Protecting traditional knowledge: a grassroots perspective
By Catherine Jewell, Communications Division, WIPO
Lucy Mulenkei is a member of the Maasai people of Kenya and has been working with Maasai pastoralists for many years, first as a government official, then as a journalist, and for the past 18 years as Executive Director of the Indigenous Information Network. In her current role she works with indigenous communities across Kenya and the East African region to ensure they have the information they need to thrive in the modern world. A passionate advocate for the rights of indigenous peoples and local communities, Ms. Mulenkei is an active voice in the international negotiations at WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). She tells WIPO Magazine why achieving international agreement to protect traditional knowledge is important to the communities she works with.
Can you tell us about your work with indigenous communities?
Our aim is to ensure these communities have the information they need to move with the times. This involves empowering them to make informed decisions about the way they live and how their community develops. As soon as you explain why it is important for them to adapt the way they do certain things, they are extremely receptive. But of course this needs to be done in a way that does not interrupt their core cultural values. When we meet with villagers the conversation inevitably touches on a bundle of issues, from environment, education and health to medicinal plants and traditional knowledge, including folklore like songs and dances. In the traditional context everything is interrelated. All cultures have positive and negative aspects. The aim is to maintain positive cultural practices but to give up the negative ones, especially when they no longer serve a community’s interests. Only by informing people and enabling them to make their own decisions is long-term change possible. The moment you try to impose changes on their culture you become a threat.
Why did you get involved in international negotiations on the protection of traditional knowledge?
I joined these discussions after seeing that there is a lot of interest around the world in protecting traditional knowledge. By being part of it, I am in touch with indigenous representatives from other regions who share similar concerns. And this helps us push the protection of traditional knowledge further up the political agenda.
The participation of indigenous representatives like me gives us an opportunity to influence and shape policies to address the needs and interests of our communities, which often go unseen. Although indigenous peoples are citizens of a country, generally speaking they have few opportunities to voice their concerns, engage with policymakers or even benefit from social programs. So having a place at these tables is very important.
Why is it important to protect traditional knowledge?
First, it is a question of identity. People everywhere, even in Europe and the United States, have traditions that identify them and where they come from. Similarly, each indigenous community has its own distinctive identity, even if they share similarities. In Kenya, for example, the Maasai and the Samburu, although related – they are cousins – are distinct. There are small differences, for example in the design of their beadwork, ear piercing, the way they dress and their dialect, that distinguish them from one another.
In Swahili we say that without your language or traditions you are like a slave because you don’t know how to behave in your community and you don’t belong any more. So valuing and protecting traditional knowledge is critically important to ensure that future generations can learn to be members of their community. If our history and our traditions are lost, who are we and where do we belong? It is really encouraging to see that some governments are recognizing the importance of protecting traditional knowledge. After all, you can’t write the history of a country without looking at the unique traditions of its people.
Effective dialogue between governments and
indigenous peoples is critically important. If all
concerned parties sit down and work out an agreement
together, everyone feels respected.
Second, traditional knowledge is under threat. It is disappearing. As young people migrate to urban areas and become more interested in mobile phones, computers and television, they are no longer interested in maintaining traditional practices. For some, even wearing traditional clothes is considered “uncool” and primitive. On top of this, many elders are not transmitting their knowledge to someone within the community who can hold it when they are gone.
Third, an increasing number of researchers turn up unannounced with a government license in hand to do research and collect genetic resources or other information from local communities without any prior consultation. This occurs because there are often no institutional structures in place – or where they exist they are weakened – for researchers to consult with the communities before turning up to do their research. Since genetic resources are sovereign, many consider that a government license is all the researchers need. But this practice kills the morale of villagers.
If we do not put proper structures in place, a great deal of this knowledge risks being misused or lost forever. If communities are empowered to control and manage their resources and traditional knowledge, they can work together with government to protect it and leverage its value and utility.
Governments, as the competent licensing authority, are well placed to consult with and obtain the prior informed consent of communities before granting these licenses. Such a practice would help ensure that mutually agreed terms are discussed and respected, and that these communities are willing partners in the process. But if the rights of indigenous peoples are not respected it will never work. Effective dialogue between governments and indigenous peoples is critically important. If all concerned parties sit down and work out an agreement together, everyone feels respected.
What kind of traditional knowledge do you expect to be protected from an international agreement at WIPO?
Every time I am asked this question, I hesitate because there are many types of traditional knowledge. For example, it may be public, sacred, secret, or it may simply be embedded within the community. All types of traditional knowledge are important.
But as a starting point, every country and every community needs to identify those areas of traditional knowledge that are disappearing most quickly. In Africa, for example, traditional knowledge aspects of genetic resources are being championed, but if you speak to the people in the communities they will tell you that all aspects of traditional knowledge are important and need to be protected.
Many indigenous peoples and local communities stress that they encounter insurmountable difficulties in financing the participation of their representatives in the WIPO IGC, and that those costs prevent them from participating effectively.
To address this concern, the WIPO General Assembly decided in 2005 to create the WIPO Voluntary Fund to finance the participation in the IGC of accredited observers representing indigenous and local communities. Initially, the Fund was generously supported by a number of member states and others, but, it is now depleted and contributions are urgently sought.
Further information is available at www.wipo.int/tk/en/igc/participation.html
The good thing about the negotiations at WIPO is that they are more holistic in nature and openly embrace traditional knowledge that is held and maintained by communities. They are also placing emphasis on developing legal and practical ways of protecting traditional knowledge, for example through documentation. Other international forums are dealing only with specific aspects of traditional knowledge. We need to draw all these different strands together to find workable solutions. But the process has to be participatory and has to include indigenous peoples and their local communities. I would like to see many more indigenous representatives from different regions. That would really get ideas flowing.
What are the main concerns surrounding documentation of traditional knowledge?
They are really tied up with the participatory nature of the process. Documentation that is done exclusively by government raises a number of questions. Where did they get their information? How is it to be protected? Who is going to access it? Will indigenous peoples have access to it? How will it be used, and who gives permission for its use by third parties?
There is a great deal of concern and anxiety about who controls this knowledge because once it is publicly available it is impossible to manage or control its use or misuse. And we see a great deal of misuse these days. But despite these concerns, for which solutions can be found, I think it is really important to document traditional knowledge. Documentation can take many forms. India’s Traditional Knowledge Digital Library, for example, which catalogues the country’s traditional medicinal knowledge, has been set up with great success. Documentation may also be important when recording secret knowledge by simply writing it in a book which is only accessible to eligible individuals. Everything is going digital, so it is really important that we start documenting this knowledge before it is lost. It will be a long process, but policymakers have to really study the issue and come up with workable solutions.
What difference would an international agreement make on the ground?
It will make a huge difference because governments will start putting appropriate legislation in place. This is what happened when the Convention on Biological Diversity, the Nagoya Protocol to the CBD on Access and Benefit Sharing and the UN Declaration on the Rights of Indigenous Peoples were adopted. An international agreement will help remind governments of their duty to reach out to the unique communities in their countries. And it will create additional opportunities for indigenous communities to be recognized and for their needs to be addressed.
What message do you have for your counterparts?
If we are to succeed, we need to work together. If we work in isolation, we won’t get anywhere. We don’t want to make life difficult for future generations or for our elders, so we need to work with governments; they make the decisions. We need to talk and negotiate with them so that they better understand our needs and concerns and why it is important to protect our knowledge systems and our rights. That is the only way we can move forward.
And what message for governments?
We urge governments to respect the rights of all citizens equally, including those of indigenous peoples. We also encourage them to develop a better understanding of the indigenous communities in their countries and to take their concerns seriously, especially when formulating national development strategies and policies. A human rights-based approach to the process is very important.
And for donors?
I really urge donors to support the participation of indigenous representatives in these international discussions. A chronic lack of funding is making this increasingly difficult. For example, the WIPO Voluntary Fund is depleted. The implications of these discussions go well beyond traditional knowledge, human rights and the recognition of indigenous peoples. At the end of the day it is about protecting humanity’s resources, and that should concern us all.