for transnational industrial elites both nationally and

internationally, the recognition of indigenous intellectual property forms

has proceeded slowly or not at all. This selective approach to solving

freeriding problems comes into sharp focus when one compares the evolution

of protection for the semiconductor chip and protection of folklore. Prior

to 1984 manufacturers of computer chips in the US had complained that

existing intellectual property regimes often failed to protect their

products. Their chips often failed to clear the patent hurdles of novelty

and inventiveness…In 1984 the Semiconductor Chip Protection Act was

passed…In contrast, the issue of protection for indigenous knowledge has

largely remained just that, an issue". Drahos, P. "Indigenous Knowledge and

the Duties of Intellectual Property Owners". Intellectual Property Journal,

11, August, pp. 179-201, 1997.

[27.] Gupta, A. (Anil) "Knowledge Network Among Grassroots Innovators:

Emerging Applications of Information Technology. Honey Bee, 9(3), 1998.