Definitions

Traditional knowledge

Traditional knowledge

Traditional knowledge (TK), indigenous knowledge (IK), and local knowledge generally refer to the matured long-standing traditions and practices of certain regional, indigenous, or local communities. Traditional knowledge also encompasses the wisdom, knowledge, and teachings of these communities. In many cases, traditional knowledge has been orally passed for generations from person to person. Some forms of traditional knowledge are expressed through stories, legends, folklore, rituals, songs, and even laws. Other forms of traditional knowledge are often expressed through different means.

"Traditional knowledge" is not recognized as "knowledge" by all who study it since it includes beliefs, values and practices.

Such knowledge typically distinguishes one community from another. For some communities, traditional knowledge takes on a personal and spiritual meaning. Traditional knowledge can also reflect a community's interests. Some communities depend on their traditional knowledge for survival.

Cosmological connections and differences in worldview distinguish "traditional knowledge" from "local knowledge". Social scientists often place knowledge within a naturalistic framework, and emphasize the gradation of recent knowledge into knowledge acquired over many generations. These accounts use terms like "adaptively acquired knowledge", "socially constructed knowledge," and other terms that emphasize the social aspects of knowledge. Local knowledge and traditional knowledge may be thought of as distinguished by the length of time they have existed - decades to centuries versus millennia. A large number of scholarly studies in the naturalistic tradition demonstrate that traditional knowledge is not a natural category, and may reflect power struggles and relationships for land, resources and social control than adherence to a claimed ancestry or heritage.

Traditional knowledge, on the other hand, may be perceived very differently by indigenous and local communities themselves. Western society has gone through many traumatic episodes over the past five centuries to separate secular knowledge from spiritual knowledge. This is generally not the case for indigenous and local communities. Their knowledge is often embedded in a cosmology, and the distinction between "intangible" knowledge and physical things is often blurred. Indigenous peoples often say that "our knowledge is holistic, and cannot be separated from our lands and resources". Traditional knowledge in these cosmologies is inextricably bound to ancestors, and ancestral lands. Knowledge may not be acquired by naturalistic trial and error, but through direct revelation through conversations with the Creator, spirits, or ancestors. As Chamberlin (2003) writes of a Gitksan elder from British Columbia confronted by a government land claim: "If this is your land," he asked, "where are your stories?"

Critics of "traditional knowledge" maintain that there is no such thing as "spiritual knowledge". They would argue that "episodes...to separate secular knowledge from spiritual knowledge" actually constitutes the gradual discarding of ancient superstition. Advancements in scientific medicine are an example of this. Hundreds of years ago medieval medicine used to believe that disease was caused by the "four humours", as well as factors such as destiny, and astral influences. These notions were discarded when it was determined that they could not be supported by evidence, but similar unsubstantiated beliefs continue to exist in "traditional knowledge".

Indigenous and local communities often do not have strong traditions of ownership over knowledge that resemble the modern forms of private ownership. Many have clear traditions of custodianship over knowledge, and customary law may guide who may use different kinds of knowledge at particular times and places, and obligations that accompany the use of knowledge. From their perspective, misappropriation and misuse of knowledge may be offensive to traditions, and may have spiritual and physical repercussions in their cosmological systems.

Subsequently, indigenous and local communities argue that others' use of their traditional knowledge warrants respect and sensitivity. Critics of "traditional knowledge", however, maintain that such demands for "respect" are really an attempt to prevent unsubstantiated beliefs from being subjected to the same scrutiny as other knowledge claims. This has particular significance for environmental management because the spiritual component of "traditional knowledge" can be used to justify any activity, including the unsustainable harvesting of resources.

A brief history of approaches to the protection of traditional knowledge

Recently, international attention has turned to intellectual property laws to preserve, protect, and promote their traditional knowledge. The reasons for this are complex. In 1992, the Convention on Biological Diversity (CBD) recognized the value of traditional knowledge in protecting species, ecosystems and landscapes, and incorporated language regulating access to it and its use (discussed below). It soon became apparent that implementing these provisions would require that international intellectual property agreements would need to be revised to accommodate them.

This became even more pressing with the adoption of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which established rules for creating and protecting intellectual property that could be interpreted to contradict the agreements made under the CBD. In response, the states who had ratified the CBD requested the World Intellectual Property Organization (WIPO) to investigate the relationship between intellectual property rights, biodiversity and traditional knowledge. WIPO began this work with a fact finding mission in 1999. Considering the issues involved with biodiversity and the broader issues in TRIPs (involving all forms of cultural expressions, not just those associated with biodiversity - including traditional designs, music, songs, stories, etc.), WIPO established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTKF).

The period of the early 1990s to the Millennium was also characterized by the rapid rise in global civil society. The high-level Brundtland Report (1987) recommended a change in development policy that allowed for direct community participation and respected local rights and aspirations. Indigenous peoples and others had successfully petitioned the United Nations to establish a Working Group on Indigenous Populations that made two early surveys on treaty rights and land rights. These led to a greater public and governmental recognition of indigenous land and resource rights, and the need to address the issue of collective human rights, as distinct from the individual rights of existing human rights law.

The collective human rights of indigenous and local communities has been increasingly recognized - such as in the International Labor Organization (ILO) Convention 169 (1989) and the Declaration on the Rights of Indigenous Peoples (2007). The Rio Declaration (1992), endorsed by the presidents and ministers of the majority of the countries of the world, recognized indigenous and local communities as distinct groups with special concerns that should be addressed by states.

Initial concern was over the territorial rights and traditional resource rights of these communities. Indigenous peoples soon showed concern for the misappropriation and misuse of their "intangible" knowledge and cultural heritage. Indigenous peoples and local communities have resisted, among other things: the use of traditional symbols and designs as mascots, derivative arts and crafts; the use or modification of traditional songs; the patenting of traditional uses of medicinal plants; and the copyrighting and distribution of traditional stories.

Indigenous peoples and local communities have sought to prevent the patenting of traditional knowledge and resources where they have not given express consent. They have sought for greater protection and control over traditional knowledge and resources. Certain communities have also sought to ensure that their traditional knowledge is used equitably - according to restrictions set by their traditions, or requiring benefit sharing for its use according to benefits which they define.

Three broad approaches to protect traditional knowledge have been developed. The first emphasizes protecting traditional knowledge as a form of cultural heritage. The second looks at protection of traditional knowledge as a collective human right. The third, taken by the WTO and WIPO, investigates the use of existing or novel sui generis measures to protect traditional knowledge.

Currently, only a few nations offer explicit sui generis protection for traditional knowledge. However, a number of countries are still undecided as to whether law should give traditional knowledge deference. Indigenous peoples have shown ambivalence about the intellectual property approach. Some have been willing to investigate how existing intellectual property mechanisms (primarily: patents, copyrights, trademarks and trade secrets) can protect traditional knowledge. Others believe that an intellectual property approach may work, but will require more radical and novel forms of intellectual property law ("sui generis rights"). Others believe that the intellectual property system uses concepts and terms that are incompatible with traditional cultural concepts, and favors the commercialization of their traditions, which they generally resist. Many have argued that the form of protection should refer to collective human rights to protect their distinct identities, religions and cultural heritage.

Intellectual property protection of traditional knowledge

Two protective paradigms have been employed to protect traditional knowledge using intellectual property tools:

The first protective paradigm seeks to prevent others from using or securing intellectual property rights over traditional knowledge. For example, some communities have created traditional knowledge databases to evidence their traditional knowledge as prior art in order to prevent perceived abuses such as biopiracy. Although traditional knowledge databases may preempt some from securing rights over traditional knowledge, databases do disclose such traditional knowledge to the public. This becomes a problem since many communities would rather keep such traditional knowledge within their community. Many communities have their own traditional or customary laws that regulate the use of traditional knowledge that may differ substantially from their national systems or the international system of intellectual property rights. Disclosure may violate these customs.

Disclosure may also displace the problem. Disclosure is a tool to stop the granting of patents, or the revocation of granted patents. In intellectual property law, patents cannot be granted or can be invalidated if it can be shown that there exists "prior art": knowledge in the public domain that is equivalent to the process or product for which a patent is sought. Disclosure puts the knowledge into the public domain. It does not stop use of the traditional knowledge or associated resource - only the monopolistic use of the knowledge or associated resource for the 20 years of the patent. In some parts of the world, traditional knowledge may be less threatened by unjust enrichment than by non-monopolistic exploitation that exhausts resources and makes them unavailable to indigenous and local communities for the practice of their traditions. In many cases, it can be very difficult for poor, rural communities to defend their knowledge and resources once their commercial or subsistence values become widely known.

One consequence of this defensive form of protection may be the loss of an economic catalyst to discover new things. Other defensive efforts include preempting the registration of community names as trademarks and actions for misappropriation.

The second protective paradigm (often called "positive protection") seeks to secure protective legal rights over traditional knowledge. This is achieved by either using the existing laws or using legislative means to enact new sui generis laws. Some have argued that some countries, like the United States, may face constitutional problems with granting perpetual rights to these communities. They also raise utilitarian concerns with granting legal rights to traditional knowledge. For instance, some forms of traditional knowledge (such as cures for disease) may be used to help others; and if exclusive rights were granted, some may go unhelped. Other concerns deal with the equitable sharing of benefits and resources.

Indigenous and local communities have responded that their rights to control the use of their knowledge is an inherent right of self-determination, a right that is not granted by governments, but needs to be recognized and respected. In the United States system, for example, the Cherokee Cases (1823-1832) at the United States Supreme Court determined that the Indian Tribes were themselves nations at the time of contact, and that they retained their sovereign rights unless explicitly ceded in treaty or abrogated by Congressional act. They have argued in national and international law-making bodies that their knowledge systems are not governed by national intellectual property systems. Some have rejected the idea of the public domain as applying to their knowledge. They have argued that it has been inappropriate to extend intellectual property laws, themselves a little over 100 years old, to displace customs reaching back to time immemorial. Many are uncomfortable with applying the concepts of intellectual property to their traditional knowledge systems, even for positive protection. Just as citizens of one country are bound to respect the intellectual property laws of foreign countries related to imported products through international agreements, indigenous and local communities have sought for the respect of their traditional beliefs and customary laws beyond their territorial borders. Since the issue has not been resolved at the Constitutional level in the United States, it remains to be seen how the conflict between tribal sovereignty and the intellectual property provisions of the Constitution will be interpreted. Some nations, particularly in Latin America, have recognized the inherent right of indigenous communities to control the use of and derive benefits from the use of their knowledge in national constitutions and legislation. Most nation states have yet to develop policy and law related to traditional knowledge.

There is no common indigenous and local community position on issues of the "common heritage of mankind" or the "global public good". Indigenous peoples and local communities have shared much of their knowledge and resources with the global community. Many have traditions of sharing. Healers, in general, have spiritual obligations to heal the sick and have shared their healing knowledge. Indigenous peoples, on the other hand, have strong traditions of reciprocity. They argue that much of the historical appropriation and use of traditional knowledge has not occurred with reciprocity. Indigenous and local communities are often the poorest of the poor, subsisting on less than 1 US dollar a day. Their knowledge and resources, on the other hand, have made contributions to the welfare of humankind as the basis of much of the world's food system and naturally-derived medicines.

Forced disclosure of and access to traditional knowledge and resources for the benefit of mankind, against their customs, without consent or without reciprocity may be as unjust as privatization of their knowledge and resources in patents, trademarks, trade secrets and copyrights. Indigenous and local communities have strong traditions related to the spiritual, sacred, secret or guardianship nature of their knowledge and resources that may prohibit some sharing.

The international standards emerging out of the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity (CBD) are that 1. the development of any policies, laws or rules regarding traditional knowledge and associated resources must involve the full and effective participation of indigenous and local communities; 2. access to traditional knowledge and resources (particularly genetic resources) can only be obtained through the free, prior informed consent (FPIC) of indigenous and local communities; and 3. Indigenous and local communities have the right to determine the form of benefit sharing, and use by others can only proceed on the basis of mutually agreeable terms between the custodians or holders of knowledge and resources and external parties.

Human rights protection of traditional knowledge

Many indigenous and local communities have argued that the reasons and mechanisms for protecting their knowledge do not lie within the logic of the intellectual property system, but within the human rights system.

Intellectual property law predominantly uses the language of economic incentives to justify intellectual property protection. Under this rationale, states grant, as a privilege, a temporary monopoly on ownership and control of knowledge (for current copyright in the United States, this is Life + 70 years for individual works, and 95-120 years for corporate works; for patents it is 20 years). This monopoly is presumed to be a necessary incentive for innovation. After the expiration of the protection, the knowledge falls into the public domain for others to freely use in derivative innovations, for novel parts of which they may be granted intellectual property rights.

Indigenous and local communities have argued that they generally don't use such incentives to innovate. Their use of knowledge is spiritually and culturally guided. Misappropriation and misuse of this knowledge may violate customary laws that are at the core of their collective and cultural identity. These beliefs are currently protected by a number of national constitutional provisions and statutory laws, and are increasingly being recognized as a distinct human right within the United Nations.

An example may help to make this clear. If someone walked into an intellectual property court with a slave that they claimed as property, no court in the world would (explicitly) argue that a question of ownership would be resolved on the basis of economic efficiency, or that the slave had been owned for such a time that he or she was now in the public domain, available for anyone to exploit. Human slavery is outlawed because it violates fundamental human rights, and the judge would rule on that basis.

Similarly, indigenous and local communities have argued that public claims on their knowledge without their consent amounts to a misappropriation of their identity and heritage, a violation of their fundamental, inalienable and collective human rights.

At the Convention on Biological Diversity meeting, in Buenos Aires, in 1996, emphasis is put on local knowledge. Key players, such as local communities and indigenous peoples, must be recognized by States, and given back their sovereignty over the biodiversity of their territories, so that they can continue protecting it.

World Intellectual Property Organization (WIPO)

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

The Convention on Biological Diversity (CBD)

The Convention on Biological Diversity (CBD), signed at the United Nations Conference on Environment and Development (UNCED) in 1992, was the first international environmental convention to develop measures for the use and protection of traditional knowledge, related to the conservation and sustainable use of biodiversity. By 2006, 188 had ratified the Convention and agreed to be bound by its provisions, the largest number of nations to accede to any existing treaty (the United States is one of the few countries that has signed, but not ratified, the CBD). Significant provisions include:

Article 8. In-situ Conservation

Each Contracting Party shall, as far as possible and as appropriate:

(a)...

(j) Subject to its national legislation, 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 their 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 utilization of such knowledge, innovations and practices

Article 10. Sustainable Use of Components of Biological Diversity

Each Contracting Party shall, as far as possible and as appropriate:

(a)...

(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements

The interpretation of these provisions has been elaborated through decisions by the parties (ratifiers of the Convention) (see the Convention on Biological Diversity Handbook, available freely in digital format from the Secretariat).

The parties to the Convention set a 2010 target to negotiate an international legally-binding regime on access and benefit sharing (ABS) at the Eighth meeting (COP8), 20-31 March 2006 in Curitiba, Brazil. The ABS negotiations will address inter-governmental obligations related to genetic resources, and these will involve measures related to the rights of indigenous and local communities to control access to and derive benefits from the use of genetic resources and associated traditional knowledge.

The World Trade Organization (WTO)

Article 27. 3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) sets out certain conditions under which certain biological materials or intellectual innovations may be excluded from patenting. The Article also contains a requirement that Article 27 be reviewed. In the TRIPs-related Doha Declaration of 2001, Paragraph 19 expanded the review to a review of Article 27 and the rest of the TRIPs agreement to include the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD) and the protection of traditional knowledge and folklore. This is an issue of intensive on-going international debate.

The Development Agenda and the Creative Commons

Recently, traditional knowledge has been drawn into the debate related to access to medicines, access to food, the need for poverty alleviation, and related issues that affect the livelihoods and welfare of billions of people worldwide. It has been argued that traditional knowledge is an important source of health security, food security and livelihood security for the world's poor. As such, it has been argued that the benefits of sharing and actively disseminating traditional knowledge outweigh the benefits of protection and recognition of ownership.

The Creative Commons, with its roots in the open software movement, the literary arts, the open access movement in science and the humanities, and in the media, arts, entertainment and communications communities, has also proposed that traditional knowledge is an essential and public source of cultural creativity.

Indigenous and local communities have been divided on these issues. There are large potential benefits to traditional knowledge sharing in promoting more locally appropriate, culturally acceptable and ecologically sustainable methods of protecting community health, nutrition, shelter and livelihoods. Indigenous traditions of sharing knowledge mean that much of this knowledge is already widespread and not easily defended by law. Many indigenous peoples have traditions that at least some parts of their traditional knowledge are meant to be shared as a spiritual obligation to help others.

Indigenous and local communities have pointed out that they make rich and complex distinctions about their knowledge and associated resources. There is no single, simple rule applying to traditional knowledge. Indigenous peoples vary in the amount that they share knowledge. Some societies have many secret traditions, while others are more open. Some uses of their knowledge may be acceptable - for example the use of traditional agricultural knowledge to feed other poor communities. Other uses, such as the sampling of a fragment of a sacred song into a musical arrangement, or the incorporation of traditional knowledge related to medicinal plants into a commercial patent, may not.

Part of the debate involves the question of whether or not traditional knowledge is part of the public sphere, national commons, or global commons as part of a "common heritage of humankind". Private intellectual property rights in the non-customary system are temporary monopolies that are granted by a sovereign. Once these monopolies expire, they fall into a national or global sphere, the public domain. There are many valid concerns about the trend to longer duration and wider breadth of intellectual property rights granted by many governments.

However, indigenous and local communities draw their rules for knowledge from their local commons, and their local customs may diverge greatly from any claims that a national society or global society may make on their knowledge. Applying the Balance Doctrine (the legal doctrine that private interests must be balanced against societal values) may not protect minority rights, as the values of a dominant society can overwhelm the values of indigenous and ethnic minorities.

Resolving these issues will require a wide and vigorous engagement of indigenous and local communities themselves in defining their aspirations towards knowledge exchange, and the rules that emerge will likely vary from community to community, and among categories and contexts of traditional knowledge.

Summary

Traditional knowledge has a number of dimensions that make a superficially simple concept difficult to define and apply.

Naturalistic accounts emphasize the evolutionary and constructed nature of knowledge. In these accounts, local wisdom can accumulate through long periods of trial-and-error; enlightened guesses, and adaptation. Long-accumulated knowledge allows for sustainable adaptations to local environmental conditions.

The accounts of indigenous and local communities themselves are different. They tend to emphasize the spiritual, ancestral, relational and cosmological connections to their knowledge. While traditional knowledge may be acquired from a teacher, and improved through experience, it ultimately may be derived through direct communication with the spirit world.

Political accounts are again different. Indigenous peoples do not have rights based on their knowledge per se, but on the recognition of their rights to self-determination as peoples. This is clearest in settler societies in which there was a distinct and massive colonizing event, such as happened in Australia, New Zealand, Latin America, and North America. In most of these countries, indigenous peoples are recognized as a distinct class of people with "dual citizenship". They are members of their nation states, but they are also members of indigenous collectives (first nations, clans, tribes) that governed themselves prior to contact and through the Law of Nations retained sovereign powers not ceded or lawfully terminated. The dual citizenship has given rise to very complex rules of laws which recognize spheres of rights to self-governance and self-determination.

These principles have reached a high level of recognition within the international legal system as not only applying to indigenous peoples living in settler states, but to all indigenous peoples. This system initially focused on issues such as territorial rights and security, the right to protection of tangible cultural heritage (such as ancestral remains and sacred objects), the right to culturally appropriate education, the right to hold and practice traditional spiritual beliefs, the right to apply customary law in traditional courts, and the right to speak a traditional language.

The extension of the recognition of rights to traditional knowledge is still new. It has been aided by the increasing activism and awareness of indigenous peoples, a better understanding by citizens of the history of indigenous peoples within their nations and their distinct cultural beliefs and needs, and the increasing recognition of indigenous rights by national governments. The need for the legal protection of traditional knowledge stems in part from the failure of voluntary respect for their traditional beliefs, both in commercial and non-commercial uses of their knowledge.

It also derives from the rapid and massive rise of intellectual property activity in the past two decades. The United States receives over 350,000 patent applications a year, while China grows at a rate of 34% per year in applications. Part of this activity has been in the natural products bioprospecting sector in tropical countries where bioprospectors often harvest biological samples of traditional cultural resources.

Despite significant remaining conflicts, an international consensus may be emerging: 1. That there is a distinct class of national citizens in many countries that can be identified as indigenous and that possess aboriginal rights; 2. Indigenous peoples have the right to self-determination and protection of their cultural heritage; 3. Indigenous peoples have a right to negotiate directly with government on issues related to their rights, and that they have the right to participate fully and effectively in negotiation, planning and implementation of policies and laws; 4. That in addition to currently recognized land and property rights, indigenous peoples have rights to "intangible" heritage; 5. Access to this heritage requires their full, prior informed consent.

References

See also

External links

  • UNEP Indigenous Knowledge Website
  • UNEP Indigenous People's Website
  • "Traditional Knowledge" on the WIPO web site
  • CBD Article 8(j): Traditional Knowledge, Innovations and Practices
  • Convention on Biological Diversity Handbook, 3rd ed.
  • World Bank's Indigenous Knowledge (IK) Program's website
  • WTO Article 27.3b, traditional knowledge, biodiversity
  • United Nations University's "Traditional Knowledge Bulletin"
  • International Workshop on Free, Prior and Informed Consent and Indigenous Peoples
  • Call of the Earth / Llamado de la Tierra
  • Statement by the Tulalip Tribes of Washington on Folklore, Indigenous Knowledge, and the Public Domain, July 09, 2003
  • IPRs Online: Traditional Knowledge
  • Linking Science and Local Knowledge
  • Intellectual Property Rights, Open Source Methods and Traditional Knowledge in Developing Countries
  • Anti-colonial discourse and indigenous knowledges
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  • Hardison, Preston D., The Report on Traditional Knowledge Registers (TKRs) and Related Traditional Knowledge Databases (TKDBs). Ad Hoc Open-Ended Inter-Sessional Working Group on Article 8(J) and Related Provisions of the Convention on Biological Diversity, Fourth meeting. UNEP/CBD/WG8J/4/INF/9. Secretariat of the Convention on Biological Diversity (CBD), Montréal, 2005.
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  • Interagency Advisory Panel on Research Ethics, A Brave New World: Where Biotechnology and Human Rights Intersect, BioStrategy: A Plan for Canada. Government of Canada, Ottawa, 2005.
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