[ffm-report-comments] Comment of Margaret Chon and Shubha Ghosh

JOINT COMMENT ON WIPO Draft Report: INTELLECTUAL PROPERTY NEEDS AND EXPECTATIONS OF TRADITIONAL KNOWLEDGE HOLDERS MARGARET CHON, Associate Professor of Law, Seattle University School of Law (mchon@seattleu.edu) AND SHUBHA GHOSH, Visiting Professor of Law, University at Buffalo, SUNY (ghoshlaw@hotmail.com) Introduction We do not intend this comment to be a point-by-point rebuttal of the WIPO Draft Report on Intellectual Property Needs and Expectations of Traditional Knowledge Holders (hereinafter "draft report"). Nor have we attempted to synthesize all of the different aspects of this ambitious draft report. Instead, we propose both a normative position as well as a conceptual framework for assessing the strengths or weaknesses of various intellectual property regimes as they pertain to traditional knowledge, for possible inclusion in the WIPO final report. Before proceeding, we note that the term "intellectual property" is not limited to positive, statutory law. As the WIPO draft report executive summary itself notes, "the definition of IP in the Convention Establishing the World Intellectual Property Organization (WIPO), 1967 makes it clear that "intellectual property" is a broad concept and can include productions and matter not forming part of the existing categories of intellectual property, provided they result, as the definition states, "from intellectual activity in the industrial, scientific, literary or artistic fields. This definition allows the formal recognition of sui generis forms of protection, or customary forms of traditional knowledge protection under the rubric of "intellectual property." Disrupting the dichotomy between "intellectual property" (protected by formal, positive law) on the one hand, and "traditional knowledge" (protected by custom or not at all) on the other, may enable lawmakers to mix and match different forms of protection to achieve the best possible results for different traditional knowledge communities, situated in radically different circumstances. We discuss here four different models or "pure types" of possible intellectual property regimes (including non-protection), as a basis for exploring the relative benefits for and costs to traditional knowledge communties. A Suggested Normative Component of the WIPO Draft Report The conclusions reached by WIPO in its assessment of intellectual property protection for indigenous knowledge raises questions about the implicit and explicit normative assumptions that guide its inquiry. The drafters of the WIPO report stated that the fact-finding missions and other activities are designed to identify and explore the intellectual property needs and expectations of new beneficiaries, including the holders of indigenous knowledge and innovations, in order to promote the contribution of their intellectual property system to their social, cultural, and economic development. The WIPO has identified these "needs and expectations" through fact-finding missions in the major regions of the world. These missions conducted surveys of members of indigenous groups, governmental organizations, non-governmental organizations, and industry in each of the regions to discern how these various constituencies defined traditional knowledge and how they would assess the needs for protection of traditional knowledge under the intellectual property system. It is not clear what normative guidelines WIPO envisions in identifying the "needs and expectations" of indigenous knowledge holders and beneficiaries. The drafters' statement quoted above appeals to intellectual property and the goal of promoting "social, cultural, and economic development." Intellectual property, of course, is a culturally loaded term and covers a range of subject matter and property rights structures to protect the subject matter. For example, U.S. copyright law differs in many of its features from the copyright systems of European countries by de-emphasizing moral rights and emphasizing exploitation of the commercial value of the created work. Furthermore, within what can be referred to as U.S. intellectual property law, there is a vast difference between the goals of patent law, which is designed to stimulate technological innovation, and copyright law, which is designed to protect expressions of ideas. The goal of "promoting social, cultural, and economic development" may not be consistent with intellectual property protection depending upon the assumptions of what intellectual property means. Equally unclear is what the drafters mean by "social, cultural, and economic development." The three may be at odds. For example, granting an intellectual property right to commercially exploit traditional knowledge may facilitate economic expansion and growth by permitting the expansion of capital. But such protection may come at the cost of social and cultural development if economic expansion disturbs traditional social structures like the family or village networks. Similarly, intellectual property protection based on traditional social and cultural systems, such as reliance on the memory of tribal elders or village medicine men, may be at the cost of economic development. Since the drafters did not provide a coherent normative framework for their inquiry, it becomes more difficult to interpret the responses from the various groups surveyed in the regions. The responses may reflect pure self-interest as members of the group surveyed respond to questions in terms of what intellectual property system works best for their economic or social goals. If so, then it is very difficult to assess the answers to the questions WIPO has posed without a clearer normative framework. Even if the answers do not reflect pure self-interest, the difficult problem is determining what values are being represented. Again, lack of a clear normative framework obfuscates the issues. As readers of the WIPO proposal and individuals engaged in issues of intellectual property, development, and social justice, we propose that the creation of an appropriate system for the protection of traditional knowledge should be guided by the goal of empowering traditionally subordinated groups. Since traditional knowledge is rooted in the groups that have developed such knowledge over time, it is necessary to protect the peoples who are the source of the knowledge. Preservation of the people entails granting and protecting fundamental economic and non-economic rights held by the people. While acknowledging that intellectual property law and human rights are distinct, we also recognize that they should be guided by the same principle: protection of groups that have been typically subordinated and on whose existence the development of intellectual property depends. Indeed, WIPO itself has acknowledged the growing interdependence of intellectual property with human rights norms, in its panel discussion to commerorate the 50th Anniversary of the Universal Declaration of Human Rights (November 9, 1998). This normative goal is also consistent with a multilateral trade instrument, TRIPS, which permits adherents to "adopt measures necessary . . . to promote the public interest in sectors of vital importance to their socio-economic development." Art. 8(1). Since most of the protection of traditional knowledge will take place within the context of territorial sovereignties (as modifications to or extensions of national intellectual property regimes), it is important to note that multilateral instruments such as TRIPS do allow nation-states to pursue the protection of traditional knowledge for the sake of promoting public interest. With this normative guideline, we now consider four models for traditional knowledge protection: the public domain model, the commercial use model, the trust model, and the indigenous rights model. We assess each of these models both from the perspective of the normative guideline we have proposed and in light of the fact-finding missions of WIPO. Four Models For Traditional Knowledge Protection 1. The public domain model. Under the public domain model, traditional knowledge is not owned by anyone and everyone is free to use it. The appeal of this model is that it facilitates sharing of knowledge and eliminates the threat of expropriating indigenous knowledge and exploiting indigenous peoples through intellectual property law. Effectively by relegating all traditional knowledge to the public domain, this model maintains the status quo. Traditional knowledge cannot be protected by statutory or common law intellectual property law embodied in patent, copyright, trademark, trade secret, and other doctrines. But it could still be protected by social structures and conventions that the drafters indicate serve as a form of intellectual property protection. For example, the draft report states in Canada certain traditional designs associated with the Elders of the Bloodtribe are protected by a complex set of rules which govern "the rights to their subsequent reproduction, adaption and public display." The drafters also report that Customary regimes also governed the transfer, licensing , and enforcement of these rights as well as the settlement of disputes arising from the infringement of such rights. The right holders could be either individuals, families, "houses," or entire nations. The possible subject matter of exclusive rights could include a wide range of designs, including designs for traditional dresses,...head dresses, mocassins, basket designs, and tipi designs. Systems of codification and secrecy also protected traditional medicines in South Asia. While the Indian government has recognized that inventions of modern medicine can be protected by the patent system, traditional model is protected either through codification or through regimes of ritual and secrecy. The codification system is based on sacred texts which describe various types of medicine and methods of healing with deep roots in three ancient medical systems, the Ayurvedic, the Siddha, and the Unani Tibb. Medical practices not codified in one of these three systems are protected through ritual, whose rules are kept secret among the village elite. As the drafters report: Ritual regimes can create exclusive rights approximating those of modern patents which confer on their owners certain exclusive rights in relation to the products and processes, which constitute the subject matter of the patent....Numerous TK holders indicated that exclusive rights and monopoly powers over informal innovations are not uncommon within indigenous and local communities. One example of such practice is a traditional healer in a village in Karnataka, a state in southern India. This healer's knowledge of curing psoriasis was known only by himself, his daughter, and his son-in-law. We are troubled by the analogy between the social and cultural systems of protecting traditional knowledge and the statutory forms of intellectual property protection such as patent, copyright, trademark, and trade secret. It is not clear that concepts of licensing, monopoly, and exclusivity can so readily be exported from western intellectual property law to social and cultural means of protecting knowledge. It may seem that functionally the village healer in Karnataka is like a patent monopolist in the sense that he has exclusive control over the knowledge. But even if the village healer is technically a monopolist in one sense, it does not follow that he exploits the monopoly position in the same way as a pharmaceutical company would. The analogy rests on a narrow notion of the ability of intellectual property law to exclude use, but does not take into account the many ways in which a right to exclusivity may be exercised. The village healer may exploit his position to extract resources from his fellow villagers, or he may share the knowledge openly out of a sense of altruism or to gain prestige and status. Recognizing the existence of an exclusive right does not determine how the right will be exercised. Alternative, social means of controlling traditional knowledge raises some serious questions for the public domain model. The first issue is what constitutes the public. Academic discourse about the public domain, which has its roots in the West with Garret Hardin, represents the public domain as a set of individual persons who have access to some common resource that no one owns but everyone can use. This model of the public domain is referred to as the theory of the commons. Controlling traditional knowledge through social means raises another dimension to the accepted conception of the commons: knowledge that may be shared among a group of individuals with access denied to everyone outside the group. This type of control has been referred to as "limited commons" by Professor Carol Rose. Proponents of the public domain model have to choose between the commons and the limited commons in determining how traditional knowledge is to be controlled. The choice between the two types of commons raises a second issue. If the commons model is adopted, then the social and cultural means of controlling knowledge has to go, along with the legal means of controlling knowledge through patent, copyright, trademark, trade secret, and other laws. This implication is devastating for obvious reasons. It is one thing to decide not to adopt western models of intellectual property to the developing world; it is another to say that alternative means of protecting knowledge should be removed in order to liberate the use of knowledge. As a result, it is fair to say that proponents of the public domain model must be advocating a limited commons, rather than the concept of the commons going back to Garret Hardin. But the limited commons raises a third issue, one of power and access to the traditional knowledge. The commons results in the problem of overuse of the shared resource. If no one owns the resource but everyone is free to use it, then each individual will have an incentive to reap as much as possible since a particular user gains the benefit of the use but the costs associated with the diminished value or quantity of the resource can be spread among all the users. The limited commons raises more difficult problems. Among members of the group that share the resource, the problem of overuse just described will arise. But there is also the problem of the group members using their exclusive control of the resource to exploit non-members. The problem is one of essentially defining the appropriate size of the group. If the group has too many members, then the overuse problems of the commons increases. If the group has too few, then the problem of exploitation is exacerbated. Proponents of the public domain model have to address these pressing issues. A possible response is of course to support the status quo and preserve existing social and cultural means of control and avoid the use of intellectual property law. But the WIPO report does not provide any insight into how bad the status quo is in terms of the problems of overuse and exploitation. Furthermore, if the threat from formal intellectual property law is one of expropriation of traditional knowledge by corporate interests in the developed world, then there is no reason to believe that the social and cultural means of controlling traditional knowledge will not be used to the same ends. The turmeric patent, which was canceled in the United States in 1997 after a challenge from the Indian government, was based upon knowledge gleaned from village elders in India. Although formal protection was lost, the company and others like it in the United States do have access to the knowledge and can exploit it commercially. The point is that the limited commons may not protect the interests of indigenous people and do not necessarily give them the political and economic clout that we have taken as the central normative guideline. 2. The commercial use model. This model is the simplest to describe and assess. Instead of adopting formal intellectual property law or maintaining the status quo, the commercial use model would protect the rights of the first entity to make commercial use of the traditional knowledge. This model is based on the common law of misappropriation, which protects the investment a person has made in creating a new product or service, from subsequent users. Under this model, protection is not granted in the traditional knowledge, but anything that is created for commercial use that uses thetraditional knowledge. The disadvantages of this approach are obvious. If the goal is preserving traditional knowledge from commercial exploitation, then this model fails. However, this model would provide incentives for developing and improving traditional knowledge. Furthermore, the model is, on its face, neutral since it would protect the product of traditional knowledge holders as well as that of multinational companies. The imbalance of financial and political power would imply that the multinationals would always win under this model. But what this model allows that the public domain model does not is possible use and value creation by the developing countries and indigenous peoples themselves. Economic exploitation, which may be anathema to many groups, would permit the creation of wealth and expansion of economic resources. The danger is one of cream-skimming with the wealthier, more powerful groups exploiting the high value uses leaving only the low value uses to indigenous people. The most glaring example of this is of course Native American reservations in the United States that have to look to gambling and tourism for the creation of wealth. Again, this model does not strengthen the position of indigenous peoples although it may, in the best, but probably unrealistic, case, allow indigenous peoples to acquire power. The situation may not be completely pessimistic. A model of commercial exploitation has been applied in India and could serve as an application to follow elsewhere. As reported by attorney Frederick Douglas: This conflict [between preservation of biodiversity and exploitation of resources] was resolved in Thrivanthpuram, India, over a herbal preparation from a medicinal plant, Trichopuszelamiscu. This plant has been used by the Kani people in India, for many years, to treat fatigue. The Tropical Botanical & Garden Research Institute ("Institute") found that the plant had properties that enhance the human bodies immune system. Not wanting to wait the lengthy time to obtain an Indian process patent on the medicine, the Institute sought out the Kani people. They negotiated a license to manufacture the medicine from the plant. The Institute then sold its rights to a drug company for a sum plus a royalty for the following seven years. The Institute put fifty percent of the proceeds in a fund for the Kani's tribal welfare. The commercial exploitation model may benefit indigenous people even in the shadow of the financial and political powers of multinationals if the appropriate intermediary can be found. The example of the Kani people suggests that some of the problems with the commercial exploitation model that exists in isolation, can be resolved when the model is applied in conjunction with the two other models: the trust model and the indigenous rights model. The licensing arrangement negotiated by the Institute presents an intriguing blend of these three models. 3. The trust model. Under this model, the right created by law is assigned to an entity other than the traditional knowledge community. This entity could be a nation state or a political subdivision thereof, a non-governmental organization, a tribal corporation, or some other entity that would act as a trustee for the benefit of the traditional knowledge holders. This model is one that is embodied in the Convention for Biological Diversity (CBD), which, through Article 8(j), directs signatories to find means to "respect, preserve and maintain knowledge, innovations and practices of the indigenous and local communities embodying traditional lifestyles." At the same time, through Article 15, the state is assigned the right to grant access to genetic resources. The CBD then creates a legal basis for signatory states to bargain with those who desire access for commercial development, and to negotiate benefit sharing agreements. Presumably royalties or other remuneration is paid to the state, which in turn distributes the proceeds to the traditional knowledge community. The draft report cites an analogous example. In the South Pacific, specificially, Fiji, "plant breeders' rights, or specific genetic resources access and benefit-sharing legislation" was relevant to the protection of the indigenous plant kava from wholesale exploitation by non-Fijiian corporations. The trust model has the benefit of having an identifiable bargaining agent, typically the state, in situations where traditional knowledge holders may be farflung and/or not familiar with formal legal rules of intellectual property and/or contract law. Ideally, this agent would presumably not only bargain for terms most favorable to the traditional knowledge communities, but would also be sensitive to other local concerns such as the preservation of cultural values and ecological preservation. The bargaining agent may have more bargaining power and knowledge (compared to traditional knowledge holders) vis-à-vis those who are seeking to commercialize traditional knowledge, which are typically large corporations. In practice, however, the trust model suffers from at least two major deficiencies. As Professor Rosemary Coombe and others have pointed out, the "assumption that transnational corporations or more developed countries are unfairly exploiting local communities is exaggerated in comparison to the exploitation by the political-economic elites of less developed countries who are far more likely to be engaged in commercial extraction resulting in the resource degradation that impoverishes local communities." Rosemary J. Coombe, "Intellectual Property,Human Rights & Sovereignty: new Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity, 6 Indiana Journal of Global Legal Studies 59 (1998). Related to this observation is that the traditional knowledge communities may or may not have given informed consent to the access granted by the trustee. Prior informed consent is of critical importance in preserving the autonomy of these communities. Thus one's view of the trust model depends heavily on whether one 'trusts' the trustee. Given the normative focus of these comments, i.e., to empower traditionally subordinated groups, successful implementation of the trust model would require attention to the disparities of power within the entity acting as a trustee. This is true not only of states, but also of NGOs and even tribal corporations. No organization is exempt from these dynamics. 4. The ownership model Under this model, rights would be assigned to an individual or group within the traditional knowledge community. This model most resembles the current way in which intellectual property is conceptualized in formal legal systems. A number of informants in the draft report expressed a desire for greater participation as intellectual property owners, some even going so far as to articulate rights that do not currently exist. For example, some North American informants desired some form of database protection, in order to document rapidly vanishing cultural information. Yet database protection is generally not available under U.S. law. Individual or group ownership of traditional knowledge might benefit traditional knowledge communities. The simple recognition of a legally defined domain could have the effect of protecting and preserving traditional knowledge. Although U.S. intellectual property law is typically viewed as encouraging invention and commercialization, it is also a method of protecting privacy and controlling access. Indeed, the moral rights theory of European intellectual property law, despite its bias in favor of individuals rather than collectives, would prevent indigenous works from being commercialized in a degrading or distorting manner. A growing number of U.S. academics have examined the fit between the ownership model and traditional knowledge. See, e.g., Angela R. Riley, "Recovering Collectivity: Group Rights to Intellectual Property in Indigenous Communities," 18 Cardozo Arts and Entertainment Law Journal 175 (2000); Christine Haight Farley, "Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?" 30 Connecticut Law Review 1 (1997). Many of these commentators are dubious about the benefits of the ownership model. Chief among the concerns is the disjuncture between the goals of intellectual property law, which are dominated by economic incentive concerns, and the nature of traditional knowledge, which may be about the sacred and has not been commercially exploited. However, as stated above, intellectual property laws can act as a legal shield for preserving cultural forms. And as noted in our introduction, there may be somewhat of a false dichotomy between intellectual property laws and traditional knowledge. As the draft report notes repeatedly, great care must be taken not to impose the dominant legal systems wholesale upon traditional knowledge communities. Any deployment of the ownership model must be sensitive to this concern. Implicit in the draft report as well as these comments is the assumption that traditional knowledge deserves and requires greater recognition and protection through legal means, without unduly compromising its essence. There may also be skepticism about the ability of intellectual property concepts forged within Western industrialized cultures to accommodate the practices of traditional knowledge communities. This is a legitimate issue. For example, U.S. copyright law does not provide easily for collective forms of ownership. However, as Professor Long points out, TRIPS does not require national copyright laws to include recordation or fixation in some tangible medium of expression, originality, or even authorship by a single identifiable author. Doris Estelle Long, "The Impact of Foreign Investment on Indigenous Culture: An Intellectual Property Perspective," 23 N. Carolina Journal of International Law and Commercial Regulation 229 (1998). Her observations suggest that national intellectual property regimes could be modified quite substantially, consistently with TRIPS. Rather than forcing traditional knowledge concepts into rigid definitional categories of "copyright," the existing conceptual apparatus of intellectual property law conceivably could be modified to accommodate traditional knowledge systems. Conclusion The draft report makes clear that it is impossible to draft a one-size-fits-all solution to the disparate issues and needs facing traditional knowledge communities. However, it is possible to suggest a basic principle that should guide drafting efforts. As each locality engages with the complex task of protecting traditional knowledge, it should be guided by the principle of empowering traditionally subordinated groups. This principle should inform not only the substance of the legal norms, but also the process of reaching consensus. We hope the brief discussion of various costs and benefits associated with different models of intellectual property protection will assist in implementing this principle. End of Comment.