Indigenous/Traditional Knowledge & Intellectual Property -- Conclusion: Future Direction

Indigenous/Traditional Knowledge & Intellectual Property

IV.  Conclusion: Future Direction

4.1 Future directions

4.1.1   Future directions are fundamentally dependent upon changes in political will by nation states and the commercial sector. The development of frameworks that enhance and embolden indigenous peoples’ perspectives and participation is long overdue. Indigenous knowledge can no longer be considered a raw resource from which others benefit. Indigenous peoples’ contribution to critical issues like environmental sustainability, climate change and resource management mean that it is in everyone’s best interest to develop better equitable and ethical frameworks and partnerships.

4.1.2   Indigenous peoples are asking to have their cultural systems and ways of governing knowledge access and use recognized as legitimate. Indigenous peoples are asking to be respected as custodians/owners/nurturers of knowledge that is valuable to many. Indigenous peoples are asking that the dominant intellectual property framework, which has excluded their interests, be reconfigured so that it can protect their interests too. Indigenous peoples are insisting that they also have rights to receive benefits from knowledge that derives from their contexts and from their historical knowledge bases. [94] All of these requests are mainstream, reasonable and legitimate and require immediate action.

4.1.3   Interrogation of categories and frameworks that have been taken for granted also affect any future directions. Rethinking how we do research, how we conceptualize knowledge, how we share knowledge, how we recognize legitimate overlaps in knowledge use and circulation, and the extent of the role of law in influencing our social orders of knowledge exchange are starting points.

4.2 Indigenous peoples’ participation, collaboration and partnership

4.2.1   Future directions must involve developing ways that genuinely prioritize indigenous peoples’ participation, collaboration and partnership in any projects that will utilize, engage, document, and/or re-use indigenous/traditional knowledge. Taking the time to find out what local management practices are, and how they can be incorporated into research projects in appropriate ways, is necessary for developing trust and respect between all parties.

4.2.2   Engaging with indigenous people about the expectations of the planned research, being realistic about what benefits may occur, and recognizing that these benefits might not map onto the kind of benefits that indigenous people need are an important part of this process. Research practices need to be changed so that participation, collaboration and partnership between members of a community and researchers within a specific project become normalized parts of research practice – from initial engagement with communities about the nature of, and any potential benefits of, the research, to the closure of the project as well as the archiving and storage of the materials collected in the course of the research.

4.3 Next steps

4.3.1   Facilitating networks between indigenous peoples and/or local communities experiencing problems across the spectrum of intellectual property and indigenous knowledge issues is an important first step. By helping to put indigenous people in contact with each other, useful strategies and experiences can be shared and adapted. The purpose of networking is to show that these experiences are not isolated cases, and that remedies for certain problems or relationships may already have been found in another context and/or can be re-worked in productive ways.

4.3.2   There is currently no dedicated service providing practical advice, information, suggestions and contacts for indigenous peoples and communities across the range of intellectual property issues that are emerging. Priority should be given to establishing an international resource/education center on indigenous/traditional knowledge and should include regional offices that would provide easier access to its resources.

4.3.3   There is a need for sustained work by and with indigenous communities and peoples on local knowledge management systems, thereby creating means for emboldening local authority and governance processes. Developing contextually driven protocols and guidelines for engagement with communities that are appropriate for all parties, including those that are not literate will help produce accessible frameworks for indigenous peoples and communities to make informed decisions about the extent of knowledge use permissible, and the reality of benefits that will be returned. [95]

4.3.4   Further critical interrogation of the theoretical frameworks underpinning modern intellectual property law is necessary. Through deeper understanding of the history, development and operation of intellectual property law, including its emergence, political investments, and increased powers of circulation, new ways of conceptualizing this body of law and the way it functions are possible. Re-interrogating the development of legal categories enables new strategies for combating bias and historical exclusions.

4.3.5   Developing appropriate and practical industry guidelines, codes of conduct, and/or ethical guidelines for any type of current and future research/work conducted in indigenous contexts and with indigenous peoples are necessary. This complements the development of practical guidelines for institutions, universities, independent researchers and artists in the collection, documentation and archiving of indigenous knowledge.

4.3.6   There is an urgent need for an international alternative dispute resolution body for commercial and non-commercial disputes involving intellectual property and indigenous knowledge. Such a dispute resolution body must include indigenous peoples’ involvement from the outset and develop the capacity to respectfully and appropriately engage with indigenous peoples and indigenous concerns, especially as these may involve ethical, political, and/or historical dimensions.

4.3.7   Advancing indigenous peoples’ interests in intellectual property should not only be the responsibility of indigenous peoples since the issues are complex and the situation is complicated by history and politics. It is ironic that this is an area where innovation and imagination within intellectual property law must, most critically, emerge.

Notes

94 A recent report from the International Institute for Environment and Development identifies the following components that international policy on traditional knowledge and genetic resources should include:

  • recognition of collective rights and decision-making;
  • means of sharing benefits equitably among communities;
  • recognition of customary rights over genetic resources such as crop varieties that communities have developed;
  • enabling reciprocal access to genetic resources between users and communities; and,
  • managing external access to traditional knowledge with community protocols.

See Krystyna Swiderska, et al., I.I.E.D. Briefing, Protecting Traditional Knowledge from the Grassroots Up (2009), available at http://www.iied.org/pubs/pdfs/17067IIED.pdf [last accessed 19 January 2010].

95 Also see the Canadian Social Science and Humanities Research Council collaborative research project Intellectual Property Issues in Cultural Heritage at http://www.sfu.ca/ipinch/front [last accessed 19 January 2010].

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Contents

Acknowledgements

I. Introduction

1.1 What is the issue?

1.2 Politics and definitional problems

1.3 Who is involved?

II. Examples of Use and Misuse of Indigenous Knowledge

2.1 AVEDA and ownership of the word ‘Indigenous’

2.2 Registration of batik designs in Indonesia

2.3 Traditional knowledge and Bikram Yoga

2.4 Genetic information, databases of DNA and the Genographic Project

2.5 San/Hoodia case and access and benefit-sharing

2.6 The Bugis creation story and the theater production I La Galigo

2.7 Lego and the use of Maori names

III. Current Proposals: Dangers, Problems and Opportunities

3.1 Current proposals

3.2 Proposals that modify the current intellectual property framework

3.2.1 Labeling and/or trademarks

3.2.2 Moral rights

3.2.3 Confidential information

3.2.4 Performers’ rights

3.2.5 Limitations and exceptions to existing legislation

3.3 Proposals that utilize critical intellectual property discourse

3.3.1 Public domain

3.3.2 Creative Commons

3.4 Proposals that target private law solutions

3.4.1 Protocols

3.4.2 Knowledge registries and databases

3.4.3 Licenses and licensing

3.5 Combined Approach – Toolkits

3.6 Alternative regimes

3.6.1 Customary law

3.6.2 Sui generis legislation

3.6.3 Human rights, cultural rights, community rights?

3.6.4 An international treaty?

3.7 Other international treaties, conventions and instruments

3.7.1 Access and benefit-sharing scheme

3.7.2 The Agreement on the Trade-Related Aspects of Intellectual Property (TRIPS)

IV. Conclusion: Future Direction

4.1 Future directions

4.2 Indigenous peoples’ participation, collaboration and partnership

4.3 Next steps

V. Further Resources