Traditional knowledge
Encyclopedia
Traditional knowledge (TK), indigenous knowledge (IK), traditional environmental knowledge
(TEK) and local knowledge generally refer to the long-standing tradition
s and practices of certain region
al, 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
, legend
s, folklore
, ritual
s, song
s, and even law
s. Other forms of traditional knowledge are expressed through different means.
meaning. Traditional knowledge can also reflect a community's interests. Some communities depend on their traditional knowledge for survival. This is particularly true of traditional environmental knowledge, which refers to a "particular form of place-based knowledge of the diversity and interactions among plant and animal species, landforms, watercourses, and other qualities of the biophysical environment in a given place" (Peña, 2005, p. 198). An example of a society with a wealth of TEK is the South American Kayapo people
, who have developed an extensive classification system of ecological zones of the Amazonian tropical savannah (i.e., campo
/ cerrado
) to better manage the land (Posey, 2008, p. 90).
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. The knowledge of indigenous and local communities 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?"
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.
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 nation
s 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.
Literary and artistic works based upon, derived from or inspired by traditional culture or folklore may incorporate new elements or expressions. Hence these works may be "new" works with a living and identifiable creator, or creators. Such contemporary works may include a new interpretation, arrangement, adaptation or collection of pre-existing cultural heritage that is in the public domain. Traditional culture or folklore may also be "repackaged" in digital formats, or restoration and colorization
. Contemporary and tradition based expressions and works of traditional culture are generally protected under existing copyright law, a form of intellectual property law, as they are sufficiently original to be regarded as "new" upon publication. Once the intellectual property rights afforded to these new works of traditional knowledge expire, they fall into the public domain.
The public domain
, as defined in the context of intellectual property
rights, is not a concept recognised by indigenous peoples. As much of traditional knowledge has never been protected under intellectual property rights, they can not be said to have entered any public domain. On this point the Tulalip Tribes of Washington state has commented that "...open sharing does not automatically confer a right to use the knowledge (of indigenous people)... traditional cultural expressions are not in the public domain because indigenous peoples have failed to take the steps necessary to protect the knowledge in the Western intellectual property system, but from a failure of governments and citizens to recognise and respect the customary laws regulating their use".
' special rights to claim (from within their own laws) all that their indigenous groups know now, have known, or will know. It is a concept that has developed out of a predominantly western
legal tradition, and has most recently been promoted by the World Intellectual Property Organisation, as part of a more general United Nations
push to see the diverse wealth of this world's indigenous, intangible cultural heritage
better valued and better protected against probable, ongoing misappropriation and misuse.
In the lead up to and during the United Nations International Year for the World's Indigenous Peoples (1993) then during the following United Nations Decade of the World's Indigenous Peoples (1995–2004) a number of conferences of both indigenous and non-indigenous specialists were held in different parts of the world, resulting in a number of declarations and statements identifying, explaining, refining, and defining 'indigenous intellectual property'.
(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 1992 Convention on Biological Diversity
(CBD) and the protection of traditional knowledge and folklore.
(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:
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 free 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.
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.
, access to food, the need for poverty alleviation, and related issues that affect the livelihoods and welfare 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. 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 mankind
". 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 and many have traditions of sharing. Healers, in general, have spiritual obligations to heal the sick and have shared their healing knowledge. Indigenous peoples have strong traditions of reciprocity
, that is people's informal exchange
of goods and labour. Much of the historical appropriation and use of traditional knowledge has not occurred with reciprocity. Though traditional knowledge and resources have made contributions to the welfare of humankind as the basis of much of the world's food system and naturally-derived medicines.
, set up the Traditional Knowledge Digital Library
(TKDL) as repository of 1200 formulations of various systems of Indian medicine, such as Ayurveda
, Unani
and Siddha
and 1500 Yoga
postures (asana
s), translated into five languages — English, German, French, Spanish and Japanese. India has also signed agreements with the European Patent Office
(EPO), United Kingdom Trademark & Patent Office
(UKPTO) and the United States Patent and Trademark Office
to reduce commercialization of traditional medicines by giving patent examiners at International Patent Offices
access to the TKDL database for patent search and examinations purposes.
IPR Policy of Kerala Govt.(India) - Intellectual Property Rights (IPRs) Policy for Kerala
released in 2008 , proposes adoption of the concepts ‘knowledge commons’ and ‘commons licence’ for the protection traditional knowledge. The chief architects of the Policy are Prof. Prabhat Patnaik
and Mr. R.S. Praveen Raj
. The policy advises to put all the traditional knowledge to the realm of “knowledge commons” and not to public domain. While codification of TK in digital libraries and sharing the same with patent offices is a viable solution to direct misappropriation, it is feared that it may provide an opportunity for capitalists to effect private appropriation by making cosmetic improvements on such traditional knowledge that is not accessible otherwise as confidentiality cannot be maintained by patent Offices when TKDL is treated as prior art - says R.S. Praveen Raj
Traditional environmental knowledge
Traditional Environmental Knowledge is a particular form of knowledge of the diversity and interactions among plants and animals, landforms, watercourses, and other traits of the biophysical environment in a given place...
(TEK) and local knowledge generally refer to the long-standing tradition
Tradition
A tradition is a ritual, belief or object passed down within a society, still maintained in the present, with origins in the past. Common examples include holidays or impractical but socially meaningful clothes , but the idea has also been applied to social norms such as greetings...
s and practices of certain region
Region
Region is most commonly found as a term used in terrestrial and astrophysics sciences also an area, notably among the different sub-disciplines of geography, studied by regional geographers. Regions consist of subregions that contain clusters of like areas that are distinctive by their uniformity...
al, indigenous
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
, or local communities
Community
The term community has two distinct meanings:*a group of interacting people, possibly living in close proximity, and often refers to a group that shares some common values, and is attributed with social cohesion within a shared geographical location, generally in social units larger than a household...
. Traditional knowledge also encompasses the wisdom
Wisdom
Wisdom is a deep understanding and realization of people, things, events or situations, resulting in the ability to apply perceptions, judgements and actions in keeping with this understanding. It often requires control of one's emotional reactions so that universal principles, reason and...
, knowledge, and teachings of these communities. In many cases, traditional knowledge has been orally passed
Oral tradition
Oral tradition and oral lore is cultural material and traditions transmitted orally from one generation to another. The messages or testimony are verbally transmitted in speech or song and may take the form, for example, of folktales, sayings, ballads, songs, or chants...
for generations from person to person. Some forms of traditional knowledge are expressed through stories
Storytelling
Storytelling is the conveying of events in words, images and sounds, often by improvisation or embellishment. Stories or narratives have been shared in every culture as a means of entertainment, education, cultural preservation and in order to instill moral values...
, legend
Legend
A legend is a narrative of human actions that are perceived both by teller and listeners to take place within human history and to possess certain qualities that give the tale verisimilitude...
s, folklore
Folklore
Folklore consists of legends, music, oral history, proverbs, jokes, popular beliefs, fairy tales and customs that are the traditions of a culture, subculture, or group. It is also the set of practices through which those expressive genres are shared. The study of folklore is sometimes called...
, ritual
Ritual
A ritual is a set of actions, performed mainly for their symbolic value. It may be prescribed by a religion or by the traditions of a community. The term usually excludes actions which are arbitrarily chosen by the performers....
s, song
Song
In music, a song is a composition for voice or voices, performed by singing.A song may be accompanied by musical instruments, or it may be unaccompanied, as in the case of a cappella songs...
s, and even law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s. Other forms of traditional knowledge are expressed through different means.
Characteristics
Traditional knowledge typically distinguishes one community from another. For some communities, traditional knowledge takes on a personal and spiritualSpirituality
Spirituality can refer to an ultimate or an alleged immaterial reality; an inner path enabling a person to discover the essence of his/her being; or the “deepest values and meanings by which people live.” Spiritual practices, including meditation, prayer and contemplation, are intended to develop...
meaning. Traditional knowledge can also reflect a community's interests. Some communities depend on their traditional knowledge for survival. This is particularly true of traditional environmental knowledge, which refers to a "particular form of place-based knowledge of the diversity and interactions among plant and animal species, landforms, watercourses, and other qualities of the biophysical environment in a given place" (Peña, 2005, p. 198). An example of a society with a wealth of TEK is the South American Kayapo people
Kayapo people
The Kayapo people are the Gê-speaking native peoples of the plain lands of the Mato Grosso and Pará in Brazil, south of the Amazon Basin and along Rio Xingu and its tributaries.In 2003, their population was 7,096....
, who have developed an extensive classification system of ecological zones of the Amazonian tropical savannah (i.e., campo
Campo
Campo is Italian, Portuguese and Spanish for "field".In the city of Venice the word Campo designs a square, regardless of her size; Piazza San Marco is the only exception being the only urban space called a piazza instead of Campo....
/ cerrado
Cerrado
The Cerrado, is a vast tropical savanna ecoregion of Brazil, particularly in the states of Gioas and Minas Gerais...
) to better manage the land (Posey, 2008, p. 90).
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
Power (sociology)
Power is a measurement of an entity's ability to control its environment, including the behavior of other entities. The term authority is often used for power perceived as legitimate by the social structure. Power can be seen as evil or unjust, but the exercise of power is accepted as endemic to...
struggles and relationships for land, resources and social control
Social control
Social control refers generally to societal and political mechanisms or processes that regulate individual and group behavior, leading to conformity and compliance to the rules of a given society, state, or social group. Many mechanisms of social control are cross-cultural, if only in the control...
than adherence to a claimed ancestry or heritage
Tradition
A tradition is a ritual, belief or object passed down within a society, still maintained in the present, with origins in the past. Common examples include holidays or impractical but socially meaningful clothes , but the idea has also been applied to social norms such as greetings...
.
Traditional knowledge, on the other hand, may be perceived very differently by indigenous and local communities themselves. The knowledge of indigenous and local communities is often embedded in a cosmology
Cosmology
Cosmology is the discipline that deals with the nature of the Universe as a whole. Cosmologists seek to understand the origin, evolution, structure, and ultimate fate of the Universe at large, as well as the natural laws that keep it in order...
, 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
Revelation
In religion and theology, revelation is the revealing or disclosing, through active or passive communication with a supernatural or a divine entity...
through conversations with "the creator", spirits, or ancestors. As Chamberlin (2003) writes of a Gitksan elder from British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
confronted by a government land claim: "If this is your land," he asked, "where are your stories?"
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.
Property rights
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
to preserve, protect, and promote their traditional knowledge. The reasons for this are complex. In 1992, the Convention on Biological Diversity
Convention on Biological Diversity
The Convention on Biological Diversity , known informally as the Biodiversity Convention, is an international legally binding treaty...
(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
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
(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
World Intellectual Property Organization
The World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
(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
Working Group on Indigenous Populations
The Working Group on Indigenous Populations was a subsidiary body within the structure of the United Nations. It was established in 1982, and was one of the six working groups overseen by the Sub-Commission on the Promotion and Protection of Human Rights, the main subsidiary body of the United...
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
Declaration on the Rights of Indigenous Peoples
The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly during its 62nd session at UN Headquarters in New York City on 13 September 2007....
(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
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
measures to protect traditional knowledge.
Currently, only a few nation
Nation
A nation may refer to a community of people who share a common language, culture, ethnicity, descent, and/or history. In this definition, a nation has no physical borders. However, it can also refer to people who share a common territory and government irrespective of their ethnic make-up...
s offer explicit sui generis
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
protection for traditional knowledge. However, a number of countries
Country
A country is a region legally identified as a distinct entity in political geography. A country may be an independent sovereign state or one that is occupied by another state, as a non-sovereign or formerly sovereign political division, or a geographic region associated with a previously...
are still undecided as to whether law should give traditional knowledge deference. Indigenous peoples have shown ambivalence about the intellectual property
Indigenous intellectual property
Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples' special rights to claim all that their indigenous groups know now, have known, or will know....
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.
Public domain
Film colorization
Film colorization is any process that adds color to black-and-white, sepia or monochrome moving-picture images. It may be done as a special effect, or to modernize black-and-white films, or to restore color films...
. Contemporary and tradition based expressions and works of traditional culture are generally protected under existing copyright law, a form of intellectual property law, as they are sufficiently original to be regarded as "new" upon publication. Once the intellectual property rights afforded to these new works of traditional knowledge expire, they fall into the public domain.
The public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
, as defined in the context of intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
rights, is not a concept recognised by indigenous peoples. As much of traditional knowledge has never been protected under intellectual property rights, they can not be said to have entered any public domain. On this point the Tulalip Tribes of Washington state has commented that "...open sharing does not automatically confer a right to use the knowledge (of indigenous people)... traditional cultural expressions are not in the public domain because indigenous peoples have failed to take the steps necessary to protect the knowledge in the Western intellectual property system, but from a failure of governments and citizens to recognise and respect the customary laws regulating their use".
Indigenous intellectual property
Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoplesIndigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
' special rights to claim (from within their own laws) all that their indigenous groups know now, have known, or will know. It is a concept that has developed out of a predominantly western
Western culture
Western culture, sometimes equated with Western civilization or European civilization, refers to cultures of European origin and is used very broadly to refer to a heritage of social norms, ethical values, traditional customs, religious beliefs, political systems, and specific artifacts and...
legal tradition, and has most recently been promoted by the World Intellectual Property Organisation, as part of a more general United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
push to see the diverse wealth of this world's indigenous, intangible cultural heritage
Intangible Cultural Heritage
The concept of intangible cultural heritage emerged in the 1990s, as a counterpart to the World Heritage that focuses mainly on tangible aspects of culture...
better valued and better protected against probable, ongoing misappropriation and misuse.
In the lead up to and during the United Nations International Year for the World's Indigenous Peoples (1993) then during the following United Nations Decade of the World's Indigenous Peoples (1995–2004) a number of conferences of both indigenous and non-indigenous specialists were held in different parts of the world, resulting in a number of declarations and statements identifying, explaining, refining, and defining 'indigenous intellectual property'.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
Article 27. 3(b) of the Agreement on Trade-Related Aspects of Intellectual Property RightsAgreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
(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 1992 Convention on Biological Diversity
Convention on Biological Diversity
The Convention on Biological Diversity , known informally as the Biodiversity Convention, is an international legally binding treaty...
(CBD) and the protection of traditional knowledge and folklore.
The Convention on Biological Diversity (CBD)
The Convention on Biological DiversityConvention on Biological Diversity
The Convention on Biological Diversity , known informally as the Biodiversity Convention, is an international legally binding treaty...
(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 free 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.
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.
Commons and intellectual property
Recently, traditional knowledge has been drawn into the debate related to access to medicinesCampaign for Access to Essential Medicines
The Campaign for Access to Essential Medicines is an international campaign started by Médecins Sans Frontières to increase the availability of essential medicines in developing countries. MSF often has difficulties treating patients because the medicines required are too expensive or are no...
, access to food, the need for poverty alleviation, and related issues that affect the livelihoods and welfare 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
Creative Commons
Creative Commons is a non-profit organization headquartered in Mountain View, California, United States devoted to expanding the range of creative works available for others to build upon legally and to share. The organization has released several copyright-licenses known as 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. 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 mankind
Common heritage of mankind
Common heritage of mankind is a principle of international law which holds that defined territorial areas and elements of humanity's common heritage should be held in trust for future generations and be protected from exploitation by individual...
". There is no common indigenous and local community position on issues of the "common heritage of mankind" or the "global public good
Global public good
A global public good is a good that has the three following properties :* It is non-rivalrous. Consumption of this good by anyone does not reduce the quantity available to other agents.* It is non-excludable...
". Indigenous peoples and local communities have shared much of their knowledge and resources with the global community and many have traditions of sharing. Healers, in general, have spiritual obligations to heal the sick and have shared their healing knowledge. Indigenous peoples have strong traditions of reciprocity
Reciprocity (cultural anthropology)
In cultural anthropology and sociology, reciprocity is a way of defining people's informal exchange of goods and labour; that is, people's informal economic systems. It is the basis of most non-market economies. Since virtually all humans live in some kind of society and have at least a few...
, that is people's informal exchange
Trade
Trade is the transfer of ownership of goods and services from one person or entity to another. Trade is sometimes loosely called commerce or financial transaction or barter. A network that allows trade is called a market. The original form of trade was barter, the direct exchange of goods and...
of goods and labour. Much of the historical appropriation and use of traditional knowledge has not occurred with reciprocity. Though traditional knowledge and resources have made contributions to the welfare of humankind as the basis of much of the world's food system and naturally-derived medicines.
Government of India efforts
In 2001, Government of IndiaGovernment of India
The Government of India, officially known as the Union Government, and also known as the Central Government, was established by the Constitution of India, and is the governing authority of the union of 28 states and seven union territories, collectively called the Republic of India...
, set up the Traditional Knowledge Digital Library
Traditional Knowledge Digital Library
Traditional Knowledge Digital Library is an Indian digital knowledge repository of the traditional knowledge, especially about medicinal plants and formulations used in Indian systems of medicine. Set up in 2001, as a collaboration between the Council of Scientific and Industrial Research and...
(TKDL) as repository of 1200 formulations of various systems of Indian medicine, such as Ayurveda
Ayurveda
Ayurveda or ayurvedic medicine is a system of traditional medicine native to India and a form of alternative medicine. In Sanskrit, words , meaning "longevity", and , meaning "knowledge" or "science". The earliest literature on Indian medical practice appeared during the Vedic period in India,...
, Unani
Unani
Unani-tibb or Unani Medicine also spelled Yunani Medicine means "Greek Medicine", and is a form of traditional medicine widely practiced in South Asia...
and Siddha
Siddha medicine
The Siddha medicine is one of the oldest medical systems known to mankind. This system of medicine originated from south Indian Tamil traditional medicine, as part of the trio Indian medicines - ayurveda, siddha and unani. This system was very popular in ancient India...
and 1500 Yoga
Yoga
Yoga is a physical, mental, and spiritual discipline, originating in ancient India. The goal of yoga, or of the person practicing yoga, is the attainment of a state of perfect spiritual insight and tranquility while meditating on Supersoul...
postures (asana
Asana
Asana is a body position, typically associated with the practice of Yoga, originally identified as a mastery of sitting still, with the spine as a conduit of biodynamic union...
s), translated into five languages — English, German, French, Spanish and Japanese. India has also signed agreements with the European Patent Office
European Patent Office
The European Patent Office is one of the two organs of the European Patent Organisation , the other being the Administrative Council. The EPO acts as executive body for the Organisation while the Administrative Council acts as its supervisory body as well as, to a limited extent, its legislative...
(EPO), United Kingdom Trademark & Patent Office
United Kingdom Patent Office
The Intellectual Property Office of the United Kingdom is, since 2 April 2007, the operating name of The Patent Office. It is the official government body responsible for intellectual property rights in the UK and is an executive agency of the Department for Business, Innovation and Skills...
(UKPTO) and the United States Patent and Trademark Office
United States Patent and Trademark Office
The United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.The USPTO is based in Alexandria, Virginia,...
to reduce commercialization of traditional medicines by giving patent examiners at International Patent Offices
Patent office
A patent office is a governmental or intergovernmental organization which controls the issue of patents. In other words, "patent offices are government bodies that may grant a patent or reject the patent application based on whether or not the application fulfils the requirements for...
access to the TKDL database for patent search and examinations purposes.
IPR Policy of Kerala Govt.(India) - Intellectual Property Rights (IPRs) Policy for Kerala
Kerala
or Keralam is an Indian state located on the Malabar coast of south-west India. It was created on 1 November 1956 by the States Reorganisation Act by combining various Malayalam speaking regions....
released in 2008 , proposes adoption of the concepts ‘knowledge commons’ and ‘commons licence’ for the protection traditional knowledge. The chief architects of the Policy are Prof. Prabhat Patnaik
Prabhat Patnaik
Prabhat Patnaik is an Indian Marxist economist and political commentator, who has achieved international acclaim with his incisive analysis of economics and politics. He was teaching at the Centre for Economic Studies and Planning in the School of Social Sciences at Jawaharlal Nehru University in...
and Mr. R.S. Praveen Raj
R S Praveen Raj
R S Praveen Raj is an Indian social activist and intellectual property rights expert. Born on 31 March 1979, he started his career as an electrical and electronics engineer...
. The policy advises to put all the traditional knowledge to the realm of “knowledge commons” and not to public domain. While codification of TK in digital libraries and sharing the same with patent offices is a viable solution to direct misappropriation, it is feared that it may provide an opportunity for capitalists to effect private appropriation by making cosmetic improvements on such traditional knowledge that is not accessible otherwise as confidentiality cannot be maintained by patent Offices when TKDL is treated as prior art - says R.S. Praveen Raj
See also
- BiopiracyBiopiracy- Biopiracy and bioprospecting :Bioprospecting is an umbrella term describing the discovery of new and useful biological samples and mechanisms, typically in less-developed countries, either with or without the help of indigenous knowledge, and with or without compensation...
- Convention on Biological DiversityConvention on Biological DiversityThe Convention on Biological Diversity , known informally as the Biodiversity Convention, is an international legally binding treaty...
- Ethnoastronomy
- EthnobiologyEthnobiology]Ethnobiology is the scientific study of dynamic relationships between peoples, biota, and environments, from the distant past to the immediate present....
- EthnobotanyEthnobotanyEthnobotany is the scientific study of the relationships that exist between people and plants....
- EthnoecologyEthnoecologyEthnoecology is the scientific study of the way different groups of people in different locations understand ecosystems around them; the environments in which they live; and their relationship with these....
- EthnomathematicsEthnomathematicsIn mathematics education, ethnomathematics is the study of the relationship between mathematics and culture . Often associated with "cultures without written expression" , it may also be defined as "'the mathematics which is practised among identifiable cultural groups'" In mathematics education,...
- EthnomedicineEthnomedicineEthnomedicine is a sub-field of ethnobotany or medical anthropology that deals with the study of traditional medicines: not only those that have relevant written sources Ethnomedicine is a sub-field of ethnobotany or medical anthropology that deals with the study of traditional medicines: not only...
- EthnopharmacyEthnopharmacyEthnopharmacy is the interdisciplinary science that investigates the perception and use of pharmaceuticals , within a given human society....
- EthnoscienceEthnoscienceEthnoscience has been defined as an attempt "to reconstitute what serves as science for others, their practices of looking after themselves and their bodies, their botanical knowledge, but also their forms of classification, of making connections, etc." .-Origins of Ethnoscience:Ethnoscience’s...
- EthnozoologyEthnozoologyEthnozoology is the study of the past and present interrelationships between human cultures and the animals in their environment. It includes classification and naming of zoological forms, cultural knowedge and use of wild and domestic animals...
- Indigenous intellectual propertyIndigenous intellectual propertyIndigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples' special rights to claim all that their indigenous groups know now, have known, or will know....
- Indigenous peoplesIndigenous peoplesIndigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
- Intangible Cultural HeritageIntangible Cultural HeritageThe concept of intangible cultural heritage emerged in the 1990s, as a counterpart to the World Heritage that focuses mainly on tangible aspects of culture...
- Intellectual propertyIntellectual propertyIntellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
- Inuit QaujimajatuqangitInuit QaujimajatuqangitInuit Qaujimajatuqangit is an Inuktitut phrase that is often translated as Inuit traditional knowledge, Inuit traditional institutions or even Inuit traditional technology...
(traditional knoweledge in Arctic Canada) - Sui generisSui generisSui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
protection - Traditional medicineTraditional medicineTraditional medicine comprises unscientific knowledge systems that developed over generations within various societies before the era of modern medicine...
- Traditional knowledge GISTraditional knowledge GISTraditional knowledge Geographic Information Systems are the data, techniques, and technologies designed to document and utilize local knowledges in communities around the world. Traditional knowledge is information that encompasses the experiences of a particular culture or society...
- Traditional Ecological KnowledgeTraditional Ecological Knowledge"Traditional Ecological Knowledge" is an academic term referring to aboriginal, indigenous, or other forms of traditional knowledges regarding local environmental resources. TEK can be defined as "a cumulative body of knowledge, practice, and belief, evolving by adaptive processes and handed down...
- World Intellectual Property OrganizationWorld Intellectual Property OrganizationThe World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
(WIPO) - Yoga piracyYoga piracyYoga piracy refers to the practice of claiming copyrights on yoga postures and techniques found in ancient treatises originating within India by persons residing in foreign countries, often of other nationalities...
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: TRIPs 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
- Traditional ecological knowledge handbook : a training manual and reference guide for designing, conducting, and participating in research projects using traditional ecological knowledge / prepared by Rita A. Miraglia. Hosted by Alaska State Publications Program.
- Research article by Terra Nuova on "Preservation and maintenance of biological diversity related knowledge of indigenous diversity and local communities with traditional lifestyles Bony Forest, Ijara District"