[Reader-list] Second Posting on Understanding the Patenting of Traditional Knowledge.

[Aarathi Chellappa]

Dear All,

In this posting, I will be discussing what would most
probably form the first chapter of the final report.
Central to the issue of understanding the patenting of
traditional knowledge is the definition of what would
constitute traditional knowledge and why it should be
protected. 

The World Intellectual Property Organisation defines
traditional knowledge as a subset of heritage,
comprising of “tradition-based literary, artistic or
scientific works; performances; inventions; scientific
discoveries; designs; marks; names and symbols;
undisclosed information; and, all other
tradition-based innovations and creations resulting
from intellectual activity in the industrial,
scientific, literary or artistic fields.1” 
‘Tradition-based’ refers to “knowledge systems,
creations, innovations and cultural expressions that
have generally been transmitted from generation to
generation, are generally regarded as pertaining to a
particular people or its territory have generally been
developed in a non-systematic way, and are constantly
evolving in response to a changing environment.2”

This definition deals with traditional knowledge in
terms of intellectual property. It also emphasises the
requirements that traditional knowledge be transmitted
through generations and pertain to a particular people
or territory. It makes a presumption however, as to
the development of the knowledge, in that it is
non-systematic. This may be refuted with references to
instances like Ayurveda, where treatises have been
written documenting the properties of various herbs,
giving rise to the possibility of a system of study. 
On occasion, traditional knowledge or indigenous
knowledge is linked to indigenous people. Stephen
Brush refers to two definitions of indigenous
knowledge3(often used interchangeably with traditional
knowledge). Broadly, “indigenous knowledge is the
systematic information that remains in the informal
sector, usually unwritten and preserved in oral
tradition rather than texts.4 A more narrow definition
“refers to the knowledge systems of indigenous people
and minority cultures5". He uses the term ‘indigenous
people’ in defining people that were the subjects of
colonisers6. 

Douglas Sanders7 also defines traditional knowledge as
“knowledge possessed by indigenous people, in one ore
more societies and in one or more forms, including but
not limited to art, dance and music, medicines and
folk remedies, folk culture, biodiversity, knowledge
and protection of plant varieties, handicrafts,
designs, literature”. The International Labour
Organisation defines indigenous people as people in
independent countries who are regarded as indigenous
on account of their descent from the populations which
inhabited the country, or a geographical region to
which the country belongs, at the time of conquest or
colonisation or the establishment of present sate
boundaries and who, irrespective of their legal
status, retain some or all of their own social,
economic, cultural and political institutions8. Dr.
George Mugabe points out that the ILO definition
“carries four vital factors of time, geographical
space, resilience, and territorial occupation by
outside populations to be considered in any discussion
of indigenous peoples and knowledge.9” This also
emphasises the geographical and time based dimensions
of traditional or indigenous knowledge.

The broad definitions of traditional knowledge
discussed above, would include all expressions of
traditional knowledge, such as art, music, dance,
writing etc. and also ethnobiological knowledge of the
holders of such knowledge. This ethnobiological
knowledge is also referred to as traditional
ecological knowledge and has been defined by Johnson10
as “a body of knowledge built by a group of people
through generations living in close contact with
nature. It includes a system of classification, a set
of empirical observations about the local environment,
and a system of self management that governs resource
use.” 

Traditional ecological knowledge is the form of
traditional knowledge of importance to my study of the
patenting of traditional knowledge. Therefore, the
definition provided above is the one I will be
adopting. While the definition provided by Johnson
does not refer to indigenous people, he reiterates the
requirements that traditional knowledge be passed on
from generation to generation and it be developed in
close contact with nature, i.e. have specific
geographical linkages. It must be noted that the
‘traditional’ aspect of traditional knowledge relates
to the way it is acquired and used and not to its
antiquity11.

So, broadly, traditional knowledge is a body of
knowledge augmented by each generation of the holders
this knowledge. This begs the question, how is this
knowledge held? Dr. N. S. Gopalakrishnan12 classifies
traditional knowledge into four categories according
to its level of prevalence:

1.	“Information commonly known to the society with or
without documentation and is in constant use by the
people. E.g. the common use of neem, tulasi, turmeric
etc.
2.	Information that is well documented and is
available to the public for examination and use. E.g.
the ayurvedic texts, information in the palm leaves
etc.
3.	Information that is not documented or commonly
known but known only to small groups of people and not
revealed to others outside the group e.g. the tribal
knowledge
4.	Information known only to individuals or members of
the families and none else. E.g. the information used
by the village medical practitioners for treatment.13”
This classification according to the manner in which
traditional knowledge is held also emphasises the
precepts that traditional knowledge is augmented by
generations and that it has definite geographical
linkages. Further, this classification that
traditional ecological knowledge may be held be a vast
number of individuals, be documented, by communities
or by a special group of individuals.

Another preliminary issue that will be dealt with is
why traditional knowledge should be protected. The
single most important reason why traditional knowledge
deserves protection is because it is key to the
livelihoods of the poor14. Traditional ecological
knowledge provides local communities with knowledge of
what plants are edible and the medicinal properties
the plants in their neighbourhood. “Two-thirds of
India’s health care needs are met by traditional
systems of medicine”15. In addition to having a direct
impact on the lives of several local communities,
traditional knowledge is gaining importance now
because of its pharmaceutical relevance. Another
reason to protect traditional ecological knowledge is
to preserve genetic resources for future research and
development16. In recent past it has come to light
that several modern drugs owe their origin to
traditional ecological knowledge17. Therefore, another
reason being agitated to protect traditional
ecological knowledge is unjust enrichment from the
appropriation of traditional knowledge18. A third
reason is that indigenous people preserve the
biological diversity of their environments and by
protecting traditional knowledge, that biological
diversity will be protected19. 
___________
1. WIPO. Intellectual property needs and expectations
of traditional knowledge holders. Report on fact
-finding missions on intellectual property and
traditional knowledge  (1998- 1999) (Geneva: WIPO,
2001) available at
http://www.wipo.int/globalissues/tk/report/final/pdf/part1.pdf.
2. ibid.
3. Stephen Brush, “Whose Knowledge, Whose Genes, Whose
Rights?” in Brush and Stabinsky (Eds.) Valuing Local
Knowledge: Indigenous Peoples and Intellectual
Property Rights, Island Press, Covelo, 1996, p. 4.
4. ibid.
5. ibid.
6. id. p. 5.
7. Douglas E. Sanders, “Indigenous Peoples: Issues of
Definition,” (1996) available at
http://www.dfait-maeci.gc.ca/aboriginalplanet/resource/canada/documents/sanders-en.asp.
8. Article 1, International Labour Organization
Convention Concerning Indigenous and Tribal Peoples in
Independent Countries, June 1989 (referred to as
Convention 169) quoted in Dr. George Mugabe,
“Intellectual Property Protection and Traditional
Knowledge: An Exploration in International Policy
Discourse” available online at
http://www.wipo.int/tk/en/activities/1998/humanrights/papers/word/mugabe.doc
9. Dr. George Mugabe, “Intellectual Property
Protection and Traditional Knowledge: An Exploration
in International Policy Discourse” available online at
http://www.wipo.int/tk/en/activities/1998/humanrights/papers/word/mugabe.doc
10. M. Johnson, “Research on Traditional Environmental
Knowledge: Its Development and Its Role” in M. Johnson
(Ed.) Lore: Capturing Traditional Environmental
Knowledge, IDRC, Ottawa, 1992, p. 4, quoted in Graham
Dutfield, “Protecting and Revitalising Traditional
Knowledge”, Michael Blakeney (Ed.) Intellectual
Property Aspects of Ethnobiology, Sweet and Maxwell,
London, 1999, p. 104
11. Four Directions Council, Forests, Indigenous
Peoples and Biodiversity: Contributions of the Four
Directions Council, Submission to the Secretariat for
the Convention on Biological Diversity, 1996, quoted
in Graham Dutfield, “Protecting and Revitalising
Traditional Knowledge”, Michael Blakeney (Ed.)
Intellectual Property Aspects of Ethnobiology, Sweet
and Maxwell, London, 1999, p. 105.
12. Dr. N. S. Gopalakrishnan, “Impact of Patent System
on Traditional Knowledge” [1998] CULR 219.
13. id. 221.
14. Rosemary Coombe, Sixth Annual Tribal Sovereignty
Symposium: The Recognition Of Indigenous Peoples' And
Community Traditional Knowledge In International Law,
14 St. Thomas L. Rev. 275, 278. 
15. Dr. Vandana Shiva. et. al. The Enclosure and
Recovery of the Commons: Biodiversity, Indigenous
Knowledge and Intellectual Property Rights, Research
Foundation for Science, Technology and Ecology, New
Delhi, 1997, p. 20.
16. Rosemary Coombe, supra. n. 13. p. 279.
17. For several instances of appropriation of
traditional knowledge to develop proprietary
pharmaceuticals, see Naomi Roht-Arriaza, “OF Seeds and
Shamans: The Appropriation of the Scientific and
Technical Knowledge of Indigenous and Local
Communities,” 17, Mich. J. Int’l L. 919 (1996)
18. Rosemary Coombe, supra. n. 13. p. 281.
19. id. p. 280.
________________

Comments are welcome. Especially on how to overcome
the fear of committing ideas to paper. I have been
planning this post for quite a while and have known
exactly what I wanted to say in it for a week. For
some reason, I just could not get myself to write it
all down. On the advice of the SARAI mentors, I'm
planning to break the entire report down into a series
of papers, each of about 2000-2500 words, so that the
final result is not overwhelming. I hope that tackling
the next paper will be easier and would appreciate any
tips.

Thanks,
Aarathi.



	
	
		
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