How Should "Traditional Knowledge" Be Safeguarded?

The Institute for Policy Innovation (IPI), a conservative Dallas-based research organization, is a "strong defender of intellectual property rights (IPR)," according to resident scholar at IPI, Dr. Merrill Matthews. It was natural for IPI, therefore, to sponsor a forum at the National Press Club in Washington, D.C. on Wednesday, January 18, to examine the extension of property rights into new territory—"traditional knowledge." Also, this panel discussion anticipated the debating of policy issues on traditional knowledge taking place this week at the Convention on Biological Diversity (CBD) in Spain.

Dr. Matthews spoke of "traditional knowledge" as a new "battlefield" of IPR, involving a range of activities such as "food, plants, healing practices, with connections to cultures, societies, and economies," which are not readily classified as "intellectual" property and codified into law (e.g., patents).

This is the first forum by IPI on this subject and host Matthews readily admitted that it was a new area of discussion for them. The discussion revealed some very tricky applications of the concept of property. It is a real challenge to incorporate "traditional knowledge," such as the medical practices used by indigenous peoples, and life forms, such as genetically engineered material, into the concept of private property as we commonly understand it.

The principle of intellectual property (IP) has been around since the establishment of this nation. Over time, the leaders in America came to believe that an inventor or artist using his or her ingenuity should have their creations protected and "owned" for a period of time analogous to the physical ownership of property, in the way your house, or land, or the clothes on your back are protected. Inventors and artists shouldn't have to worry that the fruits of their labor would be absconded by some thief who would reap the benefits that rightfully belong to the inventor. One big difference between intellectual property and private property is that the government sets the amount of time you control IP, but not traditional property.

In your high school civic class, you may recall that the Founding Fathers inserted in the U.S. Constitution a clause which says, "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;" (Article 1, Section 8). As a result, our legal system evolved that regulates patents and copyrights. This clause was not an accident of history, but very deliberate. And its effects on this country's economic development should not be underestimated.

How can the traditional knowledge of indigenous people, "owned" as a heritage, fit into the intellectual property definition? Douglas Neumann, senior conservation officer with the U.S. State Department, spoke about the difficulties of trying to extend control when the knowledge is often sacred. Mr. Neumann has some expertise in this area of traditional knowledge; he is the State Department negotiator on issues relating to access and benefit sharing of genetic resources and biodiversity-related traditional knowledge of indigenous communities. For Mr. Neumann, the question of IPR and traditional knowledge is one of access for outsiders while benefit sharing of resources and respecting the sovereignty of countries.

"The big question is how do we get any sort of TK [traditional knowledge] protective systems and IPR systems to work in harmony so that we minimize any grey areas," Neumann said. It is also a question of jurisdiction. Mr. Neumann would prefer to see the World Intellectual Property Organization (WIPO) look at these issues rather than the CBD, which he says is "more environmentally focused."

In America, we are accustomed to attributing IPR to the individual. But in the case of traditional knowledge, ownership belongs to a people or a country. Most people seem to agree that the country should somehow benefit. David Waskow, international program director for Friends of the Earth, spoke of the difficulties in how to benefit traditional communities who may have invested in some form of traditional knowledge for "generations and generations" and this knowledge is then patented, perhaps after the addition of some innovation.

Two points of view on how to handle the extension of IPR to traditional knowledge emerged from the discussions. On the one hand, the U.S. position by and large sees great benefits to the economy and society by putting into place a legal patent system which encourages innovation and the development of new products. On the other side is concern that the origin of the traditional knowledge belongs to a people or country, and they are not necessarily served well by a legal system imposed on their culture.

Mr. Neumann, reflecting the State Department view, said the U.S. is opposed to patent disclosure (i.e., requiring patent applications to disclose the origin of genetic resources in inventions) in part because it affects product development. However, Mr. Waskow pointed out the other perspective: "There are many folks who would agree with [the U.S.] view. Where they would differ with the U.S. practice is that the U.S. has often pressed in trade agreements for countries to adopt certain kinds of intellectual property protection in ways that limit the ability of those national governments to in fact put the kinds of protections they would like to see in place."

The panelists seem to agree that with work and compromises, the area of "traditional knowledge" could be incorporated into IPR. Mr. Waskow mentioned the possibility of a multitude of solutions, which he called "sui generis," which could be developed for each unique situation or country that would be short of a full patent system but would afford some protections of intellectual property.

But how should life forms be regarded when scientists and practitioners have transformed these in some fashion? Can they make a claim on the life form itself? Mr. Waskow said that some people are repelled with the idea that life forms and seeds could ever be patented. In the opposite camp on this issue is Ananda M. Chakrabarty, Professor at the University of Illinois College of Medicine in Chicago, whose work led to the development of a genetically-manipulated microorganism. The latter was the subject matter of a landmark decision from the Supreme Court, which ruled that genetically engineered life forms are patentable ( Diamond vs. Chakrabarty ).

Dr. Chakrabarty, who was born in India, pointed out that the success of India's recent economic growth is tied to its product patents. "Now that India has signed the TRIPS* agreement, there is a great opportunity for countries like India, [including] China, Brazil and other developing countries, to accept the fact that the future looks good. They will be able to generate new products to bring to the world market."

* The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international treaty signed in 1994 which sets down minimum standards for most forms of intellectual property regulation within all member countries of the WTO.