From prestonh@attbi.com Wed Apr 23 14:08:29 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 h3NL8T1M051666 for ; Wed, 23 Apr 2003 14:08:29 -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 h3NL8Qvw006368 for ; Wed, 23 Apr 2003 14:08:26 -0700 Received: from nomad.attbi.com (12-211-75-210.client.attbi.com[12.211.75.210]) by sccrmhc02.attbi.com (sccrmhc02) with SMTP id <2003042321082500200o1q53e>; Wed, 23 Apr 2003 21:08:25 +0000 Message-Id: <5.2.0.9.0.20030423110535.00ac8b70@mail.attbi.com> X-Sender: prestonh@mail.attbi.com X-Mailer: QUALCOMM Windows Eudora Version 5.2.0.9 Date: Wed, 23 Apr 2003 14:08:19 -0700 To: indknow@u.washington.edu From: Preston Hardison Subject: Traditional Knowledge, Science and the Commons Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed X-Uwash-Spam: Gauge=X, Probability=10%, Report="SPAM_PHRASE_00_01, __EVITE_CTYPE, __HAS_X_MAILER" There is an important new report out on IPR in the conduct of science, released and endorsed by The Royal Society: The Royal Society (2003). Keeping Science Open: The Effects of Intellectual Property Policy on the Conduct of Science. The Royal Society - Working Group on Intellectual Property Rights. The Royal Society, London, United Kingdom. Science relies on the free and rapid exchange of ideas and information. Intellectual Property Rights (IPRs) can protect creative work and investment in all areas, but may also restrict this exchange. This report considers whether the progress of science has been affected by the interpretation and use of IP policies, and makes recommendations for improvement. http://www.royalsoc.ac.uk/policy/ This document has led me to say a few words on my take on the growing "Commons" movement, and its relation to traditional knowledge. There is a growing movement of people working to ensure the protection and expansion of the "information commons," or public domain in information. IK'ers should look into this growing movement, as it holds many potential benefits for indigenous peoples. While much effort has been put into looking at the needs and mechanisms for protection and compensation for traditional knowledge, less attention has been put into the needs of indigenous peoples to equitably access the store of Western knowledge, and to access Western databases and libraries to monitor IK stored there. At the same time, the Commons Movement holds some danger for indigenous peoples. One example that has occupied my thinking recently is the Traditional Ecological Knowledge Prior Arts Database (TEK PAD), developed by the American Association for the Advancement of Science - Science & Human Rights Program (http://ip.aaas.org/tekindex.nsf), and financially supported by the Center for the Public Domain (http://www.centerpd.org/). This database has been set up, apparently without direct indigenous participation, and in effect accepts the Western definition of disclosed indigenous knowledge as falling within the public domain. It draws upon a number of large (proprietary?) databases on TK developed by non-indigenous organizations and researchers, and makes details of indigenous knowledge more easily accessible to the public. Although the Western system by and large currently treats this disclosed knowledge as part of the public domain, there is still quite a bit of controversy within the indigenous community on how to deal with this problem. On the one hand, there is a desire to block patents based on traditional knowledge by demonstrating prior art. The motivations for this are mixed - some wish to keep the knowledge within their tribes, others want to commercialize their knowledge and want to block patents as a means to develop their own products, and others wish to share their knowledge while prohibiting monopolistic control of their knowledge. It is worth pointing out that blocking patents through the revelation of prior art does not block commercial exploitation of traditional knowledge. It merely limits the monopolistic exploitation of the knowledge for about two decades, after which the knowledge clearly falls into the public domain (ideally - knowing corporations can use various clever tricks to create rolling patents as they do with rolling copyrights). This approach seems to ignore the fact that 1. Indigenous peoples are working to create sui generis laws that respect customary law regulating the use of their knowledge, including revealed knowledge; and 2. That even if indigenous peoples do make the decision to block patents through the revelation of prior art, this is a conversation between patent examiners and indigenous groups, and does not necessarily entail that they make public disclosures of the full details of their knowledge. At a meeting of the World Intellectual Property Organization - Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in July of 2002, the Tulalip Tribes of Washington presented a distributed model in which some high-level traditional knowledge is made available to patent examiners made through databases maintained by indigenous representative organizations, which contain links to detailed knowledge for patent examiners to follow up on if there is a probability that prior art exists on patent application subject matter. In other words, rather than maintain all details of TK in a publicly accessible public domain database at the national or international level, prior art registries would be maintained by tribes or designated tribal representative organizations which would be made available only to patent examiners. The details of the knowledge would be held by tribes, and 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 to point out that there is still significant debate over traditional knowledge registers and the principles for operating those registers that make it very problematic to create publicly-available registers in many parts of the world at this time. The difficulty for many tribes with the current Western regime of treating disclosed knowledge as part of the public domain may partly be a squabble over benefits sharing, which itself creates enormous difficulties with the prior art approach. But for many (most?) tribes, it is more of an issue of basic rights to control access to their knowledge based on customary law. The categories of protection for knowledge created in the Western intellectual property system do not fit well with traditional knowledge, because they are based on a completely different set of principles. In Western societies, the last four centuries of intellectual property law have increasingly focused on individual ownership of knowledge, the use of knowledge for economic competition, and the use of secrecy and formal 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 mean it is within the public domain for the free and unfettered use by any other individual or group. Knowledge is sacred, having come from the Creator, and different forms of knowledge come with their own forms of regulation. A particular song, for example, may be shared freely and openly, and may be known by all members of a tribe, but the rights to sing the song may be held by a single individual or family. Knowledge may traditionally be shared widely, and open to adoption and use by others, but that sharing was still within the context of sharing among those who generally understood the rules and obligations of using the knowledge. In many traditional societies, violation of the rules and obligations for using the knowledge may not only harm the tresspasser, but also come to harm those entrusted for keeping the knowledge and ensuring its proper use. Treating such shared knowledge as part of the public domain not only violate the moral obligations of tribes to oversee the use of their 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 support and acquiescence in such registers, we still have the problems associated with prior informed consent for the sharing of the knowledge, and this would hold even for the model of distributed registries mentioned above. The customary control of knowledge may not function well in the cultures surviving many centuries of colonization and contact with dominating foreign cultures. The social and spiritual institutions are often weakened, the scale of knowledge transmission has increased enormously, and tribes with different goals and aspirations may differ in how they may want to manage their knowledge. The contract approach, focusing on the development of indigenous principles for achieving just contracts between individual tribes and potential knowledge users, has not sufficiently addressed how knowledge ownership conflicts for collectively held knowledge. This is especially true when the scale of the conflicts go beyond the customary institutions designed to mediate such conflicts. If one tribe, for example, decides it is acceptable to disclose traditional knowledge, while a neighboring tribe having the same knowledge believes it is wrong to do so, how is that to be mediated? What if the knowledge is held in common with a tribe 100 miles away? 10000 miles away? There are many reasons to support the expansion of the intellectual commons, as this has come under extreme attack in the development of intellectual property laws that have led to a major imbalance of corporate interests over public interests, particularly in international law. Even nationally, the public-right-to-know, and public access to publicly-funded research is under attack, and nations vary in their approach. Commonwealth countries, for example, tend to treat government information as Crown property, while in the United States information not protected by national security concerns has been considered in the public domain. The United States has been a strong supporter of the balance of public good and private rights in the development of the fair use doctrine, but this doctrine is under attack nationally and internationally, where fair use conflicts with international commerce, foreign national laws and there doesn't exist an "international public" to receive the fair use. The United States has used a "facts" versus "expressions" formula to distinguish lists of names and addresses from the works of Mark Twain, but this is breaking down under corporate pressure in such laws as the European Directive on Databases, where any compilation of information, however factual, becomes protectable. There is also an expanding universe of NGO-scientist collaborations, and global scientific networks that are compiling information used in modelling, theory building, environmental policy-making and environmental management to which indigenous peoples (and the public) rarely have significant access. This information is used to make significant decisions on public resources and that impact indigenous peoples on their customary lands, or by affecting adjacent lands or lands to which they have traditional resource rights. Many of these databases are heavily subsidized by pubic expenditures. Scientific databases are usually developed through government grants to scientists, the work of government agencies, the contribution of these publicly funded researchers to NGOs, and direct government grants to NGOs and tax exemptions given for private contributions for their operation. The laws of disclosure, even if they apply to governments, do not necessarily apply to NGOs. The situation is made more complex in the international efforts, where jurisdiction crosses many national and legal borders. Some of the initiatives recognize the issue, and have made some movement to address the issue by making some data available over the Internet and developing liberal use policies for "their" information. But there is a great gap between having the right to download information page-by-page across an often slow Internet connection, and having access to full databases and the training and tools to use them. Many of these efforts have worked out a principle of "data custodianship," but this seems to sidestep the real issues of who truly owns and has the right to control distribution of information. Such rights may exist, but it will require much more work to sketch the ethical and legal outlines than has been performed to date. The commons movement has the potential to clarify some of these issues, and maintain a healthy balance between private and public rights. It is up to indigenous peoples themselves to develop the institutions and principles for working these kinds of conflicts out, and this will take financial, legal and policy support by nation states to help them do so. In the meantime, I would suggest that indigenous peoples begin to take a closer look at the commons movement, and work more closely with the foundations and organizations spearheading these movements to ensure that indigenous rights and values are treated appropriately. Preston Hardison .