[Reader-list] Understanding the Patenting of Traditional Knowledge-In response

[Jeebesh Bagchi]

I had made some notes during the workshop 'IP and Social Knowledge' 
(Sarai/Hivos/ALF, Nov.03) trying to tie up the various strands in the 
discussions. What follows is a version of these notes  (primarily engaging 
with TK). I am sure many of the list members who  participated in the 
workshop will have much more to add and share.

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Notes on Social Knowledge and IP
December, 2003
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i) Community based knowledge systems/ practices

'Communities' needs to be understood as `fuzzy` (Lawrence). This fuzzyness
 refers to not-so-clear boundaries, evolving and layered protocols of
 creation, sharing and transmission.

These knowledges have certain qualities:

- They have emerged from collective social practices.
- They have a temporal depth that is difficult to quantify.
- They are about materials and processes.
- The laboratory of innovation and experimentation is the field and, in this
sense, open.
- They are imbricated in complicated practices of exclusion and heirarchies.
- The transmission of these knowledges have been through oral cultural forms,
hereditary practices and mediation of local markets.
- They have survived as common resource, and without determinate authorship
claims.

It is important to recognise that a large base of this knowledge has eroded
over the last 200 years. It lies scattered, forgotten, out of practice/use;
some alive due to hybrid practices, and some alive due to stubborn practices.
Its very survival shows that it has a sustainability basis not yet properly
appreciated.

Here it is also critical to understand that these knowledges have survived
through violent histories of dispossesion and inferiorisation; and thus a
large number of its practitioners are without much social resources or
social representations.

ii) Legal Entity : NGOs

Many NGOs have, over a long period, been working on local knowledge and
practices. These practitioners have over a period of time documented,
collected and organised a large number of these practices, proccesses and
materials. The processes of collection have not been easy and have had to be
done over a long period of gathering information and creating a sense of
conservation.

Here, it is critical to recognise that a simple practice of collecting
varieties of `rice-seeds` is not easy as this is part of a larger politics of
seeds that emerged with the Green revolution. This collection and
documentation has been achieved within a politics of knowledge that has been
in favour of a dominant paradigm of science and technology research. (In this
I would request you to see the career of two biologists, Richaria and
Swaminathan.)

Now. There are very many NGOs with a huge collection of materials and
processes and a `goodwill` within communities. Usually they have the consent
from the communities about holding the materials and the knolwedge about
processes.

iii) Enter Multi-lateral global legal instruments. TRIPS onwards.

Here the language of intellectual property is introduced into this knowledge
space. The space of the IP regimes is made broader to cover huge domains of
materials and practices.

The critical factor is the protection given to new research that emerges from
these earlier knowledges, primarily through patents. Patents are disclosures
with strict monopoly over usage. Here we need to recognise the State
functionaries as an important player.

Like all IP insertions, great dreams of wealth create new constellations and
aggregates. The nightmares of dispossesion battles a weak battle, at times
emerging as bargaining rhetorics.

iv) The Enterprise.

New pharma, seed and biotech companies need new knowledges about materials
 and processes. It is critical for their survival as it will generate more
 investments and wealth. State gains by getting more revenues out of this
 `space of production`.

The Enterprise needs `rights` to use and modify materials and processes.
The Enterprise needs IP protection for its new products and processes.

Here the laboratory is a critical mediation. But these are closed
laboratories and its knowledge is made public only through the patent
regime. That is, disclose and thus retain the rights to its reproduction as
 an exclusive monopoly.

Where will it go in search of these knowledges (materials and processes)?
What kind of legal instruments will it use?

v) The Transaction

The present transaction debate is around:

a) Models of `benefit-sharing`.
The dominant position as articulated through State and section of the NGOs is
`state institution` managing on behalf of the community and then dispensing
it back into the `community`. The Enterprise pays an amount for usage and
modification and then proceeds with its new products with guaranteed IP
protection and enforcement. The State is supposed to distribute the amount
into the community.

Here it is important to note that from the `fuzzy` community we will move
 into `enumerated` communities.

b) Producer rights.
This is a right that keeps for the non-enterprise producers to make their own
variety, claim IP on it and proceed. It also guarantees that reselling of
enterprise stuff can also be carried by the producers. (Here we need to bear
that the players are very unequally pitched). Also, the viscious enforcement
legal instrument (speaking like POTA laws) have been put into place to make
sure that IP protection is being understood in everyday practice.

Critical to recognise here is that the IP protected materials and processes
cannot by REPRODUCED by other producers and neither can thay be MODIFIED.

This basic value of IP protection goes against the foundation of the
protocols in which these earlier forms of knowledges evolved and survived.

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------------- What does Open Source ethos do to this debate?
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Open Source movement is a critical vantage point to enter this debate.
- It sees the USER as a PRODUCER (immediate or potential).
- It sees knowledge as collectively produced, and protects that collective
effort.
- It ensures that all user have atleast the following minimum rights:
	Unlimited right to USE
	and the right to make COPIES and circulate.

Some practices make it mandatory that the user retain the right to MODIFY and
profit from it. The debate is: What is the status of this new modified
version?

Some practices (i.e GPL) force the modification to be retained in as a part
of the larger code base commons. Some practices (e.g BSD) gives the
users the option of not contributing to larger code base.

BUT open source is very clear that the `common code base` needs protection
 and is always to be available to all users to use, reproduce and circulate.

I would think that this mode of thinking the USER/PRODUCER as a joined
practice will change the fundamentals of many dicussions on biodiversity
(these knowledge practices had this built into them) and culture (the
 language of protection is based on a fixed idea of a frozen `end user`.)

This is all for now and I am sure all of you have lot more to say about this.

Looking forward to explorations and adventures with ideas...

best
Jeebesh
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