From shansen@aaas.org Thu Apr 24 10:44:14 2003 Received: from mxu4.u.washington.edu (mxu4.u.washington.edu [140.142.33.8]) by lists.u.washington.edu (8.12.1+UW03.04/8.12.1+UW03.02) with ESMTP id h3OHiC1M039544 for ; Thu, 24 Apr 2003 10:44:13 -0700 Received: from monkey.aaas.org (monkey.aaas.org [198.151.217.80]) by mxu4.u.washington.edu (8.12.1+UW03.04/8.12.1+UW03.02) with ESMTP id h3OHiA85004066 for ; Thu, 24 Apr 2003 10:44:10 -0700 Received: from AAASMTA.aaas.org (groupwise.aaas.org [198.151.217.126]) by monkey.aaas.org (Postfix) with SMTP id 2B33674BC3 for ; Thu, 24 Apr 2003 13:38:38 -0400 (EDT) Received: from GWISE-Message_Server by AAASMTA.aaas.org with Novell_GroupWise; Thu, 24 Apr 2003 13:41:31 -0400 Message-Id: X-Mailer: Novell GroupWise Internet Agent 5.5.5.1 Date: Thu, 24 Apr 2003 13:41:06 -0400 From: "Stephen Hansen" To: Cc: Subject: Re: Traditional Knowledge, Science and the Commons Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Content-Disposition: inline X-Uwash-Spam: Gauge=IIIIIIII, Probability=8%, Report="DEAR_SOMEBODY, SPAM_PHRASE_01_02, SUPERLONG_LINE, __EVITE_CTYPE, __HAS_X_MAILER" Dear Preston: May I suggest that the next time before you attack the work of others = publically, that you do a little more background work. TEK*PAD does not = disclose any traditional knowledge to the public domain - it is an index = of previoulsy disclosed information that is already in the public domain, = specifically that which is found on the Internet. I agree that much of = that information has arrived there without the consent or knowledge of its = originators. But for patent examiners to miss it on the Internet also = doubles the chances of inappropriate patents based on that knowledge. What = a loss, first this knowledge is placed in the public domain without = consent, then it is patented due to the fact it didn't even serve as prior = art. Also, any potential input from local knowledge holders into the = system involves direct prior consent. I fully agree that the public domain is only one option or vehicle for = traditional knowledge holders and because of that fact TEK*PAD is only one = part of our work in protecting traditional knowledge. We are currently = developing a handbook for traditional knowledge holders that explains = intellectual property issues and options for the protection of their = knowledge. This handbook has also attracted the attention of WIPO and = many indigenous groups have been consulted in its development and are very = supportive. More information about our approach and the upcoming = handbook can be found at our project web site at: http://shr.aaas.org/tek= =20 We look forward to hearing from others on these issues as well. Regards, Stephen A. Hansen=20 There is an important new report out on IPR in the conduct of science,=20 released and endorsed by The Royal Society: The Royal Society (2003). Keeping Science Open: The Effects of Intellectual= =20 Property Policy on the Conduct of Science. The Royal Society - Working=20 Group on Intellectual Property Rights. The Royal Society, London, = United=20 Kingdom. Science relies on the free and rapid exchange of ideas and information.=20 Intellectual Property Rights (IPRs) can protect creative work and=20 investment in all areas, but may also restrict this exchange. This = report=20 considers whether the progress of science has been affected by the=20 interpretation and use of IP policies, and makes recommendations for=20 improvement. http://www.royalsoc.ac.uk/policy/ This document has led me to say a few words on my take on the growing=20 "Commons" movement, and its relation to traditional knowledge. There is a growing movement of people working to ensure the protection = and=20 expansion of the "information commons," or public domain in information.=20= IK'ers should look into this growing movement, as it holds many = potential=20 benefits for indigenous peoples. While much effort has been put into=20 looking at the needs and mechanisms for protection and compensation for=20 traditional knowledge, less attention has been put into the needs of=20 indigenous peoples to equitably access the store of Western knowledge, = and=20 to access Western databases and libraries to monitor IK stored there. At the same time, the Commons Movement holds some danger for indigenous=20 peoples. One example that has occupied my thinking recently is the=20 Traditional Ecological Knowledge Prior Arts Database (TEK PAD), = developed=20 by the American Association for the Advancement of Science - Science &=20 Human Rights Program (http://ip.aaas.org/tekindex.nsf), and financially=20 supported by the Center for the Public Domain (http://www.centerpd.org/). This database has been set up, apparently without direct indigenous=20 participation, and in effect accepts the Western definition of disclosed=20= indigenous knowledge as falling within the public domain. It draws upon = a=20 number of large (proprietary?) databases on TK developed by non-indigenous= =20 organizations and researchers, and makes details of indigenous knowledge=20= more easily accessible to the public. Although the Western system by and large currently treats this disclosed=20= knowledge as part of the public domain, there is still quite a bit of=20 controversy within the indigenous community on how to deal with this=20 problem. On the one hand, there is a desire to block patents based on=20 traditional knowledge by demonstrating prior art. The motivations for = this=20 are mixed - some wish to keep the knowledge within their tribes, others=20 want to commercialize their knowledge and want to block patents as a = means=20 to develop their own products, and others wish to share their knowledge while prohibiting monopolistic control of their knowledge. It is worth=20 pointing out that blocking patents through the revelation of prior art = does=20 not block commercial exploitation of traditional knowledge. It merely=20 limits the monopolistic exploitation of the knowledge for about two=20 decades, after which the knowledge clearly falls into the public domain=20 (ideally - knowing corporations can use various clever tricks to create=20 rolling patents as they do with rolling copyrights). This approach seems to ignore the fact that 1. Indigenous peoples are=20 working to create sui generis laws that respect customary law regulating=20= the use of their knowledge, including revealed knowledge; and 2. That = even=20 if indigenous peoples do make the decision to block patents through the=20 revelation of prior art, this is a conversation between patent examiners=20= and indigenous groups, and does not necessarily entail that they make=20 public disclosures of the full details of their knowledge. At a meeting of the World Intellectual Property Organization -=20 Intergovernmental Committee on Intellectual Property and Genetic Resources,= =20 Traditional Knowledge and Folklore in July of 2002, the Tulalip Tribes = of=20 Washington presented a distributed model in which some high-level=20 traditional knowledge is made available to patent examiners made through=20= databases maintained by indigenous representative organizations, which=20 contain links to detailed knowledge for patent examiners to follow up on = if=20 there is a probability that prior art exists on patent application = subject=20 matter. In other words, rather than maintain all details of TK in a=20 publicly accessible public domain database at the national or international= =20 level, prior art registries would be maintained by tribes or designated=20 tribal representative organizations which would be made available only = to=20 patent examiners. The details of the knowledge would be held by tribes, = and=20 patent examiners would contact them for negotiating the details. This is not to say that this is the only model, or even a viable one, = but=20 to point out that there is still significant debate over traditional=20 knowledge registers and the principles for operating those registers = that=20 make it very problematic to create publicly-available registers in many=20 parts of the world at this time. The difficulty for many tribes with the current Western regime of = treating=20 disclosed knowledge as part of the public domain may partly be a = squabble=20 over benefits sharing, which itself creates enormous difficulties with = the=20 prior art approach. But for many (most?) tribes, it is more of an issue = of=20 basic rights to control access to their knowledge based on customary = law.=20 The categories of protection for knowledge created in the Western=20 intellectual property system do not fit well with traditional knowledge,=20= because they are based on a completely different set of principles. In=20 Western societies, the last four centuries of intellectual property law=20 have increasingly focused on individual ownership of knowledge, the use = of=20 knowledge for economic competition, and the use of secrecy and formal=20 statutory law and legal contract for the regulation of the use of = knowledge. In traditional societies, knowledge may be shared widely, but that does = not=20 mean it is within the public domain for the free and unfettered use by = any=20 other individual or group. Knowledge is sacred, having come from the=20 Creator, and different forms of knowledge come with their own forms of=20 regulation. A particular song, for example, may be shared freely and=20 openly, and may be known by all members of a tribe, but the rights to = sing=20 the song may be held by a single individual or family. Knowledge may=20 traditionally be shared widely, and open to adoption and use by others, = but=20 that sharing was still within the context of sharing among those who=20 generally understood the rules and obligations of using the knowledge. = In=20 many traditional societies, violation of the rules and obligations for=20 using the knowledge may not only harm the tresspasser, but also come to=20 harm those entrusted for keeping the knowledge and ensuring its proper = use.=20 Treating such shared knowledge as part of the public domain not only=20 violate the moral obligations of tribes to oversee the use of their=20 knowledge, it can also lead them to spiritual and physical harm. Even if we can get to a mechanism for ensuring that there is indigenous=20 support and acquiescence in such registers, we still have the problems=20 associated with prior informed consent for the sharing of the knowledge,=20= and this would hold even for the model of distributed registries = mentioned=20 above. The customary control of knowledge may not function well in the=20 cultures surviving many centuries of colonization and contact with=20 dominating foreign cultures. The social and spiritual institutions are=20 often weakened, the scale of knowledge transmission has increased=20 enormously, and tribes with different goals and aspirations may differ = in=20 how they may want to manage their knowledge. The contract approach,=20 focusing on the development of indigenous principles for achieving just=20 contracts between individual tribes and potential knowledge users, has = not=20 sufficiently addressed how knowledge ownership conflicts for collectively= =20 held knowledge. This is especially true when the scale of the conflicts = go=20 beyond the customary institutions designed to mediate such conflicts. = If=20 one tribe, for example, decides it is acceptable to disclose traditional=20= knowledge, while a neighboring tribe having the same knowledge believes = it=20 is wrong to do so, how is that to be mediated? What if the knowledge is=20 held in common with a tribe 100 miles away? 10000 miles away? There are many reasons to support the expansion of the intellectual=20 commons, as this has come under extreme attack in the development of=20 intellectual property laws that have led to a major imbalance of = corporate=20 interests over public interests, particularly in international law. = Even=20 nationally, the public-right-to-know, and public access to publicly-funded= =20 research is under attack, and nations vary in their approach. Commonwealth= =20 countries, for example, tend to treat government information as Crown=20 property, while in the United States information not protected by = national=20 security concerns has been considered in the public domain. The United=20 States has been a strong supporter of the balance of public good and=20 private rights in the development of the fair use doctrine, but this=20 doctrine is under attack nationally and internationally, where fair use=20 conflicts with international commerce, foreign national laws and there=20 doesn't exist an "international public" to receive the fair use. The = United=20 States has used a "facts" versus "expressions" formula to distinguish = lists=20 of names and addresses from the works of Mark Twain, but this is = breaking=20 down under corporate pressure in such laws as the European Directive on=20 Databases, where any compilation of information, however factual, = becomes=20 protectable. There is also an expanding universe of NGO-scientist collaborations, = and=20 global scientific networks that are compiling information used in=20 modelling, theory building, environmental policy-making and environmental= =20 management to which indigenous peoples (and the public) rarely have=20 significant access. This information is used to make significant = decisions=20 on public resources and that impact indigenous peoples on their = customary=20 lands, or by affecting adjacent lands or lands to which they have=20 traditional resource rights. Many of these databases are heavily subsidized= =20 by pubic expenditures. Scientific databases are usually developed = through=20 government grants to scientists, the work of government agencies, the=20 contribution of these publicly funded researchers to NGOs, and direct=20 government grants to NGOs and tax exemptions given for private=20 contributions for their operation. The laws of disclosure, even if they=20 apply to governments, do not necessarily apply to NGOs. The situation is made more complex in the international efforts, where=20 jurisdiction crosses many national and legal borders. Some of the=20 initiatives recognize the issue, and have made some movement to address = the=20 issue by making some data available over the Internet and developing=20 liberal use policies for "their" information. But there is a great gap=20 between having the right to download information page-by-page across an=20 often slow Internet connection, and having access to full databases and = the=20 training and tools to use them. Many of these efforts have worked out a=20 principle of "data custodianship," but this seems to sidestep the real=20 issues of who truly owns and has the right to control distribution of=20 information. Such rights may exist, but it will require much more work = to=20 sketch the ethical and legal outlines than has been performed to date. = The=20 commons movement has the potential to clarify some of these issues, and=20 maintain a healthy balance between private and public rights. It is up to indigenous peoples themselves to develop the institutions = and=20 principles for working these kinds of conflicts out, and this will take=20 financial, legal and policy support by nation states to help them do so. = In=20 the meantime, I would suggest that indigenous peoples begin to take a=20 closer look at the commons movement, and work more closely with the=20 foundations and organizations spearheading these movements to ensure = that=20 indigenous rights and values are treated appropriately. Preston Hardison Stephen A. Hansen Senior Program Associate Science and Human Rights Program American Association for the Advancement of Science 1200 New York Ave., NW Washington, DC 20005 USA Tel: (202) 326-6796 Fax: (202) 289-4950 email: shansen@aaas.org WWW: http://shr.aaas.org .