Airports, wildfires, cultural survival … and intellectual property
All airports are horrible, but every rule has an exception. In this case, the exception is YVR, Vancouver’s spectacular international airport, cradled between the mountains and the sea on Canada’s Pacific coast. But it is not only Vancouver’s beautiful location that makes this airport extraordinary: it is the fascinating display that is to be found within, featuring works of art and recreations of natural ecosystems that reflect the land and cultures of the west coast. Most, if not all, of that striking interior owes itself to Canada’s Aboriginal peoples. Their cultures are ostensibly featured in this setting, offering a distinctive welcome to a part of the world that is eager to demonstrate, and celebrate, its uniqueness.
And yet, these beautiful façades are not quite what they seem. The truth behind them is thought-provoking – and grim. While Canada is now eager to showcase its Aboriginal heritage, the history of Canadian attitudes towards its Aboriginal peoples is far from a happy one. On the contrary, Canada’s treatment of its First Nations has been a disturbing but consistent aberration in a country that claims to pride itself on respect for human rights and support for cultural diversity.
In June, an important moment in Canadian history arrived: the Truth and Reconciliation Commission, a body established in 2007 to investigate the decades-long mistreatment of Canada’s Aboriginal peoples in infamous “residential schools,” issued a detailed report. The Report was based largely on the testimony of victims, and features 94 recommendations for action. In its powerful statement, the Commission did not mince words: what had happened was “cultural genocide,” and nothing less.
The announcement was met with mixed reactions – it was a much-needed, open discussion of heartbreaking crimes, and represented a logical next step after the federal government’s official apology to Aboriginal Canadians for the residential schools, in June 2008. However, it remains an open question whether the government will move beyond the words of an apology, towards the concrete adoption of the recommendations in the report. An astonishing 70 percent of Canadians appear to agree with the terminology adopted by the Commission. If democratic mandate counts for something, this should offer strong encouragement, indeed, for the government to press forward with concrete action.
This process of historical “reconciliation” will surely raise sobering reflections for many, in Canada and around the world, about the long history of cultural tension between Aboriginal peoples and the West. The atrocities dealt with in the recent Canadian report are, thankfully, in the past. But it is worth remembering that the transformation unleashed by what was, in effect, the collision of two different world-views, is still unfolding. Aboriginal peoples continue to search for a way of life that is at once resonant with their cultural traditions, and modern. The process of change may be imbued with a greater degree of sensitivity now than in the past, but it continues to be immensely challenging.
The goal of all those interested in Aboriginal cultures must be to prevent that transformation from becoming, in new ways, traumatic. In this regard, intellectual property lawyers should take a keen interest in what has been a long-time niche interest for our community, but one that increasingly demands our attention: the protection of Aboriginal traditional knowledge.
What does “protection” mean? When it comes to IP, the answer is easy enough: it means protecting valuable intellectual property from unauthorized use by someone other than its owner. IP should not be used without the necessary permission and its usual correlate, payment. The justifications offered for this position can be surprisingly complex, and even self-contradictory. But it can be crudely explained by pointing out that IP protection aims to favour the “exploitation” of IP by its “rightful” owner over all other forms of use. It is assumed that this is ultimately beneficial to society. But neither this definition nor these underlying rationales for the protection of IP can capture what is meant by the protection of traditional knowledge.
Not this sort of protection ...
Where traditional knowledge is concerned, at least two fundamental issues emerge. First, in contrast to IP, traditional knowledge is in need of protection from exploitation – particularly when TK is exploited in a manner that is unfair, inappropriate, unauthorized, or unjustified. As such, both people and culture may be directly affected by the mistreatment. Moreover, as a general principle, decisions about the use of traditional knowledge should remain in the hands of those who created it. The “use” of traditional knowledge – a preferable term to exploitation – should depend on the satisfaction of these basic criteria.
Secondly, it is apparent that protection also means something beyond the prevention of misappropriation. Traditional culture itself requires protection – protection for ways of life and ways of thinking that, in a world under threat, are subject to abandonment and “will not come again.” Traditional cultures are in danger of disappearing, and require protection from this eventuality. Attempts to resolve the conflicts between IP and traditional knowledge can therefore make a significant contribution to this broader struggle for cultural survival.
This objective is one that should interest almost everyone. We live in an era of unparalleled natural destruction, a time when the continuance of the human race will largely depend on our ability to learn, or re-learn, how to co-exist with our natural environment. Aboriginal cultures are known to excel at this kind of knowledge. And it is no mere coincidence that, with the destruction of biodiversity, cultural diversity, as well, faces growing dangers. Ironically, at just the time when they are most needed, Aboriginal cultures are among those most under threat.
The root of the conflict between modern and traditional cultures lies deep within the colonial legacy of our past. Traditional cultures include both the cultures of Aboriginal peoples and, more broadly, those of developing countries. Many of these traditions represent human development “from time immemorial,” as the expression goes, and they encompass vast resources of human ingenuity, knowledge, and savoir-faire. Traditional knowledge is often “encoded,” to use a “thoroughly modern” expression, into different types of resources – epic poems, religious texts, marriage and family customs, music, artistic designs, healing treatments, and so on. The knowledge behind the practice can be so deeply buried that even the modern people within a given culture may not be fully aware of the treasure in their possession. For example, spices that are commonly used in Indian cuisine by even the poorest members of society – turmeric, asafetida, neem – turn out to have potent medicinal uses. Ancient religious texts extol the value of the “holy basil” plant, but (and) it happens to have glorious medicinal properties.
Truly Tufty: the Canadian lynx
Knowledge of this kind is clearly alien to modern intellectual property systems. Systems to preserve and propagate traditional knowledge do exist, but they generally offer a striking contrast to modern intellectual property laws. Traditional knowledge may be held communally, or by a certain community within a group. It is often not conceptualised in terms of “property” or “ownership,” in the usual sense; instead, it is understood as a kind of common good, dealt with in terms more closely resembling the Western notions of trusteeship, stewardship, or fiduciary responsibility, in preference to property. It may be sacred or secret, protected by well-defined rules or rituals. As such, some traditional knowledge represents a poor fit with the ethos of Commons movements in the West – which are, nevertheless, broadly supportive of traditional knowledge to the extent that they are against the commodification of knowledge through IP laws, and on the terms described by those laws. Traditional knowledge may have a single, identifiable creator, or it may not; and the relationship between individual creator and community may be complex.
Aboriginal peoples who live in developing countries face another layer of challenges – traditions within traditions – where each stratum of society may be engaged in its own struggle for cultural survival. The concept of time limits – which is, itself, imbued with something akin to “sacredness” in the modern copyright community – is largely devoid of significance for traditional knowledge.
This situation creates continuing tension, which is quite rightly understood by many involved in the discussions surrounding traditional knowledge as a post-colonial legacy. The knowledge of Aboriginal peoples is now sought after by drug companies engaged in bio-prospecting – which helps to point the way towards the holy grail of the pharmaceutical industry, successful drug development. The use of traditional knowledge from developing countries to acquire patents became a focus of concern in the international community when the U.S. Patent and Trademark Office granted patents in Indian traditional knowledge, including those involving the use of turmeric and neem, to US claimants (in the turmeric case, the applicant scientists were apparently expatriate Indians). Commercial entities are attracted by the novelty and sophistication of Aboriginal art and design, and often seek to appropriate these manifestations of traditional culture in marketing their products. In all of these occurrences, it is unlikely that the Aboriginal peoples who developed the knowledge or culture would derive any benefit from its use. It is more likely that they would suffer damage, as the exploitation of Aboriginal traditions for these purposes can represent a radical departure from traditional values and cultural goals.
In recognition of this situation, and after several decades of discussion, WIPO has made a recent attempt to legislate on traditional knowledge at the international level, developing draft provisions for international treaties. The diverse expressions of traditional knowledge defy homogeneous categorisation and, to an extent, international harmonisation. Nevertheless, WIPO’s efforts, and the perseverance of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore should be strongly commended for one achievement that is both indisputable and fundamental: they have brought awareness to the conflicts between IP and traditional knowledge by establishing a forum for discussion in the international community. That forum is sympathetic and ambitious; and it is to be hoped that it will be increasingly receptive to Aboriginal viewpoints, making a more prominent place for Aboriginal voices in future legal discussions of traditional knowledge.
This Kat agrees with Mira that Aboriginal cultures are of great value and have much to offer us if we should choose to listen to those who belong to them. He also feels that they should be respected and preserved for as long as those who live within them wish to continue doing so, with the proviso that no culture should be forced to remain with a straitjacket since all cultures, including Aboriginal ones, are themselves the product of a continuity of evolution in light of new knowledge, experience and narratives.The incompatibility between traditional knowledge and intellectual property laws matters today as never before. And it is no longer enough to want to protect traditional cultures from misappropriation: the modern world desperately needs what these cultures have to offer. In contrast to the knowledge for a price that is supported by the intellectual property system, the traditional knowledge of Aboriginal cultures is rapidly becoming knowledge beyond price. The struggle for cultural survival is no longer unique to Aboriginal peoples; it is shared by us all. The painful recognition of a history of “cultural genocide” in Canada is an important step forward on this difficult but essential path.
What do readers think?