Traditional knowledge

Traditional knowledge (TK), indigenous knowledge (IK), traditional environmental knowledge (TEK) and local knowledge generally refer to the long-standing traditions and practices of certain regional, indigenous, or local communities. Traditional knowledge also encompasses the wisdom, knowledge, and teachings of these communities. In many cases, traditional knowledge has been orally passed for generations from person to person. Some forms of traditional knowledge are expressed through stories, legends, folklore, rituals, songs, and even laws. Other forms of traditional knowledge are often expressed through different means.

"Traditional knowledge" is not recognized as "knowledge" by all who study it since it includes beliefs, values and practices.

Traditional knowledge
Traditional knowledge typically distinguishes one community from another. For some communities, traditional knowledge takes on a personal and spiritual meaning. Traditional knowledge can also reflect a community's interests. Some communities depend on their traditional knowledge for survival. This is particularly true of traditional environmental knowledge, which refers to a "particular form of place-based knowledge of the diversity and interactions among plant and animal species, landforms, watercourses, and other qualities of the biophysical environment in a given place" (Peña, 2005, p. 198). An example of a society with a wealth of TEK is the South American Kayapo people, who have developed an extensive classification system of ecological zones of the Amazonian tropical savannah (i.e., campo / cerrado) to better manage the land (Posey, 2008, p. 90).

Cosmological connections and differences in worldview distinguish "traditional knowledge" from "local knowledge". Social scientists often place knowledge within a naturalistic framework, and emphasize the gradation of recent knowledge into knowledge acquired over many generations. These accounts use terms like "adaptively acquired knowledge", "socially constructed knowledge," and other terms that emphasize the social aspects of knowledge. Local knowledge and traditional knowledge may be thought of as distinguished by the length of time they have existed - decades to centuries versus millennia. A large number of scholarly studies in the naturalistic tradition demonstrate that traditional knowledge is not a natural category, and may reflect power struggles and relationships for land, resources and social control than adherence to a claimed ancestry or heritage.

Traditional knowledge, on the other hand, may be perceived very differently by indigenous and local communities themselves. The knowledge of indigenous and local communities is often embedded in a cosmology, and the distinction between "intangible" knowledge and physical things is often blurred. Indigenous peoples often say that "our knowledge is holistic, and cannot be separated from our lands and resources". Traditional knowledge in these cosmologies is inextricably bound to ancestors, and ancestral lands. Knowledge may not be acquired by naturalistic trial and error, but through direct revelation through conversations with "the creator", spirits, or ancestors. As Chamberlin (2003) writes of a Gitksan elder from British Columbia confronted by a government land claim: "If this is your land," he asked, "where are your stories?"

Indigenous and local communities often do not have strong traditions of ownership over knowledge that resemble the modern forms of private ownership. Many have clear traditions of custodianship over knowledge, and customary law may guide who may use different kinds of knowledge at particular times and places, and obligations that accompany the use of knowledge. From their perspective, misappropriation and misuse of knowledge may be offensive to traditions, and may have spiritual and physical repercussions in their cosmological systems. Subsequently, indigenous and local communities argue that others' use of their traditional knowledge warrants respect and sensitivity. Critics of "traditional knowledge", however, maintain that such demands for "respect" are really an attempt to prevent unsubstantiated beliefs from being subjected to the same scrutiny as other knowledge claims. This has particular significance for environmental management because the spiritual component of "traditional knowledge" can be used to justify any activity, including the unsustainable harvesting of resources.

Protection of traditional knowledge
Recently, international attention has turned to intellectual property laws to preserve, protect, and promote their traditional knowledge. The reasons for this are complex. In 1992, the Convention on Biological Diversity (CBD) recognized the value of traditional knowledge in protecting species, ecosystems and landscapes, and incorporated language regulating access to it and its use (discussed below). It soon became apparent that implementing these provisions would require that international intellectual property agreements would need to be revised to accommodate them.

This became even more pressing with the adoption of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which established rules for creating and protecting intellectual property that could be interpreted to contradict the agreements made under the CBD. In response, the states who had ratified the CBD requested the World Intellectual Property Organization (WIPO) to investigate the relationship between intellectual property rights, biodiversity and traditional knowledge. WIPO began this work with a fact finding mission in 1999. Considering the issues involved with biodiversity and the broader issues in TRIPs (involving all forms of cultural expressions, not just those associated with biodiversity - including traditional designs, music, songs, stories, etc.), WIPO established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTKF).

The period of the early 1990s to the Millennium was also characterized by the rapid rise in global civil society. The high-level Brundtland Report (1987) recommended a change in development policy that allowed for direct community participation and respected local rights and aspirations. Indigenous peoples and others had successfully petitioned the United Nations to establish a Working Group on Indigenous Populations that made two early surveys on treaty rights and land rights. These led to a greater public and governmental recognition of indigenous land and resource rights, and the need to address the issue of collective human rights, as distinct from the individual rights of existing human rights law.

The collective human rights of indigenous and local communities has been increasingly recognized - such as in the International Labor Organization (ILO) Convention 169 (1989) and the Declaration on the Rights of Indigenous Peoples (2007). The Rio Declaration (1992), endorsed by the presidents and ministers of the majority of the countries of the world, recognized indigenous and local communities as distinct groups with special concerns that should be addressed by states.

Initial concern was over the territorial rights and traditional resource rights of these communities. Indigenous peoples soon showed concern for the misappropriation and misuse of their "intangible" knowledge and cultural heritage. Indigenous peoples and local communities have resisted, among other things: the use of traditional symbols and designs as mascots, derivative arts and crafts; the use or modification of traditional songs; the patenting of traditional uses of medicinal plants; and the copyrighting and distribution of traditional stories.

Indigenous peoples and local communities have sought to prevent the patenting of traditional knowledge and resources where they have not given express consent. They have sought for greater protection and control over traditional knowledge and resources. Certain communities have also sought to ensure that their traditional knowledge is used equitably - according to restrictions set by their traditions, or requiring benefit sharing for its use according to benefits which they define.

Three broad approaches to protect traditional knowledge have been developed. The first emphasizes protecting traditional knowledge as a form of cultural heritage. The second looks at protection of traditional knowledge as a collective human right. The third, taken by the WTO and WIPO, investigates the use of existing or novel sui generis measures to protect traditional knowledge.

Currently, only a few nations offer explicit sui generis protection for traditional knowledge. However, a number of countries are still undecided as to whether law should give traditional knowledge deference. Indigenous peoples have shown ambivalence about the intellectual property approach. Some have been willing to investigate how existing intellectual property mechanisms (primarily: patents, copyrights, trademarks and trade secrets) can protect traditional knowledge. Others believe that an intellectual property approach may work, but will require more radical and novel forms of intellectual property law ("sui generis rights"). Others believe that the intellectual property system uses concepts and terms that are incompatible with traditional cultural concepts, and favors the commercialization of their traditions, which they generally resist. Many have argued that the form of protection should refer to collective human rights to protect their distinct identities, religions and cultural heritage.

Intellectual property protection of traditional knowledge and the public domain
Traditional knowledge includes pre-existing, underlying traditional culture, or folklore, and literary and artistic works created by current generations of society which are based on or derived from pre-existing traditional culture or folklore. Traditional culture and folklore tends to be trans-generational, old and collectively "owned" by groups or communities. Often traditional culture and folklore is of anonymous origin and expressions of this pre-existing traditional culture is generally not protected by current intellectual property laws and is treated as being in the public domain. In contrast contemporary literary and artistic works based upon, derived from or inspired by traditional culture or folklore may incorporate new elements or expressions. Hence these works may be "new" works with a living and identifiable creator, or creators. Such contemporary works may include a new interpretation, arrangement, adaptation or collection of pre-existing cultural heritage that is in the public domain. Traditional culture or folklore may also be "repackaged" in digital formats, or restoration and colorization. Contemporary and tradition based expressions and works of traditional culture are generally protected under existing copyright law, a form of intellectual property law, as they are sufficiently original to be regarded as "new" upon publication. Once the intellectual property rights afforded to these new works of traditional knowledge expires, they fall into the public domain.

The public domain, as defined in the context of intellectual property rights, is not a concept recognised by indigenous peoples. As much of traditional knowledge has never been protected under intellectual property rights, they can not be said to have entered any public domain. On this point the Tulalip Tribes of Washington State, United States, has commented that "...open sharing does not automatically confer a right to use the knowledge (of indigenous people)... traditional cultural expressions are not in the public domain because indigenous peoples have failed to take the steps necessary to protect the knowledge in the Western intellectual property system, but form a failure of governments and citizens to recognise and respect the customary laws regulating their use".

Human rights protection of traditional knowledge
Many indigenous and local communities have argued that the reasons and mechanisms for protecting their knowledge do not lie within the logic of the intellectual property system, but within the human rights system. Indigenous and local communities have argued that public claims on their knowledge without their consent amounts to a misappropriation of their identity and heritage, a violation of their fundamental, inalienable and collective human rights.

Indigenous intellectual property
Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples' special rights to claim (from within their own laws) all that their indigenous groups know now, have known, or will know. It is a concept that has developed out of a predominantly western legal tradition, and has most recently been promoted by the World Intellectual Property Organisation, as part of a more general United Nations push to see the diverse wealth of this world's indigenous, intangible cultural heritage better valued and better protected against probable, ongoing misappropriation and misuse.

Declarations regarding Indigenous Intellectual Property
In the lead up to and during the United Nations International Year for the World's Indigenous Peoples (1993) then during the following United Nations Decade of the World's Indigenous Peoples (1995-2004) a number of conferences of both indigenous and non-indigenous specialists were held in different parts of the world, resulting in a number of declarations and statements identifying, explaining, refining, and defining 'indigenous intellectual property'.

World Intellectual Property Organization (WIPO)
The World Intellectual Property Organization (WIPO) is currently working with different nations, organizations, and indigenous and local communities to address the policy/legal issues with traditional knowledge protectionism through the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. This Secretariat of the Committee has produced numerous excellent comparative reviews of existing intellectual property tools for protective traditional knowledge and providing benefit sharing. As of September 2009, there are still large disagreements among countries as to whether there should be a binding or non-binding (voluntary) international legal regime. However, the WIPO General Assembly in October 2009 agreed that discussions should continue for a further two years, at an increased pace, to agree the text of an "international legal instrument" that will "ensure effective protection".

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
Article 27. 3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) sets out certain conditions under which certain biological materials or intellectual innovations may be excluded from patenting. The Article also contains a requirement that Article 27 be reviewed. In the TRIPs-related Doha Declaration of 2001, Paragraph 19 expanded the review to a review of Article 27 and the rest of the TRIPs agreement to include the relationship between the TRIPS Agreement and the 1992 Convention on Biological Diversity (CBD) and the protection of traditional knowledge and folklore.

Forced disclosure
Forced disclosure of and access to traditional knowledge and resources for the benefit of mankind, against their customs, without consent or without Reciprocity (cultural anthropology)|reciprocity]] may be as unjust as privatization of their knowledge and resources in patents, trademarks, trade secrets and copyrights. Indigenous and local communities have strong traditions related to the spiritual, sacred, secret or guardianship nature of their knowledge and resources that may prohibit some sharing.

The international standards emerging out of the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity (CBD) are that 1. the development of any policies, laws or rules regarding traditional knowledge and associated resources must involve the full and effective participation of indigenous and local communities; 2. access to traditional knowledge and resources (particularly genetic resources) can only be obtained through the free, prior informed consent (FPIC) of indigenous and local communities; and 3. Indigenous and local communities have the right to determine the form of benefit sharing, and use by others can only proceed on the basis of mutually agreeable terms between the custodians or holders of knowledge and resources and external parties.

The Convention on Biological Diversity (CBD)
The Convention on Biological Diversity (CBD), signed at the United Nations Conference on Environment and Development (UNCED) in 1992, was the first international environmental convention to develop measures for the use and protection of traditional knowledge, related to the conservation and sustainable use of biodiversity. By 2006, 188 had ratified the Convention and agreed to be bound by its provisions, the largest number of nations to accede to any existing treaty (the United States is one of the few countries that has signed, but not ratified, the CBD). Significant provisions include:

''Article 8. In-situ Conservation''

Each Contracting Party shall, as far as possible and as appropriate:

(a)...

(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices

''Article 10. Sustainable Use of Components of Biological Diversity''

Each Contracting Party shall, as far as possible and as appropriate:

(a)...

(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements

The interpretation of these provisions has been elaborated through decisions by the parties (ratifiers of the Convention) (see the Convention on Biological Diversity Handbook, available free in digital format from the Secretariat).

The parties to the Convention set a 2010 target to negotiate an international legally-binding regime on access and benefit sharing (ABS) at the Eighth meeting (COP8), 20-31 March 2006 in Curitiba, Brazil. The ABS negotiations will address inter-governmental obligations related to genetic resources, and these will involve measures related to the rights of indigenous and local communities to control access to and derive benefits from the use of genetic resources and associated traditional knowledge.

At the Convention on Biological Diversity meeting, in Buenos Aires, in 1996, emphasis is put on local knowledge. Key players, such as local communities and indigenous peoples, must be recognized by States, and given back their sovereignty over the biodiversity of their territories, so that they can continue protecting it.

Commons and intellectual property
Recently, traditional knowledge has been drawn into the debate related to access to medicines, access to food, the need for poverty alleviation, and related issues that affect the livelihoods and welfare of people worldwide. It has been argued that traditional knowledge is an important source of health security, food security and livelihood security for the world's poor. As such, it has been argued that the benefits of sharing and actively disseminating traditional knowledge outweigh the benefits of protection and recognition of ownership.

The Creative Commons, with its roots in the open software movement, the literary arts, the open access movement in science and the humanities, and in the media, arts, entertainment and communications communities, has also proposed that traditional knowledge is an essential and public source of cultural creativity.

Part of the debate involves the question of whether or not traditional knowledge is part of the public sphere, national commons, or global commons as part of a "common heritage of mankind". There is no common indigenous and local community position on issues of the "common heritage of mankind" or the "global public good". Indigenous peoples and local communities have shared much of their knowledge and resources with the global community and many have traditions of sharing. Healers, in general, have spiritual obligations to heal the sick and have shared their healing knowledge. Indigenous peoples have strong traditions of reciprocity, that is people's informal exchange of goods and labour. Much of the historical appropriation and use of traditional knowledge has not occurred with reciprocity. Though traditional knowledge and resources have made contributions to the welfare of humankind as the basis of much of the world's food system and naturally-derived medicines.

Private intellectual property rights in the non-customary system are temporary monopolies that are granted by a sovereign. Once these monopolies expire, they fall into a national or global sphere, the public domain. Conserns have been raised over the trend to longer duration and wider breadth of intellectual property rights granted by many governments. Indigenous and local communities draw their rules for knowledge from their local commons, and their local customs may diverge greatly from any claims that a national society or global society may make on their knowledge. Applying the Balance Doctrine (the legal doctrine that private interests must be balanced against societal values) may not protect minority rights, as the values of a dominant society can overwhelm the values of indigenous and ethnic minorities.

Intellectual property law predominantly uses the language of economic incentives to justify intellectual property protection. Under this rationale, states grant, as a privilege, a temporary monopoly on ownership and control of knowledge (for current copyright in the United States, this is Life + 70 years for individual works, and 95-120 years for corporate works; for patents it is 20 years). This monopoly is presumed to be a necessary incentive for innovation. After the expiration of the protection, the knowledge falls into the public domain for others to freely use in derivative innovations, for novel parts of which they may be granted intellectual property rights. Indigenous and local communities have argued that they generally don't use such incentives to innovate. Their use of knowledge is spiritually and culturally guided. Misappropriation and misuse of this knowledge may violate customary laws that are at the core of their collective and cultural identity.