By Abiola Inniss LLB,LLM,ACIArb:
While there is much preoccupation with the issues of copyright law in the Caribbean, which is centered on trade and commerce, the lesser known issues of traditional knowledge in Intellectual Property are hardly considered to be of especial significance to the majority of policymakers and, except for a few pockets of interest groups such as a group of Rastafarians in Jamaica, the average citizen is uninformed on the subject.
The importance of traditional knowledge and the preservation of entitlement to retain the rights to commercial and other exploitation are of some importance to Caribbean countries, as our histories are quite recent, dating settlement by Europeans and others to the fifteenth century and later, and contain a rich legacy of traditions in many areas, which resulted from an amalgamation of various cultures; or which may have remained within the grasp of particular cultural enclaves.
The Amerindian nations have histories in the region that predate settlement by other cultures and, in Guyana, have been found in several areas to maintain centuries-old habitudes (these may be considered for protection under Indigenous Intellectual Property law). Traditional use of plants and animals for medicinal purposes, birthing methods, traditional bone setting methods, spiritual healing and cleansing, psychiatry , religion , music, dance and stories are but some of the areas that could require protection.
Assuredly many of the aforementioned activities are carried on daily across the region alongside the westernized lifestyles as either a parallel culture or a fusion of the two. The following excerpt from a WIPO publication is instructive on this idea.
“Contrary to a common perception, traditional knowledge is not necessarily ancient. It is evolving all the time, a process of periodic, even daily creation as individuals and communities take up the challenges presented by their social and physical environment. In many ways therefore, traditional knowledge is actually contemporary knowledge. Traditional knowledge is embedded in traditional knowledge systems, which each community has developed and maintained in its local context. The commercial and other advantages deriving from that use could give rise to intellectual property questions that could in turn be multiplied by international trade, communications and cultural exchange.”
Differences in worldview on the subject have distinguished local knowledge from traditional knowledge; social scientists have placed knowledge into a naturalistic framework, which is illustrated by a gradation that extrapolates backwards from recent to ancient knowledge. Local and traditional knowledge are determined by the length of time for which they have existed, for example decades and centuries as against millennia, with local knowledge being thought to exist in the more recent stages and traditional knowledge in the latter ones.
Additionally, traditional knowledge is thought by social scientists of the naturalistic school of thought as not falling into a natural category and being reflective of social struggles, land issues and relationships , power struggles and social control and an adherence to ancestry or heritage.(see Valuing local knowledge: Indigenous people and intellectual property rights, Brush, Stephen B, Stabinsky Doreen, Island Press 1996)
Local communities often have very different perceptions of the ownership of traditional knowledge, often believing that such ownership does not exist since it may have derived from divine inspiration or/and culturally it is passed down the generations. It is perhaps because of this ambivalence that the issue of traditional knowledge is not a hot point in indigenous communities in the Caribbean.
Protection of traditional knowledge by intellectual property laws is a major issue as far as concerns traditional medicines, since huge international pharmaceutical companies have been known to draw on these resources, which may then be combined with other additives to produce drugs that are then patented and sold at significant profit, whilst the source of a part of that invention remains unacknowledged financially or otherwise.
Copyright law deals with the form of expression, such as whether it is song or dance, electronic or paper for example, and so is more suited to the protection of traditional cultural expression than to traditional knowledge. While intellectual property law in the region remains a hodge-podge on the whole, it is useful to turn for guidance to the recent developments in the protection of traditional knowledge in IP law internationally.
In public international law there exists a range of legal conventions, treaties, and instruments designed to address the treatment to traditional knowledge, these include:
*The Convention Concerning the Protection of the World Cultural and Natural Heritage 1972 (the UNESCO Heritage Convention);
*The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (the UNESCO Cultural Property Convention);
*The Convention Concerning Indigenous Peoples in Independent Countries 1986 (ILO Convention 169);
*Negotiations concerning the FAO’s International Undertaking on Plant Genetic Resources (the IUPGR-FAO);
*The Convention on Biological Diversity 1992 (the CBD)39; and
*United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa 1994 (the UNCCD).
These, however, have been widely criticized as being concerned with the protection of traditional knowledge only in so far as it is connected with the cause of global ecological stability (see Djims Milius Justifying Intellectual property in traditional knowledge, 2009).
The current developments see proposals for the use of mechanisms such as the creation of an ombudsman or public defender to investigate abuses against indigenous communities, voluntary contractual regimes to ensure access and benefit-sharing such as material transfer agreements (MTAs) or information transfer agreements (ITAs), voluntary guidelines and codes of conduct such as the FAO International Code of Conduct for Plant Germplasm Collection and Transfer, the Bonn Guidelines and the WIPO IGC draft IP Guidelines for Access and Benefit-Sharing, databases and community registers to publish TK in the public domain and hence, failing novelty, block the grant of patents based on indigenous knowledge; and a Global Bio-Collecting Society (GBS) providing a TK register mechanism at the global scale, plant breeders’ rights used to cover new plant varieties under the UPOV Convention(s) (WIPO/GRTKS/IC).
The Caribbean, in spite of the oddities in Intellectual Property regulation, is in the ideal position to take advantage of the knowledge available and to craft for itself a protective regimen complete with an enforcement scheme based on some or all of the aforementioned proposals for protection of traditional knowledge. With the focus on climate change and the protection of rainforests, such a scheme is vital within the Caribbean context and needs to be given priority treatment concurrent with the other issues in the area of copyright.
The protection of the cultural heritage of the region through a normative system of law is exceeding necessary for the survival of our unique brand of cultural expression. It will aid in its preservation even as dilution and westernization change the dynamics of presentation and expression. The Shantos (a form of calypso with a unique rhythm) of Guyana’s Bill Rogers and the Parang of Trinidad will need continuous protection even after the rights have expired for the sake of their preservation.
A regime for the protection of traditional knowledge will ensure the survival of the core Caribbean culture and fairness in the access to the knowledge which results in economic or other benefits.
April 22, 2010