Challenges of communal copyright: Traditional and indigenous knowledge
Discussions on the challenges of the digital era towards intellectual property tend to focus on the ownership rights of companies and individuals. But far more daunting to the poor and to women in rural and remote societies are the challenges raised from waves of legislative change to copyright and patenting law that are led primarily by multinational companies seeking to define ownership of knowledge and to a large extent what knowledge is.
Defining knowledge is an act that in itself excludes and marginalises people. Customary and indigenous knowledge, not obtained through formal institutions and learning processes, can encompass a wide range of information on plants, biology, ecology and soil structures and climate. This knowledge has been ignored, marginalised and appropriated by Western-inspired education systems. Bound up in a holistic world-view, traditional knowledge often places the classification of plants, animals, soils and cycles in a religious and sacred context. In turn, this leads to such knowledge being dismissed as 'unscientific' superstition. This dismissal, particular by both national and international development workers, can lead to unsuitable and unsustainable agricultural practices being imposed on traditional communities.
The situation has been worsened by national and international legislation and treaties, starting with national-level copyright and patents legislation and encapsulated in international agreements such as TRIPS. This legislation is based on the idea that individuals are the sole innovators in society, and ignores the gradual accumulation of knowledge and innovation that exists in all societies, but is most pronounced in traditional societies. According to Consuelo Quiroz, “These IPR regimes are calculated to reward those who are in a position to patent certain kinds of innovation, say, but do not recognize the originators of those innovations.”1 Indigenous people and traditional knowledge holders are often not in a position to patent innovations, and might find it difficult to separate out patentable information from a system of beliefs and practices.
This marginalisation has both gender and racial dimensions. Indigenous and traditional knowledge is often gendered – women in many communities have exclusive roles in, for example, the propagation of seeds, traditional medicine, animal husbandry and the like. However, in most of these roles, science has taken over from traditional roles, often with help from coercive bodies. Hybrid corn for example, replaced local corn breeds and while the hybrid corn produced higher yields, the fertility of the seeds was radically lower. Farmers became dependent on seeds bought from multinational companies, rather than the traditional methods of seed harvesting that were the traditional domain of women in many agrarian communities2.
The problem of women's position as knowledge keepers in society is made worse by the way in which knowledge and importance within communities is assessed. According to Consuelo Quiroz3: “The general misconception and marginalization of women's role in conservation strategies, which is directly related to their lack of power and their low status within society, have often caused researchers and policy makers (mainly males) to ignore women's skills and needs as a focal issue in mainstream sustainable development... When development efforts are discussed, women are usually depicted--if they are depicted at all--as 'peripheral contributors to the social and economic transformation of their society'... One implication of this is that 'half or more of indigenous ecological science has been obscured by the prevailing invisibility of women, their work, their interests and especially their knowledge'...”
Men are seen as heads of households, and are often preferred, or more likely, to put themselves forward, for training and other educational opportunities. Women who face multiple burdens also find it harder to find time to participate in training. Further, with women under-represented in national and international decision-making women's contributions are further marginalised and ignored, and their control over the knowledge that has traditionally been their domain is extinguished.
Gender and traditional knowledge
In the Kadazandusun community of Sabah, Malaysia, the priestesses, or Bobohizan, have been the traditional holders of knowledge within the communities. According to Jannie Lasimbang, a Kadazandusun woman who is part of the United Nations' Expert Mechanism on the Rights of Indigenous People, “Bobohizans or priestesses still hold knowledge to many information that are not revealed to others. But there are now very few due to aggressive persecutions in the past by mainstream religions. Even today, there are subtle pressures for them to leave indigenous religion or belief system. Apart from knowledge on seeds and agricultural cycle, women generally also still hold knowledge on traditional medicines, especially plants and animals, midwivery and other information related to indigenous health systems, although men may also have access to such information. However, women are never seen to control knowledge in a restrictive manner, but rather they share this information whenever they can to all sectors of society. These are their subject of conversations in every social gathering and therefore form the collective memory and oral tradition of a community. They also put these into practice, thus further enhancing sharing and collective memory.”.
'Development' and 'modernisation' have significantly reduced the importance of this role. Ms Lasimbang points to three major impacts that government policy has had on women as knowledge-keepers. First, the government tends to approach men as heads of households, targeted for subsidies for seeds, machinery or chemical inputs. This effectively sidelines women and paves the way for loss of traditional knowledge on seeds, natural farming and soil management. Second, the non-recognition of native customary rights has led to loss of indigenous peoples’ lands. And lastly, the government’s focus on the registration of land titles has tended to reduce the size of land ownership, with each family owning an average of 15 acres, which tend to be officially owned by the men. Such ownership has affected women’s knowledge especially when coupled with aggressive introduction of cash crops like rubber, oil palms and fruit crops which men tend to favour over food production.
The Pesticide Action Network Asia-Pacific document how the process of colonisation was central to the devaluation of women's knowledge. In parts of South-East Asia, for example, a refusal to commit to the 'Green Revolution' was seen as proof of membership of the local Communist Parties. In Indonesia, where women were often the keepers of the seeds, and in this role, keepers of knowledge on seed selection, germination and planting, this has led to a loss of knowledge held by women. The current economic crisis, and the rising price of agricultural inputs such as fertiliser and pesticides, means that Indonesian farmers are looking to traditional practices for financial survival. This is a difficult process. In the last 40 years since the start of the Green Revolution, soils have become degraded, anecdotal evidence cited by PAN-AP indicates that pests have increased, and farms have shrunk in size. Together these factors mean that even when farmers attempt to return to traditional practices, they face at least a couple of seasons with very poor yields before any benefits can be seen.
All this mitigates against retaining, respecting or returning to traditional knowledge and practices.
Copyright, creative commons and indigenous knowledge
One approach to preserving indigenous knowledge is to document and make the results publicly available. This has been the case advocated by some proponents of open source software, such as Robert Adkins in an article in Technetra4. A second is to privatise the knowledge, the approach taken by international trade regimes and most copyright and patents laws. Both of these have significant drawbacks.
Copyright is a comparatively modern creation, and its relentless expansion over the past fifty years has been a result and a driving force behind US cultural imperialism5. As documented by the Creative Commons movement and others6, this has resulted in a shrinking of the intellectual commons and a definition of creativity that prizes individual above collective efforts.
These are directly opposed to the methods of knowledge accumulation that exist in all communities (where would Britney Spears be without the Beatles and do they therefore deserve some of her royalties?), but which are clearest in traditional societies.
Sadly, however, the Creative Commons movement and its counterparts have to a large extent mirrored mainstream copyright culture in their neglect of traditional knowledge. It may be argued that this is not their role – but the gap between modern notions of copyright and individual rights to privately own and control information is at odds with traditional notions that all knowledge partakes of the divine, that knowledge is collectively owned and cultural in nature, and that it requires a particular context (such as a ceremony, or geography) to make knowledge both accessible and meaningful.
The problem is made worse by the lack of protection for indigenous knowledge. Kerala is one of few states that specifically recognises and protects traditional knowledge. It has piloted the idea of “Knowledge Commons”, where information is held in common by communities, neither held privately nor in the public domain. The shortcoming of this system for many indigenous communities is that the holder of the commons is the State, not the communities themselves, and use is limited to non-profit activities7. Nevertheless, the 2008 policy in Kerala marks a significant step towards an intellectual property rights regime that acknowledges and respects the contribution of traditional knowledge, that protects it, preserves it and keeps it alive within communities.
Of other nations, Peru has recently watered down a 2002 law that explicitly protected indigenous knowledge, apparently to secure its free trade agreement with the US prior to the 2009 handover of power8 and South Africa has been considering legislation9.
TRIPS, international agreements and traditional knowledge
One of the key demands of the developing world during the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) negotiations has been respect for traditional knowledge, particularly in regard to pharmaceuticals and forest products. Brazil and India spearheaded the need for more stringent policing of multinationals and their access to rainforests and other hotbeds of biodiversity. This advocacy stopped short however, of attempting to place power over indigenous knowledge in the hands of indigenous communities.
Some advocates for the protection of traditional knowledge have argued that given the holistic approach needed to its protection, TRIPS is not the appropriate forum for extending rights and protections for traditional and indigenous knowledge. The World Intellectual Property Organization (WIPO) is the preferred venue for these discussions. WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) met for the first time in 2001. The committee however, has been making slow progress, with the United States insisting on the need for 'consensus on practicalities'. Intellectual Property Watch has reported that some progress is being made outside the formal process, but has been critical of the role of some developed nations10.
However, there are numerous international treaties that do emphasise the importance of indigenous knowledge and the need to safeguard both practices and communities themselves. One of the earliest, and still one of the strongest, safeguards to the rights of indigenous peoples lies in the International Labour Organisation's Convention No. 169, which is binding treaty on signatories, making it stronger in implementation than the United Nations Declaration on the Rights of Indigenous People. According to Chidi Ougamanam, “The Convention makes concrete and elaborate provisions on the subject of indigenous knowledge.”11 There are several articles dealing with indigenous knowledge, either directly or indirectly.
The 1992 Rio Declaration also specifically mentions the need to protect indigenous knowledge in Principle 22. This is supported by chapter 26 of Agenda 21. Most recently, however, is the United Nations Declaration on the Rights of Indigenous People (UNDRIP), which was passed through the assembly with only four nations (United States, Canada, Australia and New Zealand) voting against it. However, as a declaration it has only moral, not legal, standing.
Indigenous knowledge, the internet and digitisation
One of the advantages of the digital era is that the low-cost of recording devices, from audio MP3 players to digital video recorders, makes it possible for activists and academics to document and record traditional knowledge. In Sarawak, Malaysia, for example, Building Indigenous Initiatives in Heritage (BiiH) has documented hours of rituals, ceremonies and songs of the Bidayuh people.
This has been seen by some as the way forward and it is undoubtedly valuable in ensuring the survival of indigenous knowledge. But as BiiH is aware, this also makes the exploitation of indigenous knowledge easier. Considering the knowledge encapsulates the geography, medical lore and other prized information that could be privatised and monetised, one of the challenges faced by BiiH and others is how to ensure ownership of the knowledge is retained by the communities. In an interview, one of the BiiH members, Jennifer Rubis, explained that the knowledge is retained by gate-keepers selected by the community. It is these individuals who have the authority to decide on who has access to the traditional knowledge and under what circumstances – a form that mirrors the traditional methods of retaining and storing knowledge.
Jannie Lasimbang says that ICT may help only as far as documenting knowledge. Keeping knowledge alive can only happen if a community continues to incorporate information in their daily lives. Many indigenous women, the community's traditional educators, have adapted this traditional role by encouraging the documentation of oral tradition and teaching these traditions in formal or non-formal programmes. However, she recognises that ICT can play a negative role because they tend to marginalise those without formal education. As mentioned earlier, women often lose out. “In this current age where men are seen to more knowledgeable than women in general or may have better command of ICTs, educated men are also now tended to be more favoured to provide sharing even though educated indigenous women may have a better understanding of traditional knowledge.”
While the Kerala state government has shown foresight with their regulations on indigenous knowledge, indigenous activists have moved to the position that both knowledge and education must be in the hands of indigenous people. Governments have the responsibility to ensure that they have the resources to structure their education systems in a way that provides culturally, socially and geographically relevant information, which would enable them to retain both their identity and their knowledge while facing the challenges of modernity.
One of the developments in recent advocacy among indigenous groups has been the shift from asking governments to provide education to indigenous people on an equal footing with other groups, to asking that the government provide equal resources to indigenous communities, but to enable them to structure their education systems themselves.
Further, the work of the WIPO IGC and similar international bodies needs to be both monitored and supported to ensure that there is no further erosion of indigenous and tradtional ownership of knowledge, communally held. While it might be exciting to see greater collaboration between proponents of 'creative commons', copyleft and open source software and traditional knowledge advocates, there must be greater understanding of the differences as well as the similarities between the two movements.
All parties – governments, development agencies and advocates of changes to IPR regimes – need to also be sensitive to the gendered nature of traditional knowledge and to ensure that any reforms do not further undermine the role of women as knowledge-keepers in traditional communities.
1Quiroz, C., Biodiversity, indigenous knowledge, gender and intellectual property rights, in Indigenous Knowledge and Development Monitor 2(3), Nuffic, 1994.
2As catalogued in Women's Wisdom: Documentation of Women's Knowledge on Ecological Agriculture in the Philippines, Indonesia and Pakistan, Pesticide Action Network Asia and the Pacific (PAN-AP), 2005
3Quiroz, C., Biodiversity, indigenous knowledge, gender and intellectual property rights, in Indigenous Knowledge and Development Monitor 2(3), Nuffic, 1994.
4Adkins, R., Intellectual Property Rights, Open Source Methods and Traditional Knowledge in Developing Countries, Technetra, August 2006, http://www.technetra.com/2006/08/24/intellectual-property-rights-open-so...
5See for example, Smiers, J., Arts Under Pressure: Promoting Cultural Diversity in the Age of Globalization, Zed Books, London, 2003
6Smiers, J., Arts Under Pressure: Promoting Cultural Diversity in the Age of Globalization, Zed Books, London, 2003
7Kerala becomes first state in Indian to issue IP policy, Managing IP, 14 July 2008
8Portillo, Z., Revised laws 'could promote biopiracy' in Peru, SciDev.Net, 19 February 2009
10See, eg, Mara, K., Progress in WIPO Traditional Knowledge Committee Seen in Informal Sessions, Intellectual Property Watch, 16 Oct 2008, http://www.ip-watch.org/weblog/2008/10/16/progress-in-wipo-traditional-knowledge-committee-seen-in-informal-sessions/
11Oguamanam, C., International Law and Indigenous Knowledge, p. 79, University of Toronto, 2006.