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.