Chris Lukeman
Introduction
The
intellectual property laws of many developing nations are not suited to protect
the information assets of their indigenous population. This information can vary from art,
dance, music, crafts, designs, and farming methods, to experience with local
plants and animals, but generally falls under the terms indigenous or
traditional knowledge.[1]
In theory, many countries have intellectual property protection should protect
creative endeavors such as these.
In practice, however, the systems many developed (and undeveloped)
countries use to assign ownership of economic rights work against the
protection of traditional knowledge. While the exact development of the systems
is much more complicated, the lack of protection is not surprising when one
takes into account how many of these systems were developed during the era of
imperialism.[2] As a way to safeguard the right to this
information and ensure that the indigenous population maintains control and
benefits from traditional knowledge use, some countries have integrated
licensing agreements into their legal or regulatory system. Required licensing works with the
creation of traditional knowledge and folklore as a new right in
information. The benefits and
disadvantages of licensing agreements, and how they could best be utilized as a
form of traditional knowledge protection, are the subject of this paper.
About Licensing agreements
In
discussing a “licensing agreement system” I refer to a system where a country’s
traditional knowledge cannot be used by another without the explicit permission
and payment to either the indigenous population responsible for creating the
knowledge, or the home country’s government. In this way, the indigenous population can both control if
an aspect of their culture can be used for other purposes, and they can
stimulate their local economy by actually producing something, in essence
getting paid to continue their way of life. If something was of special
significance to the population, such as religious ceremonies or artifacts, the
population could refuse to license the work.
For
this kind of system to work, a country’s government would likely have to
provide support in at least three ways: enact and enforce laws to maintain the
new cause of action, establish a recorded database indexing their traditional
knowledge assets, and develop a set of model license forms that can be
explained to the indigenous population.
Laws must be enacted to define what kind of knowledge can and will be
protected, provide some sort of regulatory or administrative support, and set
out what the penalties are for non-compliance.[3] Legally, licensing would have to be a
newly defined, or a sui generis cause of
action, but for the purposes of international enforceability would closely
parallel contract law.[4] A database would be useful for several
logistical reasons. India for example has established a traditional knowledge
digital library that can be used to help researchers search for specific
assistance from traditional knowledge without even needing to enter the
country.[5] The Indian system has also been used to
invalidate foreign patents by establishing clearly disclosed prior art.[6] Finally, a system of model forms would
simplify the process and provide
reliability and transparency to the indigenous population and outside
interests alike.[7]
Benefits of Licensing
Agreements:
Flexibility
It
would be difficult to standardize a traditional knowledge protection system
using existing intellectual property law.
That is to say one system cannot be everything to everyone given such
divergent country-specific interests and existing legal or cultural norms. Even within a culture, different
knowledge may have a different value, or may be priceless as long as it remains
private to that culture. A
properly drafted set of licensing agreements would both have the flexibility to
represent a lot of different situations and the structure to make sure that in
every case the proper rights are protected. Further, as licenses are likely to be contractually based,
they could possibly be altered, as long as that alteration maintains the
prerequisite level of protection.
A
licensing system’s flexibility can be analogized to how, in regular commerce,
Creative Commons has come about in the past few years as an alternative to the
for-profit models. By having a
“non-commercial” license available, indigenous population could allow certain
uses of traditional knowledge, such as attributed non-profit reproduction of
folklore, while disallowing other information without proper payment.[8]
This could counter any disadvantage of exclusivity licenses bring if
humanitarian uses of traditional knowledge are acceptable.
Retroactivity
If
an existing use of traditional knowledge in the marketplace can be identified,
then there is a possibility that it could be valuated and using licenses as
opposed to existing intellectual property rights. As licensing as would be a sui generis system, there can be different ways in which it could
be applied retroactively to cover past and future uses. While approaching a current user of
previously unprotected traditional knowledge with a bill for previous use would
not be very feasible, coming to that user with a way to safely certify their
use through a license would be much more likely to be successful. This would be especially helpful
to contribute value to an aspect or artifact of culture that is already widely
used.[9]
Timely Institution
A
problem for traditional knowledge is that if its protection is not at least
partially retroactive, then it is likely fleeting. The “secrets” of indigenous people are a finite resource,
one that could be either naturally depleted or fully utilized. That is not to say that protecting
still unknown traditional knowledge is meaningless, but instead stresses how
important timely action is. Every
year it takes for a country to protect its traditional knowledge resources is
that much more time spent with outside interests potentially violating its
native cultures, or economic exploitation of fiscal resources that could be
used to improve quality of life for the population that is, arguably, more
deserving to profit from the knowledge.
This
would be particularly important to consider when one thinks about relying on
international agreements alone as the hope to protect traditional
knowledge. From a purely
logistical standpoint, one must recognize that any international agreement
takes a very long time to agree upon and the protection of traditional
knowledge just isn’t a high priority to many countries in the world. This is especially true if the
agreement is to have any actual enforceability beyond strong language. The efforts of international
organizations, however, are by no means completely without merit. The work of WIPO and UNESCO in
assisting specific countries with development of practical, and enforceable,
laws for specific protection needs, and the promulgation of model rules and
contracts for such protection is a valuable asset to the developing world.[10]
Simplicity in Enforcement
Under
the assumption that traditional knowledge is protected, the methods available
for enforcement are important. The
laws simply being on the books is, of course, not much use to the people they
are meant to benefit. The use of
standard licensing forms would eliminate some of the possible problems with
legal proceedings. Instead of a complex
analysis of what f intellectual property a possible infringement falls under,
any litigation that takes place would come down to a more developed contractual
basis. A traditional knowledge
licensing system has been utilized in Peru with success.[11] One of the greatest benefits of the
system so far is transparency to both sides of the license. A corporation knows
and can plan for exactly how much information will cost and indigenous
populations can rest assured knowing there is less chance of abuse by the
sophisticated party.[12] From an international enforcement
standpoint, regardless of how legitimate a country feels traditional knowledge
is, it will likely have a much stronger protection of business contracts.
Admittedly this depends on many complicated facets of international law, but
regardless of the specifics, the benefit of simplicity still stands.
Simplicity in Education:
Education
about the agreements would be much easier as well. Instead of having to teach indigenous populations about
complex intellectual property laws, they would only have to educate about the
use of premade form agreements.
While this difference may seem superficial, reduced complexity of any
step in the process is a step in the right direction. Educational programs for legal frameworks could be a
significant transaction cost in making a licensing system work, and reducing
transaction costs to a minimum are of the utmost importance in countries that
are focused on the bottom line.[13]
Further, if a database is properly gathered by an administrative agency, and
traditional knowledge is comprehensively listed, the indigenous people
themselves may be able to reap the economic gain without having to directly
negotiate with outsiders at all.[14]
Appeals to Multiple
Objectives/Theories of Protection
In
the debate over how to best serve the interests of traditional knowledge
holders, there are two broad classifications of how that knowledge can be
controlled: positive protection and defensive protection. Positive protection objectives include
guarantees that indigenous population benefit from the use of traditional knowledge
or remedies if that knowledge is misused. Examples of this would be an indigenous population
generating income from use of traditional knowledge or a cause of action in
that country’s court of law if unauthorized appropriation is discovered. Defensive protection objectives are
centered around stopping other entities from establishing intellectual property
rights based in traditional knowledge.
The distinction between the two is that defensive protection does not
attempt to block anyone from using the
knowledge, just from establishing monopolistic rights over it.[15]
Beyond the above-mentioned benefits of flexibility, timeliness, and simplicity,
a correctly formed licensing system could contractually satisfy both of these
objectives.
Disadvantages of Licensing
Agreements
Enforcement Difficulty
Of
course, few outside parties will altruistically agree to be subject to a
licensing agreement. Without some
sort of penalty for noncompliance from the country home to the indigenous
population, any “on the books” requirement for licensing could be ignored by
corporations or individuals. Countries on one side or the other of a
transaction will have to enforce such agreements as mandatory or they would be
useless.
Compulsory licensing by one country for all outsiders
seeking traditional knowledge of its inhabitants may also run afoul of other
international agreements. For
example, there has been some debate as to if a country violates TRIPS by
requiring disclosure of any traditional knowledge sources for the patent and
requiring permission from the country of origin to use that
information.[16] Further, in
regards to patents, some countries follow a “first to file” system that could
mean regardless of where the information or process comes from it is legally
controlled by the filing entity-even if that entity was supposed to get a
license for it or not -making the licensing requirement easily avoidable or
ignorable.[17]
Importance of
databases - and their
perils/warnings
One
of the best ways for a country to manage traditional knowledge would be for
that country to establish a database or list of all assets held by its
indigenous population. Recording
traditional knowledge in such a database, however, may damage the importance of
the knowledge itself. If a database
isn’t adequately protected, it could allow outside interests to access, and
even more quickly appropriate, the information it was created to protect.
The
WIPO Intergovernmental Committee on Intellectual Property and Genetic
resources, Traditional Knowledge and Folklore recognized that any documentation
effort of traditional knowledge should take steps to ensure that the
information isn’t automatically dumped into the public domain without
considering the cultural or economic effects of doing so.[18] Further, the establishment of such a
database cannot guarantee that patents leeched from traditional knowledge would
not be granted. There is a
reasonable possibility that documentation of this knowledge as “prior art”
would not be enough to invalidate a patent, but would merely narrow it --the
other party would still be unjustly profiting from traditional knowledge.[19]
Issues with retroactive
licensing
Problems
with future licenses aside, more difficult would be licensing for traditional
knowledge that is already released to the public. Two things would be needed to make retroactive licensing
work: a comprehensive database of all past and present traditional knowledge
and the means to enforce penalties on individuals/corporations/countries that
have used or wish to use the information.[20] Neither of these goals would be easily
accomplished. Obstacles to a
comprehensive database have been mentioned above and would only become more
complicated. Complicated
litigation would counter the benefits of timeliness and simplicity, and could
lead to harmful retribution by other countries through protectionist tariffs or
other trade agreements.
High Transaction Costs
Like
most other forms of traditional knowledge protection, the establishment of
a licensing system is a useless
gesture without the indigenous population being educated about their rights and
the benefits of the system.[21]
Further, many countries in the developing world do not yet have the legal
infrastructure to enforce any
traditional knowledge system. Both
of these concerns cost money to alleviate, and that in itself may be a
prohibitive burden on some developing countries.[22]
Especially in the case of enforcement, a licensing system will not work if a
country does not have a functional administrative branch to organize and
monitor traditional knowledge licenses, or a reasonably efficient court system
with which to prosecute violations.[23]
High risk for a, comparatively, minimal return would not be a likely investment
in developing countries that have other infrastructure needs. If a country
doesn’t see traditional knowledge profit overcoming transaction costs, it is
likely an indigenous population would not realize any economic gain from the
agreements.[24]
Licenses Discourage
Research and Development
Finally,
a significant disadvantage to any protection of traditional knowledge is that
the costs might discourage otherwise useful research in technology, science, or
culture. Any burden placed on the
process, even if it is not per se an economic one (such as mere disclosure
without mandatory permission) will mean that a project is riskier to launch.[25] The weakest burden could make investors
uneasy about their return, and stronger burdens, such as mandatory licensing or
permissions, could be great enough that a project would not go forward at
all. The fear is that lifesaving
drugs or technological advances could be overlooked or delayed altogether
because of this uncertainty of return.
In light of the potential to cure, putting additional barriers to
progress could be considered unconscionable.
This
unconscionability is even more persuasive when one considers how some
traditional knowledge may not be around for future generations to learn at
their leisure. No one can doubt
that the ecosystems of the developing world are changing. From deforestation, to climate change,
to pollution, undeveloped areas of the planet have been diminishing at an
alarming rate. What this means to traditional
knowledge is that a species that may yield the “wonder drug” of today, may die
out before researchers have the budget to investigate.
Arguing
for this point of view when it comes to cultural expressions is a bit weaker,
but still stands in light of how the developed world is affecting indigenous
cultures. An indigenous society that
suddenly has access to books, radio, or television for entertainment is much
less likely to spend as much time repeating an oral storytelling
tradition. Worse, the current or
future generations may not have any interest to convert the older knowledge, traditions,
and culture to the new formats available -essentially purging them from their
society.
Another
aspect of this discussion is that licensing not only would decrease the total
amount of research being done around the world, but exclusivity in the
licensing agreement could also limit the number of beneficiaries using each
specific piece of information[26]. If a research company had to pay to use
traditional knowledge, it is very possible they would be willing to pay more to
exclude competitors. When only one licensed group is allowed to exclusively
benefit from each piece of information, a licensing system could result in
critical advances being delayed or missed altogether because the right
researchers not having access.[27]
Conclusion
Even
considering the shortcomings of licensing systems, they appear to be an
extremely viable means to protect traditional knowledge. The barriers to access and additional
infrastructure and implementation costs are likely to be overcome by a desire
for nations to utilize more of their resources, and a growing movement to
engage in more equitable transactions with populations that have historically
been exploited. Corporations
interested in access to the information have a clear and legal way to do so,
and, once properly educated, indigenous populations have a way to deal with
outsiders that ensures their rights are protected and properly valued. While licensing programs would need to
be carefully designed to ensure that knowledge stays protected when gathered,
and to minimize unnecessary burdens on researchers, their merit in overcoming
some of the existing barriers to traditional knowledge protection should not be
overlooked.
[1] John Kiggundu, Intellectual Property Law and the Protection of Indigenous Knowledge, in Indigenous Knowledge Systems and Intellectual Property in the Twenty-First Century, Perspectives from Southern Africa 26, 26 (Issac Mazonde ed., 2007).
[2] Id. at
27-28.
[3] Daphne Zografos, The Public Interest in the
Globally Sustainable Information Society: the traditional knowledge debate, 3 E-Learning
488, 490-491 (2006) <http://dx.doi.org/10.2304/elea.2006.3.3.488>.
[4] Id.
[5] Graham Dutfield, Protecting Traditional Knowledge and Folklore: A review of progress in diplomacy and policy formulation, 27-28 (2002).
[6] Srividhya Ragavan, Protection of Traditional Knowledge, 2 Minn. Intell. Prop. Rev. 10-11 (2001) <http://ssrn.com/abstract=310680>.
[7] Kiggundu, 41-43.
[8] Eric C. Kansa, Jason Schultz, and Ahrash N. Bissell, Protecting
Traditional Knowledge and Expanding Access to Scientific Data: Juxtaposing
Intellectual Property Agendas via a “Some Rights Reserved” Model, 12 Int’l J.
Cultural Prop. 285, 291-293 (2005).
[9] Id. at
297-298.
[10] Kiggundu, at 41-42.
[11] Charles R. McManis, Intellectual Property, Genetic Resources and Traditional Knowledge Protection: Thinking Globally, Acting Locally, 11 Cardozo J. Int’l & Comp. L. 547, 570-72 (2003).
[12] Betty Berendson, Peruvian Experience in the
Protection of Traditional Knowledge
at the “International Seminar on Systems for Protecting and Commercializing
Traditional Knowledge,” (Apr. 3-5, 2002), available at
<http://www.unctad.org/trade_env/test1/meetings/delhi/countriesppt/Peruppt.ppt>.
[13] Id.
[14] Kansa, 12
Int’l J. Cultural Prop. at 296-97.
[15] Zografos, 3 E-Learning at 490.
[16] Dutfield, 25 (2002).
[17] Ragavan, 2 Minn. Intell. Prop. Rev. at 13-15.
[18] Dutfield, 27-29 (2002).
[19] Id.
[20] Kansa, 12 Int’l J. Cultural Prop. at 299-301.
[21] Dutfield, 36 (2002).
[22] McManis, 11 Cardozo J. Int’l & Comp. L. at
562-563
[23] Dutfield, 31-32 (2002).
[24] Id. at 36.
[25] Jim Chen, There's No Such Thing as Biopiracy ...
And It's a Good Thing Too, 37
McGeorge L. Rev. 28-29 (2006) Available at SSRN:
<http://ssrn.com/abstract=781824>.
[26] Berendson
[27] Id.