(2002; 131 pages)
In some cases, TRM knowledge is produced by individuals without any interface with the community or outsiders. It may, hence, be held by individuals (“individual knowledge”).25 For instance, healers use rituals as part of their traditional healing methods, often allowing them to monopolize their knowledge, despite disclosure of the phyto-chemical products or techniques used (Bhatti, 2000, p. 13).26 In addition, individuals continuously improve or innovate on existing knowledge.
25 A review of anthropological literature reveals that certain authors suggest that concepts close or equivalent to individual forms of IPRs are quite common in indigenous and traditional proprietary systems (see, e.g. Dutfield, 2000a, p. 69). According to one view, the right of an indigenous inventor or custodian of TK should not be sacrificed on the alter of collective ownership, since this would infringe fundamental human rights (Gupta, 2002a)
26 Though the extent to which such prima facie individual knowledge can be truly classified as individual knowledge depends on other factors, as discussed below.
In other cases, knowledge is in the possession of some but not all members of a group (“distributed knowledge”). Knowledge is asymmetrically distributed among individuals within a group, even though such individuals may not be aware that others share the same knowledge (Bonabeau and Theraulaz, 1994). “Individual” and “distributed” knowledge are often interconnected. In some TRM systems healers compare notes and share remedies across quite wide geographic areas.27
27 This is, e.g., the case in Burundi (Communication by R. Lettington of 27.8.01).
Finally, certain knowledge may be available to all the members of a group (“common knowledge”), such as where knowledge of herbal home remedies is held by millions of people, often concentrated among women and the elderly. This “common knowledge” may not be confined to one group or country, and may even be held across national boundaries.
The attitudes towards the appropriation and sharing of knowledge vary significantly among different local/indigenous cultures. In some cases a strong sharing ethos prevails, leading to the rejection of any form of individualistic, Western model of appropriation. In other cultures, the concept of property in knowledge exists in a manner comparable to IPRs, with some degree of sale or exchange of knowledge as a commodity (Dutfield, 2000a, p. 281-282; Dutfield, 2000b, p. 288). Even if that is the case, often there is no clear demarcation between personal and community ownership as exists in the Western worldview.
Possession of knowledge by individuals, in effect, does not mean that such knowledge is perceived by communities as not belonging to them. Though at any one time, the knowledge may only be held by a handful of people with special roles in the community, in the course of the history of that community it is essentially communally held knowledge. Those with the special knowledge do not “own” it as such, and many have obligations to share the knowledge within the community at different intervals. There may exist, for instance, community standards for when the information must be passed, such as during initiation rituals. These features indicate slight but important differences between the meaning of individual property in Western culture, and knowledge held by individuals within a non Western community context. For instance, a study on herbal knowledge in India concluded that
“There is no clear demarcation between what belongs to the general community, specific community, or individuals within the communities. Certainly for the herbalists, as indicated in the results of the case study, herbal knowledge is treated as personal property. However, some of the knowledge they possess is relatively available in the same form in the general community due to the older tradition of sharing knowledge. The herbalists have continuously innovated what is available in the general community and hence they possess special rights to their innovations. It is hard to determine how the benefits should be shared if there is no clarity in the ownership.” (Sharma, 2000, p. 5).
In cases where there is distributed and common possession of knowledge,28 complex issues of entitlement to any possible intellectual property rights also arise, since Western IPRs systems do not provide for the granting of rights to communities as such. In many instances, in addition, the same knowledge may be held by more than one community, and an issue of geographical or historical priority arises (for instance, kava in various Pacific Cultures, and the use of neem derivatives throughout South and South East Asia).
28 For an alternative classification of modalities of knowledge possession based on the concept of “negative” and “positive” community, see Drahos, 1997, p. 185.
The multiplicity of factual situations as to the possession of TRM makes it particularly hard to apply existing IPRs or to develop sui generis regimes, as discussed below.