From prestonh@attbi.com Thu Apr 24 13:12:09 2003 Received: from mxu5.u.washington.edu (mxu5.u.washington.edu [140.142.32.164]) by lists.u.washington.edu (8.12.1+UW03.04/8.12.1+UW03.02) with ESMTP id h3OKC91M050036 for ; Thu, 24 Apr 2003 13:12:09 -0700 Received: from sccrmhc02.attbi.com (sccrmhc02.attbi.com [204.127.202.62]) by mxu5.u.washington.edu (8.12.1+UW03.04/8.12.1+UW03.02) with ESMTP id h3OKC7vw031724 for ; Thu, 24 Apr 2003 13:12:07 -0700 Received: from mothra.attbi.com (12-211-75-210.client.attbi.com[12.211.75.210]) by sccrmhc02.attbi.com (sccrmhc02) with SMTP id <2003042420120600200o0ceue>; Thu, 24 Apr 2003 20:12:06 +0000 Message-Id: <5.1.0.14.2.20030424105336.00ba1008@mail.attbi.com> X-Sender: prestonh@mail.attbi.com X-Mailer: QUALCOMM Windows Eudora Version 5.1 Date: Thu, 24 Apr 2003 13:12:05 -0700 To: indknow@u.washington.edu From: Preston Hardison Subject: Re: Traditional Knowledge, Science and the Commons Cc: shansen@aaas.org In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed At 01:41 PM 4/24/2003 -0400, you wrote: >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 Dear Stephen: My interpretation was based on a close reading of your materials. I did not claim that your system was disclosing currently private traditional knowledge to the public domain. The main issue is that your system accepts the premise that a public domain exists for previously disclosed traditional knowledge. Many of the tribes I have worked with do not accept this premise, and there is currently work by indigenous representatives in the international system to develop sui generis regimes that recognize long-term rights of indigenous peoples to control and benefit from the use of their knowledge. The sui generis regimes envisoned by these representatives involve the recognition of customary law, and this kind of legal pluralism to me seems to be necessary to preserve the cultural diversity we both seem to be fighting for. As I pointed out, the issue of settling prior art does not really require that information be made more easily accessible to the public. It is a matter for patent examiners. Since there are not many national patent examining offices around the world (about 200?), it is not a great technical feat to create prior art databases only accessible to patent examiners. It is also not necessary to disclose all details of the knowledge at once to patent examiners. The Tulalip Tribes, for example, have proposed a tiered system, where some rather generic-level information is disclosed to allow a patent examiner to determine if there is a probable overlap, and to leave the details to another step - either through another level of security or through in camera review. In any case, the model rests the control over access to the tribes or their designated tribal representative organizations, rather than through a national system they had no part in developing or have no control over. To get to the level of protection needed, it seems to me that tribes need to develop their capacity to develop and manage their own data management systems, because the range of prior art in previously disclosed information is a subset of the prior art that exists, and tribes are exceedingly reluctant to put any of that information into a national system. I think it is also necessary to separate the issue of prior art from the public domain. In some areas, traditional practices may be in wide use, but in others the use may be restricted to a single tribe or small number of tribes. The model for Ayruvedic knowledge in India, which has been taught for over a thousand years in schools across India are not appropriate for tribes in the New World. There are over 500 federally recognized tribes in the United States alone, each with their own traditions. Their knowledge may not be widely spread, and yet there is prior art. There are some mechanisms under US law to deal with some areas of disclosed traditional knowledge, such as the development of geographic indications and trademarks. The United States Patent and Trade Office (USPTO) has been working to further develop these mechanisms, and deserves praise for this work. There are also some avenues under trade secrets law and other forms of protection for undisclosed knowledge. My intent was not to deny that these are useful legal tools, but these existing tools are not sufficient to protect traditional knowledge. Indigenous representatives have said so repeatedly, and this is why they are working at the international level to promote the development of sui generis regimes respecting customary law. There are tremendous barriers to enact such laws, but in the meantime, we can do much better. You don't necessarily have to wait on law to force others to action - societies like the AAAS, and professional societies can adopt ethical standards and follow them. I wanted to point out in my article that many indigenous peoples do not believe that treating their already disclosed knowledge as part of the public domain is not ethical, regardless of its legal status. Knowledge is sacred, and must be used properly by those who understand their obligations and the limits to the use of the information. Misuse of this knowledge can bring spiritual and physical harm to individuals and tribes that have disclosed the knowledge. The dominant society may have other metaphysical systems for interpreting this knowledge, but this is the customary law that indigenous peoples are asking to be acknowledged and respected by their fellow citizens. The piece wasn't meant to be a personal attack on your initiative, although I admit some irritation. Reading the personal narrative that was once on the site, but seems to have been removed, it seemed that the only consultations was with the USPTO and several academics before the system was built and implemented, starting in 2001. There may be indigenous input, but I have failed to find reference to it on the AAAS website. Rosemary Coombe, Graham Dutfield and Anil Gupta are all respected researchers, and have contributed greatly to the thinking on traditional knowledge, but they are not indigenous and consultation with them does not constitute consultation with indigenous communities. There may be some indigenous participation in the development of the handbook "Your Traditional Knowledge and Biological Resources: A Handbook," but it is not apparent how wide this is on your site. There is a larger issue that indigenous peoples have in that there are a plethora of such "Protecting what's Yours," handbooks that have been developed or are in development, and there has been quite a bit of financial support for the development of these kinds of guidelines by non-indigenous organizations and individuals. Indigenous peoples have been asking of late what there is so little support for the development of "Protecting What's Ours" handbooks, written from an indigenous perspective. I have thousands of articles in my library on the schemes protection of traditional knowledge, and only a few dozen of these were penned by indigenous individuals. On this, I highly recommend looking up Terri Janke's work in developing Our Culture: Our Future: Report on Indigenous Australian Indigenous Cultural and Intellectual Property Rights (1998)(http://www.icip.lawnet.com.au/), which went through a two year public consultation process involving input from many indigenous tribes and organizations, and in the end was able to work out a widely accepted set of protocols based on aboriginal consensus. In one recent conference on Indigenous Knowledge, there were no indigenous papers presented, only indigenous commentators, and those were greatly outnumbered by the non-indigenous participants. Some indigenous peoples are also understandably wary of the involvement of scientific societies, since they view them as the vehicle through which much of the knowledge was disclosed in the first place. Their interest is that others "preserve, respect, and maintain" their knowledge systems, not that their knowledge is looked at as simply another object of study, or that the framework for the protection of their knowledge is simply another exercise for non-Indian lawyers and academics. I'm not trying to build a wall between indigenous peoples and the non-indigenous academics, because the indigenous representatives I have worked acknowledge and appreciate the valuable contributions they have made. I only wish to point out the enormous inequality of voice that in some part is fostered by existing financial and academic institutions. I would also like to point out the danger that the scientific worldview has for many indigenous peoples. As I have said, the metaphysical worldviews differ. Scientists have mostly been very skeptical of the value of traditional knowledge, but more are writing on the value of these systems, and there is some talk of the "integration" of the two knowledge systems. Some indigenous peoples are interested in science, and work with scientists. But science is a large enterprise, and there are many strains. Some work using "cosmological models" (e.g. from the birth of the universe to the evolution of the earth, life, genes, species, ecosystems, biomes, etc.), while others use "area models" (e.g. "how the heart works"). Without trying to start a discussion over the nature of science, I would like to point out that the intermingling of the cosmological models of science with indigenous cosmology has some danger to indigenous peoples, because it can challenge and erode traditional beliefs. A good example of some indigenous reaction to this can be found in Vine Deloria's Red Earth, White Lies: Native Americans and the Myth of Scientific Fact (1996), Power and Place: Indian Education in America (2002), and Evolution, Creationism, and Other Modern Myths: A Critical Inquiry (2003) to see the path some of this indigenous criticism is taking. I am not claiming any universal stance among indigenous peoples on science. There has been some voiced concern over the rules of engagement, where scientists only accept traditional knowledge where it can be mapped into scientific representation systems. Again, this wasn't meant to be a singular attack on the AAAS TEK PAD project - these issues are widespread and institutional. I needed to draw an example, and TEK PAD was it, because it combined two of the issues I have been thinking about - traditional knowledge protection and the public commons. For a number of years I have given presentations on how ideas on traditional knowledge and the public commons fundamentally challenge the constructed intellectual property landscape. Some of what has been considered part of the public domain (itself a constructed in the past few centuries) - "indigenous knowledge" - is governed by customary law, based on the recognition (NOT the grant) of prior rights, while some of what has been considered to be privatized information - primarily "government information" and "scientific information" - really belongs in the Western public domain. Indigenous peoples have focused mostly on the development of mechanisms for the protection of their knowledge, which goes far beyond the protection of their knowledge from temporary monopolistic commercial exploitation. And this is all that a public prior arts database does, while working against the moral rights to knowledge that many indigenous peoples assert. Fewer indigenous organizations are aware of the rise of the "cultural commons," "information commons," "academic commons," and "public domain" movement as it has been variously called, or in the promises and perils that the commons movement might bring them. The commons has the promise of bringing more equitable access to information, along with other citizens who have a right to participate in public decisions and right to access to the "storehouse of human knowledge," which currently is the storehouse of academic institutions and well-heeled organizations. Simultaneously, there is the peril that the commons movement will once again colonize indigenous peoples and their knowledge. Asserting simply that revealed knowledge is in the public domain is, in my mind, a step in this direction. I'm not trying to fan the flames here, but only pointing out the great difference in indigenous participation in the national and international dialogue over traditional knowledge, and I wanted to raise some concerns in the indigenous community has expressed. I do not claim to be speaking for them - the views expressed here are my own. What I'm calling for is a much wider discussion of these issues with strong participation of indigenous individuals and groups. Regards, Preston Hardison prestonh@attbi.com .