Implementing a Traditional Knowledge Commons

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URL = http://www.naturaljustice.org/images/naturaljustice/implementing%20tkc.pdf


Excerpts

How Biocultural protocols differ from western intellectual property

"The traditional healers in Rajasthan, India, refer to themselves as gunis. The word guni is derived from the Sanskrit word guna, which has a threefold meaning: knowledge, healing and virtue. A guni is therefore one who not only has the knowledge of healing but is also a person of virtue. The gunis in their biocultural protocol outlined the guni dharma, which is a code that all gunis subscribe to. The term dharma is translated as ‘the virtuous path’ and guni dharma is a code of virtue that gunis are sworn to uphold. The gunis recite an oft-quoted Hindi verse of the saint Tulsi Das that sums up their guni dharma: daya dharma ka mool hai, paap ka mool abhimaan. This can be translated as “compassion is the root of the virtuous path and the root of wrongdoing is self-centeredness.” The gunis believe that it is compassion that makes them serve their community selflessly, care deeply for nature, and share their knowledge for the well being of humanity.


While developing their biocultural protocol, the gunis emphasized that compassion leads to selflessness, which opens oneself up to a deep sense of kinship with nature and one’s community. This biocultural connectedness leads to dreams and intuitions about the healing properties of plants. Like the Bushbuckridge healers, the gunis therefore view themselves as custodians and conduits rather than owners of their knowledge and see their ability to heal as a gift or a calling. For the gunis it is a violation of the guni dharma to profit from their knowledge, and the greatest of transgressions is a refusal to heal the ailing who can ill-afford to compensate the guni. The dharma of the gunis is not an isolated example of an ancient code of virtue but resonates with the codes of virtue of other traditional communities such as the sangomas (traditional healers) of South Africa and the Raika pastoralists of India. These communities perceive their knowledge as an outcome of virtuous relationships with the land, plants and animals. Community values regarding their knowledge vary as much as communities themselves, and for many communities these values are not incompatible with financial-based benefit sharing arrangements. In many others, though, knowledge is not seen as property that can be owned and sold as a disembodied commodity, but rather the very flow of knowledge affirms biocultural relationships within communities and between communities and their ecosystems. Knowledge about the natural world is not purely material but simultaneously cultural and spiritual. Its movement and application promotes a kind of biocultural cohesiveness.

Amongst biocultural communities, the movement of knowledge does not generate profits as in the sale of commodities. On the contrary, the knowledge itself increases by creating a continually widening community of knowledge holders all of whom are bound by the code that insists that they do not profit from what they have received freely. Whereas the profit remains with the seller in a transaction involving the sale of knowledge, the increase follows the knowledge while simultaneously affirming cultural and spiritual bonds within biocultural communities. While biocultural communities, be they healers or pastoralists, do engage in transactions in which they are compensated in money or in kind in exchange for their knowledge, for some of these communities the nature of TK is such that it places a clear limit on the extent to which the knowledge can be commodified.

This limit is important because when knowledge that emerges from certain cultural and spiritual relationships is commodified, it results in an erosion of a value system that creates such knowledge and frays the ties that hold the community together. This has been illustrated by research on the impact of the commodification of TK on ILCs – such as the extensive IIED- led participatory action-research project carried out with 11 ILCs in six different regions, which has documented a shift toward the privatization of communal resources and a decrease in the sharing of TK, often due to a lack of interest or out-migration by younger generations.20 Some of the healers believe that commodification can even affect the efficacy of the knowledge since it separates the healer from the community by restricting their interaction to a material relationship mediated by the commodity. The healers see a large part of healing as involving a spiritual reaching out to the ailing, which is adversely affected if the entire relationship is based on a pure commercial transaction.


The movement of knowledge as a relationship on the other hand blurs the boundaries between the self and others, strengthening the cultural and spiritual bonds that form a community:

When “knowledge” passes from hand to hand in this spirit, it becomes a binder of many wills. What gathers in it is not only the sentiment of generosity but the affirmation of individual goodwill, making those separate parts a spiritus mundi, a unanimous heart, a band whose wills are focused through the lens of the “shared knowledge.” Thus the knowledge becomes an agent of social cohesion, and this again leads to the feeling that its passage increases its worth, for in social life, at least, the whole really is greater than the sum of its parts. If it brings the group together, the “knowledge” increases in worth immediately upon its first circulation, and then like a faithful lover, continues to grow through constancy."


TK Commons must be symmetrical to prevent exploitation

"TK systems that both permit use of knowledge and require reciprocity41 are thus a form of knowledge commons. The rules that govern such knowledge commons are customary laws that dictate the sharing and exchange of knowledge related to plants, animals and ecosystems. For this reason, the holistic biocultural way of life based around the recognition of the interdependence of people and the environment could in itself be understood as a large commons.

A history of abuse of these legally unprotected commons has resulted in communities being wary of sharing knowledge with outsiders, independent of the nature of the research undertaken. The issue is not therefore how TK may be placed into a commons – since knowledge commons amongst ILCs already exist and have existed for millennia – but how to give effect to the customary laws governing existing TK Commons using national and international law and policy processes that affect ILCs.

From a legal perspective the rules governing a commons grant rights while also imposing obligations. Although often not acknowledged in law, with its overt focus on concepts of property owned by individuals and corporations, most developed economies rely on commons. “Commons are another core institutional component of freedom of action in free societies, but they are structured to enable action that is not based on exclusive control over the resources necessary for action.


Although the resources in a knowledge commons are quite distinct from private property, they are also certainly not a part of the public domain.

- “The distinction between common and private property is misleading in that all commons . . . include some people but exclude others from membership, and are private in the latter extended sense.”

A song on the radio, for example, is publicly available, but it is not in the public domain. Similarly, free software is not in the public domain, but rather secured from appropriation by a license, usually the GNU General Public License that requires all users to use the software according to the values of the free software community. TK likewise is governed by traditional and customary law and is not in the public domain. While someone may rework something in the public domain, and then claim “ownership” in the reworking, a commons governs the re-use of resources, usually requiring reciprocity, attribution of others, and re-licensing on the same terms. A commons is also distinguishable from a publicly available resource like a free-to-air broadcast, which may be freely viewed but not freely re-transmitted because the publicly available resources vest in companies or individuals not communities. While these may permit some uses and not others, they do not form the basis of a community.

This distinction between knowledge commons and the public domain is especially important in the context of a TK Commons since other knowledge commons, such as the Creative Commons (CC), endeavor to facilitate access to knowledge by preventing its enclosure through IPRs with the overall goal of accelerating movement of knowledge towards the public domain, whereas customary laws regulating TK are influenced by concern related to proper relationships and reciprocity with the goal of maintaining these relationships, not moving knowledge toward the public domain. However, in many cases TK is just as sensitive to exclosure – being permanently outed into the public domain – as it is to enclosure. Large amounts of TK are already publicly available in publications and archives, and ILCs have long struggled to prevent this TK from being treated as though it were in the public domain and used as though it were free. It is therefore essential that a TK Commons provides access to the use of TK strictly within the framework of customary law so as to avoid its exclosure into the public domain. In other words, the TK Commons would be a mechanism for providing regulated access to TK – albeit guided by the biocultural values of ILCs – not altogether free access. For this reason, ILCs need to be able to exercise the options to stop access and refuse appropriation of any development based on their TK when necessary to protect against its misuse.

The creation of a TK Commons would require a community of TK holders to develop in accordance with their customary laws the terms and conditions for non-commercial access to their TK. The formation of biocultural protocols, described above in relation to the Bushbuckridge healers and the gunis of Rajasthan, provides a particularly effective process for developing these terms and conditions. Biocultural protocols were originally developed as a sui generis tool by communities in the context of the ABS negotiations, but this tool is now being extended to other contexts such as the UN Reducing Emissions from Deforestation and Forest Degradation in Developing Countries Programme (REDD). The goal of biocultural protocols is to ensure the central role of communities who have been custodians of ecosystems in any discussion regarding the conservation of lands that they have been stewards of. They are a mechanism through which communities can assert their rights while also highlighting the importance of their biocultural relationships with the environment. Furthermore, the process of developing biocultural protocols can benefit communities through encouraging community-level dialogue that can lead to awareness raising and education throughout the community about the importance of their TK in the larger context of outside interests in its use, as evidenced by the Bushbuckridge and Rajasthan examples. As such, biocultural protocols are ideally suited as a means of expressing the customary laws and values on which the terms and conditions of non-commercial use will be based.


Although the contents of each biocultural protocol and the resulting terms and conditions will be somewhat unique depending on the varying perspectives of different ILCs, there are some common unifying values shared to some extent by a majority of ILCs.


These include reciprocity, duality, and equilibrium. Reciprocity “means equal exchange in society and in nature,” which, if adapted into a rule for use, would suggest that access should be reciprocal so that communities receive knowledge and resources “in equal measure in return for access provided.”


Equilibrium “means balance in nature and society,” which suggests “respect for nature and social equity” would also play a significant role in the articulation of terms and conditions for use. Finally, duality refers to the idea that “everything has a complementary opposite,” which supports an openness to the use of “complementary systems,” meaning many ILCs would see the possibility of a certain degree of compatibility between western systems and traditional systems, as would be necessary for a TK Commons with non- traditional members to operate.

In addition to the terms and conditions for use, there are two other foundational elements that must be established by a community before a TK Commons can be functional. Non- commercial use will need to be clearly defined, and communities will need to articulate what forms benefits can take. Non-commercial research can be generally defined as research with the goal of creating new knowledge without restrictions or proprietary ownership.

However, it will be important for communities to be quite specific in how they define non-commercial use in the terms and conditions they set forth since the boundaries between non-commercial and commercial research are becoming increasingly porous, especially in regard to university- based research.”


What kind of Benefit Sharing is needed?

"No one refutes that benefit sharing is needed. The issue is that the real “benefit sharing” – to the benefit of humankind – has been practiced for millennia by the “biodiversity actors:” Indigenous Peoples, peasants, small farmers, fisherfolks, forest dwellers, pastoralists and other traditional communities. All agriculture and health care systems are based on their past and present contributions, which, in turn, have been based on reciprocity, on free flows of exchange of resources and knowledge among Peoples, between communities, regions and across the world. The process is not comparable to a commercial transaction. Rather, it is based on the collective and intergenerational nurturing and development of biodiversity.

So what should constitute benefits for the terms of benefit sharing? Benefits could of course take the form of nonmonetary compensation, such as technology transfer and capacity development, but there are other conceivable benefits that could be incorporated into the terms and conditions of a TK Commons as well. The return of new knowledge resulting form non-commercial research would benefit the TK Commons as a whole by expanding the pool of knowledge available to all its members, and this could be facilitated through terms that required periodic reports on research progress and the sharing of research findings in a language and form that would be accessible and useful to ILCs, provisions that are already frequently included in indigenous research guidelines and protocols. While the TK Commons may not be able to directly solve the wider range of threats to TK, such as loss of indigenous land and resources, giving ILCs more control over defining benefits would also create the possibility for setting terms and conditions for use that required recognition and compliance of the whole range of indigenous rights, not just their rights over their TK. Taking the problem of over-harvesting on community lands, for example, terms could require support for community control over determining what is harvested on their land – as well where, how much, and by whom – so as to reduce the impact of over-harvesting."


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