Not all knowledge worth protecting is “new.” Many of the world’s indigenous peoples have passed on traditional practices, folklore and other forms of knowledge from generation to generation since time immemorial. Almost everyone agrees that this knowledge deserves some form of protection, but it is proving difficult to reach consensus on the details, let alone implement a workable system worldwide. This lesson will gives us an opportunity to review some of the international initiatives seeking to achieve social justice for indigenous communities.
The topic of protecting traditional knowledge has perplexed a lot of people in the a2k movement. I remember being at the first “a2k conference” at Yale in 2006, where a panel on traditional knowledge seemed a bit out of place. The common thread through much of what we’ve studied so far in this course is promoting rather than restricting access to knowledge. Now all of sudden the tables are turned, and we’re thinking protection is a good thing. What gives?
I think the concept of social justice can help us understand what’s going here. What we’re really talking about is ensuring that global intellectual property policies promote an equitable, balanced system of protection for and access to knowledge. It is inequitable when some people are forced to bear the burdens of strong IP protection without receiving any of the benefits. And that’s what tends to happen when we focus solely on Western-style IP norms and their role in capitalist economies. What we need to do is open our minds to a broader framework for knowledge governance, and ask how global polcies can be crafted to achieve an equitable system of access and benefit sharing, or what strategies are needed to mobilize intellectual property regimes for the benefit of poor not just rich people.
Graham Dutfield has done a lot of very insightful work on this topic, so please have a look at some of his work to establish context. Focus on pages 9-18 (and perhaps the executive summary) of the following paper:
- Graham Dutfield, “Protecting Traditional Knowledge and Folklore: A Review of Progress in Diplomacy and Policy Formation” (UNCTAD/ICTSD Capacity Building Project on Intellectual Property and Sustainable Development, October 2002).
I won’t require you to read about, but I will revisit, the key institutions and agreements governing this topic. Please just click through and remind yourself (and by all means, explore a little, if you’ve got time) of the following, which we’ve already discussed.
- Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples (which Canada has shamefully refused to sign).
- The work of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (which has been working for about a decade without much progress).
- Article 8(j) of the Convention on Biological Diversity (which, once again, is proving difficult to implement into national and private sector practices).
- Article 9 of the FAO Plant Treaty (you guessed it; still trying to find an effective implementation strategy).
There is also work being done on this issue at UNCTAD, the WTO, the WHO, the UNCHR (Commission on Human Rights), and elsewhere. The most recent UN document on point is reported here. If only we had the time to talk about all this.
Instead, we’ll shift into an analysis of case studies as a way of making this topic more concrete. I’ll ask you to read the introduction and overview of the following book, which contains summaries of each chapter:
- J. Michael Finger and Philip Schuler, eds., Poor People’s Knowledge: Promoting Intellectual Property In Developing Countries, (World Bank and Oxford University Press, 2004) at pp. 1-36.
We’ll spend the bulk of the class on Monday discussing the cases contained in this book.
On Wednesday, I want to explore 2 more case studies. Both documents are seem much longer than they are (i.e. there’s not much text). So please read about how trade-marks law was employed to achieve social justice for Ethiopian coffee farmers:
- Fiona Rotstein and Andrew Christie, “Sidamo: A Teaching Case for WIPO.”
Closer to home, we’ll see how Canada’s Inuit women are also struggling to protect their rights in respect of the amauti. I’d like you to read through Pauktuutit’s report on that issue linked below:
- Phillip Bird, “Inuit Women’s Traditional Knowledge Workshop on the Amauti and Intellectual Property Rights: Final Report,” (Pauktuutit Inuit Women’s Association, 2001).