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.
