ex Africa semper aliquid novi

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

Conventional intellectual property laws claim to confer rights only on knowledge that is individually authored, reduced to material form and ‘original’. The antithesis of that modern knowledge paradigm is traditional knowledge which is by its nature traditional, communal and frequently oral. Some developing countries have adopted sui generis legislation that attempts to craft a regime appropriate for traditional knowledge. But if appropriation is carried out mostly by corporations head-quartered in developed countries, and appropriated knowledge is exploited in developed countries through the mechanisms of conventional intellectual property the sui generis legislation in the country of origin won’t work. This is exactly what seems to be going on.Developing nations including South Africa have advocated strongly for recognition of sui generis traditional knowledge rights in the global trade system through the World Trade Organisation (WTO) and World Intellectual Property Organisation. Developed country trade reps put the kibosh on this idea during the Doha round.

Those same representatives insist on unendingly increasing intellectual property maximisation.
Response?
Hack the system. Use the conventional intellectual property system to award rights to traditional knowledge.

That seems to be the reasoning of the Department of Trade and Industry, which is the government department responsible for intellectual property in South Africa is considering amendments to South Africa’s intellectual property law, to protect traditional knowledge.

The draft legislation will amend South African copyright, performer’s protection, and design statutes. It will not however change patent legislation, which was amended in 2005, to require patent applicant’s to enter benefit sharing agreements with traditional knowledge communities on whose knowledge their inventions are based.

The Bill intends to give control over copyright works, designs, names and logos which are currently technically in the public domain to the indigenous communities which have created and preserved them. In other words the policy impetus is defensive, to prevent appropriation, but the policy means is use of conventional intellectual property instruments which rely on broad prohibition of use.

Will it work?

Can the industrial revolution design of conventional copyright vest rights in a group?

Should it work? Are the philosophical assumptions of Western and indigenous knowledge incommensurable?
Is this just one more gratitutious bestowal albeit ostensibly to those who have historically been denied benefits?
Will indigenous communities receive any benefits?
How will it reduce the public domain?