The problematic relationship between traditional knowledge and the commons

Macmillan, Fiona (2017) The problematic relationship between traditional knowledge and the commons. In: Pinton, S. and Zagato, L. (eds.) Cultural Heritage: Scenarios 2016. Venice, Italy: University Ca Foscari, pp. 142-144.

Abstract

The first international instrument in which the expression “traditional knowledge” appears is the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005, which makes reference to “the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion”. The reference to the traditional knowledge of indigenous peoples is not without significance in this context. In fact, much of the international debate around this question has been focussed on the traditional knowledge of indigenous peoples. This aspect of the debate has also found expression in the UN Declaration on the Rights of Indigenous Peoples of 2007 (the so called DRIPs). According to the DRIPs, the rights of indigenous peoples in their traditional knowledge include the right to protect this knowledge in the form of intellectual property. This chapter proposes to investigate two propositions that have become premises of the international debate around this question: first, that the protection of traditional knowledge is primarily a question of the rights of indigenous peoples; and, secondly, that the form of the protection of traditional knowledge is primarily a question of intellectual property law. In relation to the first of these two underlying premises, that the protection of traditional knowledge is primarily relates to the rights of indigenous peoples, the chapter unequivocally accepts that the question of the just treatment of indigenous peoples is one of great importance. Indigenous peoples have suffered, and continue to suffer, grave injustices in the post-colonial period. Without the legal identity that comes from the privilege of statehood indigenous peoples are not part of the community of international law makers. This, of course suggests that a just response to the claims of indigenous peoples requires something more than simply the protection of their cultural heritage. In fact, the focus of the debate on questions such as the traditional knowledge of indigenous peoples seems calculated to distract attention from much more pressing political claims. At the same time, this focus also distracts from the undoubted fact that it is not only indigenous peoples that have traditional knowledge. This fact has not entirely escaped attention at the international legal level. The representative list of the intangible cultural heritage of humanity established under the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of 2003 contains examples of traditional knowledge of communities other than those regarded as indigenous peoples under international law. However, inclusion in this list is a form of recognition of traditional knowledge in relation to which a state is making some sort of claim. It does not necessarily entail the recognition of communities not forming a state in international law, nor does it constitute protection per se. So, is it necessary to have some other form of protection for traditional knowledge and, if so, what and for the benefit of whom? This takes us to the second underlying premise of the debate, which suggests that protection of traditional knowledge falls within the remit of intellectual property law. In analysing this proposition, the chapter will emphasize two central aspects of intellectual property. The first of these is that it is a right to private property. The second is that this form of private property is designed to enable investment in liquid assets, with the ultimate effect of promoting the accumulation of capital to the benefit of those best able to reap profits from that accumulation. In the light of these observations, the chapter will problematize the idea that intellectual property is a suitable form of protection for a community’s rights in its traditional knowledge, whether formed of indigenous peoples or not. This line of argument, however, leads us to a further question which is what we do about traditional knowledge if we do not protect it by way of intellectual property rights. One solution would be to put it in the cultural commons where it would be freely available. Not only is this solution unacceptable to indigenous peoples, it is also not clear that it would be acceptable to other communities or, indeed, to the maintenance of the integrity, self-reflexivity and other inherent qualities of traditional knowledge systems. As the chapter will argue, the principal problem with the concept of the unregulated cultural commons in this respect may be that it is unable to defend the specific interest of communities in the protection of their cultural heritage. The commons, the chapter will argue, are like a defence without a fence; they are a space defined by the absence of intellectual property rights, and thus by intellectual property law itself. The final part of the chapter, therefore, will consider what other options there are with respect to the protection of traditional knowledge. It will consider what legal architecture might be put in place to protect a community’s rights in its cultural heritage without erecting the sort of fences characterised by private property rights that have the capacity to interfere with the collective rights of a community. In approaching a solution, the chapter will argue, it is important to avoid the type of essentialism that might suggest cultural (and political) closure, and so interfere with practices of cultural and creative interchange that have made the world (for better or worse) what it is today. Accordingly, the necessary legal architecture must be more than some vague concept defined by the absence of positive property rights. It must furnish guarantees against misappropriation and unauthorized use. And it will have to transcend the antiquated division between public (in the sense of the state) and private rights, recognising the concept of community rights.

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