Knowledge is Power; Traditional Knowledge is ... ?

This Kat has frequently visited the issue of the Nagoya Protocol of access to genetic resources, and the requirement, where the provider country so specifies, to obtain prior informed consent and reach access and benefit sharing agreements with that country in order to access the resources.  He has hitherto not specifically addressed the issue of Traditional Knowledge, because it has not been necessary: under the Nagoya Protocol TK is only relevant when it is “associated with genetic resources”, so freestanding TK does not come under the Nagoya system.  He has hesitated to write on the subject of TK, because there is a grave risk of offending cultural sensibilities, and this topic is emotive for many people.

Merpel is looking for a definition

The problem with discussion on the topic of TK is that the groups on behalf of whom its recognition and protection are argued are usually groups that have suffered oppression, mistreatment, and economic marginalisation in the past, and in some cases still today.  It is hard to detach those issues from the discussion of what TK is and how it is appropriate to protect it.  It is therefore difficult to have an objective discussion.

The problem is with lack of discussion is that proponents of protection of TK are advancing moves towards an international treaty to protect TK with insufficient challenge on the basic issues of what it is, and what kind of protection is appropriate.  Those who are opposed to such moves are often silent, or engage only in a general way (see the second comment).

The result of this is that there is a very unbalanced dialogue.  It seems to this Kat that there are huge problems that do not seem to be adequately addressed.  Following on from two other recent contributions on this blog (here and here) about TK, these are this Kat's current concerns.

1)     There is no definition of TK
If you want to protect something, it is indispensable to define what it is.  WIPO records “There is as yet no accepted definition of traditional knowledge (TK) at the international level.”  Astonishingly, the Nagoya Protocol, which creates legally binding obligations internationally in countries which have ratified the treaty, uses the term extensively with no definition of what it means.  This Kat suspects that this is not merely a transitory difficulty, but a symptom that there is something very amiss about the idea that TK is a genuine concept that merits special treatment.  It seems inherently unlikely that the characteristics claimed for it, for example “knowledge that has ancient roots and is often oral” (as stated here), or that it is "sacred or secret”, are likely to be shared in the hugely varying tribes and communities that apparently hold traditional knowledge.  It appears that the only proposed mechanism for arbitrating whether something is TK is that "it is if we say it is", which is circular and non-justiciable.

2)     Wider justification for special treatment is lacking
Legal systems are about creating balances between the competing desires and interests of parties.  In IP law, for example, this is achieved by varying the period of protection (20 years for patents, life plus 70 years for literary copyright), whether registration is needed (yes for patents, no for copyright), what the criteria are for the right to exist (novelty and inventive step for patents, originality and recordal for literary copyright), the breadth of protection given (absolute monopoly for patents, right to prevent copying only for literary copyright), as well as the scope of the exceptions to the right.  These balances are rarely what people want or expect.  Potential clients come this Kat who are aghast that they need to spend money to protect their invention; who assume (astonishing but true) that while they are of course free to copy other people’s photographs, any picture that they take will be sacrosanct; or who suppose that they can get monopoly protection on a design that they have copied from someone else.  So this Kat takes the view that the fact that someone says that they want or need a particular type or level of protection does not justify the granting of it.  That wish has to be balanced against the wider interest.

3)     The protections that are being sought are unprecedented
We are told that the protections that TK requires are very extensive indeed – the right to prevent its use, whether or not it is secret or confidential, and if use is authorised, the right to control and benefit (including financially) from that use and all developments of it, apparently in perpetuity.  This seems astonishingly broad, and for such a special treatment, overwhelming need should be demonstrated, but does not seem to be there.

4)     Whose is it anyway?

Who holds the traditional knowledge of turmeric?

TK is never said to be held by one person, it is by groups, by communities, or peoples.  Who then has the right of authorisation? What if (as seems very likely) more than one group “holds” the TK?  This problem of authorisation, particularly given the wide-ranging rights that are being sought, seems to illustrate that the rhetoric does not map very well onto the reality.  In relation to TK, the Indian examples of turmeric and neem are often mentioned, but their use is apparently widespread across India.  Can it be really said that any group holds it?  Is it seriously argued that it is held by India as a whole?

This Kat is concerned that protection of TK is being offered to marginalised groups in order to atone for past, or even present, mistreatment.  But this cannot be a reason to overlook the serious flaws in the whole concept.  He wonders whether the protection that is needed is not so much legal protection (in the sense of creating new legal obligations on the rest of the world), but rather recognition and assistance.