In a previous post, the Traditions of Knowledge, I referred to the appropriation of traditional knowledge by means of industrial revolution intellectual property.
My friend Ethan Zuckerman explains in Turmeric, pygmies and piracy, in which he gives an example which shows just how blatant appropriation can be:‘In 1995, the University of Mississippi Medical Center was issued a US patent for the ‘novel’ use of turmeric for improved wound healing. This was hardly a novel use for the Indians who’d been using turmeric for exactly this purpose for thousands of years. But US patent law does not recognize undocumented foreign ‘traditional knowledge’ as prior art.’
Returning to the subject in A bitter fight brewing: Ethiopia and Starbucks clash over coffee Ethan explains how Starbucks worked with Oxfam, ostensibly to help Ethiopian coffee farmers, but at the same time applied to the USPTO for trademarks over the traditional names of coffees grown by the farmers. Sidamo, Harar and Yirgacheffe are each well known for a unique flavour, and each has been associated with the region in which it is grown for hundreds, possibly thousands of years.
The problem is not primarily that companies and individuals in the global North use traditional knowledge, it is a failure to attribute the origin of that knowledge, and an appropriation of the benefits of the knowledge through the monopoly conferred by intellectual property which raises the ire of many in the global South.
As I pointed out in an article on iCommons entitled Traditional Knowledge and Genetic Resources (Yale A2K2)
“Appropriation is a cross border phenomenon and often involves the use of mainstream intellectual property rights (IPR) i.e. patent and trademark systems by multinational corporations to ‘own’ traditional knowledge. That suggests, to me anyway, that the problem is with conventional IP.”
My reasoning is that if intellectual property systems are unable to effectively identify prior art or prior works, then the justification that the system affords protection to novel works or inventions falls away, and the system becomes a sophisticated lottery for awarding monopoly rents.
One response appropriation has been to record traditional knowledge in collections which then serve as records of prior art, making it relatively easy to prove that the knowledge was created and used by communities. It is an approach that appeals to commons lovers and access to knowledge activists, but its also has its downside, as Eric Kansas points out.
The Traditional Knowledge Policy (accompanying the Intellectual Property Laws Amendment Bill) mandates the creation of databases for traditional innovations, copyright works, terms and expressions, designs and performances. Anyone other than a member of an indigenous community who use those works must pay a fee, to a central fund, which must then use the funds for the benefit of the community*. This goes beyond protecting against appropriation and instead seeks impose the ‘exclude and then extract rents’ reasoning of industrial revolution intellectual property.
In doing so it prohibits not just appropriatory practices but practices, such as the use of traditional knowledge in teaching and learning, or in order to record and preserve knowledge, which are as essential for the preservation of traditional knowledge as statutory protection. The Bill will result in the removal of a great deal from the public domain. That is cause for concern.
This is why the Shuttleworth Foundation (where I get to work on access to knowledge) requested the inclusion of exceptions for teaching and learning, and the like in the draft of the Bill which will be presented to Parliament.
*Copyright works which are regarded as traditional works are the subject of copyright even if not recorded in a database