Summary

In the first blog I introduced two concepts of knowledge. One from the Western perspective , which deals with knowledge as a commodity and the other from an indigenous perspective that deals with knowledge as a gift. I quoted from Townley, "In such cases, indigenous knowers are regarded as instruments and sources of knowledge, but not as morally relevant parties whom researchers or “prospectors” must engage responsibly"( Townley, p21). I implied that disregard for the rights of indigenous communities is the fundamental issue in the negotiations between indigenous stakeholders and corporations.

Next, I examined the Supreme Court decision from Gayler and Wilder. In this case the Supreme Court decided intellectual property rights shall be granted to the individual or individuals who promote knowledge to a population where the knowledge was not previously known. The Supreme Court states, " …if the foreign discovery is not patented, nor described in printed publication, it might be known and used in remote places for ages, and the people of this country be unable within their reach; and as far as their interest is concerned, it would be the same thing if the improvement had never been discovered." (see also, Mgbeoji, pg 177). This ruling of the Supreme Court essentially allows outsiders to profit from information derived from indigenous communities, because indigenous communities for cultural reasons and isolation have not sought to profit from traditional knowledge.

With increased globalization and decreased isolation, indigenous communities are seeking a greater share in profits from indigenously derived knowledge. Yet, even with greater cross-cultural communication, there are still fundamental differences in philosophy and heritage to be confronted. In the next section I examine in depth traditions and ideas surrounding "gifting:" responsibilities and privileges.

In Philosophy and Brief Examination Part 2, the notion of the gift and the inherent practices that follow are described in Mauss's "The Gift:" The moral imperatives that enforce social engagement are three: one must give gifts; one must accept proffered gifts; and one must return the gift in the future. The value of a gift is not its market price but the fact that the gift is the gift of the giver, part of that person and full of power to compel a return. To refuse to give, to refuse to accept a gift, or to refuse to repay that debt is to abdicate one's communal citizenship. Gifts are inalienable property. They gain power in the act of giving"(Hunn, 2002, p. 8).

The doctrine of gift giving described by Mauss and Hunn are not how Westerners traditionally view gifts. It is safe to assume a Western perspective of "gifting" does not typically incorporate an attitude about one's "communal citizenship." Although the act of giving in any culture is associated with reciprocation, the gift ideology that Mauss describes is unique to some indigenous cultures.

It is a conflict of ideologies which has caused contention between indigenous communities and Western entrepreneurs. In the next section Cases of Intellectual Property and Profit Sharing I examine three cases in which indigenous communities, corporations and governments have come to agreements regarding the extraction of indigenous knowledge and resources.

In the three cases described each of the communities receives compensation for resources or knowledge that is being commercially exploited. In the first case, the Kani are hired on to grow more quantities of the arogyapacha plant and thus strengthen the community economy. Yet, they are underrepresented by a mitigating interest and argue for more rights than specified by the original agreement.

In the second example, the Saramaka Maroons are compensated for access to jungle resources. The prospecting company, the government, an NGO and the people of Saramaka come to an agreement with, "...a benefit-sharing plan with a US$60,000 total advance payment from Bristol-Myers Squibb Pharmaceutical Research Institute into the Forest Peoples Fund (FPF), with additional contributions of $20,000 a year as the ICBG is renewed"(Moran, 2004, p.159). This deal also specifies that profits will go to community projects and ensure the preservation of biodiversity. This deal suggests that profits will be used for community development, however the implementation of community development projects are not specified. A follow up examination of this case is needed to determine the success of the communally allocated funds.

In the final case, communities in Nigeria are approached by Shaman pharmaceutical company and several NGO's to use indigenous knowledge for the promotion of biodiversity, combating poverty, and producing profits from potential biological resources. To defend against deforestation and starvation Shaman, NGO's and the government came to an agreement that allows Shaman to use the forest resources for research and development of new pharmaceuticals in exchange for monetary and medical support of the people who live in and near forests. As with the Saramaka in Suriname a follow-up examination must be conducted to determine the outcome of the agreements.

What's Next?

In September 2007 the United Nations passed the Declaration on the Rights of Indigenous Peoples. In the Declaration Article 11 section 1 and 2 state:

"1.Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature.

2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs"(UN, 2007).

Although these affirmations were approved by 147 countries there is no mechanism of enforcement in place, which means these good intentions can be overlooked governments. However, this Declaration does bring to light the struggle of indigenous communities to assert their position in an increasingly globalized world.

This blog was an opportunity for me to examine some issues surrounding indigenous knowledge and intellectual property. However, my research thus far has barely scratched the surface of a diverse and complex issue, which has

implications for how nations will determine intellectual property rights across all populations.

References

Hunn, E.S. (2002). Traditional environmental knowledge: Alienable or

inalienable intellectual property. In J. Stepp & F. Wyndham & R. Zarger

(Eds.), Ethnobiology and Biocultural Diversity (3-10). Athens, GA:

International Society of Ethnobiology.

Mgebeoji, I.M. (2001). Patents and traditional knowledge of the uses of plants: Is a communal

patent regime part of the to the scourge of bio piracy. Indiana Journal of Global Legal

Studies, 9 (1), 163-186

Moran, K. (2004). Benefit sharing under the convention of biological diversity. In M. Riley (Ed). Indigenous Intellectual Property (153-172).

United Kingdom: AltaMira Press.

Posey, D.A. (2000). Ethnobiology and ethnoecology in the context of national

laws and international agreements affecting indigenous and local

knowledge,traditional resources and intellectual property rights. In R. Ellen &

P. Parkes & A. Bicker (Eds.), Indigenous environmental knowledge and its

transforamtions : Critical anthropological perspectives (35-54). Canada:

Harwood Academic Publishers.

Townley,C.(2002). Intellectual property and indigenous knowledge. Philosophy and Public

Policy, Fall, 21-26.

United Nations. (2007). United Nations declaration on the rights of indigenous peoples. Amsterdam:

Report of the Human Rights Council.

Cases of Intellectual Property and Profit Sharing

So far, I have discussed the nuances of Western views of knowledge in the context of knowledge as a commodity. I have compared that with a general indigenous view of knowledge, where knowledge is a gift. In this section I will examine several cases where these differing philosophies were reconciled for commercial practices.
In the U.S. and other "westernized" nations, there is a fundamental notion of invention or property rights being owned by one individual. There are minor exceptions to this in so far that patents are granted for two people who are co-inventors, but for the most part, royalties are issued to individuals. In the case of indigenous knowledge, where a community or a group of healers are the possessors of valuable knowledge, there must be different guidelines for appropriating royalties.
In Katy Moran's (2004) article, "Benefit Sharing Under the Convention on Biological Diversity," she discusses three different scenarios in which there were agreements made between governments, companies, and indigenous communities to ensure that financial resources were being "fairly" distributed. The first case involves the Kanis in southern India. The Kanis used a plant they called, "arogyapacha," for energy which they gathered from the jungle in their homeland. In 1987, the Tropical Botanic Garden and Research Institute, (TBGRI), was founded and held a conference in the forest near a Kani community. During this conference knowledge of the "arogyapacha" plant was announced. Shortly thereafter, the Kani were approached by the Aryavaidya Pharmacy Coimbatore, an Indian company, to use the plant in a formula called "Jeevani.". A deal drawn up between the three entities, the Kani, TBGRI and the pharmaceutical company. It was agreed that TGBRI would share 50% of the licensing fee and 2% of royalties with the Kani. This was the first agreement of its kind where indigenous parties had been represented in a patent agreement, and several problems arose in the aftermath.

One problem quickly realized was arogyapacha only retained its medicinal properties when grown in the forests on the Kani homeland. This problem was resolved by Aryavaidya hiring members of the Kani community to cultivate the plant in the forests. This arrangement benefited the community by creating jobs and profits. However, there were growing tensions in Kani community as many people felt underrepresented by the original negotiation.
To remedy this issue there was a trust formed by an NGO, of about 500 Kani community members. However, ..."some critics feel this number falls far short of adequate representation of the Kani" (2004, p.156). But, "In March 1999, Science reported that the first payment of $21,000 would be made and shared by the community and the institute"(2004, p.156).
Although, there were contractual and technical difficulties for securing benefits to the Kani, it was, nevertheless, a monumental step in defining intellectual property rights for indigenous communities.

The next case discussed in the article concerns the Saramaka Maroons, the Suriname government, The International Biodiversity Group, and the Bristol-Myers Squibb Pharmaceutical Research Institute. The indigenous community of the Saramaka Maroons is composed of ancestors of escaped slaves. Though they are not native to Suriname, the Maroons have lived in the jungle for nearly 300 hundred years, have their own language and are geographically and socially isolated from the main population of Suriname. The homeland of the Maroons is the most virgin area of rain forest left in the world and is home to many species of plants and animals of potencial medicinal value. For this reason, bioprospecting, (looking for biological resources with pharmaceutical properties) is a draw in this particular area. To protect the property rights of the Maroon community a statement of understanding was established ensuring, "...a benefit-sharing plan with a US$60,000 total advance payment from Bristol-Myers Squibb Pharmaceutical Research Institute into the Forest Peoples Fund (FPF), with additional contributions of $20,000 a year as the ICBG is renewed"(2004, p.159). This agreement was established before prospecting began to ensure some profits were earmarked for the Maroon community. The money allocated to the fund is specified to be used for, "...projects involving community development, biodiversity conservation and health care. If any products are commercialized from ethnobotancial collections, 50% of Suriname's share of any future royalties will go to the FPF and the other 50% will go to various ICBG partners in Suriname"(2004, p.160).
Nigeria is the final location discussed. Due to the high rate of deforestation, the threat of deteriorating biodiversity and rampant poverty, NGO's are working in alliance with local people and the government to develop ways to promote indigenous knowledge for local use and outside profit. One agreement with Shaman Pharmaceuticals states, [while], "Full-fulling company policy, immediate and medium term-benefits,...totaling over $200,000 have been distributed through programs to the various stakeholders in the collaboration as the expeditions occur. The company regularly reports laboratory results to participating communities, and general literature on the project is published with both Nigerian and U.S. authors"(2004, p.163).
In this way, local communities benefit from profit sharing, but also from medical knowledge generated by the company and communities.
These cases show how indigenous communities have been represented in several cases. The positive aspect in each of these cases is indigenous communities are included in business profits. However "successful" these cases may be though, there are still many issues to be negotiated regarding the rights of indigenous communities and intellectual property.
In the final section of the blog I will summarize the points addressed thus far and briefly analyze the current situation of indigenous property rights today.

References

Moran, K. (2004). Benefit sharing under the convention of biological diversity. In M. Riley (Ed). Indigenous Intellectual Property (153-172).
United Kingdom: AltaMira Press.

Philosophy and Brief Investigation part 2

The notion of the "gift" is complex and plays a dynamic role in the ideologies of many indigenous people. In1967 Mauss published an article titled "The Gift" that discusses the role of benefaction and the responsibilities of the recipient:

"Mauss argues that "archaic" societies are forged by gift exchange in the absence of the instruments of state power. The moral imperatives that enforce social engagement are three: one must give gifts; one must accept proffered gifts; and one must return the gift in the future. The value of a gift is not its market price but the fact that the gift is the gift of the giver, part of that person and full of power to compel a return. To refuse to give, to refuse to accept a gift, or to refuse to repay that debt is to abdicate one's communal citizenship. Gifts are inalienable property. They gain power in the act of giving"(Hunn, 2002, p. 8).

We have already examined the notion that knowledge is a gift and not a commodity, however, this quote would lead us to believe that benefaction is a commodity for the benefactor. Once the dispensation has been given the recipient of that gift has the responsibility to receive the bounty and then later, in the future, return the gift. In this way, the contribution should intrinsically return to the original bearer, benefiting him or her, and the process begins again. How does this notion mix with modern ideas of intellectual property?

The problem thus far with intellectual property rights and indigenous knowledge, is indigenous knowledge is outright stolen by profit seeking individuals. In these cases there is no exchange. One party benefits from the bequest of another and dispensation is never returned. Thus, indigenous communities are capitalized on. Is it possible for intellectual property to be shared while still respecting the "gift" ethic?

E.S. Hunn, an ethnobiologist who has dedicated 30 + years to the study of indigenous tribes and traditional knowledge discusses the issues and stereotypes surrounding indigenous knowledge from the perspective of a scientist. One argument from the midst of the controversy surrounding indigenous knowledge and intellectual property is:

"... the rejection of collaborative ethnobiological research sets in opposition indigenous and "scientific" ways of knowing, with scholarship judged inherently exploitative and thus morally suspect. This view is informed by the postmodernist notions of knowledge as power and of truth as hegemonic narrative. At the logical extreme, this view asserts that to seek to understand other people can be no more than to seek to control and manipulate them"(Hunn,2002,p.5)

In Hunn's view it is possible to study and learn about the traditional knowledge of indigenous groups without exploitation. He disagrees that knowledge must always revolve around having power over another group, however the practice of "gifting" holds power over the recipient. The difference is the recipient of the benefaction has the ability to repay the debt and is no longer beholden to the benefactor, whereas the holder of the knowledge can maintain control of knowledge indefinitely.

What does any of this have to do with intellectual property? Indigenous knowledge can be fairly dispensed if the recipient of the contribution, receives the dispensation knowing the value is in the act of giving and returns the favor in the future. That is, if one benefits from the "gifted" knowledge of another, then the knowledge and the benefits of that wisdom should be returned to the original bearer. Furthermore, the gift should not be manipulated in a way as to devalue it before it is returned to the giver. In this way, indigenous knowledge should not be used in a manner that will take away from the sanctity of the bequest. The judgment as to whether the benefaction is used properly can only be made by the conferrer of the gift. Therefore, intellectual property can be apportioned in such a way that all contributors of the knowledge avail from the allowance after the initial exchange, as the gift is repaid.

Practically speaking, intellectual property laws should be based around upholding this ethic, rewarding the benefactors of the gift. Appendix 1, part VI, article 29 of the UN Draft Declaration on the Rights of Indigenous Peoples, states:

"Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop, and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts"(Posey, 2000,p. 48).

If it is established that indigenous "givers" of knowledge should be granted intellectual property rights, or at least should benefit from the dispensation of their knowledge, how is that "benefit" to be distributed. That is to say, if a portion of knowledge is exploited for commercial gain, then who receives the reward? The knowledge may have been conveyed by one member of an indigenous community, but all members of the community possess the estimable knowledge, so within the community, who profits?

I will examine the idea of community intellectual property rights in the next entry-

References

Hunn, E.S. (2002). Traditional environmental knowledge: Alienable or
inalienable intellectual property. In J. Stepp & F. Wyndham & R. Zarger
(Eds.), Ethnobiology and Biocultural Diversity (3-10). Athens, GA:
International Society of Ethnobiology.

Posey, D.A. (2000). Ethnobiology and ethnoecology in the context of national
laws and international agreements affecting indigenous and local
knowledge,traditional resources and intellectual property rights. In R. Ellen &
P. Parkes & A. Bicker (Eds.), Indigenous environmental knowledge and its
transforamtions : Critical anthropological perspectives (35-54). Canada:
Harwood Academic Publishers.

Philosophy and Brief Investigation part 1

There is significant controversy surrounding the issue of intellectual property and indigenous knowledge. This blog is a brief examination of the varoius philosophical, moral, and legal arguments embedded in the debate. For this section of the blog I will discuss the philosophical aspects of indigenous knowledge and patent law and draw examples from a few cases to further illuminate the issue.

What is indigenous knowledge? How is it different from Western knowledge? And why is it or should it be handled differently by law?

Indigenous knowledge is knowledge that is derived from sources rooted in traditional practice. It is often knowledge that has been passed down for many generations and sometimes is generally unknown to the majority of the outside world. In the article, Intellectual Property and Indigenous Knowledge, Townley argues that within many indigenous cultures knowledge is relayed as a gift, rather than a commodity.

"One common justification for intellectual property rights treats knowledge as a commodity whose production can and should be maximized. This justification is unsatisfactory. Often the authority of experts and the promise of the utility of knowledge eclipse such considerations as the cultural sensitivities of indigenous populations, which have prior claims to knowledge and different understandings of it" (Townley, 2002, 21).

This notion of knowledge as a commodity is a classical Western perspective, as is the perspective of ownership described by John Locke, “The labour that was mine, removing them out of that common state they were in, hath fixed my property in them”(Townley, 21). That is to say that if an individual learns knowledge and brings that knowledge to another location then the knowledge belongs to the individual and no longer to the source. The problem with this doctrine is that it robs the indigenous knowledge "sources" of rights over the knowledge. It allows outside interests to exploit the knowledge for a profit and it opens the knowledge up to interpretation or manipulation that is contradictory to the intrinsic value of the knowledge. Townley states,

"In such cases, indigenous knowers are regarded as instruments and sources of knowledge, but not as morally relevant parties whom researchers or “prospectors” must engage responsibly"( Townley, p21).

Disregard for the rights of indigenous knowledge holders is at the heart of the issue surrounding the extraction and patent of indigenous knowledge. Traditionally, it seems this disregard is rooted in the notion of "foreignness" held by Western parties. Knowledge that was brought from indigenous cultures and used in the Western world was typically unknown by the majority of the population, so the knowledge seemed new, unique and profitable, thus patentable. There was no recognition that the rights of the knowledge should be granted to the indigenous populations because the indigenous population was ignorant of its use and profitability in the Western world.

"The United States Supreme Court held in Gayler v. Wilder,

If the foreign invention had been printed or patented, it was already given to the world and open to the people of this country as well as of others, upon reasonable inquiry. They would therefore derive no advantages from the invention here. It would confer no benefit upon the community, and the inventor therefore is not considered to the reward. But if the foreign discovery is not patented, nor described in printed publication, it might be known and used in remote places for ages, and the people of this country be unable to within their reach; and as far as their interest is concerned , it would be the same thing as if the improvement had never been discovered" (see also, Mgbeoji, 177).

Furthermore,

"Section 102 of Code 35 of the United States provides that:

a person shall be entitled to patent unless

(a) the invention was known or used by others in this country, patented or described in a printed publication in this or a foreign country, before the invention thereof by the appilicant for a patenet, or

(b) the invention was patented or described in a printed publication in this or a foerign country or in public use or on sale in this country, more than one year prior to the date of application for the patent in the Unites States, or..."( 35 U.S.C. § 102; see also Mgbeoji, 2001, 177)

In the eyes of the law there should be no distinction between indigenous knowledge and Western knowledge, there is just the question of whether there is ownership of the knowledge by indigenous groups or whether the knowledge can be owned by Western parties. Yet another point of controversy has to do with how the knowledge is used by the patent holder.

Responsible use of knowledge by the patent holder is a return to the discussion of knowledge as a commodity vs knowldege as a gift. If knowledge is a commodity the producer and the user have no special responsibilites to the knowledge as long as they are not violating the law. When knowledge is seen as a gift, then it is argued, there is an intrinsic value to the knowledge and with that comes inherent responsiblity.

This issue to be discussed in the next installation-

References


Mgebeoji, I.M. (2001). Patents and traditional knowledge of the uses of plants: Is a communal
patent regime part of the to the scourge of bio piracy. Indiana Journal of Global Legal
Studies, 9 (1), 163-186


Townley,C.(2002). Intellectual property and indigenous knowledge. Philosophy and Public
Policy, Fall, 21-26.


Intellectual Property and Indigenous Knowledge by A. G. Pruess is licensed under a Creative Commons Attribution-Share Alike 3.0 United States License.
Based on a work at apruess.blogspot.com.
Permissions beyond the scope of this license may be available at apruess@wisc.edu.