Proposals for the protection of traditional knowledge (including codified and non-codified TRM) are often based, explicitly or implicitly, on equity considerations.47 A main objective of protection would be to obtain recognition and some compensation for the commercial use of TRM outside the community or the society which generated it, either by excluding the unauthorized use by third parties, or by ensuring a right to remuneration (or benefit sharing) for such use.
47 See, e.g. Ekpere, 2002.
Equity can also be understood, in this context, in the sense of allowing indigenous people to access a system (IPRs) that other peoples can access to gain reward for their own knowledge/innovations, so that they have the capacity to be rewarded through licensing or undertaking commercialisation themselves. This second interpretation of ‘equity’ is a common implicitly assumed rationale for expanding IPRs to cover traditional knowledge.
Though only applicable to biological resources and the knowledge associated to its conservation and sustainable use, the CBD offers a possible model, not necessarily based on the granting of IPRs, for bringing more justice into essentially asymmetric relationships. In implementing the CBD some countries have considered how to extend the principles of prior informed consent and benefit sharing to the knowledge associated to the use of biological diversity.48 Such a model, however, would apply to cases of bio-prospecting rather than to the utilization of existing and publicly available knowledge under codified TRM systems, such as Chinese medicine or Ayurveda.
48 Decision 391 of the Andean Group countries mandated the development of mechanisms to protect traditional knowledge (transitional provision 8). See on the experience of the Andean Group countries, e.g., Ruiz Müller, 2000.
There is some experience with “bio-prospecting” of medicinal plants under agreements that provide for benefit sharing with the local/indigenous communities that supplied the relevant knowledge and/or materials (Grifo and Downes, 1996). Nevertheless, TRM knowledge holders should not be assumed to necessarily expect a monetary reward for the knowledge they supply (or is otherwise appropriated). While Western IPRs assume that the act of innovation or creation is largely motivated by financial gain, local/indigenous communities generally believe that knowledge is socially created, through interaction amongst humans and nature, and that individuals are obliged to put their knowledge to use to the benefit of the community without expecting a monetary compensation. Thus, the way most healers are paid, at least the traditional ones in Eastern and Southern Africa, is through a voluntary system including pro bono work and soft loans.49. The voluntary aspect functions because of social aspects: fear of ancestors, spirits or whatever force is believed to be behind the medicine, makes people pay what they are able to because otherwise they believe the medicine will not work. The voluntary system is extremely important as it serves a social purpose, fitting what might be described as the healers’ Hippocratic Oath.50
49 Personal communication by R. Lettington, 27-8-01.
Hence, equity-based claims of protection are not necessarily equivalent to demands of remuneration. Moreover, in some communities a monetary payment may be regarded as morally unacceptable, or custodians of knowledge may not be free to make money out of it, or to transmit it for use outside their cultural or spiritual context. In fact, to do so can cause a great deal of offence, resentment and even distress.51
51 Communication by G. Dutfield to the electronic dialogue on traditional knowledge of the UK Commission on Intellectual Property Rights, 27-11-01 (www.iprcommission.org).
A study on herbal medicines made in Kenya revealed that:
“Eighty per cent of those interviewed are well-informed about the commercial value of their knowledge and were quick to indicate that access to it can always be negotiated. Five of the herbalists indicated that futile attempts have been made by foreigners to obtain information on particular herbal remedies. Seven of the herbalists indicated that they have been approached by local scientists for information. Apparently the herbalists were aware that the information so given was to be used in research and the information was given in mutual trust and confidence. Surprisingly, none of the herbalists had entered into any agreement about the future of the results or final destiny of the information so given” (Muchae, 2000, p. 12).
In sum, while claims for justice seem well founded in cases of misappropriation, it may be wrong to assume that local/indigenous communities regard monetary payments as the most adequate means to find relief from the injuries suffered by them when knowledge is appropriated. In many instances, they may rather seek a moral recognition of their contribution to the development of the knowledge. The communities may not want to be ripped off but they also may not want some kind of IPR-type system to be imposed on them. In many cases, they may not be interested in an economic compensation, but just in respect for and recognition of their culture and beliefs.