Protecting widely shared traditional knowledge

11 March 2014

A growing body of evidence demonstrates that transboundary traditional knowledge (TK) is the prevailing rule, rather than the exception, in the context of indigenous peoples' cultures and livelihoods. And yet only recently has the issue of protecting widely shared TK been placed on the international agenda. The 2010 Nagoya Protocol on Access and Benefit Sharing (ABS) of the Convention on Biological Diversity (CBD) has now addressed the topic, if somewhat timidly.

Since 2009, the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has accelerated its work to develop an international instrument(s) to protect genetic resources (GRs), TK, and traditional cultural expression, and there is now a draft, albeit very bracketed, text - The Protection of Traditional Knowledge: Draft Articles (23 January 2014). Addressing widely shared TK as part of the IGC discussions will be essential for the eventual establishment of an effective and relevant international intellectual property (IP) protection regime for indigenous peoples.

Traditional knowledge, widely shared
So what exactly is TK and when is it widely shared? Although there is no universally accepted definition of TK, WIPO IGC's current draft articles for TK protection identify it as including the "know-how, skills, innovations, practices, teachings and learning of [indigenous [peoples] and [local communities]]/[or a state or states] that are dynamic and evolving, and that are intergenerational/and that are passed on from generation to generation, and which may subsist in codified, oral or other forms." It further proposes that "[Traditional knowledge may be associated, in particular, with fields such as agricultural, environmental, healthcare and indigenous and traditional medical knowledge, biodiversity, traditional lifestyles and natural resources and genetic resources, and know-how of traditional architecture and construction technologies.]" These definitions followed a 2008 IGC document that elaborated TK in conceptual terms.

Although hard to quantify, there is agreement among experts that much specific TK as it relates to medicinal uses, the application of plants and natural products, conservation techniques for seeds, and knowledge regarding specific characteristics of biodiversity, is in fact shared between indigenous groups. Though certain TK is still secretly guarded by designated leaders in communities - figures such as the shaman, the elder, or the healer - comparable biodiversity and eco-systems imply similar responses among neighbouring communities that may be located across a range of jurisdictions at local, national, and regional levels.

International frameworks to protect traditional knowledge
The WIPO IGC was established in 2001 to look at GRs, TK, and folklore in relation to the IP system. TK had earlier featured as part of the debates around the 1992 Convention on Biological Diversity (CBD), which now expressly recognises the importance of TK in the conservation, management, and the development of biodiversity and its components. The CBD also calls for prior informed consent (PIC), participation of indigenous and local communities, as well as benefit sharing as conditions for the use of TK, but falls just short of specifically demanding its legal protection. The CBD and its discussions on access and benefit sharing eventually led to the Nagoya Protocol almost two decades later. While the latter also does not specifically call for the protection of TK, its general provisions outline tools that are in practice driven by this underlying objective. For example Articles 7 and 12 provide, inter alia, that access to and use of TK should be subject to the PIC of indigenous peoples and that these communities should participate in the derived benefits.

The technical challenges posed by widely distributed traditional knowledge
The main limitations affecting bilateral, contractual negotiations when TK is shared are threefold. First, how can a contract be negotiated, or PIC obtained, when there is no single, clearly defined right holder? Second even if this were possible, assuming TK is in the public domain or publicly available, is it feasible and economically viable to negotiate an advantageous contract? And finally, what are the effects of economic pressures on benefit potential, when TK is in practice accessible from various sources?

The Nagoya Protocol on ABS is a good starting point to address widely shared and distributed TK protection at the international level. As illustrated in Table 1, Article 10 references "transboundary situations," suggesting a multilateral funding mechanism that ensures some form of benefit sharing for using such GRs and TK. Article 11.2 leaves it to parties to develop appropriate cooperation and engagement schemes in situations of shared TK, which is rather non-specific in practical policy terms. Some national legal frameworks - such as the Andean Decision 391 and the African Union Model Law - have also acknowledged the issue of shared resources and TK, but have not really overcome key implementation challenges.

It is, nevertheless, quite a paradox that in the context of the Nagoya Protocol and other texts an exceptional measure is suggested for a situation that is in fact the general rule or norm; biodiversity, TK and GRs know no borders and are widely shared among eco-regions - such as the Amazon, the Andes, and Mesoamerica - as well as the peoples that inhabit them.

Scenarios and protection policy options
To define the most effective policy and legal option regarding the protection of shared TK, decisions should account for various scenarios. First, the TK that is maintained confidential among different communities, and yet is simultaneously shared. If TK is restricted to one or just a few closely integrated communities, applying a trade secret-based policy could be one option. The advantage of this approach is that trade secrets are universally recognised and are present in almost all national legislations. One disadvantage is that a certain level of expertise is required to enter into such contractual negotiations, which also entail transaction costs. It should also be recognised a priori that this method would lead to the inevitable exclusion of communities or individuals who hold similar TK but are not invited into a given contact.

A second shared TK scenario is when the knowledge has already passed into the public domain. In this particular case TK cannot be strictly protected but three possibilities for the limitation of its use come to mind. Defensive protection measures could be implemented, through a registration system, although this does not ensure monetary compensation. Another option would be to use the copyright derived principle of "domaine public payant." This principle applies to widely shared works, crafts, and arts that have lost copyright protection but for some specific reason are deemed important enough to receive special policy attention obliging a fee payment for their use. A further solution would be to implement biocultural or community protocols, also recognised in the Nagoya Protocol in Article 12. These allow specific communities to elaborate the conditions under which their TK resources may be used. Protocols are not binding on third parties but do provide ex ante guidance on what to expect.

One policy option could be considered that would cover widely shared TK, as well as other forms and related challenges. An international compensatory fund offers a practical approach and builds on the suggestion made in Article 10 of the Nagoya Protocol. A precedent for this idea can also be sourced in the FAO International Treaty on Plant Genetic Resources for Food and Agriculture, which created a funding mechanism to ensure that benefits derived from seeds or materials accessed from a multilateral system (MS) for commercial purposes are distributed to farmers in the countries of origin. There is already relatively precise data and information on where indigenous communities are located worldwide - interestingly this overlaps almost perfectly with centres of mega-diversity.

For example, hotspot location maps developed by institutions such as Conservation International and the World Conservation Monitoring Centre, also provide an indication of location, and concentration, of communities in relation to biodiversity. The data gives a good idea of the identity of potential TK holders and thus possible beneficiaries of a multilateral TK benefit-sharing scheme.

Rather than impose additional burdens on the private sector or seek additional resources from stretched international agencies, a small, fixed percentage - for example 1-2 percent -  of existing taxes on sales of relevant products, could contribute to an international compensatory fund. This figure would, however, require concrete empirical analysis to determine its suitability. Ideally, a binding international agreement would provide the basis for implementing this obligation in order to ensure companies and profit-making institutions commit to it.

Although agreeing to a list of relevant products would be far from simple, there are clear advantages to the fund approach. It offers a de facto recognition that access to and use of TK will be compensated. There also would be no need for a negotiation between indigenous communities and specific commercial interests thereby limiting transaction costs. Importantly, indigenous communities are not actually selling their TK, but merely receiving compensation due to a legal recognition of its value. Finally, TK can continue to freely develop, benefiting the broader society.

Recommendations for the ongoing IGC discussions
As in the case of GRs, TK is almost invariably shared - to some extent or degree - and there seems to be no perfectly equitable technical solution. There is therefore a need to acknowledge the potential for a range of complementary, non-exclusive tools such as defensive protection, "domaine public payant" based schemes, biocultural or community protocols, as well as a compensatory mechanism.

As it stands, the draft text on protection of TK includes a reference in Article 1.3 to TK that is "that is generated, maintained, shared/transmitted in collective context." However, 1.4 follows "[Protection does not extend to traditional knowledge that is widely known or used outside the community of the beneficiaries as defined in Article 2.1, [for a reasonable period of time], in the public domain, protected by an intellectual property right or the application of principles, rules, skills, know-how, practices, and learning normally and generally well-known.]" Among the policy objectives and alternatives listed, however, the draft text flags the need to "[promote] guarantee the fair and equitable sharing and distribution of monetary and non-monetary benefits arising from the use of traditional knowledge, in consistency with other applicable international regimes," and Article 10 makes a clear reference to the Nagoya Protocol.

The last meeting of the IGC in early February focused on the related question of GRs protection. Interestingly Article 12 of that revised text - Consolidated Document Relating to Intellectual Property and Genetic Resources (Rev. 2) - recognises instances where the same genetic resource and its derivatives, as well as associated traditional knowledge, are shared. The bracketed wording goes on to include a provision on transboundary cooperation that seems inspired by language used in Article 11.2 of the Nagoya Protocol, namely that parties should "endeavour to cooperate, as appropriate, with the involvement of indigenous [people[s]] and local communities concerned."

Following the policy solutions outlined above, however, such language alone is not sufficiently ambitious for offering concrete shared TK protection. A permanent financial mechanism that engages commercial actors that directly or indirectly use TK could offer a cost-effective solution to financially compensate indigenous peoples for their intellectual contributions. This alternative should not be seen as replacing other potentially useful national or international approaches, but could be prioritised as a practical multilateral option.

This article has been adapted from a longer information note published by ICTSD: Protecting Shared Traditional Knowledge: Issues, Challenges and Options, ICTSD, October 2013.

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