Intellectual Property Rights, Open Source Methods and Traditional Knowledge in Developing Countries
The waves of proprietary economic thinking break apart on the shores of traditional knowledge and open source software.
Understanding traditional knowledge
Traditional knowledge can be viewed as a kind of collective sense within shared communities. Considered as a form of community common sense, traditional knowledge may be general or may be specialized depending on the topic. For example, the application and efficacy of medicinal plants as understood by traditional medical practitioners in a tribal community forms a specialized island of common sense and wisdom. Particularized bodies of knowledge underlying a society’s art, medicine and agriculture may be handed down from generation to generation via give-and-take collaboration and the practice of apprenticeship.
Unfortunately, there is a growing notion among proponents of Intellectual Property Rights (IPRs) that property protection should be applied to islands of traditional knowledge in order to preserve and promote them. The common sense of others becomes a kind of commodity to be traded in a global market economy. Yet it is on the shores of traditional knowledge that waves of proprietary economic thinking break. Property protection constructs a dam from alien concepts of privacy, economic restriction and market control. Adoption of property exchange tends to block the flow of traditional forms of shared community knowledge.
Developing countries and IPRs
Long range economic value cannot be achieved by artificially monetizing shared traditions through patenting, copyrighting or trademarking components like medicines or genetic materials or other processes and structures of nature incorporated into the common heritage within developing countries. In fact, most bodies of traditional knowledge will produce minimal economic benefit from applying IPRs. Instead, the promotion of IPRs is often an excuse to bring outlying markets into the fold of an unfamiliar economic model by which the developed economies exert control through shear size and precedent.
Furthermore, because of their continuing unequal statures, developing countries bear the lion’s share of misappropriation of traditional knowledge. But the true loss is not the pennies which their indigenous populations might earn selling herbs and local seeds. The true price is induction into a system of trade where the deck is already stacked in favor of existing and highly developed proprietary interests. Governments in developing countries should refuse to sign onto legal regimes which serve to fashion former colonies into second class citizens in a new economic order.
Instead of treating traditional knowledge as a marketable commodity or property in its own right, greater value may be forged using collective knowledge as the capital to fund the building blocks of higher-order economic processes. In fact, the temptation to coerce all economic processes into the least common denominator of property rights should be discouraged. Greater advantages may derive from treating the patterns underlying the development of traditional knowledge together with the knowledge created as items of value for everyone to share, explore and enhance.
Role of open source methods
Open source software demonstrates the advantages of treating knowledge as items of value for everyone to share, explore and enhance. With open source software, we are witnessing the global evolution of a powerful digital corpus of knowledge itself becoming a kind of traditional knowledge.
Unfortunately there is a notable imbalance in the participation by developing countries in building shared open technologies. But it is vital for the historically disadvantaged countries to recognize that collaborative technologies do not try to exploit or enslave collaborators. Instead they seek to drive economic value into higher, service-oriented layers which levels the playing field for high-quality but less costly competitors in the developing countries.
Open technology-based services industries can exploit the true economic value of a common knowledge base which everyone has the opportunity to share and to build upon, both rich and poor alike. And the principles driving open source software development can be applied equally well to other knowledge fields such as pharmacology and farming. Open source software, like the incremental building of bodies of traditional knowledge, provides a sustainable, non-exploitative model to benefit all economic fields.
© Robert Adkins, Technetra. This work is licensed under a Creative Commons Attribution-No Derivative Works 3.0 License. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.
July 1st, 2008 at 4:34 pm (Comment)
R S Praveen Raj Says:
Kerala State (India) IPR Policy moots legislation for rights creation on Traditional Knowledge
The Kerala IPR Policy 2008, released on 27th June 2008 by Mr. V.S. Achuthanandan, the Honourable Chief Minister of the State, proposes legislation to prevent misappropriation of Traditional Knowledge (TK) and knowledge associated with biodiversity.
The Policy outlines that the Government of Kerala is very much concerned about protecting its rich traditional wealth comprising of traditional knowledge practices, tribal medicines, Ayurveda practices and biodiversity. Unlike other knowledge categories which are mostly deciphered in books or embedded in the biological system, this kind of knowledge attributes to and forms the basis of livelihoods of many TK practitioners, and hence the absence of any legal property rights on such knowledge may render an opportunity for the private appropriation of the Traditional Knowledge by corporates.
“While the codification of Traditional Knowledge in to Digital Libraries is a viable solution to direct misappropriation, it is feared that such digital libraries may serve as a platter for MNCs looking for private appropriation of advancements made on traditional knowledge that is not accessible otherwise” - Mr. M.Vijayakumar, Honourable Law Minister of the State told in his key note address.
Hence the Policy document finds that the possible solution could be to create rights on Traditional Knowledge and make its potential right holders aware of their rights.
The Policy of the State proposes to commit all traditional knowledge, including traditional medicines, the practice of which sustains livelihoods of many, to the realm of “Knowledge Commons” and not to the “Public Domain”. While the Policy envisages creating property rights on traditional knowledge, all the right holders will be deemed to be holding their rights under a “Commons License”, wherein the right holders shall permit others the use of the knowledge in their possession for non-commercial purposes. It is further stipulated that any development made using this knowledge licensed under the above obligation should be put back to the realm of “Knowledge Commons”, say “Traditional Knowledge Commons”, and hence denying the scope of patenting thereof.
Under the proposed legal arrangement, the custodians (tribal community, family etc.) of the Traditional Knowledge (that is preserved by them) will be acknowledged as the right holders, but they are obliged to subject the TK possessed by them for the non-commercial purposes of all. Hence the knowledge is revealed for documentation, and enabling further research thereof. However these right holders can license the TK under their possession to others for commercial purposes on negotiated terms and conditions in accordance with the provisions of “Commons Licence”.
In respect of such Traditional Knowledge, where it is the livelihood of numerous practitioners strewn across Kerala, State will be deemed to have rights over such Traditional Knowledge. Even though State holds the ownership on such TK, all the actual practitioners of this Traditional Knowledge will have an autonomous license for right of commercial use from the State. But these Licensees are not empowered to sub-license this right of commercial use to anybody else, and right for transferring licenses will solely be enjoyed by the State, i.e. the right holder.
Creation of rights and obligations necessitates a Governing Mechanism for acknowledging the right holders, enforcing the rights and recommending legal action against the violators of the rights and “Common License”. Therefore the Policy advises to constitute a body called Kerala Traditional Knowledge Authority (KTKA), with which the right holders will have to be registered. It is also important that the potential right holders be made aware of the need to register the TK in their possession. ‘Traditional Knowledge Users’ Co-operatives” will be encouraged in the legislation.
The Terms like “Knowledge Commons”, “Creative Commons” etc. used in the Policy document are very much in line with the fundamental concepts to recognise “Knowledge as Commons”. Here “Knowledge Commons” refer to the knowledge, which is the collectively produced sphere of ideas and which is left unencumbered for the greater benefit of all. This shall not be confused with the seasoned free software concepts (or open source) and “Creative Commons” licenses like GNU GPL, LATEX etc. which mostly applies to “Expressions”. Specific provisions for such “Traditional Knowledge Commons License” will be worked out to ensure free, non-commercial reproduction and codification of the Traditional Knowledge. It is not a kind of compulsory licence, but is a kind of “deemed licence” which normally applies on the user of TK, the moment he decides to employ it for any purpose.
Though the Policy envisages to put the developments made on Traditional knowledge back to the realm of “Knowledge Commons”, path breaking inventions like development of a new drug molecule or the process thereof which involves substantial developmental cost need not form part of “collectively produced sphere of ideas” or “Knowledge Commons” in the strict sense even if Traditional knowledge may form the basis of its origin. The State is more concerned about the misappropriation of “Traditional Knowledge” by corporates with minor modifications on such knowledge and hence making it patentable in their name by meeting basic minimum legal standards to qualify the novelty and “inventive step”.
To End with, I want to place on record my deep appreciation to the high social commitment and great wisdom of the chief architect of the Policy, Prof. Prabhat Patnaik, who is the Vice-chairman of Kerala State Planning Board and a world famous economist.
Regards,
R.S. Praveen Raj
Scientist - IP Management & Technology Transfer
[Former Examiner of Patents & Designs, Indian Patent Office]
National Institute for Interdisciplinary Science & Technology (NIIST)
Industrial Estate P.O., Pappanamcode,
Thiruvananthapuram - 695 019
Kerala, India