Traditional Knowledge (”TK”) vs. Intellectual Property (“IP”): Should IP right be granted to TK? How should it be done? What are the problems with fitting TK into the IP system? – From the experiences of the Korean government policies
Jongchul.Shin[1]
Introduction – What is the traditional knowledge and why it matters?
It`s difficult to clearly define traditional knowledge with words or a short phrase. Traditional knowledge commonly refers to knowledge associated with the environment rather than knowledge related to, for example, artworks, handicrafts and other cultural works and expressions.[2] It includes knowledge historically succeeded from ancestors, such as traditional medicine, traditional cultural expression and artifacts, information on plants or general materials, and so on.[3]
Pharmaceutical companies have become to understand that they can find cures from traditional knowledge of indigenous people.[4] Design companies also try to use unique symbols or cultural expressions from traditional knowledge.[5] In other words, the markets came to understand the value of traditional knowledge.
Developed countries have technologies and money to adapt and change traditional knowledge for more profit or value. By contrast, developing countries do not have enough skills and capital to develop their traditional knowledge, and sometimes they cannot understand the value of their traditional knowledge.
It seems that like intellectual property right (“IPR”) enforcement issues there are conflicts between developed countries and developing countries for traditional knowledge.
Why do we have controversies on whether an IP right should be granted to TK?
Developed countries want to use traditional knowledge without charge and limitation, but developing countries want to get compensation for the usage of traditional knowledge.
1) For granting IPR to TK – in the perspective of Fairness
Developing countries maintain that their traditional knowledge has been exploited by developed countries. They think that developed countries have used their traditional knowledge for benefits without consent and compensation. The usage is not fair and so an IPR should be given to traditional knowledge for fair compensation.[6]
2) Against granting IPR to TK – in the perspective of Efficiency
Developed countries maintain that they have developed more value-added things from traditional knowledge by adapting it. Even though they used traditional knowledge, they have made another derivative works. As a result, they have rights, such as patent or copyright on developed traditional knowledge. They think that traditional knowledge should be in the public domain for social welfare.[7]
What are the problems with fitting TK into the IP system? – From the experience of the Korean government policies
The Korea government has implemented an e-Government project to make the government more efficient and to allow people easy to access to knowledge.[8] One of the projects was to make the national knowledge system (www.knowledge.go.kr), which included traditional knowledge in the data base.[9] The project revealed IPR issues on traditional knowledge.
1) Who has the right of TK?
Some information in the data base was traditional knowledge, such as herbal information for cures, traditional expression, or design. Some people and organizations maintained their intellectual property right. However, it was difficult to prove whether they had a real right or not. Traditional knowledge is succeeded from generations to generations. For example, the herbal information for cures has been shared with people, so the ministry of health and welfare should have difficulty in deciding whether the traditional knowledge can belong to the specific people, organization, or the public domain.[10]
2) How we can decide a distribution method in the IP system?
Even though a government or a public authority can find that specific people or organizations can get IPR on public knowledge, the problem – how to distribute the benefit – is a more difficult matter. Generally, people in an area share traditional knowledge, so a distribution method can be controversial. For example, traditional patterns or symbols can be shared within the specific area. Ministry of Culture, Sports and Tourism could give the IPR for specific people or organization inheriting traditional knowledge from ancestor. But serious problems started after the government’s decisions: members in an organization or people began lawsuits with each other for more profits.[11]
3) How long and how much do we have to compensate for TK?
Finally, for how long and for how much should traditional knowledge be compensated for is a more difficult problems. The IPR system has two opposite characteristics – encouragement for innovation by monopoly and development of access for the public.[12] If more protection for IPR was given, the public access would be weaker, so the government or public authority needs to balance the two. In addition, unlike other IPR rights, such as patents or copyrights, traditional knowledge was not created in a specific time, so it is very difficult to decide from when we starts its protection.
How should the problems be overcome?
Solutions for the protection of the traditional knowledge problem in the IPR system can be divided into “positive protection” and “defensive protection.”[13] However, those two solutions can be overlapped in reality.
The preferences on the solutions can be different with the countries. Developed countries want to use traditional knowledge with less compensation, but developing countries want to get more compensation from traditional knowledge users.
1) Positive protection
Positive protection refers to the acquisition by the TK holders themselves of an IPR such as a patent or an alternative right provided in a sui generis system.[14] This can be helpful tool to make the holder of traditional knowledge get proper compensation. However, as aforementioned, positive protection has problems, such as, who has the rights of traditional knowledge and how long and how much compensation should be given to the holder of traditional knowledge.
2) Defensive protection
Defensive Protection refers to provisions adopted in the law or by the regulatory authorities to prevent IPR claims to knowledge, a cultural expression or a product being granted to unauthorized persons or organization.[15] By defensive protection, the holder of rights can define more easily the boundary of traditional knowledge. However, defensive protection can be huddle for the use and development of traditional knowledge. Considering that the best way to protect traditional knowledge is not preservation but innovation,[16] defensive protection seems to have limitation.
Conclusion
The positions on traditional knowledge can be different with the circumstances of the countries. If a country had more traditional knowledge but less technology to use it, then it would want to get more protection for traditional knowledge.
For example, the Korea government has a strategy on bio-diversity like this: even though we now do not have enough technology for bio-industries compared with other developed countries, we should support the position of developed countries hoping to use traditional knowledge (on bio-diversity) with less compensation and less limitation. Because we have a capacity to catch-up with the developed countries in the future, if we support the developing countries’ position now, then we will have difficulties in the future.[17]
To solve the traditional knowledge problem, the rights of a holder of traditional knowledge should be clearly defined and a compensation mechanism should be established. However, it seems difficult to harmonize the consensus between the holder and the user of traditional knowledge because the compensation and distribution mechanism of benefits for traditional knowledge is close to a zero-sum game between developed countries and developing countries.
[1] Mr. Shin is a JD applicant of Southern Illinois University School of Law. He is a director of the Korea Communication Commission and has worked at the Commission since 1998. He has experiences with the international affair bureau (OECD, APEC, and World Bank, etc.) and the Telecommunication bureau (Competition policy, License, M&A, etc.).
[2] Graham Dutfield, Protecting Traditional Knowledge and Folklore: A review of progress in diplomacy and policy formulation, 9-10, International Centre for Trade and Sustainable Development (ICTSD), (Oct. 2002).
[3] According to one expert, traditional knowledge (or what she calls “traditional environment knowledge”) is a body of knowledge built by a group of people through generations living in close contact with nature. It includes a system of classification, a set of empirical observations about the local environment, and a system of self-management that governs resource use. See Johnson, M, Research, Research on traditional environment knowledge: its development and its role, 3-4, Ottawa: International Development Research Centre (1992).
[4] Madecassol, a wound-healing agent developed from Centella asiatica, is used to treat burns, ulcers and leprous wounds and derived from a curing formula from the indigenous Malagasy. See, Manveen Puri, Hassan Masum, Jennifer Heys, Peter A Singer, Harnessing biodiversity: the Malagasy Institute of Applied Research (IMRA), 8, BMC International Health and Human Rights (2010).
[5] In 2001, Lego launched a new range of action figures called the Bionicle. Lego used a mix of Polynesian words – including several Maori words. On behalf of three Maori groups, a New Zealand lawyer wrote to Lego objecting to the use of the Maori words. The lawyer argued that the use of the words constituted a serious trivialization of Maori culture, especially when names that have spiritual significance were being used. Initially Lego rejected the complaint. However, following negative publicity, a representative went to New Zealand to meet with the Maori groups. Following the meeting, Lego agreed that it had acted improperly and dropped the use of the word Tohunga. It also agreed to not use Maori names in future versions of the toys. See, Kim Griggs, Maori Take On Hi-tech Lego Toys, BBC News, Sept. 26, 2001, available at http://news.bbc.co.uk/2/hi/asia-pacific/1619406.stm (last visited Nov. 12, 2011).
[6] Peter Drahos, Developing Countries and International Intellectual Property Standard-Setting, 765-771, The Journal of World Intellectual Property, Volume 5, Issue 5 (2002).
[7] Ragavan, Srividhya, Protection of Traditional Knowledge, 6-8, Minnesota Intellectual Property Review, MINN. PROP. REV. 1 (2001), available at http://mipr.umn.edu/archive/v2n2/ragavan.pdf.
[8] Korea e-government projects were planned and implemented by Ministry of Information and Communication from 1998 to 2008 and after the projects the Ministry of Information and Communication changed to Korea Communication Commission in 2008.
[9] Ministry of Information and Communication, Korea`s e-Government white paper, 26-32, Korea Government (2003).
[12] The IP system is the mechanism that permits monopolies of the inventors for the limited period in exchange of publication to encourage new inventions. See, Robert P. Merges, Peter S. Menell, Mark A. Lemley, Intellectual Property Right in the New Technological Age, 18-34, (5th ed., Aspen Publishers, 2009).
[14] Positive protection measures include (1) UNESCO-WIPO model provisions on National Law and Illicit of Expression of Folklore; (2) The Tunis Model Law on Copyrights in Developing Countries; (3) Database rights; (4) Global bio-collecting society; (5) Compensatory liability regime. See, Graham Dutfield, 31-38, Supra.
[15] See Dutfield, supra. n. 2 at 24-31, Defensive protection measures include (1) Disclosure of origin of generic resources and associated traditional knowledge and compliance with ABS regulation; (2) TK databases; (3) Banning patents on life; (4) Misappropriation regime.
[16] The preservation model seeks to harness intellectual property rights to preserve traditional culture in its authentic form, but the innovation model encourages tradition to be adapted to serve contemporary side. The innovation model can be better strategy than the preservation model to sustain traditional cultures because traditional culture will only endure to the extent that it retains meaning and value to its source communities. See Sean A. Pager, Folklore 2.0: Why Remixing Tradition is the Best Way to Preserve It, 1-6, http://www.law.stanford.edu/display/images/dynamic/events_media/Folklore_2_Why_Remixing_Tradition_is_the_Best_Way_%20to_Preserve_It.pdf
[17] Ministry for Food, Agriculture, Forestry and Fisheries, Issue paper on Nagoya Biodiversity summit 2010, 12-13, Korea Government (2010)
Comments