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. == Copyrights and image copyrights ==
The increase in the use of the image and cultural assets of indigenous communities is a highly visible fact in contemporary Brazil. (Just think of the number of times that images of indigenous peoples appear in books, films, TV publicity, etc.) As a result, among indigenous communities and their organizations, a new series of potential conflicts is arising for which solutions must be found. Writing on this topic is Ana Valéria Araújo (ISA Program on Environmental Rights - Programa Direito Socioambiental - ISA):
Two different questions
Image rights and copyrights are quite different questions and should be analyzed separately, although many times, in practice, they are dealt with together and seem to refer to one question alone. In the first place image rights is a right that affects persons and is covered in the field of constitutional rights. On the other hand, copyrights are a branch of civil rights and protect the rights of persons, when referring to intellectual works and the rights to these works.
It is clear that the Federal Constitution provides the general basis for all these rights. In Article 5, which deals with individual and collective rights and duties, the Constitution guarantees to all persons the inviolability of their image and the right to receive indemnity for damages that occur to any violation. As a result one cannot use the image of anyone, even indigenous peoples for any means or for any purpose without their due authorization and respective compensation. The image of the indigenous peoples, their communities and peoples is their property right, their patrimony to be protected and respected by all.
Regarding the copyrights of indigenous peoples, Article 231 of the Federal Constitution of 1988 recognizes the social organization, customs, languages, beliefs, indigenous traditions and collective character of these communities, and provides specific guarantees to all these assets--including their cultural assets. Furthermore, the Constitution expressly recognizes the existence of cultural manifestations of indigenous peoples that constitute their cultural heritage and patrimony, which is widely protected in the section dedicated to cultural assets and to culture, whereby the Brazilian government is obliged to protect them.
Aside from the Federal Constitution, federal and state laws protecting cultural assets in general may also be applied in concrete cases referring to the indigenous cultural heritage, property and patrimony. It should be mentioned, furthermore, that the Statute of the Indian, Law 6.001/73, discusses these themes, ensuring generically the respect of the cultural heritage, property and patrimony of the indigenous communities, The Statute classifies as criminal acts ceertain measures which violate their image, or their members and the expressions of their culture.
Aside from the aforementioned items, the truth is that, despite all this legislation, the image of the indigenous communities and the assets and properties that constitute the expression of their cultures (chants, drawings, paintings, myths, etc.) are frequently used in an improper and inadequate manner. The frequency in which these images and cultural assets of the indigenous communities are used create a complex question , and a new series of questions is raised.
Brazilian copyright laws
This right regulates the protection of intellectual works, encompassing all the creations of the spirit, expressed by any means, in a tangible or intangible form. In other words, it includes literary texts, artistic or scientific texts, music, photographs, drawings, paintings, engravings, sculptures and many other items, listed in Article 7 9.610, of February 19, 1998, which regulates the topic. Copyright law is eminently centered on the idea of individual production. All production is based on the idea that there is an author, an individual (except in exceptional cases, corporate entities), responsible directly and exclusively for the creation of a specific artistic, scientific or literary work. One must admit, obviously, the co authorship and the existence of collective works, but these are nothing more than the sum of individual creations that are integrated together in an autonomous work.
This form of protection, however, does not incorporate the specific characteristic of indigenous cultural production, which for the most part, is based on collective cooperation. Individual production generally speaking, cannot be singled out.
Let's take for example the body art of the Xikrin Indians: The anthropologist Isabelle Giannini clarifies that "the Xikrin painting, which is painted on the human body, possesses a social and magical-religious function; it is the correct manner in which an individual of the community is presented in daily life and in periods of rituals or retreats. The painting is a highly standardized graphic tradition and reflects the graphic cultural identity of that community and cannot be confused with any other. It has well defined standards and motives, culturally recognized by all the members of the community and is understood as a system of communication.
"The rigid standards, whose origins for these communities, date back to mythic times, were, are and will be transmitted from generation to generation in a form that is collective, since it is a constant resource for reaffirming an idea and an ideal. For the Xikrin commnity, body painting is an attribute of human nature itself. It is a means of communicaiton, classification and an extremely elaborate graphic representation highly valued by the indigenous community."
The graphic art of the Xikrin, like so many other forms of expression of the indigenous peoples, was created by a collective group, and should be recognized as such. It does not deal with the sum of individual authorships or creations or co-authorships or co -creators, but of an activity that has the characeristic of a system of visual communication, which confers to this art specific functions of the commuonity life of this society. In this manner, the protection of the copyright should be made collectively; the right concerns the whole community and each individual in particular as a member of that indigenous community. It is a right that cannot be divided and exists due to the fact that the indigenous person belongs to that community.
In an effort to protect the works of a collective copyright, the indigenous communities encounter serious problems in adapting the established mechanisms in prevailing legislation to their own specific standards. For example, the author of an intellectual work, registers his creation or invention, according to its nature, at the National Library of the Escola Nacional de Belas Artes of the Universidade Federal do Rio de Janeiro, at the Instituto Nacional do Cinema and at the Conselho Federal de Engenharia, Arquitetura e Agronomia. The registration is obviously not conditioned to obtaining legal protection, but it ensures the right. But the attempts made to this date in registering indigenous works with one of these institutions is blocked by the problem of collective authorship. This demonstrates that the system is not structured to recognize and protect these collective works of indigenous communities.
In order to solve these problems and guarantee the effective protection of the indigenous cultural properties and assets, the then president of the National Foundation of the Indian - Fundação Nacional do Índio (Funai), Carlos Frederico Marés, created the registration of the indigenous cultural properties/ patrimony, under the responsibility of the Museu do Índio. The new mechanism should facilitate the registration of the cultural assets or properties which are an integral part of the indigenous peoples’ patrimony. The indigenous peoples, their communities, organizations and the indigenous peoples themselves, when dealing with individual production of their own community, , may also request this registration, as may other interested parties. Whether or not they are registered, the copyrights and author rights of the indigenous peoples have to date been settled on a case by case basis, in private agreements, in which the collective authorship of the works are recognized and the obligations are established for the transfer or ceding of the use of the authors'rights. The right of image of the indigenous peoples has also been the object of contracts which guarantee them protection and equitable compensation.
The premise is that these people, the indigenous communities as a collective group and the indigenous person as an individual, possess permanent and exclusive usufruct rights to their lands and to dispose of their works and creations of their spirit, even if transmitted by oral tradition, regardless of their temporal origin. This being the case, the use of any works and indigenous creations by third parties, with or without profit motives, must be preceded by prior and express authorization of the people or indigenous community in question. In other words, it is necessary to obtain authorization in writing of the authors, to use the material and to make a commitment to pay or offer some other form or compensation that has been agreed upon by the related indigenous community.
It may happen that the author of the work in question is considered an individual, rather than a group. In this case it is possible to obtain the authorization for its use from the inventor or developer. In dealing with collective authorship the correct procedure would be to obtain an authorization of the representative of the community, according to its uses, customs and traditions. However, there are cases where a definition is far more complex, where the authorship of a specific work seems to be shared by more than one indigenous community. This is the case, for example of some myths dances and rituals. In any case, however, the authorization obtained must be as specific as possible, defining the details and the mode in which the object or cultural expression contracted is used for a specific purpose.
The payment or other forms of compensation must be agreed upon with the indigenous communities themselves and established in an instrument, which authorizes this operation or transaction. There is no percentage or parameter established in prevailing legislation, however. In dealing, for example, with the ceding of copyrights on designs or illustrations to be included in a publication, it is possible to establish a fixed amount, a percentage of the amount of the sale of the publication, or both. In an ideal situation the amount would at least be compatible with market practice for non-indigenous communities, considering the added cultural value characteristic of the situation in question. In cases where works or creations of indigenous communities are used for non-profit purposes, this fact should be taken into consideration.
Finally, the contracts ceding copyrights should contain special safeguards, which guarantee credits of collective authorship, and the total or partial reproduction of the works credited should be prohibited without the prior and express authorization of the community which created these works. In the case of ceding the use of image rights, it is also important to guarantee that the use of the image will not been granted in an unrestricted or unlimited manner, or in a manner which offends the uses, customs, and traditions of that community and the indigenous people in general.
Copyrights and the rights to use the image of indigenous peoples in Brazil. Copyrights and the rights to use the image of indigenous peoples in Brazil are not yet fully and clearly supported in Brazilian legislation. As a result, we have noted that the indigenous communities are currently seeking solutions and creative means to ensure their rights. It is hoped that that Brazilian legislation will incorporate these initiatives. (Ana Valéria Araújo - outubro/ 2000).