Protection of Traditional Knowledge - governments are the problem and Nagoya is not the solution

The IPKat is delighted to receive a contribution penned by long-time Katfriend Professor Graham Dutfield (Professor of International Governance at Leeds University) on the subject of Traditional Knowledge. There has been much discussion on this blog pertaining to this thorny issue, to which Graham has been a regular and welcome contributor of comments. Graham, however, will set out some issues in more detail...

Traditional knowledge has provoked some rich contributions to this blog in recent weeks. Mira Sundara Rajan’s eloquent piece added a much needed anthropological perspective while the Katonomistprovided a concise and valuable economic take on the matter. Darren Smyth has demonstrated that India’s Traditional Knowledge Digital Library has been rather ineffectual in achieving its official purpose of preventing patent-based biopiracy – as I had suspected.

The TKDL which brings together published information on Indian medicinal plants and their uses in the various classical Indian health traditions is a potentially valuable resource for health researchers, medical practitioners and for natural product companies especially in India where there is a high demand and scientific interest. Why the government aims to use it solely for the purpose of aiding patent prior art searches and oppositions is a mystery to me. Most of the information is historical. It is not held and maintained specifically by any small group or community. It belongs to nobody – not even the modern republic of India. Ayurveda is not practiced solely in that country. Unani Tibb is largely of Greek origin. One could go on. To be fair, the managers of the TKDL wisely chose not to record unpublished TK from minority populations whose knowledge may be highly specific and localised.

As someone who has been interested in this issue for over two decades, probably the biggest problem of “misappropriation” has not been the taking or misuse of TK and cultural expressions by companies – though this does certainly happen – but the hijacking of the biopiracy complaint by governments. It is governments that impose unworkable regulatory regimes on access and benefit sharing (ABS). And it is they who take state sovereignty to extreme lengths so that not only are undiscovered genes, metabolites, and plant and microbial species national property but so – at least implicitly – is associated traditional knowledge. One manifestation of this is the way they conflate biopiracy hoaxes such as neem and turmeric with more genuine cases of exploitation as can be found in Daniel Robinson’s book Confronting Biopiracy.

WIPO has of course been working on protecting TK for quite some time, though negotiations on a legal instrument seem to have hit the buffers. In terms of defensive protection it is the right forum. But it is certainly not the place to develop a legal regime of positive protection for TK which should in any case be done at the national level, if at all. Middle aged urban male diplomats are simply unqualified and have other agendas than genuinely looking out – in Geneva of all places – for their most impoverished and vulnerable people back home. Elsewhere there has tended to be a patronising attitude according to which indigenous peoples are said to be too noble to claim property rights over their knowledge and resources. If true, what would be wrong in helping oneself to it?

Reality is very different. Indigenous groups seem generally to have their own rules governing how their knowledge, innovations and practices are used by themselves and by others. One aspect of this is a duty on specialist knowledge holders, such as healers, to ensure that they are not misused by others. Intellectual property rights may in fact sometimes serve their interests without necessarily conflicting with their norms and values. I have recently been working with International Institute for Environment and Development and with an organisation in Peru to find a way to brand certain goods produced by indigenous groups there and elsewhere, starting with the Potato Park which supports this initiative. The Park is an organisation comprising five Quechua communities who cultivate and conserve over 1,000 varieties of potatoes and in doing so provide a service for all humanity. We underestimate the importance of agrobiodiversity at our peril. The Potato Park communities are marketing their goods in local markets, using a mark they designed themselves, and sharing some of the proceeds. They are also applying their own customary law principles to all exchanges of plant material and other natural products including with the International Potato Centre (one of the CGIAR international agricultural research centres). Perhaps this is a way forward – one that is not reliant on the outcomes (if any) of drawn-out debates in faraway Geneva. But this does require a certain degree of local autonomy that many national governments are unwilling to concede or at least facilitate.

Intellectual property claims by businesses that relate to their plants and knowledge can seem coldly impersonal and brutal, if not illegal under their own laws. This is especially so with sacred or culturally significant plants and is the case even with patents disclosing genuine novelty and inventiveness. But this is not as big a problem as the aforementioned “nationalisation” of TK and genetic resources by governments which negates the specific and more justified demands of indigenous peoples over knowledge, local resources and territories (“biocultural heritage”). In fact the three are not really separable – hence the point that this is not primarily an intellectual property issue, or one that can be dealt with adequately by the Nagoya Protocol and the numerous other examples of regulatory overkill which serve nobody’s interests.