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.
