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.”

Conclusion

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.