Localizing Intellectual Property in the Globalization Epoch: The Integration of Indigenous Knowledge

Abstract

The search for appropriate modalities for the protection of indigenous or traditional knowledge is a subject of contemporary international law and policy discourse. As a primary mechanism for the allocation of rights over knowledge, Western or conventional intellectual property rights (IPRs) provide the conceptual platform in this ongoing inquiry. However, very serious concerns are raised in indigenous and scholarly circles about the suitability of conventional IPRs to the nature of traditional knowledge. There is almost a consensus that the inadequacy of conventional IPRs in relation to indigenous knowledge compels a look in the direction of a sui generis regime of rights for local knowledge protection. However, the sui generis proposals are drawn within the rubric of conventional IPRs. Protection of indigenous knowledge is always considered in relation to the conventional IP system. This is understandable, because in the global economy conventional IPRs are the primary and formal mechanism for the protection of rights over knowledge. However, little regard is given to the fact that virtually all cultures have their own knowledge-protection protocols or conventions. Fundamentally, such culture-specific protocols are designed to protect knowledge. In that sense, they are functionally akin to Western intellectual property frameworks. Giving due regard to cultural protocols on knowledge protection is different from evaluating such schemes only in terms of their relevance to the conventional IP system. The latter approach undermines the differences in the epistemological narratives between Western and non-Western ways of knowing. In virtually all cases, ways of knowing have correlation to the ways of protection, transmission, legitimization and evaluation of knowledge. An acceptable sui generis mechanism for the protection of local knowledge must be rooted in indigenous episteme. Western IPRs’ inability to address the epistemic dichotomy between Western and indigenous ways of knowing is at the root of its failure to meet indigenous peoples’ yearnings and aspirations for the preservation of their knowledge and its cultural integrity. This is the basis of the “crisis of legitimacy in the intellectual property system”. Spotlighting traditional medicine and the patent regime, this article first highlights elements of the debate surrounding the use of conventional IPRs for the protection of traditional knowledge. It underscores the acknowledged controversy and inadequacies of that approach, and draws attention to the ongoing effort to integrate indigenous knowledge-protection protocols into the IP project. In contrast to the hitherto one-sided focus on the conventional IP system, extant efforts look to draw in knowledge-protection schemes and protocols that exist within indigenous and non-Western customary practices and jurisprudence. These developments mark a more significant step toward a realistic approach to the protection of indigenous knowledge than is offered by the conventional IP system or sui generis options based on that system. This approach depicts a cross-cultural outlook on IPRs. The article then presents an overview of the trend at the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity (CBD). Finally, the article examines the perceived conflict between the centrifugal focus of the attempt to integrate customary regimes for knowledge protection into the IP discourse, and the phenomenon of globalization as symbolized by the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement. The fact that the thrust of the effort to integrate indigenous knowledge-protection protocols into the IP discourse emphasizes the local poses a potential conflict to the current globalization initiative, especially in the IP arena. Even though TRIPs is an attempt to globalize IP, it does not change the status of IP as a subject under national jurisdiction. The effort to integrate knowledge-protection regimes from indigenous and local communities into the IP legal scheme could well have global ramifications. In effecting the legal protection of traditional knowledge, national governments would indeed be within their legitimate powers, both under the TRIPs Agreement and their commitments to various international instruments on the protection of indigenous peoples. The need to integrate indigenous knowledge-protection protocols into IP discourse is a consequence of an indigenous renaissance and resistance that has yielded a logic of epistemological pluralism. Under this pluralism, indigenous holistic and subjective understanding of phenomena or ways of knowing compete for a space within knowledge-protection jurisprudence. This article argues that contrary to popular accounts, this competition is part of the globalization experience. The notion of integrating indigenous knowledge-protection protocols into the IP agenda does not necessarily conflict with the phenomenon of globalization, as many would think. Nonetheless, the integration project is at a nascent stage. It will surely raise a number of questions and concerns. Its relationship with globalization, with which this paper is concerned, is only one of the many issues that confront the cross-cultural momentum on IPRs.