In conjunction with the post that’s just been put up relating to the XLRI and NIF MoU I wanted to add a little note on the extension of the IPR system to traditional knowledge.
The advantage of extending the existing IPR system to protect traditional knowledge is that it will generate incentives amongst indigenous peoples to conserve and protect their culture and environment. This assumption is drawn from the experience of the Aboriginal and Torres Strait Islander artists in Australia who obtained a national certification trademark which in turn promoted the marketing of their art while deterring those who falsely claimed that there products were of aboriginal origin.[1]
However it must also be understood that extending the existing IPR system will be an attempt to fit two different systems which arose from different cultural backgrounds together imperfectly. Due to the differing nature of traditional knowledge and IPR community knowledge which is meant to be for the benefit of the members of that community will end up being privatized.
There are also problems with the implementation of an IPR extension like the fact that often indigenous people do not often have the means to claim and protect their legal rights. Secondly local communities place this kind of knowledge in their own rights system and it is difficult for them to understand the privatization and commoditization of their resources. In this context the efforts of the Honeybee Network and Sristi are truly laudable.
[1] Marianna Annas, “Label of Authenticity: A Certification Trademark for Goods and Services of Indigenous Origin” from http://www.austlii.edu.au/au/journals/AboriginalLB/1997/20.html last visited on January 18th 2008.
Rosemary Coombe argues that one of the most important reasons for protection of traditional knowledge is that the poorest depend upon their traditional environmental, agricultural, and medicinal knowledge for their continuing survival. Impetus for legal protection came from Convention to Combat Desertification (Desertification Convention) and the Convention on Biological Diversity (CBD). Although the existing IP regime has been useful, it has been criticized as having an individualistic and Eurocentric approach. Proponents of a sui generis system urge that it must be developed to empower local communities, promote cultural revitalization, and further objectives of political autonomy, sustainable development, and territorial rights.
Indigenous people have stressed on “alternative forms of development that combine traditional knowledge with Western science to promote balanced ways of living with the environment”. Noteworthy are the social movements in the Americas (particularly by the people of Mexico, Chiapas, Guerrero, and Oaxaca) that make traditional knowledge assertions in the context of political demands for new forms of participation and autonomy. Similar to claims of self-determination, they seek not sovereignty, but rather a distance from modernity that is premised on full participation in the market.
hmmm …
just a few random thoughts that came to mind :
1. “The advantage of extending the existing IPR system to protect traditional knowledge is that it will generate incentives amongst indigenous peoples to conserve and protect their culture and environment.”
Thats an interesting assumption. Are we sure that would work ? What do we mean by the word “conserve” and “protect”. A certification trade mark may be a unique case where the IP regimes ownership structure is constructed communally. Is there any other example – in patent law? would an indigenious community be able to utilize patent law? will they understand it ? will they welcome? is there a structural difficulty within the community structure which restricts its use?
2. “Due to the differing nature of traditional knowledge and IPR community knowledge which is meant to be for the benefit of the members of that community will end up being privatized.”
Does this imply its an unworkable fit ? Y IPR ? Would creating a common non privatizable pool be the answer ? Y not some other regime?
Are we sure that the “ïndigenious” people need an IPR regime to protect traditional knowledge ? Or do they need a system to protect them form appropriation, protection from IPR ?
mathew chacko
I think we’re essentially saying the same thing though perhaps I should work to articulate it better.
Are we sure that would work ?
No we’re hoping IPR would work but I agree with you that it would be difficult to accomplish. What I was trying to say is that its hard to fit IPR and traditional knowledge together.
Although for the first point you mentioned apart from the certification mark geographical indications have also been used successfully to protect traditional knowledge in Eastern Europe. Patents and traditional knowledge are inherently incompatible in my opinion because it becomes impossible for tk to meet the requirement for novelty.
is there a structural difficulty within the community structure which restricts its use?
I think there’s a structural difficulty with IPR which restricts its applicability to tk.
I dont know if an non privatizable pool would be the answer because i suppose that would refer to the method of creating databases to create prior art and prevent patenting of traditional knowledge. I have a problem with that because it doesn’t confer any rights on the tk providers.
Does this imply its an unworkable fit ? Y IPR ?
I dont know if its unworkable – the idea of a sui generis system of traditional resource rights (something like database rights in the EU) sounds promising.
Are we sure that the “ïndigenious” people need an IPR regime to protect traditional knowledge ? Or do they need a system to protect them form appropriation, protection from IPR ?
I think we agree that tk requires protection. To fight fire with fire would it not be best to use IPR as a means of protection from appropriation?
Well I do agree with Yasha that it would be difficult to inculcate Traditional Knowledge with the existing IPR regime would not be appropriate, as one of the problems you cited was requirement of standard of Novelty which most of the Traditional Knowledge would not qualify. In such cases the role of organizations like National Innovation Foundation is very Important. In a recent conference I had the opportunity to meet Prof Anil Gupta who is the founder of the Honey Bee Network and was quite impressed with his business model I would rather call it as a sustainable model on which Honey Bee Network Functions it is a very simple model, lets take a example of a traditional knowledge which needs to be patented, you approach Honey Bee and it helps you to modify the product according to the standards of Novelty which is required to be patented and files for a Patent application once a patent is granted and licensed, Honey Bee gets its revenue from the licensing fees which is just a small part of licensing revenue for its sustenance as it is a Not for Profit Organization.