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Aman K. Gebru, SJD Candidate at the University of Toronto Faculty of Law
This article first appeared in the Asper Review of International Business and Trade Law, Volume XV, page 293 (Winter, 2016).
Excerpt: Introduction and sections 6 & 7. Footnotes omitted. They can be found in the original via the link above.
The legal protection of traditional knowledge (TK) – the know-how, skills and practices of indigenous and local communities – has recently become a focus of dialogue and scholarship at national and international stages. Many of the discussions revolve around the relationship of intellectual property laws to TK. Intellectual property (IP) laws protect scientific and artistic creations.
Patent laws in particular give exclusive rights over new (novel), inventive (non-obvious) and useful knowledge. Consequently, new ‘modern knowledge’ is protected through legal intervention that provides limited artificial monopolies while TK is considered to be ‘old knowledge’ that fails to meet the requirements of patent laws such as novelty and non-obviousness. TK was considered to be in the public domain free for anyone to use. However, there is a growing body of scholarship which argues that innovation and knowledge production does take place within traditional settings and that legal protection is required to conserve this valuable body of knowledge. While such arguments have mainly used approaches based on distributive justice and equity, this paper examines the issues of economic efficiency involved in the protection of TK. Such approach has the potential to strengthen existing approaches by speaking to stakeholders that may prioritize economic efficiency concerns over equity and justice, including major firms that conduct bioprospecting projects.
The leading discussion on the protection of TK is taking place in the international arena. Therefore a discussion of TK protection would not be complete without mentioning international progress on the topic. Although a number of international instruments discuss TK protection, the World Intellectual Property Organization (WIPO) has become the main international agency that has become a forum for dialogue. In the year 2000 the World Intellectual Property Organization (WIPO) established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in response to calls from member countries for the creation of an international forum for deliberation on the topics. After over a decade of negotiations, delegates in the IGC have managed to produce a draft instrument on the protection of TK. However, many aspects of the instrument remain controversial and have given rise to a divide between developed countries of the Global North and developing countries in the Global South. The meaning of protection, scope of rights and remedies are among the controversial provisions of the draft instrument. The protection of TK has also been discussed under the framework of the Convention on Biodiversity and the United Nations Declaration on the Rights of Indigenous People. Countries with significant presence of indigenous and local communities, including Canada, have been active in these international dialogues.
Despite the debate regarding the nature and scope for legal intervention, TK is recognized by most to be a highly valuable source of information. Although this paper considers the use of TK in modern medicine, TK is used in many areas of modern life including in agriculture and environmental conservation practices. In modern medicine, traditional medicinal knowledge has proved to be a valuable predictive tool in bioprospecting projects – the R&D efforts conducted on biological resources to discover new drugs. Although a detailed discussion of the role traditional medicinal knowledge plays in modern medicine is outside the scope of this paper, it is worth mentioning that scientists have proved the strong ‘predictive’ power of the body of knowledge and its role in reducing the time and resources needed to develop new drugs and treatments.
A core question here is should TK be protected? While critics argue that TK should not receive legal protection and should remain in the public domain, proponents claim that there is incremental and communal innovation that takes place in traditional settings that should receive protection. One major argument that proponents of protection use is the need to encourage cultural conservation and preservation through the grant of exclusive rights (the cultural conservationist argument). The goal under such approach is to provide legal protection so as to keep cultures as authentic as possible. This paper argues that the need to keep cultures as authentic as possible should not be the rationale for TK protection because cultures have been and will continue to be in a state of diffusion. Instead of preserving cultures in the same state as they are found, they should be allowed to change and diffuse with each other. However, in such process of change and diffusion, documenting TK to save it from loss should be an urgent priority. The documentation of TK is necessary to save this highly valuable knowledge from the alarming rate of loss it faces. Documentation will save the TK so that it can be accessed by future members of the community or by outsiders. Not only is the cultural conservationist approach partly misguided, it is also a larger project that will take a considerable amount of time. As such it will not be able to meet the urgent need to save TK from loss.
Therefore, this paper is a call for a shift from cultural conservation to knowledge codification as a major rationale for the protection of traditional knowledge. It uses an economic analysis of law approach to propose an ‘incentive to codify’ justification distinguished from the currently dominant ‘incentive to conserve’ justification for the protection of TK. The core point of the argument is that the incentive required in the case of TK is not for conservation of lifestyle as stated under the conservationist argument, but for codification of the knowledge. It argues that a carefully crafted legal protection for codified TK will encourage its systemic documentation and save this highly valuable body of knowledge from the alarming rate of loss it is faced with.
As stated earlier, TK is highly valuable both inherently and as, for instance, an input in modern medicinal knowledge. As a result, researchers have increasingly looked to access TK in their projects in order to save time and cost of producing drugs and treatments; and to make regulatory processes less stringent. However, because of negative past experiences of, for instance, “biopiracy” i.e. the patenting of inventions by using traditional knowledge without authorization or without attributing the source community or sharing resulting profits; and the use of cultural expression in offending ways, knowledge holding communities and their governments have been hesitant to grant access to TK. On the other side, researchers have been hesitant to access TK because of the potential for public outcry in response to biopiracy and unauthorized/offending uses. These protectionist trends benefit neither the knowledge holding community or knowledge users. Knowledge holding communities face socio-economic and political pressures and some face the risk of extinction. The knowledge that such communities hold will diminish or disappear with such communities. TK loss is also harmful for users. If the alarming rate of TK loss is not restrained, then knowledge users miss the potential of building on such knowledge, for example, to easily discover drugs and treatments.
Because of the rapid rate of TK loss, the codification and disclosure of such knowledge is of urgent importance. However, codifying TK would mean loss of control over the knowledge; making it a more perfect public good i.e. increasing the inappropriability problem. Additionally, codification and disclosure of TK would require substantial investment. If TK is to be codified, knowledge providers would require a system that guarantees a level of control over TK after it is codified and a share of the profit that are made from such codification. Thus, there seems to be an economic efficiency rationale for government intervention in order to solve a potential under-supply of TK. Such intervention could be justified on the grounds that there is a need to incentivize knowledge codification and disclosure.
Jim Chen – one of the most vocal critics of TK protection posited – “the harsh reality is that there is no economically justifiable reason for protecting [TK] as property.” As will be outlined in this paper, the need for ‘incentives to codify and disclose’ TK is a strong economic rationale for protecting it. The potential market failure for TK points to the need for intervention.
In order to support the claim for the ‘incentive to codify’ justification, TK is analyzed as a global public good with non-rivalrous and non-excludable features and subject to market failure. By non-rivalrous, what is meant is that TK as any other information good could be consumed without reducing the ability of another person to consume it. Non-excludability refers to the inability of the knowledge holder to exclude the user from using the knowledge once it has been shared. Because of this inability to exclude users, TK faces a potential market failure in that knowledge holders will have reduced incentive to codify and make it accessible. Modern knowledge faces the same risks, however, the legal protection provided through the mechanisms of patent law correct such market failure.
Patent law is a major legal tool through which the production, use and dissemination of modern knowledge is governed. As defined below, TK is know-how at its core, making it similar to the subject matter of protection under patent laws. As such, an analogy is also made to patent laws and the implication of such legal intervention on the codification of modern knowledge.
6. The ‘incentive to codify’: from cultural conservation to knowledge codification
Although scholars have discussed the value of documenting traditional knowledge, most of the literature discusses the point in passing and does not develop the proposal further. Documentation of TK is discussed in this paper as a core rationale for TK protection. The ‘incentive to codify’ argument proposes that a carefully crafted system that recognizes and protects documented TK will encourage such communities to codify their knowledge and disclose it to outsiders. Although the inherent value of TK is realized when it is used by indigenous peoples and local communities, there is an untapped potential for TK to be used by outsiders to maximize global welfare. In this sense, codification and disclosure is expected to benefit both current and future generations of TK holding communities as well as outsiders who agree to access the knowledge through a fair and equitable manner. The proposal is a call for a shift from ‘cultural conservation’ to ‘knowledge codification’ as the core justification for TK protection.
Conservationists attempt to keep cultures as authentic as possible with the aim of preserving them. This conservationist approach may be a result of the fact that the movement for the protection of TK began as part of the movement for biodiversity conservation and environmental protection. As a result of the dramatic rate at which biodiversity resources are being lost, world leaders decided to establish an international framework for the protection, preservation and promotion of biodiversity. The major international framework that was established to address this concern is the Convention on Biological Diversity (CBD). The protection of TK was considered necessary as part of the measures taken to address concerns related to biodiversity loss. As a result the international treaties that focus on biodiversity conservation and environmental protection were extended to cover cultural preservation. As discussed earlier, the CBD and the UNCCD were the first documents to expressly call for the protection of TK. Both conventions, however, are focused on biodiversity and the environment and discuss TK in passing. This historical development of TK protection seems to have followed the literature into discussions of holistic TK protection. However, the conservationist position on culture is misguided for a number of reasons.
In cases of cultural practices, as opposed to biodiversity, one may prefer to be selective in what one seeks to keep. For instance, preserving harmful practices, however the term may be defined, should not be a goal to aspire to. As the Princeton philosopher Kwame Appiah puts it, ‘preserving’ or ‘conserving’ culture is neither possible nor desirable. It is impossible because cultures have been and will continue to be in a constant state of mixing and as a result, defining authentic culture is an ever elusive endeavor. Preservation is also not desirable because encouraging traditional communities to continue practicing the same activities they have been practicing might keep them in the same state of economic and social under-development that many members of the community may not accept.
It may be tempting to take the position of a cultural purist. It seems reasonable to encourage historically dis-advantaged cultures to be recognized and valued by providing some sort of protection against dominant cultures. However, a general protection from interferences on a culture seems unreasonable. As Jeremy Waldron rightly puts it “there is nothing normative about the purist’s point of view.” Keeping cultures in a static state of purity is not a fitting response to cultural oppressions of the past. Additionally, members of a certain community (including its youth) should be allowed to choose whether to follow the culture, to mix it with other cultures that interest them or to abandon it all together. The increasing engagement in and acceptance of cosmopolitan literature in relatively recent times implies a move away from projects that seek to keep cultures in their original – ‘static’ – form.
A more relevant point to the discussion at hand is that intellectual property protection is not the right tool for cultural conservation. It is a tool meant for the governance of the production, use and dissemination of knowledge. The socio-economic and environmental pressures that cultures face should be addressed through other more fitting measures.
Additionally, strategic intervention with the goal of cultural preservation is a contentious issue and attempts to correct centuries of oppression which is bound to take a considerable amount of time. As a result, insisting on cultural preservation as a basis for TK protection will not be able to address the urgent need to save TK.
In contrast, embracing the inevitable cultural diffusion is at the heart of the codification argument. Cultures are in a process of continuous diffusion with each other and thus, codifying the knowledge that exists within a certain culture is necessary, not to keep the culture as it is, but so as preserve the knowledge that would otherwise disappear with the cultures that nurtured it. Appiah, who strongly rejects the conservationist position, agrees that codifying cultural artifacts is valuable. It seems that such line of thinking would include intangibles too. By focusing on TK codification rather than cultural conservation, we allow cultural dialogue to take place while at the same time being able to keep useful knowledge in a way that allows it to be used by outsiders and future generations of knowledge producing communities.
Indigenous people and local communities have been practicing their cultures for centuries without the need for incentives. They practice their cultures for survival and to express their values and beliefs. Therefore they do not need new incentives to continue doing so. The incentive that such communities need is to invest in codifying and disclosing their knowledge to outsiders. A carefully crafted legal regime that protects codified TK would be able to encourage such transformation. The encouragement of knowledge codification through legal intervention has already been observed in the role that patent laws play in ‘modern’ knowledge codification. A similar legal intervention that is reflective of the needs and expectations of both users and knowledge providers will be able to establish a ‘confidence to cooperate’ between them.
It may be argued that codification is alien to some cultures and therefore codifying TK might disrupt the culture in which TK is found. It is true that codifying TK might have some impacts on the practice of a culture which has not had codification as one feature. It should be noted here that codification is not native to Western cultures. Codifications of diverse forms including cave drawings are found in different corners of the globe. Additionally, TK codification could be made more reflective of the needs of TK holders. Considering these facts, the argument that codification may be disruptive should be less concerning. Despite such limitation, some communities may still feel that TK codification is too disruptive to their culture. Such concerns should be taken seriously and governments and institutions that are given the responsibility of establishing TK databases should respect such wishes. Ultimately, TK codification should be a tool to empower TK holders; it should not be used to further past and current systems of oppression.
Although the protection of TK has been discussed under international instruments and in academic papers, very few scholars have used the mechanism of economic analysis to describe the problems faced by TK production, use and dissemination. The few scholars who have used such methodology briefly describe TK as a public good that may suffer from market failures. The following section situates the ‘incentive to codify’ argument developed in this paper into the public goods framework. The section then examines what the implications of such categorization may be for policy judgement.
7. TK as a public good
Before discussing the public good nature of knowledge in general and traditional knowledge (TK) in particular it seems necessary to provide a brief introduction of what is meant by a public good and the relevance of grouping goods into private and public.
A public good in economics refers to non-rivalrous and non-excludable goods. Non-rivalry is used to mean that the good may be consumed by one without reducing the ability of another to consume the same. Non-excludability refers to the nature of public goods in that it is hard, costly or at times impossible to exclude others from consuming such goods. Some examples of public goods include national defense, the protection of the environment and basic infrastructures. For instance, once a certain country establishes a military force through public funding, the peace and security that result from the existence of such force is enjoyed both by tax payers and those who do not pay tax. The enjoyment of this peace and security by one citizen does not diminish the enjoyment of the same by another i.e. it is non-rivalrous. If the government wanted to exclude those who have not paid taxes from enjoying the peace and security in the country, it will be impossible to do so i.e. it is non-excludable. Economists call the latter feature the inappropriability problem.
A core policy implication of labelling a good as a ‘public good’ is to show the need for government intervention in its production. The general presumption is, because it is hard or impossible to exclude payers from non-payers, the production of public goods through private means is limited. Private actors who are presumably interested in increasing utility will look at private returns and not returns for the public. The nature of the required government intervention, however, would depend on the particularities of the case. It should be stated here that this is a general statement as public goods are at times produced by private actors for various reasons.
Knowledge is commonly considered to be a public good and is at times labelled “the quintessential public good.” Sharing one’s knowledge with another does not lessen the amount of knowledge consumed by each person; and once knowledge is disclosed to the public it is usually hard, costly or impossible to exclude those who pay to access it and those who do not. The fact that most knowledge could be applied in any part of the world makes it a global public good.
But knowledge is an impure public good because some part of it could be excludable depending on the circumstances and through diverse methods. A common method to exclude knowledge goods is through trade secrets which involve physical and legal restrictions. Making knowledge more excludable reduces its inappropriability problem. Knowledge as a public good is found in different levels of codification ranging from systematic and detailed documentation to uncodified practices held by a single individual or within webs of social interactions. These features affect the public good nature of knowledge significantly.
One of the major rationales for the granting of intellectual property rights has been that knowledge is a public good and therefore government intervention on behalf of the public is necessary to encourage production and dissemination of knowledge through the market. TK shares the public good features of ‘modern’ knowledge. However, as discussed earlier, TK does not receive protection under the law. The lack of government intervention for TK protection thus means there is a risk of under-supply.
Most TK is uncodified which would make it an imperfect public good i.e. it could be made excludable by the mere act of refusing to share the information. In fact, most communities keep their traditional medicinal knowledge secret by using customary social norms. Keeping knowledge secret and using it in the production of goods and services is a good alternative from the perspective of the knowledge holder. Firms use the legal protection accorded to trade secrets in order to operate in this manner. However, this capacity to use TK outside a community while keeping it secret is lacking in TK holder communities. Most knowledge holder communities do not have the necessary financial and expert resources.
Additionally, most indigenous and local communities face a risk of extinction or cultural domination. Therefore, while keeping TK secret might benefit the knowledge holding community in the short term, if the culture of the community is destroyed, then the knowledge will be lost resulting in a loss of social welfare both to members of the TK holding communities and to the general public.
One of the core features of TK is that it is orally transmitted from one generation to another through kinships and personal relationships. This is not to say that there is no codified TK but to claim that the overwhelming body of TK is uncodified know-how. This fact increases the chances that TK will be lost with the communities that hold it.
A seemingly obvious solution is to encourage knowledge holder communities to codify their knowledge and disclose it to outsiders. However, codifying TK would mean making it a more perfect public good i.e. increasing the inappropriability problem. Additionally, codification and disclosure of TK would require substantial investment. If such transformation is to happen, knowledge providers would require a system that guarantees a level of control and benefit sharing. Thus, there seems to be a need for government intervention in order to solve a potential under-supply of TK. Such intervention could be justified on the grounds that there is a need to incentivize knowledge codification and disclosure.
Part of the benefit of TK protection is the empowerment of TK holder communities. In order to encourage TK holders to be willing to codify and disclose their knowledge, they have to first trust that the system is empowering to them and is reflective of their needs. The most effective TK codification system as envisioned in this paper is one that is able to establish long lasting trust between TK holders and users. It is inevitable that such system has to empower TK holders who are in a vulnerable state in the status quo. Under the proposed system TK holders will have the capability to decide how to codify and share their TK.
As stated earlier, TK holder-communities face a risk of extinction from diverse angles. The empowerment of such communities through the recognition and protection of their TK is expected to play a part in the promotion of their culture and identity. TK protection could be one among many tools that could be used in easing the socio-political, economic and environmental pressures that such communities face. In this sense, TK codification would play a role in cultural promotion.
Such statement might seem like a retraction of the criticism against the cultural conservationist approach made earlier. However, there is an important distinction that has to be made between cultural conservation and cultural promotion. As stated earlier, cultural conservation attempts to keep cultures as authentic as possible. The emphasis is on keeping the various features of a certain culture ‘pure’. In contrast, cultural promotion, at least in the sense envisioned in this paper, relates to the recognition and valuation of the contribution that a certain culture provides to its members and to the outsider world. For instance, the recognition of the origin of a certain medicinal plant promotes the culture from which it developed. The community that receives benefits from the system proposed in this paper could use those benefits to further promote the values and importance of the culture. However, this process should not be focused on keeping the original culture as ‘pure’ as possible.