October 14, 2015
Traditional knowledge is a form of innovation that does not fit neatly into Western notions of property. Underdeveloped countries with significant traditional knowledge lack property protection for their traditional knowledge and are often not compensated for the technology arising from this form of knowledge. This Note outlines the tension arising from the differing incentives that underlie patent and traditional knowledge systems, and recommends methods of reconciling those tensions. First, this Note advocates that countries develop national libraries of the knowledge embodied in their staple agricultural products. Next, countries should create statutes to establish a method by which outside parties can negotiate to pay for traditional knowledge. Lastly, countries should use their permit or visa process to monitor and control the activities of foreigners commercializing traditional knowledge. The proposed measures in this Note help countries with significant biodiversity protect their traditional knowledge and allow fair compensation for commercial ventures stemming from that knowledge.
CONTENTS I. INTRODUCTION II. TENSION BETWEEN TRADITIONAL KNOWLEDGE AND PATENT LAW'S INCENTIVES III. JUSTIFICATIONS FOR WHY TRADITIONAL KNOWLEDGE SHOULD BE RESPECTED A. Social Incentive Has Changed With Monetary Compensation Available for Traditional Knowledge B. Fairness--In Light of Community Time and Effort Spent on Preserving Traditional Knowledge IV. STRATEGY ONE: PROTECTION OF STAPLE TRADITIONAL KNOWLEDGE THROUGH NATIONAL LIBRARIES V. STRATEGY TWO: COMMERCIALIZING NON-STAPLE TRADITIONAL KNOWLEDGE USING A CODIFIED STATUTE A. Explicit Statement Concerning the Indefeasibility of Indigenous Rights and Future Use of the Traditional Knowledge B. Tribal Representative to Voice Concerns and Communicate With Outside Party C. Negotiated Percentage of Gross Sales from Commercial Efforts Returned Directly to Tribes or Indigenous Funds VI. CURRENT GAPS IN DOMESTIC ENFORCEMENT VII. BETTER ENFORCEMENT MEASURES FOR COUNTRIES TO PROTECT THEIR TRADITIONAL KNOWLEDGE A. Possibility of Bilateral Cooperation Treaties B. Proposed Future Measures for Countries to Better Enforce Their Domestic Strategies VIII. CONCLUSION I. INTRODUCTION
If history has taught us anything, we need to be aware and involved in the protection and preservation of our traditional knowledge. It is not out of disrespect to those seeking our knowledge, but out of respect for our ancestors who protected our knowledge, left us the teachings and for our future generations who will need that knowledge to continue as sustainable people of this land. (1)
Traditional knowledge includes, "[t]he vast majority of the world's biological diversity originates in the tropics and sub-tropics." (2) The genes from plants, animals, and microorganisms are the strategic raw products. But these genetic and commercial resources are no longer raw materials, "because they have been selected, nurtured, and improved by farmers and indigenous peoples over thousands of years." (3) These improvements to raw materials constitute a unique kind of knowledge, traditional knowledge. Yet the question remains, who should profit as a result of the developments from this source of knowledge?
Societies develop different ways of creating incentives for innovation. Currently, the patent system and traditional knowledge systems have conflicting interests. The two approaches have different incentives and reward systems. Patents guarantee a time-limited monopoly to a specific inventor providing an incentive for individuals to create and invent, which in turn benefits a society as a whole. (4) In contrast, traditional knowledge is shared knowledge within tribal communities that is improved over the course of generations. (5) Examples of traditional knowledge include medicinal material, rituals, agricultural practices, artistic endeavors, and spiritual expressions. (6)
What further complicates this problem is that there is no established global consensus over fundamental issues like who owns traditional knowledge. (7) The Nagoya Protocol, entered on October 2014, addresses traditional knowledge associated with genetic resources and includes provisions on access, benefit-sharing and compliance. (8) However, The Nagoya Protocol's success will require strong implementation at the domestic level, (9) which is the focus of this Note.
Traditional knowledge abuse has occurred for centuries. Researchers have documented several incidents of abuse where an outside entity, like a private company or researcher, disrespected customary rules of a local community or did not pay adequate remuneration in exchange for using a community's traditional knowledge for commercial efforts. (10) Brazil serves as a historical example from the mid-1800s when natural rubber was produced primarily from wild trees in Brazil. (11) To overcome the Brazilian monopoly, the British Royal Botanical Gardens sent a botanist to Brazil to collect seeds so they could later establish rubber plantations outside Brazil. (12) Recently, a range of patents have been granted that directly utilize (but do not acknowledge) traditional knowledge about plants, medicinal properties and methods of extraction. (13)
Still today, countries with significant traditional knowledge are victimized by similar instances of misuse and abuse. The core problem is that traditional knowledge is a form of innovation that up to now has no property protection so that those who house and originally develop the knowledge are not rewarded, and might even be penalized for it. These countries lack ways of protecting their traditional knowledge thus getting the reward for what is eventually produced as a result of the knowledge.
This Note outlines two strategies for countries to protect their valuable traditional knowledge, based on the nature of the knowledge. Part II describes the clash of cultures resulting from the different systems protecting the generation of new knowledge. Part III presents the first strategy for countries to domestically protect their staple products from being commercialized through national publishing libraries. Part IV presents the second strategy for countries to further protect their non-staple products from commercial efforts without tribal consent. Part V identifies the current gaps in domestic enforcement of traditional knowledge protection. Part VI analyzes the possibility of bilateral cooperation treaties and explores further measures countries can apply domestically to discourage misuse and abuse of their traditional knowledge.
TENSION BETWEEN TRADITIONAL KNOWLEDGE AND PATENT LAW'S INCENTIVES
Innovations drive societies forward. But societies develop different ways of creating incentives for innovation, and those incentive systems reflect the social values of the society.
Traditional knowledge is defined as "the know-how, skills and practice that are developed, sustained and passed on from generation to generation within a community, forming part of its cultural or spiritual identity." (14) Traditional knowledge is entirely community based and allows resulting benefits to be shared within the community. (15) The free dissemination of traditional knowledge within the community allows for mutual benefits without the need for individualized rewards. (16)
By contrast, patent law rewards the person who invents or discovers something for their work through a time-limited monopoly. (17) Patent law is grounded in rewarding the individual. An inventor is rewarded through their discovery with just enough incentive to prevent certain would-be copiers. (18) In the American patent system, a specific inventor must be named to the patentable invention. (19)
Patent law and traditional knowledge share the concept of a public domain, which is the dissemination of propriety information for the public good. But there is uncertainty as to how traditional knowledge and the outsiders who use this knowledge fit into the patent system. Patents function under a short, reward based system. The patent system is motivated, "to guarantee the disclosure to third parties of all relevant information concerning the invention as a quid pro quo for the grant of exclusive rights." (20) Unlike patents, traditional knowledge is not grounded in a short reward. Traditional knowledge is contained as a knowledge system passed and improved over generations. Examples of traditional knowledge include medicinal properties of the neem tree (Azadirachta indica), and Egyptian architecture for cities. (21)
Patent law is grounded in rewarding the individual. An inventor is rewarded through their discovery. Under U.S. case law, a patent must be named to an inventor who exercises control over the inventive process. (22) But traditional knowledge is never confined to a single person or a tribe. Rather, traditional knowledge is central to a community's cultural value system, and the community generally holds and owns the knowledge collectively. (23)
Thus, patent law does not provide an ideal legal framework to protect traditional knowledge, because it is finite in nature and opens knowledge to the general public after a short amount of time. (24) The central problem is that traditional knowledge is a form of innovation that has no property protection, because the indigenous people who originally develop the knowledge are never rewarded for it.
As a result of this problem, countries with traditional knowledge are negatively affected in two ways. First, traditional knowledge lacks proper publication and documentation in Western or science mediums. When other communities and companies apply for patents on staple forms of traditional knowledge, there is a serious lack of prior art for the traditional knowledge to block the patenting of these staple products. Second, countries are not rewarded for hosting and promoting the value of traditional knowledge while others reap commercial...