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.
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