David Martin argues that this may be a pejorative expression:
"I use the term “Heritable Knowledge” rather than the convention “Traditional Knowledge” as it captures the dynamic, temporal, and perpetual evolution inherent in stewardship of knowledge, stories, cultural and artistic expressions, spiritual and social awareness, health care; and, ecological practices. “Traditional Knowledge” is a pejorative term that often is used to project a contrast between the industrial derogation of “developed” vs. “undeveloped” or “developing” and, as such, should be avoided. Additional, “Traditional” imposes a temporal assumption while this knowledge is constantly evolving and will continue to do so in vibrant, resilient cultures." (http://www.m-cam.com/downloads/11042008.doc)
S. Farrell, IP Handbook:
"In recent years pharmaceutical and nutraceutical companies have looked to Asia and South America in search of new treatments and compounds which can be patented and brought to the western consumer for a profit. Most of the time traditional medicinal systems as well as cultural practices are examined to see if there are any plants or compounds which might be useful as medical treatments in the west.
Recently however the Indian government, among others, has begun asking governments to revoke patents on traditional preparations and medicines that were “discovered” by various individuals and or companies. Their reasoning behind this is that these preparations have been known and used publicly in many parts of the Indian subcontinent for hundreds if not thousands of years.
The traditional medical systems of India and other parts of Asia include Auyverda, Unani, and Siddha. Each of these systems has thousands of preparations utilizing local flora and fauna to treat various ailments; ailments which are also supposedly treated by the preparations which have been patented by pharmaceutical and nutraceutical companies. For example an extract/preparation of the Himalayan plant Phyllanthus amarus has been recently patented as a treatment for HIV, while in traditional medical texts the plant is cited as being used to treat immuno-suppressive emaciating diseases. Almost the same exact use. However the patent could still be considered valid because it is not clear whether or not the extract preparation process is novel (see US Patent Application No 10/398,379). However the novelty of extraction extraction processes utilizing alcohol, water or hexane is in question That being said, too often the patenting process is not fair to everyone who has a stake in the legitimacy or illegitimacy of these patents. In all of this the Indian government is still trying to say that these preparations are not novel and should not be considered as legitimate patents by various countries in which they are registered as such.
In order to combat what they see as the usurpation of indigenous knowledge, the Indian government is creating an indigenous knowledge database, which will now be used by the European patent office to check against new claims to determine whether or not they are novel and therefore legitimate. This would help keep in check so called bio-pirates and the practice of bio-piracy. The government of India has spent over 5 million dollars in the last ten years trying to lift the patents on several traditional remedies in many countries. In addition to this the government of India is pushing the WTO to include a provision within the TRIPS agreement relating to the protection of indigenous rights and biodiversity. There are more than one hundred countries in the WTO that are supporting this initiative, however several big players including the US, Japan, and Canada, feel that more evidence and investigation is necessary before proceeding with this addition to the TRIPS agreement." (http://blog.iphandbook.org/?p=149)
In Defense of Local Knowledge
"Local knowledges also usually involve an intense sense of locality and place, and are self-consciously local and place-specific. This construction of a sense of place in local knowledge is very different from top-down mapping practices. It involves the formation of specific connections which actively relate people to particular sites, creating what are sometimes called ‘existential territories’. The ways in which local groups map spaces often have many dimensions, and focus on the uses, structures or meanings of places rather than their abstractly observed characteristics.
It talks mostly about relations, rather than things. This preference is often built into the structure of indigenous languages, with words referring mainly to relations instead of things. In some cases, the ability to ‘properly’ act or know is believed to be conditioned on a specific position in an entire relational web. It also tends to be holistic, rejecting the global-scientific approach of dividing the world into categories and disciplines, and rejecting simplification.
Hence for instance, natural, cultural and supernatural spheres are not necessarily separated, but can be viewed as a single field or a continuum. The entire local context is sometimes linked together in complex narratives of origin and essence which cross the three planes.
Faced with a choice, global knowledge tends to choose decisiveness, whereas local knowledge chooses inclusion. Local knowledge is often happy with inconclusiveness and differences within itself, placing a lot less value on coherence and decisiveness compared to global science (and global power).
This is shown, for instance, in the prolonged consultative processes which accompany indigenous decision-making. Whereas global knowledge seeks to extend itself over space, indigenous knowledge tends to extend itself through time. It also often emphasises the qualitative over the quantitative. For instance, Melanesian approaches to counting focus on the value of things which can’t be counted, and many indigenous approaches oppose the idea that wealth is measurable.
Wealth, rather, consists in the density and richness of social and ecological relations. The mode of expression of local knowledge is usually expressive, rather than instrumental. In other words, it is primarily a way of giving voice to particular perspectives, feelings and experiences, rather than a way of manipulating objects.
This contrasts with the language of ‘modernity’, which is increasingly trapped in instrumental ‘rationality’.
As a way of constructing life-worlds, local knowledge is connected to an orientation to redundancy rather than efficiency. Local knowledge often involves the maintenance of high levels of redundancy in its social system. In other words, instead of massively producing or extracting certain very specific ‘resources’, they maintain a wide range of different subsistence strategies connected to different means of survival. Such approaches go against ideas of efficiency dominant in capitalist economies, but provide a lot of resilience against unexpected events and crises.
For instance, a group growing multiple crops might make less on the commodity market, but be less at risk of starvation or dispossession in the event of a failure of one of the crops. The management of risk through resilience, rather than through the closure of space known as ‘security’, also sets indigenous knowledge aside from state perspectives. Resilient systems also tend to promote biodiversity. At least in principle, indigenous perspectives also usually reject the reduction of nature and of non-human entities to instrumentally usable resources. Rather, they are part of specific, densely related local places.
Similar to this orientation to resilience, indigenous knowledge often engages in syncretism, incorporating elements of newly-introduced belief-systems as an additional, parallel track alongside existing belief-systems. This is seen as a way to enrich indigenous knowledge by multiplying the perspectives it contains. Outside agents often find a similarly inclusive stance, except when local people have been hurt by previous contact. As well as aiding resilience, this approach expresses a situated view of the world which is very different from Northern ideas of purity and identity.
It doubtless carries dangers of recuperation, but it also provides the potential for resistance from within. In the Zapatista story “Questions and Swords”, external power is portrayed as a sword, and the local context as water. Power thinks it has dominated the context by striking the water and passing through, but in fact, over time, the water will rust the sword.
This is a metaphor for how local knowledges can absorb and corrode external power, reducing it to an empty shell of itself and preserving local autonomy. One might say there is a constant struggle below the surface in many marginal contexts as to which of the two forces – submersion and corrosion – will triumph.
There is a certain controversy in the scholarship which arises from the fact that local knowledges can both be highly pragmatic and instrumental, and also theoretical, religious and cosmological (such as the idea of an ecosystem as a living spiritual being which can feel pain), sometimes at the same time – for instance, a prohibition against destroying a sacred grove might also serve to protect an important source of food or medicine. Northern commentators have problems getting their heads around this, and end up splitting into two camps – some who read indigenous knowledge as entirely pragmatic, and others who read it as primarily cosmological.
The former accuse the latter of romanticism, misrepresenting indigenous people as a kind of untainted perfection, the latter accuse the former of creating their own version of a global-local and silencing local ways of seeing. While indigenous knowledge often involves extensive practical claims, these often make little sense outside their cosmological context. Their removal from this context effectively also removes their locality.
To complicate matters further, the relationality and situatedness of indigenous knowledge also seems to apply to the ways in which it’s expressed to outsiders: local people will play up or even invent a pragmatic view or an ecological worldview to appeal to powerful groups in the North. Indigenous knowledge also looks rather different from each of the positions situated within it, which are sometimes affected by differences in power and perspective. And many groups have taken on extractive attitudes arising from the wider capitalist context. In many cases, local knowledges coexist in unstable relations with global forces.
Authors such as Valentin Mudimbe have attempted to revive the idea that local knowledges are relevant to philosophy, questioning the dominant narrative in which philosophy was invented in the North. The main difficulty in drawing on and revaluing local knowledges is the effects of ‘enclaving’, the isolation of such knowledges. This leads to a need to construct networks which maintain the locality of contexts but are also able to communicate through ‘weak ties’ across contexts.
In this vein, various authors such as Glissant, Mignolo and Khatibi argue for the formation of ‘border knowledges’ which form horizontal connections between different local spaces, reconstructing the global, or ‘planetary’, as a network of perspectives rather than something viewed from the top-down. This kind of horizontal connection can help avoid the problems arising from connection by the intermediary of global knowledge, instead connecting localities without an integrating centre.
Local knowledge is neither a distant, esoteric knowledge which is ‘lost’, nor a collection of information which can be incorporated in dominant frames. It is based on a way of seeing and relating which produce a different form of knowledge in correspondence with a different form of power, both among people and between people and the ecosystem. What can be learnt in the capitalist-dominated world from indigenous knowledge is above all the practice of forming such alternative ways of seeing and relating.
Local knowledge provides the basis for building a new world in the interstices of the old, in the holes in the dominant grid. The question is not only to defend existing spaces of subsistence, but to expand and recreate the social relations through which such spaces emerge." (http://ceasefiremagazine.co.uk/in-theory-8/)
The Issue of Traditional Medicine
"many important medical advances are based on traditional knowledge: Consider aspirin (originally derived from the willow tree which itself was used for pain relief), and the anti-malarial artemisinin (based on a traditional Chinese medicinal herb).
With the growing awareness of TCM in the West, and global sales of herbal medicines in 2000 alone reaching $30 billion, it is easy to see why corporations want to patent traditional medicines. Accordingly, companies such as Xiangxue are investing in the science underpinning TCM, with a view to identifying new patentable pharmaceutical leads based on compounds discovered in the natural world and used in traditional/ folk medicine.
Against this background, a major concern of NGOs and governments in recent years is protection of traditional inventive and creative activity against misappropriation by third party patenting.
There is a widespread feeling that Western corporations should not profit from traditional knowledge at the expense of the indigenous communities from which it originates. However, at present, there is no legal system in place for rewarding or even acknowledging the contribution of traditional knowledge to modern science. Recently, the World Intellectual Property Organisation (WIPO) updated its patent classification system to better account for patents relating to traditional medicine based on natural products.
However, as existing patent laws are designed to protect "new innovations", traditional medicine does not fit comfortably into most existing systems.
For example, most TCM products are difficult to define and thus cannot be described with sufficient precision to satisfy the strict requirements of international patent law.
Moreover, as traditional practices are rarely written down, it can be difficult to determine whether they are "publicly known", especially as individual national laws differ in their definition of "the public domain."
The perceived difficulties with the known legal system can lead to what is often termed "biopiracy", and is illustrated by the high-profile example of the "Neem" (Azadirachta indica) Patent cases.
Indigenous communities in India have used the seeds of the Neem tree for medicinal purposes since 5000 B.C, as evidenced by ancient Sanskrit texts. A European Patent was granted to a US company for the anti-fungal use of a product extracted from Neem seeds.
The Indian authorities fought (and eventually won) a 10-year legal battle to have the patent revoked, on the ground that the medicinal properties claimed were known in the "prior art" for thousands of years before the patent application.
As one would expect, publicly available knowledge and practices cannot be patented. However, inventive improvements to traditional medicine may be patentable: For example, other "Neem" Patents were directed to previously unheard of uses, such as the treatment of cancer.
The Neem case highlights a deficiency of patent systems: Searches for "prior art" – i.e. assessment of what is already known – are inherently fallible, particularly because they rely on printed material. To address this issue, WIPO is considering how to improve access by National Patent Offices to traditional knowledge resources.
In parallel, learning from the Neem tree case, the Indian Government is overseeing an ambitious project to collate an encyclopedia of the country's traditional medicine, known as the Traditional Knowledge Digital Library (TKDL).
The aim of the TKDL is to put Indian traditional medicine into the public domain – in particular, to bring traditional remedies to the attention of Patent Office Examiners around the world.
In addition to such "preventative" measures, some argue that "affirmative" mechanisms are essential for regulating the use of traditional knowledge by third parties and providing rewards to communities that have developed this knowledge over many years.
To this end, a number of countries have called for two additional requirements for obtaining patent protection – an indication of biological source when the invention is based on indigenous genetic material, and a demonstration of prior informed consent (PIC) – i.e. confirmation that the community consents to the third party use of their knowledge.
These requirements have already been incorporated into the patent laws of India, The Philippines and the Andean nations.
A further option might be for indigenous peoples themselves to seek protection for new uses of their traditional medicines.
Whilst the expense of patent protection is a major constraint for traditional healers, alternative forms of protection are being considered. For example, trade marks or geographical indications could be used to identify traditional medicines from particular regions or communities.
Some argue, however, that 'Western' forms of protection may be inherently incompatible with the philosophy of traditional communities.
What is evident is that no straightforward, 'one size fits all' answer exists to the question of how best to protect traditional medicine. Further research and debate will no doubt ensue to try to find a solution that accommodates the conflicting needs of traditional communities and modern science." (http://www.businessweekly.co.uk/2008013031368/life-sciences/biotech-2008-ip-rights-and-traditional-medicine-a-procrustes%E2%80%99-bed.html)
Using contract rather than property law
"Both property (tangible and intangible), per se, and heritable knowledge can only derive economic value through contract law (in the form of transfers, licenses, leases, etc.). Therefore, it is contract, not property, law that is the engine of economic engagement. Ironically, neither WIPO nor WTO is necessary to promulgate new laws as the countries in the region already have relatively well defined contract law provisions and, in most cases, a relatively effective corpus of jurisprudence in the area of contracts. In short, the legal framework to protect both foreign IP&R and local communal heritable rights requires no substantive alteration in basic law. Further, under model legal frameworks already in place, existing conventions and laws already provide the basis for heritable knowledge and the perpetuation of “Traditional Knowledge” consultations is a smoke-screen as neither WTO nor TRIPS actually binds explicit, equitable enforcement of TK on member states at present." (http://www.m-cam.com/downloads/11042008.doc)
- Bhanumatu Natarajan: Biodiversity and traditional knowledge - Perspectives for a Gift economy (archived)
- Blog on traditional knowledge