Traditional Knowledge: New Directions and Options for Protection
By Fernando Mathias, lawyer, Socio-environmental Policy and Law Programme, ISA
Article first published in ISA’s publication ‘Povos Indígenas no Brasil, 2001 a 2005’
It is undeniable that a people’s knowledge of the environment which it inhabits is fundamental to the development of its culture. For millennia the free circulation of ideas, experiences and knowledge have enabled humanity to deepen its relationship with nature, recreating landscapes and generating technologies and environmental and cultural diversity. Nature still acts as the arena for human evolution, notwithstanding mankind’s irresistible temptation to believe that nature can be controlled through new technologies such as genomic, proteomic or nano-biotechnology.
Starting some time ago, albeit recently from a historical perspective, a sizeable portion of human knowledge of the environment has been privatized by means of intellectual property mechanisms, particularly patents. With the advent of biotechnology, the intellectual property system was practically recreated to extend the concept of an ‘invention’ beyond the boundaries of common sense. Currently genes and molecules (including those of humans), microbes and plants can be patented; or rather, become the private property of a pharmaceutical, cosmetic or agricultural enterprise.
The values attributed to nature and to the process of generating knowledge are understood differently by different societies. For western societies, the value of socio-biodiversity is as the subject of research, a source of technological progress in the biosciences and bio-industry, transformed into patterns of economic concentration by means of patents. For other culturally different societies this same socio-biodiversity is precious because of its sacred attributes as part of a cosmology of belonging that sees humans and nature as one and the same.
The privatization of scientific knowledge
The impressive evolution of the biotechnology industry to levels unimaginable only a short time ago has taken place in two distinct legal and regulatory fields, at whose interface the term ‘biopiracy’ has been forged. On one hand, there are genetic resources until recently considered to be the common heritage of mankind (until the advent of the Convention on Biological Diversity in 1992, which recognized national sovereignty over such resources); on the other, an intellectual property system based on the notion of individual private property rights over the intangible. This state of affairs has enabled an extremely lucrative process of privatization. Biotechnology industries can count on a free source of raw materials, whose instruction manuals are found in the knowledge held by indigenous peoples and local communities. These can be transformed into private property through translation into technical and scientific language that allows patentability in accordance with the increasingly distorted criteria of innovation, inventive step and state of the art.
There is enormous pressure from developed countries to “harmonise” patent legislation worldwide, setting criteria for patentability at the lowest common denominator so as to increase the economic dependency of poor countries and the loss of their food and health security. This process began with the General Agreement on Tariffs and Trade (GATT). There then followed the Agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO). Currently there are negotiations for a draft Substantive Patent Law Treaty under the World Intellectual Property organization (WIPO), as well as a number of regional or bilateral free trade agreements that create rules allowing for the patenting of discoveries and living beings and that treat bio-prospecting as “scientific research activities” and turn authorizations for access into “investment agreements”, granting patents to remunerate “investors” and treating plunder as a benefit for the plundered.
Patents have become tools for speculation: the stratospheric growth in the numbers of patents in the field of biotechnology is inversely proportional to the number of products developed and made available to society. University researchers patent their work even before its publication, standing the basic premise of scientific production on its head. Access to knowledge, even in academia, has to be paid for.
A rigid system of intellectual property, far from promoting and disseminating, restricts access to knowledge and innovations on the part of the vast majority of the world’s population. It limits access to those few who have the financial capacity to pay. How can it be said that such a system encourages the production of knowledge?
A sizeable number of people have begun to realise this and are fighting for the freer circulation of culture, knowledge and information within society at large. Important initiatives such as open source software, differentiated creators’ rights (Creative Commons), open encyclopaedias (Wikipedia) and open access to documents in academic institutions embody a different logic, based on reclaiming ethical principles of further improving systems and individual works through their collective development and spreading social ownership through social networks, virtual or otherwise.
Free circulation of knowledge and traditional communities
Such innovative initiatives have ancient roots. The circulation of knowledge among indigenous communities and local communities by means of social exchange networks is a millennia-old phenomenon responsible for maintaining a cultural system of environmental management and understanding.
However the conflict between differing sets of values around biodiversity, although apparently distant and abstract, since initiated in the field of ideas, has come to assume increasingly critical and concrete proportions; particularly in the field of agriculture, where an economic monopoly on the use of plants and seeds has created social issues around an increased dependency and loss of food security on the part of a large proportion of the rural population of the world.
Globalizing markets have enabled greater penetration of manufactured products into remote locations. Alcohol, pasta and other staples can increasingly be found in the remotest communities, leading to a process of dietary homogenization that results in the erosion of agricultural biodiversity and its associated knowledge, in addition to increasing levels of dependency and poorer health and nutrition standards. In turn, an economic model based on agricultural monoculture and land concentration restricts access to land and natural resources by a large part of the rural population, which then results in the loss of traditional knowledge of the uses of plants and animals.
Increasingly, forest gardens are abandoned and tinned foods bought, the knowledge of the elders is belittled, the youth leave for the city in search of work, traditional medicines are forbidden, and school systems inculcate individualistic and competitive values in opposition to the communal solidarity that characterizes the social organization of indigenous peoples and local communities.
In order to resist these threats it is important to pay greater emphasis to local approaches to the protection of knowledge held at the village and community level through measures that value autonomous health and education systems, that value the role of women and that build understanding among youth
The recognition of territorial and environmental rights and the right to self determination, as well as strengthening systems of customary law and social organization of traditional peoples, are essential for maintaining the networks of social, cultural and environmental relationships and exchanges that ensure the reproduction and in situ conservation of knowledge systems and the management of biodiversity, in particular that of cultivated plants.
Given that we are living in a world where these two realities co-exist – freely accessible knowledge needed to maintain cultural diversity and privatized knowledge designed for markets – the challenge that is now posed is precisely how to find ways to build positive relations between indigenous peoples and the market.
Terroir: a socio-environmental concept
The right to land is essential to the cultural survival of indigenous communities and local communities; there is still a long way to go to ensure recognition of the territorial rights of quilombolas, riverside communities, rubber tappers and small farmers.
As far as indigenous policy is concerned, more has been achieved but there is still a long way to go. For example, indigenous peoples who have had their lands demarcated can still be found living in abject poverty, trapped in relationships of economic exploitation and dependence in the face of the complete lack of public policies for the management of these territories. There are no incentives for production or sustainable economic alternatives, or access to credit. The post-demarcation challenge is precisely the management of indigenous lands by the indians themselves.
To this extent those positive experiences of certification linked to the idea of cultural and environmental territory, inspired by the concept that underpins the French system of geographical indicators of origin (terroir), could be a way of adding market value to specific cultural and environmental characteristics that determine the special nature of a particular product originating within traditional communities.
The French system of Appellation d’origine controllée (AOC) is based on the identification of an agricultural product whose authenticity and characteristics are derived from its geographical region of origin and the socio-environmental conditions under which it was produced.
The interesting feature of the AOC system is that it presumes an intrinsic connection between a product and a determined terroir, a term that denotes a geographical area with its specific geological, ecological and climatic features, as well as cultural and human elements such as agricultural management practices, traditional knowledge, forms of land occupation and other aspects. In other words, as well as the physical and environmental elements, the notion of terroir also implies shared traditions of production, history, collective identity and usually traditional agricultural products or breeds of animals that comprise a living and dynamic cultural and natural heritage.
Products originating from a terroir are entitled to AOC protection as part of the national cultural heritage. In such cases the market helps to strengthen rather than erode the socio-environmental values deriving from the management of natural resources by traditional peoples. It would be possible for Brazil to adopt the notion of terroir as an institutional unit upon which public policies for valuing indigenous cultural heritage and agricultural production could be developed.
Starting with the recognition of a specific terroir – which could for example form part of the inventory of Brazilian cultural heritage – traditional agricultural production from that region could be accorded greater value through official recognition of a geographical indicator. The restricted level of supply of a product with a strong territorial, cultural and environmental identity would add market value to the product. Combined with incentive and safeguard mechanisms this would open the way to creating niche markets that would lead to benefits returning to support the local protection of the traditional knowledge and plants cultivated by indigenous peoples and local communities.
The implementation and application of such a mechanism with indigenous communities could constitute a public policy built upon the demands of indigenous peoples themselves for sustainable economic alternatives. The role of government would be to support and respond to indigenous demands through the official recognition of indigenous terroirs that constituted a framework for undertaking an assessment of potential products with geographic indicators.