It is often assumed that IPR protection is a post-industrial revolution construction, that it is something recent. This is not correct; most societies have some concept of rights over knowledge that are akin to intellectual property rights, and often there is a longstanding tradition of protecting those rights. Frequently, traditional mechanisms of protection are based on the same concepts as modern IPR law: they convey exclusive rights and provide for monopoly powers.
For example, some traditional healers and herbalists refuse to disclose their knowledge; when they die, their knowledge dies with them. This is similar to the idea of a trade secret, though obviously the reasons for secrecy may be different. Healers may for instance not want to disclose their knowledge because they believe that once disclosed, it will lose its effectiveness. Or they may not want to disclose, because they presume that others will not (be able to) follow the required discipline in preparing and dispensing the medicine. Alternatively, they may worry about overexploitation. Traditional healers may use rituals as an essential element of their healing procedures. Rituals can protect know-how against unauthorized use by others, thereby de facto granting the healer exclusivity and allowing him/her to monopolize the know-how, even if the products and techniques used are fully disclosed21.
21 Shakeel Bhatti, "Intellectual Property Rights and Traditional Medicine", paper presented at the ASEAN Workshop on the TRIPS Agreement and its Impact on Pharmaceuticals, Jakarta, May 2000.
Another example: people in a certain community in West Bengal (India) used to grow a particular, very nice variety of mango. Each year, they would send some of their mangos to the king as a gift. But they were careful; beforehand, they would pierce each mango with a thin needle, so that the seed, if sown again, would not grow. In this way, they obtained plant variety protection for their mangos.
Such customary laws and practices are the rules of the holders of traditional knowledge, their own IPR rules, and in the local context, they usually provide effective protection. Outside their original settings however, these mechanisms for the protection and appropriation of traditional knowledge and innovations may cease to be effective. Moreover, most members of traditional and indigenous communities were -and probably still are- very generous in sharing their knowledge.
Secondly, it is frequently assumed, albeit implicitly, that traditional knowledge has been produced hundreds of years ago and that subsequent generations have merely carried it forward. This is not the case; no knowledge system is static. In traditional like in modern societies, every generation contributes to the knowledge system.
Threats and incentives
However, today, these knowledge systems, which have developed over a very long period of time, are under threat. The treat is the discontinuity that is emerging between the generation that currently holds and produces this knowledge, and the new generation that has to carry it forward, the young generation. Because they generously shared their know-how, because of the lack of protection for their knowledge and the lack of compensation, traditional innovators have remained poor. So the young generation is not interested, since they don't want to remain poor. As a result, the knowledge system itself is stagnating and eroding.
In order to ensure that these knowledge systems remain dynamic, incentives will have to be provided. For societies to be innovative, innovation must be rewarded; incentives must be provided to those who are creative and produce new knowledge. Incentives can take several forms: they can be material or non-material, and they can be individual or collective. TRIPS and modern IPR laws deal mainly with material, individual incentives. Thus, apart from modifying those, so that they become accessible to holders of traditional knowledge, there may be a need to devise various other types of incentives. These should include non-material incentives, notably due recognition, but also collective, material incentives, comprising for instance the creation of dedicated trust funds, group venture funds etc, in order to enable people to convert their inventions into products and enterprises. Appropriate incentives may also include grants and awards to a community, or assistance with the marketing of their products.
Another argument in favor of providing incentives and stronger IPR protection for traditional medicines and traditional medicinal knowledge is that without it, neither communities nor individual healers have an incentive to disclose their knowledge, to share their know-how with others. So perhaps the development of appropriate alternatives for protection and of ways to accommodate the needs and desires of the holders of traditional knowledge is ultimately in the interest of its wider dissemination.