Their Knowledge, Their Rights: Using Traditional Knowledge and Intellectual Property to Protect Communities

This blog was principally authored by Ugonma Nwankwo, with inputs from Charles Kenny.

In the case of traditional knowledge, developing countries tend to be exporters rather than importers. They also tend to favor stronger protection of traditional knowledge through intellectual property (IP) laws, a position that distinctly contrasts with their calls for more flexible IP protection standards in general. The reasons to limit the artificial monopolies created by IP apply as much to traditional knowledge as to other forms. Still, a balance between the public domain and stronger IP rights that recognizes Indigenous communities as the custodians of their traditional knowledge can help preserve this knowledge and ensure communities benefit when their knowledge is used elsewhere.

IP rights are an imperfect tool to encourage innovation and creativity, especially for traditional knowledge

IP rights, including patents, copyrights, and trademarks, are designed to create enough legal protection to maximize incentives for engaging in creative and innovative processes, while also improving the flow of ideas. But it is hard to strike a balance between overprotective and relaxed IP systems: strict IP can reduce the economic impact of new ideas and drive up the costs of future innovation; under-protection can disincentivize current innovators.

The challenge of balance and the use of standard IP approaches is particularly large with regard to traditional knowledge, which “cannot be fully or properly accounted for through the Western-oriented prism of patents, copyrights, trademarks and other formal IP outputs.” Patents in particular are designed to reward a corporate entity or individual with a temporary monopoly to use a recent innovation that passes standards for novelty. Traditional knowledge is often collaborative and incremental, relying on a community's insights and know-how often built up over generations.

Traditional knowledge is managed as a collectively held, shared, and preserved resource in Indigenous communities worldwide. However, recent decades have seen an increased number of private sector companies exploiting traditional knowledge, often in ways that do not benefit the communities that have created and preserved the knowledge. This has been accomplished through the selective use of the idea of “public domain”—the notion that traditional knowledge does not merit IP protections because it is public, but that commercial innovations building on or benefiting from the same knowledge are proprietary and subject to IP protection. 

A particular issue is bioprospecting—the search for useful products derived from natural resources, including plants and animals that can be developed further for commercialization:

• A natural remedy for malaria. Bitter root (Quassia amara) is a small red-flowered tree native to Central and South America used for centuries by Indigenous groups to combat malaria. Without acknowledging the indigenous and local communities of French Guiana that helped France’s Institut de Recherche pour le Développement (IRD) isolate the active ingredient known for antimalaria activity, and without providing them with a means to access the potential malaria drug at an affordable price, the IRD patented the ingredient. After initially mounting a vigorous defense, IRD finally acquiesced, agreeing to share benefits of the patent with the impacted communities of French Guiana, including ensuring they can obtain the drug at an affordable price.

• Using plants to curb hunger. For centuries, the San people of Southern Africa used the hoodia plant as an appetite suppressant, particularly during hunting expeditions where little food was available for many days. In 1963, the Council for Scientific and Industrial Research (CSIR) patented the plant’s appetite-suppressing element (P57) without initially negotiating any agreement with the San. The South African San Council challenged the lack of compensation for their traditional knowledge, resulting in the CSIR and the Council entering into a memorandum of understanding in 2002 which laid out payments to be provided to the San on an ongoing basis.

Though both of these examples eventually resulted in the communities which generated the traditional knowledge receiving benefits from the patenting, they had to go through lengthy legal and negotiation processes in part because of the ill-fitting nature of standard intellectual property regimes and traditional knowledge.

The steady rise in governance frameworks for traditional knowledge

Since these cases, the global community and national governments have developed institutional responses to address the challenges traditional knowledge presents. The United Nations Declaration on the Rights of Indigenous Peoples addresses inherent rights to “spiritual traditions, histories and philosophies…their lands, territories and resources.” The Convention on Biological Diversity and its Nagoya Protocol explicitly defend the right of Indigenous groups to hold their knowledge, including controlling access to it and to benefit from its use. Additionally, the World Trade Organization’s Trade-Related Aspects of Intellectual Property Rights agreement addresses traditional knowledge in article 27(2-3), which allows exclusion from patentability inventions whose commercial use needs to be prevented to safeguard against “serious prejudice” to the environment and also allows countries to exclude certain plants and animals from patentability.

National governments are also increasingly enacting laws to protect traditional knowledge. For example, in 2016, Kenya passed the Traditional Knowledge and Cultural Expressions Act, which promotes and protects traditional knowledge and traditional cultural expressions against exploitation by third parties. In 2015, Brazil passed a law that “regulates access to components of the genetic heritage, protection of and access to associated traditional knowledge and the fair and equitable sharing of benefits for the conservation and sustainable use of Brazilian biodiversity.” Additionally, India, the Philippines, and Peru have passed laws that create IP regimes particular to traditional knowledge.

Despite this progress, national governments and Indigenous groups remain engaged in debate concerning the appropriate modalities and terms to protect traditional knowledge. And there are practical and ethical challenges with existing legal frameworks. For example, the challenge of community ownership of IP includes delimiting the community and deciding who represents it with regard to traditional knowledge use and any proceeds that flow from its exploitation. Moreover, there remains the challenge of asymmetric power between holders of traditional knowledge and often significantly resourced corporations that want to exploit it.

Where can we go from here?

There does not have to be tension between traditional knowledge and the public domain. Local communities should have custodianship of knowledge and should benefit from any commercial exploitation, but that knowledge should be widely available.

A traditional knowledge library or repository may be part of such a solution. India currently has a traditional knowledge digital library in which the country’s traditional medicinal knowledge is being documented in an accessible format to guard against intellectual property claims against it. Similarly, Kenya’s 2016 Traditional Knowledge Act includes a provision that requires the Kenyan Copyright Board to maintain a traditional knowledge digital repository, which will consist of “information relating to both traditional knowledge and [traditional cultural expressions] that have been documented and registered by county governments.” Making this information publicly available on a global scale creates a level of transparency around traditional knowledge that can serve to minimize the risk of exploitation.

Beyond documentation, Indigenous and local communities to whom traditional knowledge belongs should be the primary custodians of this knowledge: for example, if a spin-off innovation that utilizes traditional knowledge is deemed patentable or a creative work generated by communities can be copyrighted, it should be the choice of community representatives to use and benefit from the resulting IP protection (or refuse use of the traditional knowledge in particular innovations or publications). National traditional knowledge systems should include legal support for communities to make and enforce those decisions. This will help to mitigate some of the inherent power imbalances that conversations around traditional knowledge present.

There remain practical, legal, and ethical challenges to consider. The principle should be clear, however: If traditional knowledge is placed outside the public domain and into the IP system, the choice to do so should be made by the community that created it—and any benefits that accrue should flow back to that community.