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A2K: Traditional Knowledge
Posted by David_Tannenbaum on Saturday, April 22 @ 01:29:29 EDT Governance
Speakers: Doris Long, Manon Ress, Anupam Chander, Eric Kansa

Moderator: Susan Scafidi

Panel Description:

Despite the global reach of the information economy, the dominant intellectual property paradigm is heavily biased against indigenous people throughout the developing world. While Western intellectual property regimes offer strong protections for individual creators and inventors' "private knowledge," they offer no obvious ways to protect "indigenous knowledge"--the cultural expressions, traditional practices, and genetic resources that have been developed by indigenous communities through collective and incremental processes that span generations. Indigenous knowledge is therefore easily exploited by those who would use dominant legal paradigms to appropriate and copyright unprotected indigenous knowledge as their own creations.

Notes prepared by Jesse Grittner, after the jump.

Update: See the wikipage for this panel.


Susan Scafidi, SMU Dedman School of Law
TK is sometimes the unwanted guest at the table of A2K movement, because we need to think about restricting or regulating access, instead of simply maximizing it.

Manon Ress, Consumer Project on Technology
Access Without Misappropriation: A Compulsory Cross-Licensing Proposal for Benefit Sharing

Idea first presented at an IP roundtable in Geneva following a WIPO meeting. Discussed again in Philadelphia in 2003. Informed by Peter Drahos’s proposal.

The goal is to make people living in developing countries better off. Many people assume that patent system works in the North and a sui generis GR/TK system in the South, and that the South is a net exporter of GR/TK and the North a net importer. But the reality is that no one has it all. Have to consider different approaches. GR/TK in the public domain is the status quo; and there are three approaches to compensatory liability: applies to everything; applies to patented works; cross-licensing of patent and GR/TK.

Public Domain: Best for initial access and good for initial follow-on innovation, but does not protect against enclosure of follow-on innovations. One story that comes to mind is the Free Software movement and the GNU GPL; putting your code in the public domain didn’t protect against misappropriation. Viral licensing approach guaranteed retention of information in public domain.

Strong (sui generis) approach creates a perpetual property right in GR/TK. Positive side: You can “stick it to the man,” while feeling like you’re being fair. On the downside, most countries are net importers of GR/TK resources and it could create perpetual monopolies.

The compensatory approach to GR/TK says “You can use the GR/TK, if you pay.”

1. First approach is the “French fry” approach. Everyone pays each time they eat a French fry, but who “owns” fries? No monopoly control over fries, but there are high transaction costs and lots of fights.

2. Applies only to patented innovations/protected works. Always permits initial innovations, but does not enable access to patented invention.

3. Cross-licensing approach. “Unlocking on both sides:” remuneration when selling patented invention, but owner of patented work gets cross-license in GR/TK, while GR/TK owner gets cross-license to patented work. Model in biotech directive, cross-licensing between plant breeders and patent holders. Royalty-free for unpatented work. Reduces monopoly power of patents. And owner of the GR/TK resources have access to the patented invention. Who are these “owners”? GR/TK resources should be pooled.

Lots of issues for this approach: Does cross-licensing move patent system toward regime of liability rules, per Reichman? Would the North recognize such a regime?

Moral of the story: Focus should be on access to patented inventions and other protected works, rather than seeking rents on GR/TK resources.

Eric Kansa, Alexandria Archive Institute

The problem: Culture and the Commons. There is an inherent tension: how does a global info commons interface with local systems of cultural property. How do we level the playing field when this interface takes places between actors with such profound power discrepancies. A2K is not just a legal framework: social and technological underpinning to the movement. On the legal side, want to free information from overprotection, but also want to find ways to share underlying foundations of knowledge, the raw materials by which innovations are created. On the technological side, how do we share this information across systems? What are the data formats? Are systems open or proprietary? From a bio-cultural heritage perspective, tension can emerge when we undervalue traditional knowledge. Limited skills and knowledge in places that are holders of important information. These factors, in combination with urbanization and other dislocations, mean that there are very few incentives for preserving this cultural understanding. Difficult to quantify this loss, but we can estimate that in the next hundred years, we will lose 80% of the languages now extant. It’s as if we’re burning libraries.

Under-protection is an issue that does the open access movement no good. Indigenous rights activists and other organizations now call for greater restrictions on access to materials of understanding. Calls for no-access zones for further research to enable collection of indigenous information and bio-diversity information.

TK is best used to refer to informal, implicit information shared within a community. When we try to find ways to work with TK and interface them with global systems of communication, we find that TK is bundled with local notions of propriety, religion, etc., so seemingly trivial information can have great local significance. Adaptation to modernity means rules are constantly being re-negotiated about what this information means to a particular community. TK and innovation is dynamic: it may be rooted in ancient traditions, but it is constantly being updated to reflect changing circumstances.

Some approaches focus on global frameworks (WIPO, UNESCO, etc.), but there can be reluctance on the part of developed nations to actually implement such an approach. Another risk is locking TK into rigid categories, reducing its vitality by ignoring its dynamic nature. Growing movement by individual researchers to establish fairer and more equitable relations with local communities. Similar steps taken by indigenous communities working with ethnobotanists and archaeologists. Prior informed consent is the first step, with the goal being instilling such sharing in professional codes of ethics. Networks of indigenous communities can share how information is being used and shape its implementation.

Is there a creative commons like solution, balancing rights to create incentives to establish reciprocal bonds. Voluntary licensing scheme could structure incentives to encourage communication. Don’t know what kind of licensing structures would work best—need to bring together those working with indigenous communities, as well as those familiar with development of licensing schemes. There might be a desire for re-translation and reporting back to communities; the viral approach of the open source movement might be appropriate. Don’t need to be a licensing lawyer to understand Creative Commons-type licenses—want human-readable code built into systems of prior informed consent. Not all TK is necessarily held by indigenous communities; also have to look at museums, seed banks, and the university community of the developed world. The UC system alone has 140 million objects from the developing world. We need to find a better way to deal with these issues, instead of perpetuating the legacy of colonialism. Google just won the Captain Hook bio-piracy award for their plans to put up biodiversity information in a giant public database.

Doris Long, John Marshall Law School

Want to take a slightly different approach, acknowledging tension between A2K and TK, but they actually have much in common. The goal is to look at current regimes that have failed to protect cultural life. Look at Article 27, which demands participation, which of course requires access. Original draft A2K treaty is consistent: focusing on fair and equitable benefit sharing, but still has concept that copyright protection not available if you are lacking creativity. She thinks TK has creativity, but we need to change our definition of creativity, including the possibility of inter-generational creativity.

Want to reduce rigidity of IP, encourage development, and greater participation in cultural activities across boundaries. Most important problem is that public domain is a foreign concept to indigenous communities. This means that updating the approach will lead some information in the public domain to fall out. Have to think about purposes behind these concepts when we try to apply them. In some cases, the only issue is authentication. In others, particularly cases of sacred knowledge, holders want limited or no access. Instead of applying labels, let’s look at the balances that can be achieved.

Right might be one of supervision, rather than one of “property.” Perhaps we focus on social justice concerns, instead of protecting development rights. This requires dialogue across a variety of regimes: IP, human rights, A2K. One size does not fit all in crafting protections, which could include: authentication, deculturization, commercial exploitation (dreamcatcher earrings), and equitable benefit sharing. As part of the dialogue, have to put flexibility back in IPR regime. Maori people have certification/authentication marks. Collaborative creativity is another issue for copyright; cross-generational creativity for patent.

Looking at these issues from the human rights regime brings up questions of the group versus collective rights. A2K brings to the table the idea of different kinds of licenses, as well as the concept of equitable benefit sharing. We’ve seen this strongly in the context of genetic resources. One big problem is that when we talk about TK, discussion tends to focus on indigenous peoples. This is a good place to start, but it’s not everything. We should also be thinking about people who have left the group and are no longer part of it, or groups that have dispersed across a broader area. Diaspora has to have the right to participate in the culture as well, with different rights from someone who’s not in the group at all.

It makes sense to have members of indigenous groups decide what they’re going to do with their culture. Part of that may require registration, to identify what the knowledge is and the levels of access to it. Because of border controls and splits in groups, need to start thinking about mediation via international tribunals. These groups would focus on conciliation and other concepts from international human rights mediation. To the extent that we allow commercial uses of works, how much is allowed? Every group has a different say about what uses lead to deculturizing; we need a common ground for these decisions. Need better articulation of relationship between individual rights within the collective.

Mediation of claims gives level of predictability and voice. Part of discussion has to be impact that denial of access would have. Might end up with sliding scales so that information important to health, for example, could have mandatory equitable benefit sharing. Good idea to have discussions in various forums, as long as we all keep talking to each other. This issue is too important to leave to people running off in different directions.

Anupam Chander, UC-Davis Law School

When he was at YLS, Imelda Marco actually sang from the stage he’s now presenting from. He’ll do us a favor and just present his work.

His presentation, titled TKO, borrows a metaphor from boxing, but really uses a rhetorical trick based on the ideas of sumo, using the opponent’s weight against him. Not going to offer any arguments for TK or any particular form of entitlements; this has been done ably by others, including by some of the panelists. Instead, will try to take arguments against IPRs in TK and show that they can apply IPRs in IP.

Question is often asked: should TRIPS be expanded to protect TK? Principal arguments against: incentivizing ex post; encroaches upon public domain to do so; how do we define the community that owns TK?

Incentivizing ex post: information already exists, so we don’t need to offer incentives. Responses: TK is dynamic, still emerging, so incentives are appropriate; but note that Northern knowledge also pre-exists, but TRIPS still requires perfection. Mickey Mouse was created a long time ago, but we extend its protection abroad, via TRIPS. Pharmaceuticals present another example of granting windfall rents for developments that have already emerged. And US free trade agreements now require even more protection, now ranging up to seventy years!

Encroachment on public domain: same argument can be made against TRIPS itself, at least from the perspective of the South. That doesn’t necessarily make this a good thing, but the argument actually proceeds by the logic of deploying negatives against the broader structure. There are ameliorative possibilities, such as liability rules affecting only commercial activities.

Who owns culture? Claims here are difficulties of group ownership, multiple communities with claims in TK, flux in definition of community. First, note that Western IP is held principally through the corporate form, which is a way to mediate community interests. Different kind of community, of course, but the dynamic nature of membership, rules to protect minority shareholders, etc., are ways to protect interests of various members. Elaborate array of law has developed to deal with these issues. A second response is that the corporate form is available to indigenous communities as well, in a process of ‘privatization.’ Examples include the Czech model of mass voucher privatization and the Alaska Permanent Fund to share oil pipeline revenues. The Alaskan community is very dynamic, but we can make it work. Another possibility is to create a trust. We can invest either form with a time-limited entitlement, enforceable internationally.

New parties will come to the table who will forcefully assert their rights to participate; we should welcome this as the result of globalization, instead of denying them that right.

Audience Questions

Audience: does the category of knowledge help us with these questions? It seems like a lot of these issues deal with practices and artifacts, not quite the same as knowledge in the form of patent and copyright. We set things up as South v. North, but within the South, it’s a question. In India, with the practice of homeopathic medicine, if some groups are given rights, it will affect the implementation of practices more broadly.

Eric Kansa: Oh sure, put the archaeologist on the spot. This touches on the issue of the fuzziness of group boundaries. If an emerging middle class in India is using TK, they may feel they are entitled to it because they think it is part of their cultural heritage. The difficulty is in coming up with a global framework that answers all the questions. Should allow small groups to come together within networks and let the knowledge flow with them.

Anupam Chander: Another possibility comes from Carol Roses’s concept of limited commons. Might create an us-versus-them mentality, but at least it would deal with the problem of intra-mural disputes.

Doris Long: If we go to a particularized approach, we have a real problem of capacity building, since we can just find a new group that has not been exposed to these concepts and exploit them. Need to find some kind of international norms.

Manon Ress: On North/South issue, we should be careful about dichotomizing too much. The biggest importers of turmeric are Southern countries, so the flow goes both ways.

Audience: First chance to gather scholars and practitioners to think about the relationship between A2K and TK. Struck by conflation on panel between cultural heritage, TK, genetic resources, folklore. As scholars, we have to think about how we frame the question of what TK means. In terms of TK’s interface with Western systems, we can create more problems than we solve if we’re not careful. Prevailing opinion seems to be that access is a good thing. I’m not certain that that is the case. What kind of access do we mean? Access to what, and for what ends? What we define as access to TK, if we flipped it, would look like privacy issues in Western systems—you can’t come into my house or community and take these things that are part of my self-definition. A strong privacy regime might lead to very different outcomes from the TK framework. Indigenous communities are concerned about privacy issues for reasons of sacredness and many others, so access is not an unalloyed good.

Eric Kansa: Agree about privacy, and also think about local notions of propriety: what kind of information should be available to whom? This is particularly important as we move from physical collections (with security through obscurity) to digital collections, via Google and others. Having some sort of “ethical best practices” is going to be crucial. Western archaeology has had a lot of trouble following such practices until they were rammed down their throats by Congress. These collections represent a huge amount of information and economic value, so I don’t favor open access without consent.

Doris Long: A lot of groups, in rush to head off patents, started publishing everything. This gave up a lot of control over the items that you deem significant.

Anupam Chander: Prior informed consent may be preferred method because of the history of exploitation. The problem with property rules is that you can block people and say “No,” which has problems for access. Remember that there is a lot of intra-South trading, and if everyone in the South has to negotiate with everyone else, we might be culturally poorer as a result. Terry Fisher, at Stanford conference, suggested rule: if you violated local law in place where you collected information, that misconduct could be used to defeat patent claim. Thinks this is a wonderful idea because it respects the diversity of ways people choose to protect things. Personal preference would be that countries limit the designations of items and knowledge as sacred.

Audience: Can’t really discuss these issues without participation of indigenous communities. This discussion is not taking place in a vacuum, as indigenous peoples are trying to limit development. They don’t look at property as way to exclude people, but only as a way to require prior informed consent. This consent should come at the local level, not the national level.

Manon Ress: Most people in this room are being exploited by some corporation somewhere. And we’re probably okay with it, since it’s being done to make people healthier—until we find out that companies are making millions off of us.

Audience: In context of A2K discussion, we should ask whether communities want access. But we can also ask, how should we raise the possibility of using liability rules instead of a strong property rule?

Audience: What about the balance of power between indigenous groups and the corporations that seek prior consent? How can we help such groups? Yale now offers a course in bio-prospecting. What can we do to establish an ethical framework?

Anupam Chander: Professors Chander and Sunder argue that one reason to prefer liability rules is that marginal costs for producing information that exists in two communities is near zero. Property rule would undercut the approach of “I can do better than Pakistan and offer it at four dollars instead of the five they’re charging.” This is a (possibly narrow) context in which we’d prefer a liability rule.

Doris Long: Many times, preference is not for blocking access, but for preventing deculturalization. Folklore is an example in which the emphasis is on how the information will be used.

Audience: The example of dreamcatchers keeps coming back to me. There are things on Wikipedia that some might find offensive from a cultural perspective. Is it possible to create a balance for some parts of a culture to prevent use, when others support it?

Audience: On issue of prior informed consent in Indigenous Peoples Rights Act in the Philippines: we’ve seen many times, especially in context of access to mining activities, prior informed consent has been misused, with others exerting pressure. Another issue is the sale of such consent, which raises many of the privacy rights issues discussed earlier. How do we protect against such abuses, not just from without the community, but also within it?

Manon Ress: My proposal assumes that you want to use inventions and innovations, so it is not outside of the world of trade. On issue of abuses, don’t see how IPR policy can really address consent issues. Seems like a different issue.

Eric Kansa: All of this works best within context of societies actively monitoring the prior informed consent system. A2K could facilitate such monitoring, since the goal is more transparency.

Anupam Chander: Response to proposals from some: Government can’t be trusted; need to rely on community groups. Those with this view hate government-centered approaches. These sorts of abuses represent a serious problem, but this is an inherent frailty of any legal rule. It doesn’t seem to put people in a worse position to have a state-established right, even if it’s abused. One response might be that it gives legal cover and legitimacy to an illegitimate system, but that strikes me as an anti-globalist response. Agree with Yochai Benkler that we can’t stand in the way of globalization, but need to think hard about how it occurs.

Doris Long: We need to distinguish between information and knowledge, which the example of putting something sacred on Wikipedia nicely illustrates. As we start parsing these issues, we will be forced to draw some of these lines between access and privacy. Default on the side of access, but allow people to take a lot out.
 
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