Citation
Traditional knowledge

Material Information

Title:
Traditional knowledge a new grassroots participatory action approach to its protection in intellectual property, international law, and trade
Creator:
Salas P, Carlos L
Publication Date:
Language:
English
Physical Description:
279 leaves : ; 28 cm

Subjects

Subjects / Keywords:
Intellectual property (International law) ( lcsh )
Cultural property -- Protection (International law) ( lcsh )
Indigenous peoples -- Legal status, laws, etc ( lcsh )
Cultural property -- Protection (International law) ( fast )
Indigenous peoples -- Legal status, laws, etc ( fast )
Intellectual property (International law) ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references.
General Note:
Department of Political Science
Statement of Responsibility:
by Carlos L. Salas P.

Record Information

Source Institution:
University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
53362001 ( OCLC )
ocm53362001
Classification:
LD1190.L64 2000m .S36 ( lcc )

Full Text
TRADITIONAL KNOWLEDGE: A NEW GRASSROOTS PARTICIPATORY ACTION
APPROACH TO ITS PROTECTION IN INTELLECTUAL PROPERTY,
INTERNATIONAL LAW, AND TRADE
by
Carlos L. Salas P.
L.L.B., Universidad Internacional de las Americas, 1997
L.L.M., Universidad Internacional de las Americas, 1999
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Political Science


This thesis for the Master of Arts
degree by
Carlos L. Salas P.
Has been approved
by


Date


Salas P., Carlos L. (M.A., Political Science)
Traditional Knowledge: A New Grassroots Participatory Action Approach to its
Protection in Intellectual Property, International Law, and Trade.
Thesis directed by Professor Glenn T. Morris
ABSTRACT
Indigenous peoples and local communities practices, experiences and
information, have been an open box for the unfettered appropriation of items of value
to Western civilization. While Western law assiduously protects rights to valuable
knowledge in Western context, indigenous peoples and local communities have not
been accorded similar rights. This study addresses the current debate over, and the
lack of recognition and protection for, traditional knowledge. Traditional knowledge
has been used for the discovery, development, and preservation of knowledge,
experience, science and information in indigenous and Western societies. This
knowledge is being misappropriated and traded internationally as a commodity to
generate considerable economic value. Existing Western intellectual property laws
support, promote, and excuse the wholesale and appropriation of traditional
knowledge. This study suggests as a possible solution for the protection of traditional
knowledge, the application of grassroots sui generis systems derived by traditional
knowledge holders themselves and the utilization of the Western legal system as a
restraint to avert abuse. This suggested solution proposes reconciliation between the
need for traditional knowledge protection and the inexorable invasion of traditional
knowledge by Western society.
This abstract accurately represents the content of the candidates thesis,
recommend its publication.
Signed
Glenn T. Morris


DEDICATION
I dedicate this thesis to my mother, Rita Porras and my father Carlos L. Salas Sr.
whose personal sacrifices and exemplary dedication to hard work have served as my
guidance through the years. Their understanding, encouragement, appreciation,
support and example has inspired and shaped the person and the achievements that
characterize me. Their love has been present all of my life; I always keep them close
to my heart. I would also like to dedicate this thesis to Andrea Pardo. I could not do
without the gift of love I take from her everyday. Her genius, support, and
understanding serve as my daily inspiration. They have been the people I most
admire. Thank you. You are always with me.


ACKNOWLEDGEMENT
I have deep appreciation and profound gratitude for those who have shared their
wisdom and taught me over the years. This thesis is but a mere reflection of the
academic excellence and genius of my teachers from infancy to graduate study. My
achievements serve as an example of my continued commitment to all of those
teachers who have made a mark in my life.
Thanks to many professors and staff of the Political Science Department at the
University of Colorado at Denver, their academic excellence, revolutionary thinking,
valued advice and support distinguish graduates from an excellent academic
institution. Thanks to Tony Robinson, Mike Cummings, and Thad Tecza for their
guidance and teachings. My gratitude to Christoph Stefes for opening the doors to
Political Science for me. I also wish to thank Anna Sampaio and Lucy Ware Mcguffey
whose personal achievements, dedication and excellence have served as my
example of true scholars. Thanks for the time spent reviewing and commenting my
work. I also owe special thanks and am in debt with my advisor and chair of the
Political Science Department, Professor Glenn T. Morris whose example, patience,
exemplary dedication, integrity, unwavering support and valued advice during my
coursework, have shaped my thoughts, and will continue to influence me in thought,
expression and action. I will continue to benefit greatly from his teachings for many
years to come. A true inspiration and mentor.
Finally, I would like to thank my sisters Ana and Rocio, my true brother Luis
Carlos, my nephews Esteban, Mariela, Carlos, Luis and Marco; and Ericka, Gabriela
and Jaime Pardo for their support and love over the years.


CONTENTS
Figures..............................................................viii
CHAPTER
1. INTRODUCTION................................................... 1
2. INITIAL QUESTIONS AND DEFINITIONAL DILEMMAS.................... 13
Current Contention and Definitional Dilemmas................. 13
Terms Related To Traditional Knowledge....................... 20
Defining Traditional Knowledge............................... 36
3. HISTORICAL SYNOPSIS............................................ 60
History: Before 1990......................................... 60
History: After 1990.......................................... 74
4. NATURE OF TRADITIONAL KNOWLEDGE AND ITS HOLDERS............... 87
Different Worlds, Different Views............................ 88
Whose Knowledge?............................................. 93
What Knowledge?.............................................. 98
Where Does Traditional Knowledge Come From?................... 102
Why Is Traditional Knowledge So Important?.................... 104
5. TRADITIONAL KNOWLEDGE IN CONTEXT: GLOBALIZATION,
INTERNATIONAL LAW AND TRADE..................................... 107
Traditional Knowledge in Context: International Trade and
Globalization................................................. 108
Traditional Knowledge in International Law.................... 123
6. TRADITIONAL KNOWLEDGE: MISUSE AND MISAPPROPRIATION............. 135
7. TRADITIONAL KNOWLEDGE PROTECTIVE MECHANISMS..................... 157
VI


Legal Protective Mechanisms for Traditional Knowledge......... 158
Non-Legal Protective Mechanisms for Traditional Knowledge.....188
8. THE DEVELOPMENT OF SUI GENERIS SYSTEMS OF PROTECTION.. 199
Preliminary Considerations: Sui Generis Systems of Protection. 201
Elements of Sui Generis Systems of Protection................. 213
A Grassroots Participatory Approach to the Development of
Sui Generis Systems.......................................... 220
9. TRADITIONAL KNOWLEDGE AS A HUMAN RIGHT......................... 224
Considering Protection of Traditional Knowledge as Fundamental
Human Right.................................................. 225
A Supra-Legal Protection for Traditional Knowledge........... 246
10. CONCLUSION: SUGGESTED SOLUTION FOR RECOGNITION,
RESPECT AND REMUNERATION OF TRADITIONAL KNOWLEDGE............... 250
BILBLIOGRAPHY........................................................ 260
VII


FIGURES
Figure
1. Realm of Traditional Knowledge........................................ 49
2. Realm of Heritage..................................................... 50
3. Real of Knowledge..................................................... 50
viii


CHAPTER 1
INTRODUCTION
Doctors, white doctors, have come to me and asked
for advice, but it seems they mostly want to know about
my medicines and how they are prepared. I try to tell
them that each medicine man is different. He has
different powers, his own vision and gift. I want them to
know that they have a gift and they have to find their
own source of healing. I cant help them with
medicines. I can tell them how to think deeply about
medicines, the body, the person, and the healing.1
-Joseph Eagle Elk, Lakota Medicine Man
It is difficult to ignore the violent, cruel and forceful subjugation of indigenous
peoples during the conquest of America. Conquest and colonization have been the
clear demonstration of industrial societys desire to build empire and impose its
worldview. Colonization and the expansion of Western influence has resulted in the
systematic assimilation of indigenous peoples into colonizing states, excluding them
from recognition and participation in the national and international fora.
Those who naTvely believe that the process of colonization has been eradicated
for indigenous peoples are wrong. The legal principle of the Doctrine of Discovery2
effectively embedded the discourses of conquest in modern legal norms and
continues to serve as the basis for the current systems of law. This doctrine
unquestionably remains the basis for the contemporary legitimacy for the denial of
indigenous peoples basic fundamental rights. Even against this system of
oppression profoundly embedded in national and international law and politics,
indigenous peoples have been able to become active defenders of their rights in
contemporary law and politics.
1 Vincent Mohatt, Gerarld, and Joseph Eagle Elk. The Price of a Gift: A Lakota Healers Story, Lincoln:
University of Nebraska Press, 2000.
2 Williams Jr., Robert. The American Indian in Western Legal Thought: The Discourses of Conquest.
New York: Oxford University Press, 1990. Pages 99, 204 and 221.
1


Since time immemorial is the phrase used by indigenous peoples all over the
world to refer to their continued occupancy of the lands from which they originate.3
The Doctrine of Discovery has served non-indigenous, European colonizers to
justify and legitimize the unlawful and forceful appropriation of indigenous peoples
lands.
It is impossible for non-indigenous peoples to fully comprehend the importance
and relationship that indigenous peoples have to their native lands. This is a bond
that transcends a mere physical connection; it is a spiritual relationship that
constitutes indigenous peoples being or self, defining their culture and
consequently their life.4
Indigenous peoples fundamental claims are centered on the issues of land and
self-determination. Indigenous peoples assert the right to the lands that have
belonged to them since time immemorial returned and the freedom to govern their
life.
The colonization process and the influence of Western culture has almost
annihilated some indigenous peoples from the face of the earth. These processes
are a consequence of dispossession of indigenous peoples from their lands,
compounded by the encroachment of Western influence on indigenous culture. The
colonization process continues to be harmful and prejudicial to indigenous peoples
cultural, social, economic and political rights.
History is now being reconsidered and reinterpreted through the perspective of
international law and human rights. However, even after the world has recognized
the unjust and harmful repercussions of the colonization process, neo-colonization
continues today often in less flagrant forms, but still imposing cruel exercises of
power on marginalized peoples.
Currently new but identifiable colonization processes are continuously and
systematically forced upon indigenous peoples. These new forms of colonization
3 Wilmer, Franke. The Indigenous Voice in World Politics: Since Time Immemorial. Thousand Oaks:
Sage Publications, 1993, p. xi.
4 See, Deloria Jr., Vine. Red Earth. White Lies: Native Americans and the Myth of Scientific Fact. New
York: Scribner, 1995; and, Deloria Jr., Vine. God Is Red: A Native View of Religion. Golden: Fulcrum
Publishing, 1994.
2


(neo-colonization) are often less blatant or distinguishable. Discourses of conquest
and assimilation embedded into the contemporary Western legal system have
created an unsubstantiated legitimacy for this neo-colonization process. Neo-
colonization is currently demonstrated through legitimized forms of development,
globalization, economic sustainability. These processes often hide a forceful,
unjust and excessive exercise of power. Colonization, based on an errant doctrine of
conquest and genocide, has threatened the livelihood of indigenous peoples by
taking their native lands to which they are intrinsically connected. However, neo-
colonization threatens yet another integral aspect of indigenous peoples: traditional
knowledge.
Knowledge has been a coveted possession of humankind. Creations of the mind
have been safeguarded as one of the products of the human existence. However,
the human mind are now vulnerable to appropriation. Advances in medicine,
technology* commerce, and industry have established the necessity to focus on
knowledge and innovation as a valuable commodity. Knowledge is then protected
under the Western legal proprietary system to enable its use and transfer within the
modern economy. For this reason, the Western legal system has focused on the
protection and appropriation of human creations through the body of law known as
Intellectual Property.
Intellectual property is the Western legal systems extension of proprietary law
into the realm of ideas. The importance of intellectual property in the last century is
measured by the acknowledgement of intangible property as a trade commodity.
This legal evolution has led developed nations in a quest to attain intangible property
as a source of economic revenue by applying the rules of market capitalism to the
creations of the human intellect. Indeed, the globalization of the economy has made
intellectual property the newest mechanism with which to endeavor across borders in
trade relations. This way intellectual property ensures an adequate protection of
investments in less developed nations.
The belief that knowledge and land are intimately bound to one another is widely
shared among indigenous peoples, as is the accompanying belief that the natural
3


world is alive, spiritually replete.5 A thorough understanding of the environment in
which we live has led to many innovations and discoveries which have allowed us to
progress as a species. Conversely, the lack of understanding of the environment has
also led to enormous environmental destruction. Perhaps, indigenous peoples are
the most adept at understanding the environment that surrounds us. Many
indigenous peoples interconnectedness with the environment has enabled most of
them to understand the delicate balance of nature. They comprehend the ways in
which the environment may be utilized without permanent damage or catastrophic
depletion of resources.
Indigenous peoples spiritual bond with the environment has developed through
centuries of interaction with, and understanding of, every living thing. Indigenous
peoples understanding of nature is encompassed as experiences that constitute
knowledge. This knowledge has been passed on through generations as a teaching
of sustainable living on earth. Unfortunately, processes of invasion, colonization and
genocide have begun to destroy this important pool of knowledge.
Recently, developed nations have discovered the value of indigenous experience
as a possible source for innovations and discoveries. Under the pretence of
economic expansion, development or globalization, developed nations seek the
appropriation of this experience to use the intellectual property regime to further
exploit the economic system on a global scale.
Indigenous knowledge has been an open box for the unfettered appropriation of
items of value to Western civilization. Hence, the creations of the minds of
indigenous peoples, their experience and knowledge about the understanding of
nature are now threatened by neo-colonization. Western nations have already
unjustly taken the land, now they want to colonize the human mind, the indigenous
mind.
While Western law assiduously protects rights to valuable knowledge and
experience in Western context, indigenous peoples have never been accorded
5 Whitt, Laurie Anne, et. al. Belonging to Land: Indigenous Knowledge Systems and the Natural World.
Oklahoma City University Law Review. 26 (2001).
4


similar rights. Existing Western intellectual property laws support, promote, and
excuse the wholesale and uninvited appropriation of indigenous knowledge and
culture, more so if it has a promising profit margin.
Indigenous peoples are responsible for the discovery, development, and
preservation of knowledge and experience in an immense range of medicinal plants,
health-giving herbal formulations, agricultural and forest products. Other
contributions to art, dance, literature, music, philosophy, and our own understanding
of life, spirituality and the environment further demonstrate indigenous peoples
influence. This knowledge is now being misappropriated and traded internationally as
a commodity to generate considerable economic value.
Although, indigenous peoples struggle to protect their culture and knowledge
symbolizes the best example of the Wests neo-colonization of the mind, it is not a
problematic exclusive to indigenous peoples. Farmers, peasants, and rural
communities in developing countries, are also victims. The self-proclaimed First
World cannot negate -through the use of semantics or semiotics- that its populace
also consists of impoverished peasants, farmers or indigenous peoples, who
regardless of their geographical or political location suffer from the same problem.
Indigenous peoples and communities the world over feel as their culture
diminishes and assimilates into the mainstream society through processes of neo-
colonization of the mind. Indigenous peoples are often expected to stand silent as
their culture is destroyed, their knowledge regarded as public domain and used to
develop, expand and improve the economies of the richest nations.
Although the global war for ideas and knowledge enters many arenas, this study
focuses only on creative human knowledge that may be appropriated or misused and
exploited through the modern economic system and is regarded as traditional
knowledge.
Essentially, this study will address the misappropriation, misuse and lack of
protection for the systematic information, wisdom, experiences or practices, held,
used or possessed in written or oral form by indigenous peoples and other local
communities. This information, wisdom, experience or practices remain with these
5


peoples, preserved and transmitted through generations, usually in oral tradition,
rather than in texts.
Traditional knowledge encompasses the totality of all experiences and practices,
whether implicit or explicit, used in the management of socio-economic, cultural and
political facets of life by a peoples distinct to the mainstream society.
The globalization process utilizes practices consistent with the imposition of
economic and social measures that enables developed countries to exploit both
natural and economic resources in pristine or untouched regions. Globalization in a
variety of forms and names, is the main cause for the misappropriation, misuse and
lack of protection of traditional knowledge.
In addition, indigenous peoples traditional knowledge is also adversely affected
by other factors. Some of these include: the lack of national and international
legitimacy and access to governmental representation; the inability to exercise their
fundamental right to self-determination; the inaccessibility to their lands and the
practice of their culture; and the disregard of nation-states to redress the harms
caused by settler-state colonization.
Similarly, globalization and a lack of adequate governmental representation are
solely responsible for the disrespect and lack of protection of non-indigenous
communities traditional knowledge. While myriad other problems may also serve as
causes to the misappropriation, misuse and lack of protection of traditional
knowledge, globalization remains the common factor between the loss of indigenous
and non-indigenous traditional knowledge.
This study should make clear that traditional knowledge is a more complex issue
than usually depicted. The true social, economic, cultural, and developmental
significance of traditional knowledge is unlikely to be completely understood, since
this topic permeates innumerable disciplines.
Nonetheless, there are multiple issues that must be addressed in any discussion
concerning traditional knowledge including: recognition of traditional knowledge
holders rights; protection of those rights in accordance to the traditional knowledge
holders customs; protection of traditional knowledge from misappropriation and
6


misuse; control by the traditional Knowledge holders to determine the use of their
knowledge; and, adequate compensation to the traditional knowledge holders in
case of authorized use.
Addressing these issues is a rather contentious debate because of the competing
viewpoints that characterize this topic. For example, recognizing the rights of
traditional knowledge holders would entail recognizing fundamental collective rights,
since most holders are entire communities. This would signify an acknowledgment
of that groups status as a people. Concerning indigenous peoples, this would
confront strong opposition. States would be required to recognize the group rights of
indigenous peoples to their traditional knowledge, which consequently would lead to
an acknowledgement of their fundamental collective right to self-determination, a
recognition that states have not willing to make to this time. Disagreement over self-
determination for indigenous peoples seeps into debates regarding traditional
knowledge, making consensus hard to achieve.
Traditional knowledge is a recent topic that is so complex and contentious that
there is currently not even basic agreement on the scope of applicability or
conceptualization of essential terms. This has caused academics and
national/international organizations to confound the topic, creating an impasse at a
vital point on the development of traditional knowledge.
An example of this is that traditional knowledge has had several denominations
since it was first mentioned in academic, legal and political discourses -folklore,
expressions of folklore, cultural patrimony, cultural heritage, cultural property,
customary indigenous property, indigenous knowledge or indigenous tradition,
among others.
Traditional knowledge has been an issue for indigenous peoples and local
communities. There have been debates concerning traditional knowledge since the
late eighteenth century. However, the concept gained modern currency in the late
1970s and early 1980s when the World Intellectual Property Organization (WIPO)
jointly with the United Nations Educational, Social and Cultural Organization
7


(UNESCO), held a series of meetings concerning folklore. This began an
international debate that influenced every discussion and issue at the international
level, even the newly established United Nations Working Group on Indigenous
Populations.
By 1984 WIPO and UNESCO convened a meeting to discuss the possibility of
developing an international treaty for the recognition and protection of expressions
of folklore. However, participants at that meeting were unable to reach an
agreement without recognizing collective rights of certain indigenous and non-
indigenous communities. According to developed nations, an agreement that
included such recognition would have impaired the emerging globalization process.
This defeated any attempts at addressing the issue of folklore and caused WIPO,
UNESCO, and other United Nations agencies among them the Food and Agriculture
Organization (FAO), to drop the issue of folklore from their programs for many
years.
Nonetheless, indigenous peoples and communities continued to address their
concerns about traditional knowledge through declarations, statements and
meetings. In the early 1990s the debate revived again with the United Nations
Working Group on Indigenous Populations promulgation of the Draft Declaration on
the Rights of Indigenous Peoples. This instrument specifically included provisions for
the respect and protection of indigenous peoples intellectual property rights and
traditional knowledge.6 This set off a new debate in academia and international law
and politics on the subject of traditional knowledge.
The process of globalization which ended the debate in 1984 incited a dialogue
among States concerning the incremental dependence on intellectual property as a
safeguard for cross-border trade and investment. With the approval of the Uruguay
6 United Nations. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and
Protection on Minorities. 46th Session. Resolution E/CN.4/1995/2, E/CN.4/Sub.2/1994/56. Draft United
Nations Declaration on the Rights of Indigenous Peoples. New York: United Nations, 1994. Articles 12-
14.
8


Round Negotiations7 (Uruguay Round) in 1994, developed countries agreed on an
accord denominated Trade Related Aspects of Intellectual Property8 (TRIPS). The
TRIPS agreement requires all signatory States to reform their intellectual property
legislation by certain dates to enable an equal or higher level of intellectual property
protection and rights akin to those of developed countries. In many cases, signatory
States could not comply with the TRIPS agreement due to infrastructure and
monetary constraints. Pressure to comply led many States to introduce reservations
and discussions on certain intellectual property rights to allow them time to comply
with the TRIPS agreement. Among those reservations and discussions were the
patentability of live organisms, the protection of biodiversity, and the protection of
local knowledge and folklore.
The United Nations Conference on Environment and Development9 (UNCED)
convened in Rio de Janeiro, Brazil in 1992 (commonly known as the Earth Summit),
resulting in several documents including The Convention on Biological Diversity10
(CBD). More importantly, one of the parallel meetings held was the Kari-Oca World
Conference of Indigenous Peoples on Territory, Environment and Development11
(Kari-Oca Conference) involving over 92 different indigenous organizations and over
600 indigenous peoples representatives. The Kari-Oca Conference adopted the
Indigenous Peoples Earth Charter12 (IPEC) an indigenous alternative to the CBD.
Both the COB and the IPEC, include provisions concerning the respect and
protection of, and the adequate compensation for, indigenous peoples and
communities traditional knowledge. These international discussions allowed for a
7 World Trade Organization. General Council. Final Act Embodying the Results of the Uruguay Round
of Multilateral Trade Negotiations. Marrakesh: General Council World Trade Organization, 1994.
a Ibid. Annex 1C. Agreement on Trade-Related Aspects of Intellectual Property Rights.
9 United Nations. The United Nations Conference on Environment and Development. June 3-4,1992:
General Session. New York: United Nations, 1992.
10 United Nations. The United Nations Conference on Environment and Development. June 3-4,1992:
Convention on Biological Diversity. New York: United Nations, 1992.
11 Kari-Oca World Conference of Indigenous Peoples on Territory. Environment and Development. May
25-30, 1992: General Assembly. 1992.
12 Kari-Oca World Conference of Indigenous Peoples on Territory, Environment and Development. May
25-30,1992: Indigenous Peoples Earth Charter. 1992.
9


renewed dialogue on the subject of traditional knowledge. However, since then
discussions have been intense but slow.
During the 1990s the globalization process was strengthened. Multinational
businesses realizing that traditional knowledge is a valuable resource, began a
worldwide biodiversity prospecting13 mission, taking advantage of the globalization
process, to attain traditional knowledge. Non-profit organizations established a direct
correlation between traditional knowledge, sustainable development and the
environment, concluding that globalization indeed harmed traditional knowledge
protection. Moreover, it was pointed out that agreements such as TRIPS, Free Trade
Agreement of the Americas14 (FTAA), Plan Puebla-Panama15 (PPP) and other major
bilateral free-trade agreements, would further support, promote, and excuse the
misappropriation and misuse of traditional knowledge.
This situation made multinational companies and developed nations fearful of
addressing the issue of traditional knowledge, since it could create impediments to
the globalization process. For this reason, during the late 1990s, protection for
traditional knowledge was deflected through delays, pointless meetings and endless
discussions, with the intention of avoiding consensus or agreement. The delay
worked.
Only 1998 and 1999, as a result of advocates pressure, did WIPO conduct nine
Fact Finding Missions16 (FFM) designed to enable international organizations to
identify the needs and expectations of traditional knowledge holders. WIPO believed
that with a clear determination of the scope of applicability of traditional knowledge, a
13 Posey, Darrel Addison. Indigenous Peoples and Traditional Resource Rights: A Basis for Equitable
Relationships?: Workshop on Indigenous Peoples and Traditional Resource Rights. June 28. 1995:
The Green College centre for Environmental Policy & Understanding at University of Oxford. Oxford:
University of Oxford, 1995. Page 2.
14 Administrative Secretariat of the Tripartite Committee. Sixth Trade Ministerial Meeting, April 2001:
Draft Free Trade of the Americas Agreement. Buenos Aires: Tripartite Committee (Inter-American
Development Bank the Organization of American States and the United Nations Economic
Commission for Latin America and the Caribbean) on behalf of the member governments of the
countries participating in the Free Trade Area of the Americas, 2001.
15 Estados Unidos Mexicanos. Poder Ejecutivo Federal. Acuerdo del 31 de Mayo del 2001. Plan Puebla
Panama. Ciudad de Mexico, Distrito Federal: GPO, 2001.
ie World Intellectual Property Organization. Intellectual Property Needs and Expectations of Traditional
Knowledge Holders. WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional
Knowledge M998-1999). Geneva: World Intellectual Property Press, 2001.
10


definition could consequently lead to a more concise development of the topic. The
FFMs concluded in November, 1999, they published their reports in April 2001, after
many trade-related international instruments which hinder traditional knowledge
protection had already been approved and were on their way to full implementation.
The delay worked.
Even if WIPOs FFMs have been criticized as biased, incomplete and inaccurate,
they represented the first concrete step of the late 1990s to address the topic of
traditional knowledge. However, there is yet to be a strategy or a firm proposal for
the recognition and protection of traditional knowledge. In the meantime, indigenous
peoples and communities are often defenseless against the misappropriation,
misuse and lack of protection of their traditional knowledge.
Now is an especially critical period for the future development and protection of
traditional knowledge. Many agreements such as the FTAA, PPP and other free-
trade agreements, vital to consolidate the globalization process, are scheduled for
full implementation between 2003 and 2006.17 After 2006, it may be too late to
establish protective mechanisms for traditional knowledge.
This study will not only illustrate the complex issue and problems of traditional
knowledge, it will suggest a possible solution for the protection and use of traditional
knowledge. The solution set forth considers that Western systems have historically
been incompatible with indigenous or community-based customs and that indigenous
peoples and communities should determine the scope of applicability, definition, and
protective and remunerative mechanisms of their traditional knowledge. A grassroots
participatory approach for the establishment of sui generis systems that adequately
protect traditional knowledge and compensate traditional knowledge holders might
better serve indigenous peoples and local communities interests.
This study further suggests that locally-formulated sui generis systems by
themselves will not deter the misappropriation and misuse of traditional knowledge.
Over-protection could adequately cause a problem of inaccessibility to knowledge
17 Salazar-Xirinachs, Jose Manuel, and Maryse Robert, eds. Toward Free Trade in the Americas.
Washington, D.C.: Brookings Institution Press, 2001.
11


systems, preventing the advancement of new technologies, medicines and cultures.
The consideration of traditional knowledge as human right, will implement a supra-
legal protection through international law which, will serve as a mechanism to avert
possible abuses of sui generis systems through free-trade and international
agreements.
These joint solutions would empower indigenous peoples and communities to
manage their traditional knowledge while allowing an appropriate use of traditional
knowledge by Western science and culture in a respectful and conscious manner.
This study is comprised often chapters. In order to understand the current
discussion on traditional knowledge, chapter two will address the existing definitional
dilemmas and establish basic concepts that will be used in the course of this study.
Chapter three reviews the nascence of traditional knowledge through a brief
synopsis of its history, explicating the contentious debate over this topic. Chapter
four explicates differences between the worldviews of indigenous or community-
based views and that of non-indigenous or Western nations. Moreover, this chapter
answers the questions: What knowledge? Whose knowledge? Where does
traditional knowledge come from? Why is it so important? Chapter five, in order to
initiate a more profound discussion on traditional knowledge, analyzes it in the
context of globalization, international law and trade. Chapter six examines the value,
importance, use, misuse and misappropriation of traditional knowledge. Chapter
seven outlines and discusses the different protection mechanisms for traditional
knowledge and the grievances or advantages that States, indigenous peoples and
local communities have with them. The application of sui generis systems for the
protection of traditional knowledge and the compensation from its use is analyzed in
chapter eight. Chapter nine examines the consideration of traditional knowledge as a
human right. Chapter ten collects and analyzes the conclusions of each chapter and
uses the knowledge and information gained to develop and promote a suggested
solution.
12


CHAPTER 2
INITIAL QUESTIONS AND DEFINITIONAL DILEMMAS
Your religious calling was written on plates of stone by
the flaming finger of an angry God. Our religion was
established by the traditions of our ancestors, the
dreams of our elders that are given to them in the silent
hours of night by the Great Spirit.18
-Chief White Cloud
This chapter will first concentrate on answering some initial questions concerning
the topic of traditional knowledge that will in fact establish a brief literature review. At
first, the nature of the current contention and definitional dilemmas concerning
traditional knowledge will be dealt with, answering the questions: Why is traditional
knowledge the object of multidisciplinary study? Why is there so much contention
surrounding this debate on traditional knowledge? Why is there no consensus on this
topic? What definitional problems are expected in undertaking this study? Next, this
chapter will suggest possible definitions for terms related to traditional knowledge
that are considered ambiguous and will be used throughout this study. Finally, in
order to establish a common framework of understanding for productive dialogue, a
suggested definition for traditional knowledge will occupy the final section of this
chapter.
Current Contention and Definitional Dilemmas
It was suggested in the previous chapter that traditional knowledge is a topic that
influences myriad disciplines. The information possessed by indigenous peoples or
local communities is sought by anthropologists, sociologists, biologists and other
non-indigenous or Western academics and professionals. It is a priceless asset that
produces considerable economic and scientific value. Traditional knowledge relates
18 VCircle Website. Online: . October 22nd 2002.
13


to many aspects of life. This justifies the interest that many disciplines have in this
topic.
Until recently, the idea that indigenous peoples or local communities owned their
own heritage or cultural property did not exist. This was largely because such
property was classified as Western scientific discovery and appropriated by
Western academics and museums that preserved and studied cultural property to
add to Western knowledge. Mainly archaeologists and anthropologists were
interested in studying the remains of past societies. These remains were
considered to have important heritage and scientific value. Not surprisingly,
academics ignore the connection and relationship this cultural property has with
indigenous and local communities. The remains of past societies were
thoughtlessly placed in museums and laboratories as objects of Western scientific
study. The lifestyles and traditions of indigenous peoples and local communities
have also been under meticulous examination by Western sociologists, political
scientists and other academics and professionals. These intellectuals study
indigenous societies and local communities to uncover the underlying secrets they
posses. These secrets are valuable, according to those Western academic
disciplines, because they enhance the understanding of society and nature.
However, this meticulous analysis of indigenous and local communities soon
attracted other areas of interest in search for answers to the meaning of life and
other Western quandaries. Indigenous communities art and traditions became the
mainstreams target for exotic artifacts and practices. Artists soon followed scholars
into these communities to obtain ideas for art, literature, and performances. The
cultural property of indigenous communities became a source for popular culture;
indigenous ideologies were en vogue. Soon after, sacred indigenous art, music,
literature and performances, appeared on everything from t-shirts to caps, logos for
major corporations, advertisements, wine bottles, and sports teams names and
mascots. For several decades Indians have complained about the use of grotesque
14


cartoon figures of Indians used as sports mascots19 comments Vine Deloria Jr.
when criticizing the stereotypical image of American Indians and the
misappropriation of indigenousness by non-indigenous peoples.
However, more importantly, the knowledge that was originating from these
communities was recognized by Western society as valuable for the understanding
of nature and scientific development. A member of the Working Group on Traditional
Knowledge, Conservation, and Rural Development of the International Union for the
Conservation of Nature and Natural Resources, Dr. Bob Johannes argues,
[scientists have come to realize within the past few years that such [indigenous]
knowledge concerning the forest, the garden, the plains, and the sea, is both
encyclopedic and of major scientific value.20
This interest in indigenous and local communities cultural property evidences the
influence of traditional knowledge on many disciplines. However, is this influence in a
myriad fields the reason why traditional knowledge is such a contentious debate?
The influence of traditional knowledge in multiple disciplines only adds to the
complexities of this topic and its related issues. Moreover, many conflicting social,
economic and political perspectives must also be addressed in order to comprehend
conflict within this topic.
Indigenous peoples currently seek to transcend the profound pain and loss the
process of colonization has had for over five hundred years since Europeans came
to the Americas. Indigenous peoples collective struggle to gain recognition and
respect for their right to exist as a peoples, demands for the return of their sacred
native lands, has led to calls for the right for indigenous self-determination. This
seemingly ubiquitous battle reflects the despair, anguish and frustration of the
continuous erosion of indigenous cultures as the Western encroachment on their
native lands continues.
19 Deloria Jr., Vine. Red Earth. White Lies: Native Americans and the Myth of Scientific Fact. New York:
Scribner, 1995. Page 20.
20 Mander, Jerry. In the Absence of the Sacred: The Failure of Technology and the Survival of Indian
Nations. San Francisco: Sierra Club Books, 1992. Page 262.
15


The protection of indigenous peoples intellectual and cultural property rights has
become a major concern for the worlds indigenous peoples. Native peoples are
fearful that any misuse or misappropriation of their intellectual or cultural property will
further result in the assimilation of their cultures into Western societies. This has led
the indigenous movement to include the recognition and protection of indigenous
peoples intellectual property rights in their agenda. Protection of indigenous peoples
traditional knowledge will in fact determine whether or not they survive as a peoples
to continue their fight freedom and justice.
Another reason why the debate concerning traditional knowledge is so
contentious and politically charged is because indigenous and local communities
view of the world varies profoundly to the perspective of the mainstream society.
Dissimilarities are evident in fundamental areas such as religion, economics, socio-
cultural management of the environment, and the consideration of time and space.
Even if in subsequent chapters, this issue will be addressed in a more concentrated
discussion, it seems necessary to offer here a couple of examples of this
divergence of thought.
The first example of dissimilarities in world views is the characteristic
disintegration of daily life from spirituality and the dominance of materialism in most
Western cultures. Conversely, indigenous and local communities integrate their
religion or spirituality in all aspects of life and regard private ownership or materialism
as unimportant.21
Another example of a major distinction of ideologies between indigenous and non-
indigenous cultures is the consideration of thinking in time and space. Western
society assumes that time proceeds in a linear fashion and that the nature of the
world is considered discerned from a spatial point of view.22 It is quite the opposite
for indigenous peoples, who do not remain committed to a linearity of time, believing
that time is cyclical and considered intertwined with space.
21 Ibid. Pages 215-217.
22 Deloria Jr., Vine. God Is Red: A Native View of Religion. Golden: Fulcrum Publishing, 1994. Page 63.
16


These differences only deepen any debate with which Western peoples approach
the understanding of indigenous or local communities views. Furthermore, these
differences intensify the awareness with which indigenous peoples and local
communities perceive the imposition on them of the Western system.
On another level, the dialogue surrounding the demand for recognition, respect
and protection of traditional knowledge is contentious because of the unfounded air
of superiority with which the Western system imposes and subjugates indigenous
and local communities to the Western view.
What seems to be at the core of this debate is the Wests failure to recognize that
indigenous and local communities knowledge systems have their own logic and
rationality, which are not always translatable into Western legal and political
discourses. This is particularly evident in policy-making, where Western terminology
and concepts are imposed as a way to define, categorize and evaluate concepts in
indigenous or local communities. This situation often serves to legitimize the
interests of the West in denying, misrepresenting or fabricating the views of
indigenous and local communities. As a result, colonization is perpetuated because
indigenous and local communities knowledge systems are subjugated to a lesser
plan within the dominant framework, further deepening any contention.
However, contention on the topic of traditional knowledge not only comes from
Western culture, indigenous peoples and local communities differences and views.
The inconsistency with which this topic is addressed by national and international
organizations and non-governmental groups is also to blame for the discord that
surrounds this topic. The variation of terms used and the lack of consensus for the
definition of this topics scope of applicability confound the treatment of traditional
knowledge.
As it will be seen in the next section, most disagreements exist over the definition
of the scope and related terms of traditional knowledge. Other contentious points
include: The value of different types of knowledge; applicable legal systems; possible
applicable protective strategies; and the practicality of possible protective strategies.
This creates a lack of consensus that permeates even the most elemental of
17


discussions impeding a steady development of this topic. Terms such as indigenous
peoples, local, community, knowledge, culture, tradition, heritage, and folklore are
among the ambiguous definitions contended.
The lack of consensus in these areas is mainly due to the profound conflict
already existing between indigenous peoples, local communities and the West.
Moreover, the difference in ideologies and beliefs further deepens this pre-existing
conflict. Additionally, the varied standpoints that contribute opinions to this topic are
further acknowledgements of various pre-established problems that exist.
Three fundamental problems arise when analyzing the topic of traditional
knowledge:
a. Perspective: The definition of terms, situations and objects in a specific
community have often been contextualized within that specific community,
hence, their translation to other communities or deriving a general norm is
virtually impossible. Since some of the issues regarding traditional knowledge
and even the term traditional knowledge itself has had centuries of domestic
use within indigenous or local communities, the associated terminology and
ideologies have often developed specific connotations within specific contexts.
This situation makes every instance unique and relative to perspective, which
impedes deriving universal formulas that are applicable across societies.
b. Translation: For some concepts, even traditional knowledge itself, the
terminology applied by a peoples in their native language may not be
translatable into other languages. Similarly, terminology applied by the
Western world may not have a correspondent term for concepts elaborated in
a native language. Hence, translation of terms is particularly troublesome.
This situation also applies to ideologies or beliefs that cannot be translated
from the indigenous or local community-based views to that of the Western
world, or vice versa. This often results in the forced translation of terms and
beliefs to fit the constraints of the target society, which of course influences
the literature and discussion about this topic.
18


c. Inconsistency: Even within a single community, the significance attributed to
a term, situation or object by members from different regions, communities or
even within the same group can have vastly different meanings. These
differences also arise from the inconsistent application or interpretation of a
term, situation or object. These differences are evident from the lack of
determinability of the scope of a given term; or when applying the meaning or
distinction of a term or situation as perceived or implied by an indigenous or
local community. Complicating matters even further, the lack of
acknowledgement from the Western system of local or indigenous knowledge
systems and its consequent subjugation, widens these differences.
To enable a productive dialogue concerning traditional knowledge, it is vital to
establish a common framework of understanding. One of the problems of any
discussion on traditional knowledge is not so much the lack of options for appropriate
terminology, but rather, the diverse meanings and connotations associated with the
existing terms. Many of the terms used to describe concepts in this field of study
have different meanings, in different regions, to different peoples.
For this reason, this study of traditional knowledge is preceded by definitions
concerning ambiguous terms that will be used throughout this work. This chapter
claims neither to resolve any linguistic or ideological differences-which may always
exist, nor will it offer a standardized formulation for the use or interpretation of terms
or ideologies in this field of study. This chapter seeks only to establish and describe
the ways in which certain terms are used throughout this work and in the field of
study of traditional knowledge. Nonetheless, an attempt to make suggestions for the
use of certain terms over others, providing clear arguments for this preference and
suggesting possible definitions to reach consensus, also characterizes this chapter.
Perhaps, this could serve to reach a consensus and be able to establish a discussion
on other more pressing issues related to traditional knowledge.
19


Terms Related to Traditional Knowledge
This discussion on traditional knowledge is a relatively recent and rapidly evolving
topic. This provokes a rich and heated discussion from various sectors making this
field highly diverse and dynamic in nature. Consequently, any definition set forth in
this study may change rapidly. However, this definitional effort will hopefully serve as
a starting point for a more concise and decisive conceptual examination.
In order to define traditional knowledge it is imperative first to briefly address
concepts that serve as a foundation or are related to this term and are contentious or
ambiguous. Since it is evident that traditional knowledge deals directly with
knowledge it seems appropriate to begin there.
Epistemology is the philosophical sub-area that focuses on the nature, extent, and
origin of human knowledge. Epistemoiogists address three central questions: What is
knowledge? What can we know? How is knowledge acquired?
To try and answer such questions would be a task beyond the scope of this study.
Renowned philosophers and academics such as Thomas Aquinas, Baruch Spinoza,
Immanuel Kant, Friedrich Nietzsche, Jurguen Habermas and Michel Foucault, to
name a few, have in some cases dedicated their entire lifes work to try and answer
those questions. Clearly a few paragraphs of this study will not aid in arriving at a
complete understanding of the term.
Knowledge, as used in this study, will refer only to human knowledge or
knowledge acquired by humans, without excluding spiritual or internal sources of
knowledge. Moreover, the term knowledge must also be understood, in relation to
this study, in a wider sense than the definition provided by Western academics.
Basically, knowledge in the Western context refers to an awareness of familiarity
gained by experience (of a person, fact or thing) [...] a persons range of information
[...] specific information; facts or intelligence about something. [A] theoretical or
practical understanding of a subject, language, etc [...] the sum of what is known.
[Tjrue, justified belief; certain understanding, as opposed to opinion.23 Hence, the
23 Pearsall, Judy and Bill Trumble. The Oxford Encyclopedic English Dictionary. Third Edition. New
York: Oxford University Press, 1996. Page 789.
20


fact or condition of perceiving or having direct cognition or awareness of something
in the external world or the circumstance or condition of attaining truth or fact,
through the reasoning of the range of one's information or understanding acquired by
schooling, investigation, observation, association or experience of a science, art, or
technique, is considered knowledge within the Western context.
However, the concept of knowledge is culturally relative and has different
connotations through different perspectives. For example, the term used for
knowledge in Arabic is 'ilm24, which has a much wider connotation than in Western
culture. According to Islamic beliefs, [the term] '[knowledge1 falls short of expressing
all the aspects of 'ilm. Knowledge in the Western world means information about
something, divine or corporeal, while 'ilm is an all-embracing term covering theory,
action and education.25
This clearly demonstrates the problematic of defining a term such as knowledge.
Nonetheless, there are some characteristics that may be accorded in order to
constrain the extent of this concept.
It has already been established that knowledge, as it is referred to in this study,
must be understood as human knowledge in the widest sense possible. This means
that the term knowledge should not be constrained to only the external world, but it
must also include the internal thought and the metaphysical sources of knowledge.
Many indigenous communities have cognition of the spiritual world, or use the
knowledge that comes to them in a dream as a source of knowing. It is for this
reason, the term knowledge should be considered in a broad sense.
Moreover, the Western notion of true justified belief as knowledge should not be
taken strictly when considering term knowledge in relation to traditional knowledge.
The notion of true justified belief presupposes that the belief can be proved to an
extent, or that it can be justified within the realm of logic. This is not true for many
24 Wahid Akhtar, Sayyid. The Islamic Concept of Knowledge. In Al Tawhid: A Quarterly Journal of
Islamic Thought & Culture. Volume XI No. 3. The Islamic Thought Foundation. Online: < http://www.al-
islam.org/al-tawhid/islam-know-conc.htm> October 22nd 2002.
25 Idem.
21


local and indigenous communities, who posses knowledge regardless of any ability
to prove it or logically justify it.
After making all of the above considerations, the term knowledge as it will be
used in this study, means the condition of perceiving directly or indirectly, something
by reasoning the range of one's internal, external and spiritual worlds, acquired by
investigation, observation, repetition or experience of a practice, art, or science.
In relation to the topic of traditional knowledge, a notion of appropriation must be
added to this concept of knowledge. In other words, although knowledge concerns
internal or unexpressed perceptions, the focus of traditional knowledge is on those
perceptions -or knowledge- that are expressed, hence, subject to appropriation.
However, this does not mean that, unexpressed perceptions are not traditional
knowledge because they should be considered as such. Then again, since they
remain internalized by an individual, they cannot be the focus of this study until that
individual externalizes that perception and his internal knowledge is perceived by
another individual or individuals. Only externalized knowledge is subject of
appropriation.
Traditionally, knowledge -as defined for purpose of this study- is protected under
the Western legal system through what it is know as Intellectual Property. In a broad
sense, intellectual property means the legal rights which result from intellectual
activity in the industrial, scientific, literary and artistic fields. Intellectual Property [...]
is generally [...] a legal property right in an intangible idea, although the idea may be
expressed, demonstrated, or utilized in a tangible form.26 Intellectual property is
generally broken down into two major branches: industrial property and copyright
and neighboring rights. A term of French origin, industrial property (propriete
industrielle) encompasses patents (technological information), trademarks (symbolic
information), and industrial designs.27 In contrast, copyright law and neighboring
rights (expressive information) covers artistic, musical, and literary works and
26 Letterman, Gregory G. Basics of International Intellectual Property Law. New York: Transnational
Publishers, 2001. Page 1.
27 These terms will be.defined and focused in more depth in subsequent chapters that deal with the
application of these forms of intellectual property.
22


performances.28 More specifically, Robert M. Sherwood,, describes intellectual
property in the following way:
Intellectual property is a compounding of two things.
First, it is ideas, inventions and creative expression.
They are essentially the result of private activity.
Second, it is a public willingness to bestow the status
of property on those inventions and expressions. [...]
The term intellectual property contains both the
concept of private creativity and the concept of public
protection for the results of that creativity. Said another
way, invention and creative expression plus protection
equals intellectual property. Property, of course is a
relative concept in virtually all legal systems.29
However, more specifically, intellectual property refers to such creations of the
mind as inventions, literary and artistic works, and symbols, names, images, [...]
designs,30 in addition to performances and practices and experiences. These are
basically, the most commonly used definitions in both academia and actual practice;
and hence, for purposes of this study, this is the definition that will be adopted.
Intellectual property through the Western legal system aims at safeguarding
intellectual human creations through a system of rights (Intellectual Property Rights)
that are granted to an individual -creator of intellectual activity. To clarify the concept
of intellectual property, it can be noted that the term intellectual property rights is a
redundant expression.31 The Convention establishing the World Intellectual Property
Organization (WIPO) establishes that:
28 These terms will be defined and focused in more depth in subsequent chapters that deal with the
application of these forms of intellectual property.
23 Sherwood, Robert M. Intellectual Property and Economic Development. Boulder: West View Press,
1990. Pages 11 and 12.
30 Letterman, Gregory G. Supra note 25, Page 1.
31 This is a notion widely adopted in intellectual property law practice, as it was delicately pointed out to
the author by several practicing intellectual property attorneys when commenting on the topic of this
study; attorneys such as Mr. Ernesto Gutierrez Blanco, litigant attorney in industrial property and Master
of Laws from Harvard University, pointed out this observation which was largely initiated by Dr. Hu
Mingzheng on of the authors of Chinas patent law of 1985.
23


Intellectual Property shall include rights relating to:
Literary, artistic and scientific works; performances of
performing artists, phonograms, and broadcasts;
inventions in all fields of human endeavor; scientific
discoveries; industrial designs; trademarks, service
marks, and commercial names and designations;
protection against unfair competition; and all other
rights resulting from intellectual activity in the industrial,
scientific, literary or artistic fields.32
This specifically defines the scope of Intellectual Property rights within the
Western legal system. Since intellectual property relates to the creations of the
human mind -human knowledge- that are subject to appropriation, then intellectual
property regards intangible property created by the human mind. Most often one
thinks of property as either movable property (e.g. car or a computer) or
immovable property (e.g. a house or land). One characteristic of these forms of
property is their tangible existence. In comparison, intellectual property law confers
property rights on intangible property. Intangible may be defined as unable to be
touched; not solid [...] something that cannot be precisely measured or assessed.33
Additionally, property may be defined as something owned; a possession the
right to possession, [...] possessions collectively [held].34 Consequently, intangible
property^ may be defined as something owned or possessed individually or
collectively which cannot be touched, is not solid, or cannot be precisely measured
orassessed.
Other contentious term is the word peoples. The use of the word peoples, and
not people or populations is critical because within the international law system the
term peoples has a much different connotation than the word people or
populations. According to the Charter of the United Nations,35 the International
32 United Nations. The Convention Establishing the World Intellectual Property Organization (WIPO).
General Assembly concluded in Stockholm on July 14. 1967. Article 2, section viii. Geneva: World
Intellectual Property Organization, 1990.
33 Pearsali, Judy and Bill Trumble. Supra note 22. Page, 731.
34 Pearsall, Judy and Bill Trumble. Supra note 22. Page, 1158.
35 United Nations. Conference on International Organization. June 26th 1945. Charter of the United
Nations. Online: October 22nd 2002.
24


Covenant on Economic, Social and Cultural Rights,36 and the International Covenant
on Civil and Political Rights,37 the right to self-determination is directly related to the
term peoples. This term carries a special significance in recognizing the autonomy
and freewill of a peoples. It is this controversial aspect of the meaning of peoples
that leads to various disclaimers in international declarations and conventions to
state that peoples does not signify a position with respect to the issue of indigenous
peoples right to self-determination.38
For ail purposes of this study the term peoples will be used with the attached
meaning of possession of the right to self-determination and in general will mean all
persons composing a community, tribe, race, [or] nation, [...] a group of persons,
[...] the mass of people in a country [...] not having special rank or position [and] [...]
persons in general39
The term community should be understood within the context of this study as the
webs of social relations that encompass shared meanings and above all shared
values40. In order for a community to exist, there does not need to be any required
collective circumstances or conditions other than the individuals, members of a
community, must have a connection among themselves, sharing meanings and
values. Therefore, a community may not have geographical unity, but rather there
may be interconnectedness between its members to make them a community. The
essential elements to a community then become the common set of shared values or
beliefs and meanings.
36 United Nations. General Assembly. December 16th 1966. Resolution 2200A (XXI). International
Covenant on Economic, Social and Cultural Rights. Online:
October 22nd 2002.
37 United Nations. General Assembly. December 16th 1966. Resolution 2200A (XXI). Covenant on Civil
and Political Rights. Online: October 22nd 2002.
38 An example of these disclaimers referred to herein may be found in the International Labour
Organizations Convention 169 Concerning Indigenous and Tribal Populations in Independent
Countries. 76th Session of the Governing Body. Geneva June 71111989. Closing articles. Geneva:
International Labour Organization, 1991.
39 Pearsall, Judy and Bill Trumble. Supra note 22. Page, 1077.
40 Etzioni, Amitai. Introduction. A Matter of Balance, Rights and Responsibilities. In Etzioni, Amitai, Ed.
The Essential Communitarian Reader. Page, xiii.
25


This concept of community encompasses small groups from a few people -
families, neighborhoods or farmers in a specific region- to larger communities -
peasants, field workers, or women weavers in a whole continent.
This term is used in this study as a way to refer to non-indigenous peoples with
some kind of connection between them, shared circumstances, meanings or values.
Mostly, unless other wise noted, it will refer to campesinos (peasants), farmers,
women, children, elders, neighborhoods, or villages in developing countries or under
-social or economically- marginalized or oppressive circumstances. They usually
posses specialized information, practices or experiences regarding their trade, art or
science, or have a relation with the region or land from where they originate or live.
Usually, in this study the term community is used in conjunction with the term local
(local community) alluding to a community that possesses specific characteristics
that makes them local or native to the place from where they originate or live.
The term local, despite its frequent use in the Convention on Biological Diversity
(CBD)41 and other international instruments is not defined in any international
convention. In this study, local is intended mostly to refer to communities that are
not necessarily indigenous, but who nonetheless share several of the characteristics
of indigenous communities living "traditional lifestyles" (to invoke the vocabulary of
article 8(j) of the CBD42) that are relative from the perspective of knowledge
production and protection. These characteristics include the fact that they occupy, or
occupied, a particular territory for many generations; that their cultural and economic
traditions are integrally connected to their occupation and customary uses of those
territories; and that they are distinct on these grounds from the cultural and economic
activities of the majority of the population in the country in which they live.
Local communities refer to, for example, peasant or campesino communities
engaged in what the Western world denotes as low-technical agriculture. It is
appreciated that the outer limits of the possible meaning of local have not been
41 United Nations. The United Nations Conference on Environment and Development. June 3-4, 1992:
Convention on Biological Diversity. New York: United Nations, 1992.
42 United Nations. The United Nations Conference on Environment and Development, June 3-4,1992:
Article 8, section j. Convention on Biological Diversity. New York: United Nations, 1992.
26


defined. However, the groups of people included by specific reference at this point
are perhaps fairly close to the core of what is meant by local.
Not many international instruments or declarations analyzed in this study refer to
indigenous peoples and local communities. Usually, indigenous peoples and local
communities will be referred to separately, rarely in the same document.
The term indigenous is a much contended term within international law and
politics.43 The International Labour Organization (ILO) is a specialized agency of the
United Nations that focuses on the promotion of social justice and internationally
recognized labour and human rights.44 The ILO Convention 169 Concerning
Indigenous and Tribal Populations in Independent Countries45 which came into force
in 1991, is the only international treaty that effectively provides a definition of the
term indigenous. This convention conceptualizes indigenous as those who have
descended from populations that inhabited a country or area within a country at the
time of conquest, colonization, or the establishment of present state boundaries, and
who, "irrespective of their legal status, retain some or all of their own social,
economic, cultural and political institutions."46
Costa Rican law states that Indians are peoples that are direct decedents of pre-
Columbian civilizations and constitute ethnic groups who preserve their own
identity 47 These are just two examples of the varied definitions that may be found
around the world of the term indigenous. Moreover, the United States Code
mentions, the term Indian means a member of an Indian tribe,48 hence, the same
Code defines Indian tribe as:
43 Clay, J.W. World Bank Policy on Tribal People: Application to Africa. AFTEN Technical Note No. 16.
Washington: Environmental Division, Technical Department, Africa Region, The World Bank. 1991.
44 International Labour Organization. International Labour Organizations Web Site. Online:
October 22nd 2002.
45 International Labour Organization. The International Labour Organization Convention 169 Concerning
Indigenous and Tribal Populations in Independent Countries. 76th Session of the Governing Body,
Geneva June 7th 1989. Geneva: International Labour Organization, 1991.
4B International Labour Organization. The International Labour Organization Convention 169 Concerning
Indigenous and Tribal Populations in Independent Countries. 76th Session of the Governing Body.
Geneva June 7th 1989. Article 1, subsection 1, part (b). Geneva: International Labour Organization,
1991.
47 Costa Rica. Asamblea Legisiativa. Ley No. 6172 de noviembre 16 de 1977. Asamblea Legislativa:
GPO, 1977.
48 United States Code. Title 20, Chapter 3, Subchapter XIII, Section 80q-14. (8).
27


any Indian tribe, band, nation, or other organized
group or community, including any Alaska Native
village or regional or village corporation as defined in or
established pursuant to the Alaska Native Claims
Settlement Act [...], which is recognized as eligible for
the special programs and services provided by the
United States to Indians because of their status as
Indians49
Additionally, the United States Code establishes that, the term "Native American"
means an individual of a tribe, people, or culture that is indigenous to the Americas
and such term includes a Native Hawaiian.50 These are just a few of the more than
fifty definitions that the United States legal system gives to indigenous peoples.
The Wold Council of Indigenous Peoples provides the following definition for
indigenous peoples:
Indigenous peoples are such population groups who
from ancient times have inhabited the lands where we
live, who are aware of having a character of our own,
with social traditions and means of expression that are
linked to the country inherited from our ancestors, with
a language of our own, and having certain essential
and unique characteristics which confer upon us the
strong conviction of belonging to a people, who have
an identity in ourselves and should be thus regarded by
others.51
Finally, a note should be made regarding the linguistic concept of the term
indigenous which is defined as having originated in and being produced, growing,
living, or occurring naturally in a particular region or environment.52 [Ojriginating
naturally in a region [...] born in a region [...] belonging naturally to a place.53
49 United States Code. Title 25, Chapter 14, Subchapter II, Section 450b.
50 United States Code. Title 20, Chapter 3, Subchapter XIII, Section 80q-14. (10)
51 World Council of Indigenous Peoples. Presumed Dead... But Still Useful as Human By-product. In
IUCN Inter-Commission Task Force on Indigenous Peoples. IUCN. Indigenous Peoples and
Sustainability: Cases and Actions. Utrecht, The Netherlands: International Books. 1997. Page 27.
Ottawa: WCIP. 1993.
52 Pearsall, Judy and Bill Trumble. Supra note 22. Page, 718.
53 Idem
28


Of all the aforementioned definitions it may be concluded that the term
indigenous is quite ambiguous as well as contentious. In some instances the term
signifies a direct reference to indigenous peoples, however, in other instances it is
meant to denote an origin or source of something or someone.
This has been one of the problems that have characterized the discussion of
traditional knowledge. Some refer to the term indigenous knowledge54 to mean the
knowledge that is originated from a specific region. However, others refer to
indigenous knowledge as to the knowledge that derives from indigenous peoples.
For purposes of this study it is necessary to take the term indigenous to refer to
indigenous peoples. Consequently, for this study, the definition of indigenous
peoples provided by the ILO Convention 169 will suffice.
The terms tribal, aboriginal, and native will be treated as analogous to
indigenous within this study. Hence, tribal peoples, aboriginal peoples, and native
peoples are equivalent to the term indigenous peoples.
The definition of the term culture is quite troublesome. However, for ulterior
discussions in this and other chapters it is necessary to mention the meaning that
has been given to the term culture.
Linguistically the term culture signifies, the arts and other manifestations of
human intellectual achievement regarded collectively. [...] [Intellectual development.
[Tjhe customs, civilization, and achievements of a particular time or people [...] the
way of life of a particular society or group.55
However, to define the term culture it is necessary to note several other
definitions provided by different scholars:
"Most social scientists today view culture as consisting
primarily of the symbolic, ideational, and intangible
aspects of human societies. The essence of a culture is
not its artifacts, tools, or other tangible cultural elements
but how the members of the group interpret, use, and
perceive them. It is the values, symbols, interpretations,
54 This term will be defined and focused on more concretely in the next section of this chapter.
55 Pearsall, Judy and Bill Trumble. Supra note 22. Page, 347.
29


and perspectives that distinguish one people from
another in modernized societies; it is not material objects
and other tangible aspects of human societies. People
within a culture usually interpret the meaning of symbols,
artifacts, and behaviors in the same or in similar ways."56
"Culture: learned and shared human patterns or
models for living; day- to-day living patterns. These
patterns and models pervade all aspects of human
social interaction. Culture is mankind's primary
adaptive mechanism."57
"Culture consists of patterns, explicit and implicit, of
and for behaviour acquired and transmitted by
symbols, constituting the distinctive achievements of
human groups, including their embodiments in
artefacts; the essential core of culture consists of
traditional (i.e. historically derived and selected) ideas
and especially their attached values; culture systems
may, on the one hand, be considered as products of
action, and on the other as conditioning elements of
further action."58
From the above-mentioned definitions, culture is acquired or learned by an
individual who is also a member of a particular society and consists of a series of
explicit or implicit beliefs learned or shared. Culture can determine how a person
perceives and interprets the world, and how persons interact within it. The term
culture as used in this study is the sum of all knowledge, beliefs, history, art, morals,
laws, practices, experiences, customs, and language that accumulates in a
community and belongs in common to that particular community or group of people.
Another term that needs to be defined within the context of this study is the term
heritage. This term is extremely ambiguous in international law and politics, given
the myriad of connotations that are attached to this term.
56 Banks, James, et. al. Multicultural Education: Issues and Perspectives. Massachusetts: Allyn &
Bacon, 1989. Page, 29.
57 Damen, L. Culture Learning: The Fifth Dimension on the Language Classroom. Reading,
Massachusetts: Addison-Wesley, 1987. Page, 367.
58 Kroeber, A.L. and C. Kluckhohn. Culture: A Critical Review of Concepts and Definitions. Harvard
University Peabody Museum of American Archeology and Ethnology Papers. Page 47.
30


Initially, heritage signifies anything that is or may be inherited [...]
circumstances, [or] benefits. [A] nations historic buildings, monuments, countryside,
[...]. [T]he ancient Israelites [...] the Church.59
As it may be observed from this initial definition, the term is very ambiguous and it
is given several, somewhat inappropriate connotations. This initial definition is not
the meaning that this study will give to this term.
In order to arrive at a more adept definition of the term heritage within the context
of this study other concepts must be provided. Heritage is basically defined as
something transmitted or acquired by a predecessor60 or something possessed as
a result of ones natural situation or birth61. The Convention Concerning the
Protection of the World Cultural and Natural Heritage62 establishes in its first article
the definition for cultural heritage as follows,
For the purposes of this Convention, the following
shall be considered as "cultural heritage": monuments:
architectural works, works of monumental sculpture
and painting, elements or structures of an
archaeological nature, inscriptions, cave dwellings and
combinations of features, which are of outstanding
universal value from the point of view of history, art or
science; groups of buildings: groups of separate or
connected buildings which, because of their
architecture, their homogeneity or their place in the
landscape, are of outstanding universal value from the
point of view of history, art or science; sites: works of
man or the combined works of nature and man, and
areas including archaeological sites which are of
outstanding universal value from the historical,
aesthetic, ethnological or anthropological point of
view.63
59 Pearsall, Judy and Bill Trumble. Supra note 22. Page, 660.
60 Idem
61 Idem
62 United Nations Educational, Scientific, and Cultural Organization. General Conference. 17th Session.
Paris October 17th to November 21st 1972. The Convention Concerning the Protection of the World
Cultural and Natural Heritage. New York: United Nations, 1995.
63 Ibid. Article 1.
31


The same Convention in its second article defines natural heritage,
For the purposes of this Convention, the following
shall be considered as "natural heritage": natural
features consisting of physical and biological
formations or groups of such formations, which are of
outstanding universal value from the aesthetic or
scientific point of view; geological and physiographical
formations and precisely delineated areas which
constitute the habitat of threatened species of animals
and plants of outstanding universal value from the point
of view of science or conservation; natural sites or
precisely delineated natural areas of outstanding
universal value from the point of view of science,
conservation or natural beauty.64
However, Dr. Erica-lrene Daes, Special Rapporteur of the United Nations Sub-
Commission on the Prevention of Discrimination and Protection of Minorities65
elaborated a definition for heritage of indigenous peoples:
The heritage of indigenous peoples is comprised of all
objects, sites and knowledge, the nature or use of
which has been transmitted from generation to
generation, and which is regarded as pertaining to a
particular peoples, clan or territory. The heritage of an
indigenous people also includes objects, knowledge
and literary or artistic works which may be created in
the future based upon its heritage.66
From these definitions it is observable that some treat the term heritage as the
tangible or physical objects of a region or locality that posses a certain value and
belong to a peoples. Notice that none of the definitions that refer to heritage as a
corporeal object include the transmission of heritage through generations. On the
other hand, as it may be seen from other definitions, the term heritage is considered
64 Ibid. Article 2.
65 This commission is now called the United Nations Sub-Commission on the Promotion and Protection
of Human Rights.
66 United Nations. Sub-Commission on the Prevention of Discrimination and Protection of Minorities.
Daes, Erica-lrene, Report on the Heritage of Indigenous Peoples. New York: United Nations, 1999.
32


to encompass all tangible (physical) and intangible (impalpable) objects, sites,
practices, experiences and knowledge which has been transmitted from generation
to generation.
These differences concerning the concept of heritage are especially important.
One camp favors the inclusion of only tangible assets as heritage, implicitly
excluding knowledge, practices and experiences from the definition. Moreover, those
who adhere to this definition do not include the transitive aspect of heritage, which
is central for purposes of the current discussion on traditional knowledge.
Heritage is intended to denote the transitive aspect of property -tangible and
intangible. Evidently, the most important connotation concerning a definition of
heritage is this characteristic that property is transmitted through generations. If the
term heritage is intended to mean all the property of a peoples that is transmitted
through generations then, clearly, defining heritage to embrace only tangible
property, falls short of recognizing that knowledge, practices, performances and
other intangible assets, constitute property and that may also be transmitted from
one generation to the other.
Moreover, the pre-condition, according to the Convention Concerning the
Protection of the World Cultural and Natural Heritage, that property must be
valuable in order to be considered heritage is tenuous. The value of any property is
attributed by the peoples who own that property. All property is valuable to the
peoples who possess that property. Hence, its importance or worth should not be
conditioned to any external factors or agents.
Finally, the concept of heritage should not be limited to a specific peoples (e.g.
indigenous peoples) since heritage must apply to most communities and individuals.
After making all of the aforementioned considerations, for purposes of this study
and for any discussion concerning traditional knowledge a new definition of heritage
should be considered. Heritage should be defined as all past, present and future
accumulated culture, objects, assets, sites, knowledge, experience, and practices
(tangible and intangible patrimony) which has been or will be transmitted from
generation to generation for its use to a particular peoples.
33


The use of the term property in the definition of heritage is somewhat
inappropriate if one considers that many indigenous peoples do not have a concept
or notion of property as understood in the Western context. Hence, it is suggested
that the term property should not be included in this definition of heritage, since this
term covers also the assets possessed by indigenous peoples. Instead of the term
property, the term patrimony should be used. This term is analogous to property
in the Western legal system and yet, is flexible enough to be used in relation to
indigenous peoples. The term patrimony, within the Western context usually means
the property inherited from ones father or ancestor. [A] heritage. [T]he endowment
of a church.67
However, a new definition that considers patrimony all the tangible and intangible
accumulated culture, objects, assets, sites, knowledge, experience, and practices
bestowed upon a peoples by their ancestors, is a definition that better relates to
indigenous peoples.
Finally, before moving on to conceptualize traditional knowledge it is necessary
to consider the definitions of the terms tradition and traditional.
Linguistically, tradition is usually defined as a custom, opinion, or belief handed
down to posterity [...] orally or by practice. [The] process of handing down. [A]n
established practice or custom [...] artistic, literary principles based on experience
and practice. [Djoctrine or a particular doctrine [...] claimed to have divine authority
without documentary evidence, [...] the oral teachings of Christ and the Apostles [...]
the laws held by the Pharisees to have been delivered by God to Moses [...] the
words and deed of Muhammad not in the Koran [...] the formal delivery of
property.68 Of course this definition of the term tradition does not fit within the views
of indigenous peoples and some local communities.
Taiaiake Alfred, and indigenous activist from the Kahnawake Mohak Territory,
speaks about tradition stating:
67 Pearsall, Judy and Bill Trumble. Supra note 22. Page, 1065.
68 Pearsall, Judy and Bill Trumble. Supra note 22. Page, 1527.
34


Working within a traditional framework, we must
acknowledge the fact that cultures change, and that
any particular notion of what constitutes tradition will
be contested. Nevertheless, we can identify certain
common beliefs, values, and principles that form the
persistent core of a communitys culture.69
He continues to argue:
Indigenous people have many different perspectives
on what constitutes tradition, and what is good and bad
about traditional ways. My own views have been
shaped by life in Kahnawake, a Kanienkehaka
(Mohak) community of over 8000 people.70
Finally, he defines tradition as:
the stories, teachings, rituals, ceremonies, and
languages that have been inherited from previous
generations. Without specific reference to a particular
form or structure, something is authentically indigenous
and traditional if it draws on what is indigenous to the
culture to honour the values and principles of the
inheritance, if it fails in its primary reference to inherited
ways, beliefs, and values, it is not traditional or
authentically indigenous.71
This author cannot define tradition in better terms. It simply serves to point out
that this confirms that the term tradition is used exclusively to denote heritage that
is characteristically intangible patrimony. In other words, tradition refers only to
intangible heritage. Lastly, concerning the term traditional, only needs to be
mentioned that it means of [or] based on, or obtained by tradition.72 These will be
69 Alfred, Taiaiake. Peace. Power. Righteousness: An Indigenous Manifesto. Ontario: Oxford University
Press, 1999. Page xviii.
70 Ibid. Page 6.
71 Ibid. Pages 147 and 148.
72 Pearsall, Judy and Bill Trumble. Supra note 22. Page, 1527.
35


the definitions of tradition and traditional that will be used in this study, not only in
relation to indigenous peoples, but also concerning local communities.
Defining Traditional Knowledge
The notions of traditional knowledge, indigenous knowledge and folklore have
acquired wide usage in international debates on intellectual property protection and
indigenous peoples. However, their use is often confusing or contradictory.
No uniform international definition for the terms intellectual property, heritage,
culture, indigenous peoples, or any other mentioned herein exists. So, when the
two terms are combined in discussions about the intellectual property rights of
indigenous peoples and local communities, even greater disagreement ensues.
Given the nature of this study, reliance upon a single and exclusive definition is
both unnecessary and undesirable. This study advances the idea of grassroots
participatory development, with the assumption that appropriate definitions should
emerge from the grassroots level, developed in a participatory way by the
individuals and communities mostly affected by these developments.
This study strives for a set of working definitions of use to grassroots projects.
Evidently any definition of traditional knowledge concerns intangible creations of
the human mind. More specifically, it encompasses all the intangible information,
wisdom, experiences, practices, culture, and knowledge, possessed by indigenous
and local communities.
The World Trade Organization (WTO) who alleges an interest in protecting
intellectual property rights relating to local and indigenous communities traditional
knowledge, concludes that:
Traditional knowledge consists largely of innovations,
creations and cultural expressions generated or
preserved by its present possessors, who may be
defined and identified as individuals or whole
36


communities, natural or legal persons, who are holders
of rights.73
Traditional knowledge includes the stories, teachings, rituals, ceremonies, [...]
languages74, [...] poetry, [...] music, [...] tales, [...] art (including drawings, paintings
and craftwork), [...] dances, medicinal knowledge (including spiritual healing
methods), [...] culinary techniques75, and conservation and sustainable exploitation
of the environment76. In general, traditional knowledge refers to creations of the
human intellect by indigenous peoples and local communities in art, dance, music,
medicine, biodiversity, crafts, and oral and written works.
Provided that traditional knowledge includes an innumerable amount of intangible
assets, the realm of traditional knowledge should not be defined solely by examples
of the creations it includes. Many scholars addressing this topic of traditional
knowledge have suggested characteristics to delimit the scope of applicability of
traditional knowledge, rather than providing an incomplete list of the items it includes.
Graham Outfield, a renowned scholar on the topic of traditional knowledge,
establishes certain criteria that distinguish traditional knowledge in order to identify it
as such, through the manner in which it is generated, recorded and transmitted.77
Traditional knowledge, argues Dutfield:
a. is recorded and transmitted through oral tradition;
b. is learned through observation and hands-on experience;
c. is based on the understanding that the elements of matter have a life force. (All
parts of the natural world are therefore infused with spirit);
73 World Trade Organization. Preparations for the 1999 Ministerial Conference. Proposal on Protection
of the Intellectual Property Rights Relating to the Traditional Knowledge of Local and Indigenous
Communities: Communication from Bolivia. Colombia. Ecuador. Nicaragua, and Peru. Document
WT/GC/W362. (1999). Page 2.
74 Alfred, Taiaiake. Supra note 68. Pages 147 and 148.
75 World Intellectual Property Organization. Intellectual Property Needs and Expectations of Traditional
Knowledge Holders. WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional
Knowledge (1998-19991. Fact Finding Mission to West Africa. Geneva: World Intellectual Property
Press, 2001. Page 146.
76 World Intellectual Property Organization. Supra note 74. Fact Finding Mission to South America.
Page 172.
77 Dutfield, Graham. TRIPS-Related Aspects of Traditional Knowledge. Case Western Reserve Journal
of International Law. 233. Volume 33. No. 3, Summer 2001. Cleveland: Case Western Reserve
University School of Law.
37


d. does not view human life as superior to other animate and inanimate elements: all
life-forms have kinship and are interdependent;
e. is holistic;
f. is intuitive in its mode of thinking;
g. is mainly qualitative;
h. is based on data generated by resource users;
i. is based on diachronic data;
j. is rooted in a social context that sees the world in terms of social and spiritual
relations between all life-forms; and
k. derives its explanations of environmental phenomena from cumulative, collective
and often spiritual experiences. Such explanations are checked validated, and
revised daily and seasonally through the annual cycle of activities.78
Although these characteristics are helpful, Dutfields seems incomplete as they
only refer to traditional environmental knowledge. However, the idea of elaborating a
simpler set of characteristics to delimit the scope of applicability of traditional
knowledge looks like a viable solution. For this reason, according to the definitions
previously made in this chapter, as well as the views of many of indigenous peoples,
further considering the various examinations that scholars have made,79 this study
suggests a simpler set of characteristics.
Traditional knowledges range of applicability may be determined by the manner
in which it is created, recorded, maintained and transmitted according to the
following characteristics:
a. it is an intangible creation of the human intellect;
b. it is typically created intuitively from diachronic data; cumulative or collective
observation, understanding, and hands-on experience; or from spiritual sources;
or it has been obtained from teachings and experiences passed on from previous
generations;
78 Idem. Supra note 57.
79 Johnson, Martha. Research on Traditional Environmental Knowledge: Its Development and Its Role.
In Johnson, Martha, ed. LORE: Capturing Traditional Environmental Knowledge. Lanham: Bernan
Associates, 1992.
38


c. it is created or obtained as a means of cultural expression;
d. it is created or obtained with and implicit understanding that the natural world is
alive and that there is an inherent connection with the natural world; its holistic in
nature;
e. resource users may create or obtain it by means of physical expression, orally, or
through fixated forms;
f. it is recorded mostly in oral tradition; exceptionally in texts, although it may be
fixated as an expression of culture;
g. it is maintained mostly in oral tradition; exceptionally in texts, although it may be
fixated as an expression of culture;
h. it is maintained usually collectively and within a specific indigenous or local
community, sometimes in secrecy or by select members of a community;
i. it is transmitted mostly in oral tradition;
j. transmission may be rooted in a social or spiritual context; and
k. transmission may bear a responsibility.
Basically, if an item meets most (not necessarily all) of the characteristics set forth
previously, the item is within the scope of traditional knowledge. An example
illustrates the application of the characteristics above.
The Igbo peoples of Orumba, Nigeria call the one lunar month (28 days) period
after child birth Omugwo. During Omugwo Igbo women are relieved of all duties
within the community and are secluded in a separate hut with their offspring, where
they are given a traditional soup. This soup is made from dried fish, meat, yams,
plenty of pepper and a seasoning called 'udah'. This seasoning, according to Igbo
elder women, contracts the uterus after birth. They believe that udah by contracting
the uterus, helps to get rid of blood clots, restores blood and energy lost during
childbirth, facilitates the healing of wounds, and promotes milk flow for lactation.80
The knowledge of the Igbo elder women concerning udah is intangible. Its
application as a seasoning for a soup used in a postpartum traditional ritual of
80 World Bank. Online Database of Indigenous Knowledge and Practice. Online:
October 22nd 2002.
39


recovery after childbirth, is a creation of their intellect. It has been created by
collective observation, understanding or hands-on experience and obtained from
teachings and experiences passed on from previous generations. It has been
created, obtained and maintained with an implicit understanding that the natural
world is alive and that there is an inherent connection with the natural world. It is a
postpartum ritual that reflects their cultural beliefs (cultural expression). It is obtained,
recorded, maintained and transmitted orally. The knowledge is collectively owned,
obtained, maintained, recorded and transmitted. Finally, there is a social context that
requires elder Igbo women to carry out the tradition and pass it on to next
generations. Hence, the use of udah by the Igbo peoples of Orumba, Nigeria is
within the scope of traditional knowledge, even if it does not meet all of the
aforementioned characteristics.
Although these characteristics are by no means universal or definitive, they serve
as a tool to identify the scope of traditional knowledge. A warning must be strongly
reaffirmed that these characteristics are by no means definitive and are simply
utilized to help determine the range of applicability of traditional knowledge.
Making a determination of the scope of traditional knowledge facilitates the
creation of a working definition. However, before defining the term traditional
knowledge, it is necessary to examine the relevance and adequacy of certain
phrases that have been used to denote its scope.
Traditional knowledge is one of several terms used to describe the same subject
matter. Other terms in usage include cultural heritage; cultural property; local
knowledge; folklore; indigenous knowledge; traditional environmental knowledge;
among many others81.
81 Other terms include Traditional Knowledge, Indigenous Knowledge, Community Knowledge,
Traditional Ecological Knowledge, Local Knowledge, Traditional Environmental Knowledge Aboriginal
Tradition, Cultural Patrimony, Folklore, Expressions of Folklore, Cultural Heritage, Traditional Medicine,
Cultural Property, Indigenous Heritage (Rights), Indigenous Cultural and Intellectual Property (Rights),
Indigenous Intellectual Property, Customary Heritage Rights, Traditional Knowledge, Innovations and
Practices, Popular'Culture, Intangible Component. World Intellectual Property Organization.
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore. Geneva, June 13th to 21st 2002, 3rd Session. Traditional Knowledge Operational Terms
and Definitions. Geneva: World Intellectual Property Organization. 2002. Annex I.
40


Many of these other terms that are used to refer directly to the scope of
traditional knowledge, have been criticized as inaccurate, erroneous, irrelevant or
inadequate for various reasons. Therefore, it is necessary to briefly address the
critiques to these terms.
There are various terms that utilize the word culture, such as cultural patrimony;
cultural heritage; cultural property; customary heritage rights; and popular
culture. Following the definition ofculture, patrimony, property and heritage that
was offered previously in this chapter, it is clear to see the problematic with these
terms. The word property is completely inadequate in regard to indigenous peoples,
since many indigenous communities do not share a Western concept of property.
Evidently, terms such as heritage and patrimony include within their range both
tangible and intangible objects, thus, their scope is much wider than that sought for a
term that encompasses only intangible creations of the human intellect of
indigenous and local communities.
Finally, the term culture, is very limited because it concerns practices, beliefs,
customs, etc. that have gone through a lengthy process of time and are set as
patterns, models of living or ways of life of a collective society. This effectively
excludes new practices or beliefs that have not been acculturated. Moreover, it
excludes knowledge held by individuals, since culture pertains to a whole group of
peoples.
Other terms used are extremely wide-ranging such as intangible property; and
intangible component. These have been criticized because they are all-embracing
terms that do not differ in any way to the term intellectual property, which has
obviously been disapproved, especially by indigenous peoples, because of the word
property and because it is a Western term that implies an imposition of the Western
legal system on them.
Additional terms used to denote the scope of traditional knowledge are local
knowledge and community knowledge. These pertain specifically to local
communities knowledge since the word local is used to represent non-indigenous
communities. Although these terms may be interpreted to encompass indigenous
41


peoples knowledge they do not represent the transitive component of traditional
knowledge.
Phrases that are also characterized as limited are those that utilize the words
indigenous, native and aboriginal such as customary indigenous property;
indigenous tradition; aboriginal tradition; indigenous heritage; indigenous heritage
rights; indigenous cultural property; indigenous cultural and intellectual property;
and indigenous intellectual property. These are criticized on similar grounds to
terms mentioned above. However, they are also censured because of the
ambiguousness of the term indigenous.
The word indigenous has a two-fold meaning. It could mean that something or
someone originates from a specific region or place. However, if the word indigenous
is meant to signify indigenous peoples (as it has been argued previously in this
chapter that it should) then these phrases are limited to indigenous peoples
knowledge. Moreover, given the conflict for the recognition of indigenous peoples
right to their native lands and self-governance, governments and international
organizations are reluctant to use the word indigenous so as not to confer any
collective rights to indigenous peoples.
Other terms such as traditional medicine; traditional environmental knowledge;
and traditional ecological knowledge are also very limited. These terms refer to
unique forms of indigenous peoples and local communities knowledge pertaining
exclusively to medical or ecological fields. These terms are thus, too narrow and
exclude other forms of indigenous peoples or local communities knowledge such as
songs, literature, dances, or art.
The international debate over terminology defining traditional knowledge is
embodied in four words: These terms are folklore; expressions of folklore; cultural
property; and indigenous knowledge.
Discussion in international fora began on issues concerning traditional knowledge
by the United Nations Educational, Scientific and Cultural Organization (UNESCO)
and WIPO under the terms folklore and expressions of folklore.
42


In the late 1970s early 1980s WIPO jointly with UNESCO, held a series of
meetings concerning folklore which culminated in the 1982 adoption of the Model
Provisions for National laws on the Protection of Expressions of Folklore Against
Illicit Exploitation and Other Prejudicial Actions (Model Provisions).82 In 1984 WIPO
and UNESCO convened a meeting to discuss the possibility of developing an
international treaty on folklore based on the previously agreed Model Provisions.
However, participants at that meeting were unable to reach an agreement on the
protection of folklore.
WIPO has since referred to the terms folklore and expressions of folklore in
relation to copyright protection of indigenous peoples and local communities tangible
property and performances. UNESCO, on the other hand, utilizes the terms to refer
to tangible objects and sites and intangible final products.83 WIPO and UNESCO
have defined expressions of folklore in the Model Provisions as follows:
[Ejxpressions of folklore means productions
consisting of characteristic elements of traditional
artistic heritage developed and maintained by a
community [...] or by individuals reflecting the
traditional artistic expectations of such a community, in
particular: (i) verbal expressions, such as folk tales, folk
poetry and riddles; (ii) musical expressions, such as
folk songs and instrumental music; (iii) expressions by
action, such as folk dances, plays and artistic form of
rituals; whether or not reduced to a material form; and
(iv) tangible expressions, such as: (a) productions of
folk art, in particular, drawings, paintings, carvings,
sculptures, pottery, terracotta, mosaic, woodwork,
metalware, jewellery, basket weaving, needlework,
82 United Nations, Educational, Scientific and Cultural Organization and World Intellectual Property
Organization. Secretariats of the United Nations, Educational, Scientific and Cultural Organization
(UNESCO) and World Intellectual Property Organization (WIPO). Committee of Governmental Experts
on the Intellectual Property Aspects of the Protection of Expressions of Folklore. General Conference,
Geneva June 28 to July 2, 1982. Model Provisions for National laws on the Protection of Expressions of
Folklore Against Illicit Exploitation and Other Prejudicial Actions New York: United Nations, 1985.
83 United Nations, Educational, Scientific and Cultural Organization. Executive Board, 161st Session,
Paris May 16, 2001. Report on the Preliminary Study on the Advisability of Regulating Internationally,
Through a Standard-Setting Instrument, the Protection of Traditional Culture and Folklore. UNESCO
Document 161EX/15. New York: United Nations, 2001. Page 7.
43


textiles, carpets, costumes; (b) musical instruments; (c)
architectural forms.84
In 1989, UNESCO through the issuance of the Recommendation on the
Safeguarding of Traditional Culture and Folklore, defined folklore in the following
way:
Folklore [...] is the totality of tradition-based creations
of a cultural community, expressed by a group or
individuals and recognized as reflecting the
expectations of a community in so far as they reflect its
cultural and social identity; its standards and values are
transmitted orally, by imitation or by other means. Its
forms are, among others, language, literature, music,
dance, games, mythology, rituals, customs,
handicrafts, architecture and other arts.85
Slowly through twenty years of discussion of issues of folklore and expressions
of folklore, UNESCO realized that folklore pertains to final products instead of
processes, therefore acknowledged that the term had to be revisited86. This has
not been the only criticism that these terms have generated. As may be observed
from the aforementioned definitions, these terms refer to both tangible and intangible
assets. This generates controversy because what is sought to be protected is the
intangible human intellectual creations of indigenous peoples and local
84 United Nations, Educational, Scientific and Cultural Organization and World Intellectual Property
Organization. Secretariats of the United Nations, Educational, Scientific and Cultural Organization
(UNESCO) and World Intellectual Property Organization (WIPO). Committee of Governmental Experts
on the Intellectual Property Aspects of the Protection of Expressions of Folklore. General Conference,
Geneva June 28 to July 2,1982. Model Provisions for National laws on the Protection of Expressions of
Folklore against Illicit Exploitation and Other Prejudicial Actions New York: United Nations, 1985.
Section 2. Online: > October 22nd 2002.
85 United Nations, Educational, Scientific and Cultural Organization. General Conference, 25th Session,
Paris November 15,1989. Recommendation on the Safeguarding of Traditional Culture and Folklore.
New York: United Nations, 1989.
86 United Nations, Educational, Scientific and Cultural Organization. Executive Board, 161st Session,
Paris May 16, 2001. Report on the Preliminary Study on the Advisability of Regulating Internationally,
Through a Standard-Setting Instrument, the Protection of Traditional Culture and Folklore. UNESCO
Document 161EX/15. New York: United Nations, 2001. Page 7.
44


communities. For this reason, the use of the terms folklore and expressions of
folklore have a very broad scope of applicability.
In 1999, indigenous peoples demonstrated their discontent with the use of the
term folklore,87 which was meant to be demeaning by some communities.88 Terri
Janke, a widely known advocate for the intellectual property rights of indigenous
peoples, in regards to the term folklore, noted that this term suggests, something
dead to be collected and preserved, rather than as part of an evolving living
tradition.89 The widespread opinion concerning the negative and Eurocentric
connotations of the terms folklore and expressions of folklore has concluded that
these terms are archaisms which make a direct suggestion that it concerns the
creations of lower or superseded civilizations.90
All debates have led UNESCO slowly to stop using the terms folklore and
expressions of folklore and instead refer to tangible cultural heritage and intangible
cultural heritage, tangible cultural property and intangible cultural property, albeit,
the aforementioned problems demonstrated with these terms. WIPO, on the other
hand, has concentrated on the usage of the term traditional knowledge. This has
persuaded UNESCO and other U.N. agencies to use the term traditional
knowledge.
Cultural property has also been a term widely used to refer to the same subject
matter as traditional knowledge and has even been used interchangeably with the
latter. This term is critiqued for two fundamental reasons. First, indigenous peoples
oppose and object to the subjective imposition of Western interpretations of
property. Second, the phrase cultural property has been typically used in academia
87 United Nations, Educational, Scientific and Cultural Organization and The Smithsonian Institution.
General Meeting, Washington, June 27 to 30, 1999. A Global Assessment of the 1989
Recommendation on the Safeguarding of Traditional Culture and Folklore: Local Empowerment and
International Cooperation.
88 United Nations, Educational, Scientific and Cultural Organization. Supra note 85.
89 Janke, Terri. United Nations, Educational, Scientific and Cultural Organization and World Intellectual
Property Organization World Forum on the Protection of Folklore: Lessons for Protecting Indigenous
Australian Cultural Intellectual Property. 15 Copyright Reporter 104.1997. Page 109.
90 Blakeney, Michel. The Protection of Traditional Knowledge under Intellectual Property Law. European
Intellectual Property Review. Volume 22, Issue 6, June 2000. Page 251.
45


to stand for tangible property with national cultural value.91 UNESCOs Convention
on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of
Ownership of Cultural Property actually defines the term more broadly:
the term "cultural property" means property which, on
religious or secular grounds, is specifically designated
by each State as being of importance for archaeology,
prehistory, history, literature, art or science and which
belongs to the following categories: (a) Rare collections
and specimens of fauna, flora, minerals and anatomy,
and objects of palaeontological interest; (b) property
relating to history, including the history of science and
technology and military and social history, to the life of
national leaders, thinkers, scientists and artists and to
events of national importance; (c) products of
archaeological excavations (including regular and
clandestine) or of archaeological discoveries; (d)
elements of artistic or historical monuments or
archaeological sites which have been dismembered;
(e) antiquities more than one hundred years old, such
as inscriptions, coins and engraved seals; (f) objects of
ethnological interest; (g) property of artistic interest,
such as: (i) pictures, paintings and drawings produced
entirely by hand on any support and in any material
(excluding industrial designs and manufactured articles
decorated by hand); (ii) original works of statuary art
and sculpture in any material; (iii) original engravings,
prints and lithographs; (iv) original artistic assemblages
and montages in any material; (h) rare manuscripts
and incunabula, old books, documents and
publications of special interest (historical, artistic,
scientific, literary, etc.) singly or in collections; (i)
postage, revenue and similar stamps, singly or in
collections; (j) archives, including sound, photographic
and cinematographic archives; (k) articles of furniture
more than one hundred years old and old musical
instruments.92
91 Merryman, John Henry. Cultural Property, International Trade and Human Rights Cardozo Arts &
Entertainment Law Journal. 19 Cardozo Arts & Ent LJ 51,2001. Online. LexisNexis Academic.
October 22nd 2002.
92 United Nations, Educational, Scientific and Cultural Organization. General Meeting, Paris from 12
October to 14 November 1970, at its 60th Session. Convention on the Means of Prohibiting and
46


As it may be observed in UNESCOs definition the term cultural property pertains
to tangible assets or items fixed in a tangible medium. The UNESCO definition
ignores intangible creations of the human mind.
Terms such as heritage, cultural property, indigenous property, refer to specific
items from specific peoples. Heritage is overly broad in its reference to intangible
items which have been passed down through generations or will be passed on to
next generations. Cultural property is overly narrow in describing only tangible items
which may or may not have been obtained from previous generations or passed on
to next generations.
Indigenous knowledge has been defined as the systematic information that
remains in the informal sector, usually unwritten and preserved in oral tradition rather
than texts [...] [it] is culture specific.93 However, this definition has been criticized as
dangerously imprecise:
Indigenous knowledge, as far as we are concerned, is
that knowledge that is held and used by a people who
identify themselves as indigenous of a place based on
a combination of cultural distinctiveness and prior
territorial occupancy relative to a more recently-arrived
population with its own distinct and subsequently
dominant culture.94
Clearly, Mugabe refers to indigenous knowledge as the knowledge that
emanates from indigenous peoples. This describes the consensus that exists
concerning the definition and application of the term indigenous knowledge.
Preventing the Illicit Import. Export, and Transfer of Ownership of Cultural Property. Article 1. New York:
United Nations, 1970.
93 Brush, Stephen B. Whose Knowledge. Whose Genes. Whose Rights? in Stephen B. Brush and
Doreen Stabinsky, eds. Valuing Local Knowledge: Indigenous People and Intellectual Property Rights.
Covelo: Island Press, 1996. Page 4.
94 Mugabe, John. Intellectual Property Protection and Traditional Knowledge: An Exploration in
International Policy Discourse. Paper presented for the World Intellectual Property Organization Panel
Discussion on Intellectual Property and Human Rights, Geneva, November 9th 1998. Geneva: World
Intellectual Property Organization, 1998. Online:
October 22nd
2002.
47


The term indigenous knowledge is equivocally often used interchangeably with
indigenous heritage; traditional indigenous knowledge rights; traditional indigenous
heritage; traditional knowledge innovation and practices. Problems with these terms
are, for example, that indigenous heritage encompasses all tangible and intangible
assets from indigenous peoples. Traditional knowledge innovation and practices,
presupposes that there is an innovation, which is not always the case, since,
knowledge handed down by a previous generation may not be innovated and simple
used and passed on to future generations.
A preliminary definition of traditional knowledge is that [knowledge] which is held
by members of a distinct culture and/or sometimes acquired by means of inquiry
peculiar to that culture, and concerning the culture itself or the local environment in
which it exists.95 Although this is not the final definition this study shares, it serves
well enough to demonstrate the differences between all of the aforementioned terms.
Nonetheless, all of those distinctions, although subtle, are very important since
they denote the nature of the knowledge or objects being referred to. Perhaps the
most important distinction is that between indigenous knowledge and traditional
knowledge.
As it has been argued, indigenous knowledge pertains only to indigenous
peoples knowledge. It is simple to observe that it constitutes a type of traditional
knowledge (See figure 1). In contrast, local knowledge, denotes exclusively the
experiences, practices and creations of the minds of local communities, evidencing
another type of traditional knowledge (See figure 1). Both these types concern only
intangible creations of the human mind, whereas cultural property represents
tangible assets, indicating yet two more types of indigenous peoples and local
communities patrimony (See figure 2).
Heritage covers both cultural property and intangible human intellectual
creations (See figure 2), which are then characterized by its transitive aspect of
being obtained from previous generations or being assets to be handed to future
generations.
95 Idem.
48


Therefore, the differences between all of these terms must be carefully
considered because, as it has been pointed out, all of these terms comprise different
categories of knowledge and objects (See figure 2). Especial attention should be
placed on the difference between indigenous knowledge and traditional
knowledge. Indigenous knowledge is a type of traditional knowledge (See figure
1), since it fits neatly as a category of the latter.
Figure 1 shows the realm of traditional knowledge. It demonstrates how
indigenous knowledge is a sub-category of traditional knowledge and is included in
it as such. The same is true for local knowledge.
Figure 1
Realm of Traditional Knowledge
Figure 2 shows the realm of heritage, which includes traditional knowledge,
cultural property, Western knowledge and Western tangible property as sub-
categories of all tangible and intangible property that is obtained from previous
generations or passed on to future generations.
49


Figure 2
Realm of Heritage
Figure 3 shows the domain of knowledge and how it is divided into heritage and
non-heritage patrimony.
Figure 3
Realm of Knowledge
50


The overlap in Figure 1 represents an area where indigenous peoples and local
communities either share their knowledge or create their knowledge together.
The overlap shown in Figure 2 represents that some traditional knowledge serves
as a basis for Western knowledge and that all are intertwined.
The overlap in Figure 3 signifies the there is some novelty to traditional
knowledge, illustrating that some knowledge has not been obtained from past
generations and/or will not be passed on to future generations.
Each element in these figures is a knowledge system. Just as indigenous
knowledge, is considered a system within traditional knowledge, there are
innumerable knowledge systems that constitute indigenous knowledge. An
example of this could be the knowledge system of the Mapuche Indigenous Peoples
of Chile; their practices, experiences and culture differs in many respects to other
indigenous peoples practices, experiences and culture. They are an independent
knowledge system of indigenous knowledge. However, in the practices, experiences
and culture that are similar to other indigenous peoples, their knowledge system will
overlap with those, demonstrating the interconnectedness among cultures, including
indigenous peoples cultures and Western culture.
This study has analyzed the discussion that surrounds the topic of traditional
knowledge. The different concepts and terms that are related to traditional
knowledge have also been examined. A possible scope of applicability of traditional
knowledge and its suggested common characteristics to identify it has been offered.
But what is the definition of traditional knowledge?
Traditional knowledge may be simply defined as the knowledge held by
traditional peoples and communities.96 However, such a simplistic conceptualization
would not contribute much to eliminate the ambiguity of this term.
One of the most important considerations to be able to derive a definition of
traditional knowledge is the actual opinions of traditional knowledge holders. During
WIPOs FFMs to West Africa, traditional knowledge was described as knowledge
96 Dutfield, Graham. Supra note 76.
51


which is handed down informally from generation to generation.97 Similarly in its
mission to the Caribbean region, traditional knowledge was described as knowledge
which has been handed down from generation to generation embodying practices
which have been in existence overtime.98 Indigenous peoples in Guatemala and
Panama responded to WIPOs FFMs to Central America stating that traditional
knowledge refers to the indigenous peoples cosmovision (vision of the cosmos) and
the spirituality inherent in their way of life and in their manner of relating to nature.99
This provides us with an idea of what indigenous peoples and local communities
regard as traditional knowledge.
Other definitions for traditional knowledge may be found in international
instruments and documents. An example is the CBD which defines traditional
knowledge as the "knowledge, innovations, and practices of indigenous and local
communities embodying traditional lifestyles."100
In this context, according to the United Nations Environment Program (UNEP),
traditional knowledge has been noted as:
[A] term used to describe a body of knowledge built by
a group of people through generations living in close
contact with nature. It includes a system of
classification, a set of empirical observations about the
local environment, and a system of self-management
that governs resource use [...]. In the context of
knowledge, innovation is a feature of indigenous and
local communities whereby tradition acts as a filter
through which innovation occurs. In this context, it is
97 World Intellectual Property Organization. Intellectual Property Needs and Expectations of Traditional
Knowledge Holders. WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional
Knowledge (1998-19991 Fact Finding Mission to West Africa. Geneva: World Intellectual Property
Press, 2001. Page 146.
98 World Intellectual Property Organization. Intellectual Property Needs and Expectations of Traditional
Knowledge Holders. WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional
Knowledge (1998-19991. Fact Finding Mission to the Caribbean Region. Geneva: World Intellectual
Property Press, 2001. Page 192.
99 World Intellectual Property Organization. Intellectual Property Needs and Expectations of Traditional
Knowledge Holders. WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional
Knowledge (1998-19991. Fact Finding Mission to Central America. Geneva: World Intellectual Property
Press, 2001. Page 134.
100 United Nations. Supra note 43.
52


traditional methods of research and application and not
always particular pieces of knowledge that persist.
Practices should therefore be seen as the
manifestations of knowledge and innovation.101
Further, according to the UNEP traditional knowledge is that which is drawn from
global experience and combines [...] discoveries, economic preferences and
philosophies with those of other widespread cultures.102
Traditional knowledge refers to the knowledge,
innovations and practices of indigenous and local
communities around the world. Developed from
experience gained over the centuries and adapted to
the local culture and environment, traditional
knowledge is transmitted orally from generation to
generation. It tends to be collectively owned and takes
the form of stories, songs, folklore, proverbs, cultural
values, beliefs, rituals, community laws, local language,
and agricultural practices, including the development of
plant species and animal breeds. Traditional
knowledge is mainly of a practical nature, particularly in
such fields as agriculture, fisheries, health, horticulture,
and forestry.103
On the other hand, probably the working definition that has most usage in
international law and politics is the one adopted by WIPO, which states:
the term traditional knowledge [...] [refers] to
tradition-based literary, artistic or scientific works;
performances; inventions; scientific discoveries;
designs; marks, names and symbols; undisclosed
101 United Nations Environmental Programme. United Nations Environmental Programme Document
UNEP/CBD/TKBD/1/2. New York: United Nations. Paragraph 84 and 86.
102 United Nations Environmental Programme. Traditional Forest-Related Knowledge and the
Convention on Biological Diversity: Contribution by the Executive Secretary to the Preparation of the
Report of the Secretary-General for Programme Element I.3 of the Intergovernmental Panel on Forests.
United Nations Environmental Programme Document UNEP/CBD/COP/3/lnf.33. New York: United
Nations. Page 9.
103 ^
Secretariat of the Convention on Biological Diversity. Executive Direction and Management. United
Nations Environmental Programme. Montreal: Secretariat of the Convention on Biological Diversity.
2002. Online < http://www.biodiv.org/programmes/socio-eco/traditional/default.asp> October 22nd 2002.
53


information; and all other tradition-based innovations
and creations resulting from intellectual activity in the
industrial, scientific, literary or artistic fields. Tradition-
based refers to knowledge systems, creations,
innovations and cultural expressions which: have
generally been transmitted from generation to
generation; are generally regarded as pertaining to a
particular people or its territory; and, are constantly
evolving in response to a changing environment.
Categories of traditional knowledge could include:
agricultural knowledge; scientific knowledge; technical
knowledge; ecological knowledge; medicinal
knowledge, including related medicines and remedies;
biodiversity-related knowledge; expressions of
folklore" in the form of music, dance, song, handicrafts,
designs, stories and artwork; elements of languages,
such as names, geographical indications and symbols;
and, movable cultural properties. Excluded from this
description of [traditional knowledge] would be items
not resulting from intellectual activity in the industrial,
scientific, literary or artistic fields, such as human
remains, languages in general, and other similar
elements of heritage in the broad sense.104
Other definitions for traditional knowledge may be found in legal texts of various
countries around the world. Costa Ricas Biodiversity Law states:
For the purposes of this law, intangible components,
which are included within the term biodiversity, are: the
knowledge, innovations and practices, be.they
traditional, individual or collective, with real or potential
value associated with biochemical or genetic
resources, whether these are protected or not by
systems of intellectual property or by sui generis
registration systems.105 [Knowledge should be
understood as the] [d]ynamic product generated by
society over time and by different means, including that
104 World Intellectual Property Organization. Supra note 98.
105 Costa Rica. Asamblea Legislativa. Ley No. 7788 del 23 de Abril de 1998, Lev de Biodiversidad.
[Costa Rica. Legislative Assembly. Law No. 7788 of April 23rd 1998, Biodiversity Law.] Government
Publication, 1998. Article 7, section 2.
54


which is produced in the traditional manner, and that
generated by scientific practice.106
Lao Peoples Democratic Republic states within its laws that, Traditional
Knowledge [is] all individual and collective knowledge, innovations or practices of
local communities based on biological resources.107
Already the definition of Mugabe was offered as a sample of the conceptualization
of traditional knowledge among scholars. In this respect Srividhya Ragavan defines
traditional knowledge in the following manner:
The term "traditional knowledge" refers to knowledge,
possessed by indigenous people, in one or more
societies and in one or more forms, including, but not
limited to, art, dance and music, medicines and folk
remedies, folk culture, biodiversity, knowledge and
protection of plant varieties, handicrafts, designs,
literature.108
Federico Mayor, the Director General for UNESCO in 1994 defines traditional
knowledge in the following way:
The indigenous people of the world possess an
immense knowledge of their environments, based on
centuries of living close to nature. Living in and from
the richness and variety of complex ecosystems, they
have am understanding of the properties of plants and
animals, the functioning of ecosystems and the
techniques for using and managing them that is
particular and often detailed. In rural communities in
developing countries, locally occurring species are
relied on for many sometimes all foods, medicines,
fuel, building materials and Other products. Equally,
peoples knowledge and perceptions of the
Ibid. Article 7, section 6.
107 Lao Peoples Democratic Republic. Decree on Biological Resources and Related Traditional
Knowledae.
77TCT-- 1 - J-
Ragavan, Srividhya. Protection of Traditional Knowledge. Minnesota Intellectual Property Review. 2
Minn. Intell. Prop. Rev. 1, 2001. Online. LexisNexis Academic. October 22na 2002.
55


environment, and their relationships with it, are often
important elements of cultural identity.109
The Nunavut Wildlife Management Board offers yet another definition:
Traditional knowledge is the knowledge people have
gained over the years of the environment and the world
around them. Traditional knowledge is gained both by
personal experience and by the passing on of
information from one generation to the next.110
After considering these discussions and all of these and other definitions, it seems
as if all of them provide different elements to essentially the same definition.
Nonetheless, because of all the aforementioned reasoning, the term traditional
knowledge remains the most adept to represent indigenous peoples and local
communities intangible creations of the mind. Many share this view, as more and
more scholars, international organizations, non-profit groups and indigenous and
local communities use and develop the term traditional knowledge.
However, the term is also disputed because of the use of the word traditional.111
Albeit, the term has been widely accepted, small sectors of indigenous groups,
particularly in North America, have the following opinion:
Many indigenous people avoid the term traditional
knowledge because traditional implies that the
knowledge is old, static, and passed downcfrom
generation to generation without critical re-evaluation,
change or further development. In other words, the
109 The Alaska Native Science Commission. Presentation of Federico Mayor, Director General of
UNESCO 1994. Online: October 22nd
2002.
110
Nunavut Wildlife Management Board. Letter to the author. 19 March 2002.
111 In Australia the term is not regarded as sufficiently encompassing and descriptive. They suggest
indigenous cultural and intellectual property, however this term encounters the same problems as
describes for indigenous knowledge, indigenous intellectual property and cultural property. For more
information see World Intellectual Property Organization. Intellectual Property Needs and Expectations
of Traditional Knowledge Holders. WIPO Report on Fact-Finding Missions on Intellectual Property and
Traditional Knowledge (1998-1999'). Fact Finding Mission to the South Pacific. Geneva: World
Intellectual Property Press, 2001. Page 71.
56


implication is that [traditional knowledge] is not
science in the formal sense of a systematic body of
knowledge that is continually subject to empirical
challenges and revision. Rather the term implies
something cultural and antique. [...] What... the
international community needs to protect is indigenous
science.112
Although this study particularly acknowledges that indigenous peoples and local
communities are the ones that must decide what constitutes their own knowledge,
innovations, cultures, practices or science, and the ways in which they should be
defined. The majority of indigenous peoples accept the term traditional knowledge
as the most accurate representation of their intangible intellectual creations.
Moreover, the same reservations may be made to the term indigenous science as
the ones pointed out for the term indigenous knowledge. Furthermore, the word
science is not appropriate to represent dances, works of art or literature, which
would be excluded if this term is adopted. Finally, to the allegation that the word
traditional implies old and static knowledge passed without critical re-evaluation, the
word traditional is not used only in relation to indigenous peoples, it is also used for
non-indigenous local communities. The word has acquired a meaning and legitimacy
in academia and within the international discussion on this topic. The expression is
not used to refer to old, static, or antique, it is used to demonstrate that it is a
knowledge that has a transitive characteristic and that it is used in the daily
management of socio-economic and cultural life within distinct groups to the
mainstream society. This transitive characteristic implies a critical re-evaluation and
even innovation on behalf of traditional knowledge holders. The following must be
considered:
Traditional knowledge is traditional only to the extent
that its creation and use are part of the cultural
112 World Intellectual Property Organization. Intellectual Property Needs and Expectations of Traditional
Knowledge Holders. WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional
Knowledge (1998-19991. Fact Finding Mission to North America. Geneva: World Intellectual Property
Press, 2001. Page 117.
57


traditions of communities. Traditional, therefore, does
not necessarily mean that the knowledge is ancient or
static. Traditional knowledge is being created every
day, it is evolving as a response of individuals and
communities to the challenges posed by their social
environment.113
Traditional knowledge is not merely learned by rote
and handed down from one generation to the next.
Inherently dynamic, it is subject to a continuous
process of verification, adaptation and creation, altering
its form and content in response to changing
environmental and social circumstances.114
What is 'traditional' about traditional knowledge is not
its antiquity, but the way it is acquired and used. In
other words, the social process of learning and sharing
knowledge, which is unique to each indigenous culture,
lies at the very heart of its 'traditionally.' Much of this
knowledge is actually quite new, but it has a social
meaning, and legal character, entirely unlike the
knowledge indigenous peoples acquire from settlers
and industrialized societies.115
The word is not used to demean indigenous peoples or to subjugate their
knowledge as inferior to Western science, even though many scholars and
indigenous activists have mentioned that [tjribal peoples were placed at the very
bottom of the cultural evolutionary scale,116 "[t]he Indian explanation was always
cast aside as a superstition, precluding Indians from having an acceptable status as
human beings, and reducing them in the eyes of educated people to a pre-human
level of ignorance.117 For this reason is that traditional knowledge is accepted as
something cultural, the term science must be avoided altogether and not be used
113 World Intellectual Property Organization. Intellectual Property Needs and Expectations of Traditional
Knowledge Holders. WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional
Knowledge (1998-19991. Summary Reflections and Conclusions. Geneva: World Intellectual Property
Press, 2001. Page 212.
114 Idem.
115 Lawrence Barsh, Rusell. Indigenous Knowledge and Biodiversity, in Darrel A. Posey Cultural and
Spiritual Values of Biodiversity. Essex: Intermediate Technology Publications, 2000. Page 73-75.
11b Deloria Jr., Vine. Supra note 18. Page 63.
117 Ibid. Page 19.
58


to describe indigenous or local communities knowledge, nor Western knowledge.
This helps to avoid entering a war of which science is better (even if indigenous
knowledge can substantiate being the source of most Western knowledge and far
better, according to Vine Deloria Jr.).118
It is not the term used what many indigenous peoples find discord with, but rather
the terms interpretation and definition. Since, considering all the aforementioned
traditional knowledge conceptualizations and others available, they fail to convey or
include indigenous peoples and local communities view of the world and their
opinion about the term that should be used and its definition. Any definition provided
herein must be considerate of indigenous peoples and local communities opinions
and views.
For this reason and given all the contentious debate that has been demonstrated
in this part of this study, it seems appropriate to finalize this chapter by offering for
discussion this studys working definition of traditional knowledge:
Traditional knowledge may be defined as the past, present or future systematic
information, wisdom, experiences or practices (knowledge); usually collectively
obtained, created, held, used or possessed in written or oral form by indigenous
peoples and local communities. This knowledge is obtained by indigenous peoples
and local communities from previous generations, spiritual sources or through
empirical daily living. This knowledge may be created or innovated by present or
future generations but remains with these peoples as a cultural expression of those
peoples innate connection with the spiritual or living natural world. This knowledge is
preserved and transmitted through generations, usually in oral tradition, rather than
in texts and it encompasses the totality of all knowledge, whether implicit or explicit,
used in the management of socio-economic, cultural and political facets of life by a
peoples distinct to the mainstream society.
118 Idem.
59


CHAPTER 3
HISTORICAL SYNOPSIS
I have been to the end of the earth.
I have been to the end of the waters.
I have been to the end of the sky.
I have been to the end of the mountains.
I have found none that are not my friends.119
-Navajo Proverb.
This chapter will offer a brief historical synopsis of traditional knowledge and its
discussion in national and international law and politics. Since this study is
concerned specifically with the protection of traditional knowledge, the history of
attempts at protecting traditional knowledge will be examined. Given that intellectual
property law has been the Western system most commonly used to attempt
protective mechanisms of traditional knowledge, this chapter will include a brief
summary of the contemporary history of intellectual property law in addressing the
topic of traditional knowledge.
From 1984 to 1989 a slowdown -from international agencies or organizations- in
the development of traditional knowledge protection was clearly evident. The events
that took place in1990 to1992 illustrate the end of this slowdown, and a resurgence
of the debate. For this reason, this chapter is divided into two sections representing
two periods in time: Pre-1990 and Post-1990.
History: Before 1990
On October 12, 1492, relations forever changed between Europeans and the
indigenous peoples of the Western hemisphere.
A new era began that day, one characterized by oppression, genocide, ecocide
and greed. History cannot be undone, but it can provide lessons for the future.
119 Vcircle Website Online: October 22nd 2002.
60


Indigenous peoples of this hemisphere continue their struggle to maintain their
cultural physical survival.
From time immemorial indigenous worldviews created a symbiotic relationship
between humans and the environment. The Maori indigenous people of New
Zealand use the word /ca/f/a/c/120 to refer to guardian. However, that word has more
depth and meaning, its a word that carries tremendous responsibilities. [T]o be a
kaitiaki means looking after ones own blood and bones -literally. Ones whanaunga
relatives and tupuna ancestors include the plants and animals, rocks and trees. We
are all descended from Papatuanuku [Earth Mother]; she is our kaitiaki and we in
turn are hers121, explain the Maori; The Lakota indigenous peoples speak of a
comparable belief, the Nagila which, as they explain dwells in everything, it is a part
of the force that makes all things and beings relatives to each other and to their
common ancestor.122 Nonetheless, this belief is commonly shared across indigenous
societies. Indigenous peoples have been and continue to be the souls who have
been entrusted with the care of the earth.
Indigenous peoples historically have had a special interconnectedness with the
earth and all living things. As Gularrwuy Yunupingu a clan leader from the Gumadji
aboriginal people of Australia explains, Aboriginal belief systems based on affinity to
land underpin Aboriginal existence. [...] We believe the land is all life. So it comes to
us that we are part of the land and the land is part of us. It cannot be one or the
other. We cannot be separated by anything or anybody.123 This profound bond has
helped indigenous peoples understand the secrets of nature in a profound way. In
1492, indigenous peoples welcomed the weary and lost European voyagers willingly
offering to share their land, resources and knowledge. However, the oppression,
genocide, ecocide and greed that characterized the European contact with
120 Roberts, Roma Mere, et. al. Kaitiakitanaa: Maori Perspectives on Conservation. In Pacific
Conservation Biology: A Journal Devoted to Conservation and Land Management in the Pacific Region.
7,10.1995. Page 13.
121 Idem.
122 Maracle, Lee. I am Woman: A Native Perspective on Sociology and Feminism. Vancouver: Press
Gang Publishers, 1996.
123 w
Yunupingu, Galarrwuy, ed. Our Land is Our Life: Land Riahts-Past. Present and Future. Portland:
International Specialized Book Services, 1997. Page xv-xvi, 1,2-3.
61


indigenous peoples became a preface to the unfettered appropriation of land and
knowledge. This process of colonization has also caused some indigenous peoples
to lose or forget their traditional knowledge.
Still, indigenous peoples have been willing to share their knowledge. Over 500
years later the situation has not changed much. Hopefully, a new era of recognition,
respect and remuneration of indigenous peoples rights will now begin. May these
brief words exalt the fact that we must not forget the past and reconsider history in a
just and fair-minded way.
In 1883, the Paris Convention for the Protection of Industrial Property (Paris
Convention) was signed. The need for international protection of industrial property
became apparent with all the intellectual creation that was occurring and when
foreign inventors and exhibitors refused to attend the 1873 International Exhibition of
Inventions in Vienna. The inventions presented at the 1883 Worlds Fair that
opened in Amsterdam, the first telephone call between New York and Chicago and
the construction of the Brooklyn Bridge, represented the first works given
international protection of the new Paris Convention. Little did indigenous peoples
around the world know that these events would eventually lead to critical discussion
a century later that would affect their very survival.
The Paris Convention is the root of the World Intellectual Property Organization
(WIPO). In 1884, after the convention entered into force, an international bureau was
established to carry out administrative tasks mandated by the Paris Convention.
However, in 1886, just three years after the adoption of the Paris Convention, the
Berne Convention for the Protection of Literary and Artistic Works (Berne
Convention) was signed in Paris. Johannes Brahms third symphony and Robert
Louis Stevensons Treasure Island were among the first works protected when the
Berne Convention came into force.
By 1893 the two bureaus created by the Paris and Berne Conventions
respectively, joined to form the United International Bureau for the Protection of
Industrial Property (BIRPI). In 1960 BIRPI moved from Berne to Geneva, by 1970
BIRPI was now WIPO because of the signing of the Convention Establishing the
62


World Intellectual Property Organization (WIPOs 1967 Convention), and by 1974
WIPO became the United Nations specialized agency for intellectual property, with a
mandate to administer all intellectual property matters of the United Nations member
states.
This is especially important concerning traditional knowledge because the Berne
Convention is the foundation of contemporary copyright law, the first mechanism that
was attempted to protect traditional knowledge. Furthermore, it is important because
WIPO is believed to be the organization that initiated the international discussion on
traditional knowledge.
Intellectual property has been one of the most rapidly evolving fields in
international law. Despite this rapid evolution, during the establishment of the Paris
and Berne Conventions as the foundation of WIPO,.and during the tremendous
development of intellectual property at the end of the nineteenth century and the
beginning of the last, no international organization, country or individual considered
the recognition and protection of indigenous peoples and local communities
knowledge.
Traditional knowledge has not been given special recognition as such until very
recently. As mentioned previously, folklore and expressions of folklore were the
first names given to the category today considered traditional knowledge. Initially,
folklore and expressions of folklore were used because recognition and protection
was sought through the copyright system of laws.
The first attempts to recognize and protect folklore, more specifically, use of
creations of folklore, were made by UNESCOs ongoing preoccupation with the
protection of cultural property. UNESCO concerned with the facilitation of visual and
auditory materials of an educational, scientific and cultural character and the free
flow of ideas, adopted in 1948 the Agreement for the Facilitation of Visual and
Auditory Materials of an Educational, Scientific and Cultural Character (Beirut
Agreement). In 1950 approved the Agreement on the Importation of Educational,
Scientific And Cultural Materials (Florence Agreement) which complemented the
previous agreement eliminating tariffs and duties visual and auditory materials, of an
63


educational, scientific and cultural character, to improve the free flow of ideas
worldwide. These agreements reaffirmed UNESCOs commitment to protect cultural
property. However, UNESCOs commitment was focused on tangible property.
UNESCO realized the need to protect intangible cultural property, namely
folklore. However, UNESCO faced what will be a common dilemma even today;
whether to protect folklore within the realm of copyright law or use other legal
methods.
Until 1950, the Berne Convention had failed to protect intangible cultural
property, or folklore. This was attributed to two reasons. First, this convention
required that all intangible materials needed to have an individual known author, who
must also be a national of one of the signatory countries. Second, the intangible
material had to also be fixed in a tangible medium, in order to be protected by
copyright international law.
In 1952 UNESCO began the relationship between copyright law and intangible
cultural property or folklore with the adoption of the Universal Copyright
Convention (UCC). The Berne Convention began contemporary copyright law
protection, however, the UCC established -coupled with the Berne Convention-
standards of copyright protection which each country agreed to observe in its
national legislation. Although the Berne Convention was not changed, the UCC
complemented it, enabling a more thorough protection of intangible property, since
no longer fixation in a tangible medium was required for protection. This kind of
protection was viable through national copyright laws. Furthermore, national
legislation would be extended to protect works from any other signatory country. In
other words, the Berne Convention and the UCC intended to curb the international
exploitation of literary and other works by implementing laws that would enable
penalties for copyright infringements.
A series of recommendations and declarations from 1952 to 1966, including the
Recommendation on the Means of Prohibiting and Preventing the Illicit Export,
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Import, and Transfer of Ownership of Cultural Property124 and the Declaration of
Principles for International Cultural Cooperation.125 The latter was aimed at providing
individuals with equal access to knowledge and enjoyment of the arts, while the first
recommendation was aimed to protect national material cultural heritage from illicit
operations that threaten it. These documents demonstrate UNESCOs commitment
at safeguarding intangible property, such as cultural information and alike.
Concurrently, in 1963 UNESCO and BIRPI jointly organized a regional meeting on
the Study of Copyright in Brazzaville (Congo) where, for the first time, a
recommendation relating directly to folklore was adopted. It was decided that the
best means to safeguard the integrity of African heritage and folklore, to protect it
from exploitation, would be the adoption of national legislation by local governments.
In a regional context, during the same period, the National African Radio and
Television Union (URTNA) organized a meeting in Tunis in 1964, which focused on
the itemization and preservation of folklore.
All these efforts initiated increased attention towards the recognition and
protection of folklore. However, initially, folklore was regarded as public domain
and its protection vested in the State. This is demonstrated by the first efforts at
national legislation from local governments to protect folklore. In 1956, Mexico
adopted a Copyright Statute with a mixed revenue-based approach, with which
works deriving from the pubic domain (folklore) were to become registered with a
Copyright Directorate. Mexico was the first government to create national legislation
aimed at regulating folklore. Although the Mexican statute did not specifically
mention folklore, it was principally concerned with works from the public domain. In
the context of that time that meant folklore.
In 1967, Papua New Guinea passed the National Cultural Preservation
Ordinance, a mixture of preservation and custom approaches which aimed at
124 United Nations Educational, Scientific and Cultural Organization. Recommendation on the Means of
Prohibiting and Preventing the Illicit Export. Import, and Transfer of Ownership of Cultural Property.
General Conference of the United Nations Educational, Scientific and Cultural Organization 13th
Session, November 1964. Paris: UNESCO. 1964.
125 United Nations Educational, Scientific and Cultural Organization. Declaration of Principles for
International Cultural Cooperation. General Conference of the United Nations Educational, Scientific
and Cultural Organization 14th Session, November 1966. Paris: UNESCO. 1966.
65


preserving and protecting authentic cultural material from cultural loss and invasion.
This was the first effort of directly and specifically protecting cultural property and
folklore. In the same year, Tunisia followed with similar national legislation.
In 1968, Bolivia passed a decree of copyright protection,126 whereby ownership
and control of musical folk music become vested in the State. Other national laws
were adopted on the topic of folklore by national governments from 1968 to 1980. In
this respect, among the countries that undertook such a task were Chile and
Morocco in 1970; Algeria and Senegal in 1973; Kenya in 1975; Mali in 1977; Burundi
and Ivory Coast in 1978; and Guinea in 1980. Moreover, other international and
regional documents explicitly regulated the use of creations of folklore, such as the
Tunis Model Law on Copyright for Developing Countries (Tunis Model Law) on 1976
and the Bangui Convention Concerning the African Intellectual Property Organization
(OAPI Convention) of 1977. All these texts consider works of folklore as a part of
the cultural heritage of the nation.
Nonetheless, the scope of folklore as described by all of the aforementioned
texts was understood in different ways. Regardless of the scope of folklore all those
texts had an important copyright-related element in their definitions of folklore
(except the Tunis Model Law that contained no definition). The common element was
that folklore must have been created by authors of unknown identity but presumably
being or having been nationals of the country. This complemented the UCC in
enabling a more thorough protection. By this point in various countries, copyright
could be conferred even if the author was unknown and the intangible material was
not fixated in a tangible medium. However, still the authorship was granted to an
individual (in most cases the State as trustee), this presented a problem with
community-based authorship. The OAPI Convention provided a solution by
mentioning creations by communities rather than individual authors. This event
distinguished creations of folklore from works protected under conventional
copyright. The Tunis Model Law considered folklore using both of these alternatives
126 Republics de Bolivia. Congreso Nacional, Camara de Senadores. Decreto Supremo No. 08396. La
Paz: Congreso Nacional, 1968.
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stating that folklore will constitute creations by authors presumed to be nationals of
the country concerned, or by ethnic communities."127
According to the Law of Morocco, folklore comprises all unpublished works of the
kind, whereas the laws of Algeria and Tunisia do not restrict the scope of folklore to
unpublished works. The law of Senegal, on the other hand, defines folklore as both
literary and artistic works. Finally, the OAPI Convention and the Tunis Model Law
protect folklore also as scientific works, an enormous development toward
protecting traditional knowledge. Protection by most of these documents also
recognized works inspired or derived from folklore which required an approval of a
competent entity if they were to be used for commercial (profit-making) purposes.
The law of Senegal and the Tunis Model Law even required a prior authorization for
public performance of folklore with gainful intent.
However, as it was mentioned before, WIPO and UNESCO are considered the
precursors of the contemporary discussion on traditional knowledge. This is because
of all of UNESCOs work on the topic of folklore and because WIPO was the
administrative organization for the Berne Convention; the main body of law that was
to be used to protect folklore.
Despite the aforementioned shortcomings of the Berne Convention, by the 1950s
a large number of countries had become party to this convention and more were to
follow very shortly. The large number of signatory States that are part of the Berne
Convention made it the primary mechanism for the protection of folklore through
copyrights.128
In 1967 at the Diplomatic Stockholm Conference129 for the revision of the Berne
Convention, a specific attempt was made to protect expressions of folklore at the
international level by means of copyright law. Moreover, it was suggested that the
127 World Intellectual Property Organization. Tunis Model Law on Copyright for Developing Countries.
Geneva: WIPO, 1976.
128 For a complete list of signatory countries of the Berne Convention and the date when they became
party, visit WIPOs web site at:
October 22nd 2002.
129 World Intellectual Property Organization. Records of the Intellectual Property Conference of
Stockholm. Summary Minutes. Main Committee I. Volume II. Geneva: WIPO, 1967. Pages 964-981 and
1505-1515.
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topic of folklore became the subject of a worldwide convention. However, after
much negotiation, it was concluded that the conceptual complexity of folklore
prevented the immediate development of such a convention. It was deemed
preferable to add a provision to the Berne Convention, one founded on general
rather than specific principles. As a result, a new provision was adopted, yet it only
provided vague guidelines for the protection of folklore. The committee for the
revision of the substantive provisions of the Berne Convention set up a special
Working Group to elaborate suggestion concerning where would be the most
suitable location in the Berne Convention for a provision concerning folklore. The
working groups proposal was adopted unanimously.130 The provision, included in
article 15 reads as follows:
In the case of unpublished works where the identity of
the author is unknown, but where there is every ground
to presume that he is a national of a country of the
Union, it shall be a matter for legislation in that country
to designate the competent authority which shall
represent the author and shall be entitled to protect
and enforce his rights in the countries of the Union.131
It is interesting to note, however, that the provision adopted to protect folklore
does not actually include the word folklore. This provision not only embraces
folklore but also other works that are not considered folklore. It is only because of
the legislative history and the intent of adopting this provision that suggested that it
was created for the protection of expressions of folklore.
In any case, this provision did not appear to have a profound effect in the
protection of folklore, yet this is still regarded as the foundation of the international
discussion on folklore which led many years later to the debate on traditional
knowledge. So ineffective was this provision that by 1985 the Director-General of
WIPO had yet to receive a deposit of an official notification from any State,
130 Ibid.World Intellectual Property Organization. Pages 854-878 and 1321-1339.
131 World Intellectual Property Organization. Supra note 128. Article 15, section 4, subsection a.
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concerning the designation of the national authority to protect expressions of
folklore.
International interest in providing comprehensive protection for intangible cultural
heritage (as UNESCO referred to folklore) continued into the following decade. In
1971, UNESCO prepared a document entitled Possibility of Establishing an
International Instrument for the Protection of Folklore.132 This paper did not offer a
specific solution, it did however, recommended that imperative action on the
protection of folklore was needed, due to a progressively deteriorating situation.
This document became the foundation of what was going to be the analysis of
protection of expression of folklore.
Between 1972 and 1979 UNESCO continued, within its own work and in
conjunction with other United Nations Agencies, the campaign to protect intangible
cultural heritage. These years were characterized for a revival of a national attitude
towards culture. This was mainly due to the newly-found independence of many
developing countries which were engages in nation-building efforts, effectively
reviving national traditions and constructing national sentiments of identity. It was
also during this period that the international indigenous peoples movement began to
gain strength. Indigenous peoples began to assert their grievances for land and self-
governance. Along with those complaints, indigenous peoples objected that folklore
was regarded as public domain and referred to, in most cases, as anonymous,
when in fact, most of it constituted practices and works from indigenous societies.
Never before was folklore acknowledged as belonging to indigenous peoples.
UNESCO, responding to the growing interest on this topic, began convening
meetings and intergovernmental conferences on matters relating to tangible and
intangible heritage. Between 1972 and 1979, UNESCO convened three
Intergovernmental Conferences on Cultural Policies: Yogyakarta in 1973; Accra in
1975; and Bogota in1978. All three conferences requested UNESCOs assistance in
preserving cultural heritage and popular traditions. In 1976, UNESCO launched the
132 United Nations Educational, Scientific and Cultural Organization. Document B/EC/IX/11-
IGC/XR.1/15. Paris: UNESCO, 1971.
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Comprehensive Program on Intangible Cultural Heritage;133 the purpose of this
program was to promote appreciation and respect for cultural identity, traditions,
languages, cultural values, and ways of life.134 Shortly thereafter and in conjunction
with this program, UNESCO convened two meetings on the study of oral tradition;
the first of these meetings in Manila in1978 and the second one in Katmandu in
1979.
Although indigenous peoples were quite active in international fora, they seldom
participated in these conferences. This was mostly because UNESCO and many
participants did not yet acknowledge, indigenous peoples contribution to folklore.
Nevertheless, in 1972 an advance towards the protection of expression of
folklore was made, when UNESCO adopted the Convention Concerning the
Protection of the World Cultural and Natural Heritage.135 This convention, although
had to address certain issues concerning intangible cultural heritage, it did not, and
was limited to tangible cultural heritage.
The non-inclusion of intangible cultural heritage in this convention and a
memorandum of the government of Bolivia to the Director-General of UNESCO in
1973 requesting that UNESCO examine the possibility to establish an international
treaty on the protection of folklore is what sparked the subsequent meetings.
As the years passed and UNESCOs work with folklore led more and more to
copyrights as a viable means of protection, the relationship of folklore and
intellectual property was being consolidated. In 1976, UNESCO and WIPO, under
the label of addressing the intellectual property aspect of folklore, undertook a joint
effort for its protection by preparing the Tunis Model Law.
In May 1978, the Secretariats of UNESCO and WIPO formally agreed that
UNESCO would examine the question of safeguarding folklore on an international,
interdisciplinary approach, while WIPO would participate only in circumstances
133 United Nations Educational, Scientific and Cultural Organization. General Conference. November.
19th Session. 1976. Paris: UNESCO. 1976.
134 Idem.
135 United Nations Educational, Scientific and Cultural Organization. General Conference, 17th Session,
1972. Records of the General Conference: Seventeenth Session in Paris. Volume 111. Paris: UNESCO.
1972.
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involving aspects of copyright and intellectual property.136 The two organizations
agreed to reconvene in 1979 in order to conduct a further joint study on these
matters.
By August 1979, WIPO and UNESCO had reconvened and a permanent joint
WIPO-UNESCO committee had been recommended to address the international
protection of folklore.
In January 1980, UNESCO and WIPO jointly convened the first meeting of the
Working Group on the Intellectual Property Aspects of Folklore Protection (Folklore
Working Group). The primary objective of this meeting was to study a draft Model
Provision for National Laws on the Protection of Creations of Folklore and to
examine international measures for the protection of folklore. This meeting reflected
a growing international concern for the protection of intangible cultural heritage,
particularly those aspects relating to intellectual property.
In February 1981, UNESCO and WIPO convened the second meeting of the
Folklore Working Group. It was concluded that all related commentary concerning
folklore should be presented for further consideration at a meeting of governmental
experts jointly convened by UNESCO and WIPO in 1982.
In 1982, UNESCO and WIPO jointly organized a meeting of a Committee of
Governmental Experts on the Intellectual Property Aspects of the Protection of
Expressions of Folklore in Geneva. This meeting was to create model provisions for
national laws to protect expressions of folklore using principles similar to those of
intellectual property law and taking into account the results of all previous meetings.
Such provisions would make any use of folklore subject to authorization and allow
the imposition of prohibitions or restrictions on distortions and commercial
exploitation of folk materials. This meeting concluded with the adoption of the Model
Provisions for National Laws on the Protection of Expressions of Folklore Against
136 United Nations Educational, Scientific and Cultural Organization. General Conference, 20th Session,
1978. Records of the General Conference: Twentieth Session in Paris. Volume II. Resolution 5/9.2/1.
Paris: UNESCO. 1978.
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Illicit Exploitation and Other Prejudicial Actions137 (Model Provisions). Many hoped
that these provisions would serve as a basis for subsequent international regulation.
After this meeting, UNESCOs and WIPOs work on folklore was becoming
independent of each other. UNESCO began studies to protect folklore from a
cultural perspective, while WIPO intended to provide that protection strictly from an
intellectual property (copyright) approach. Albeit, they still worked jointly in many
issues a separation in their work was predominantly evident.
UNESCO and WIPO organized in Paris, a Committee of Experts on the
International Protection of Expressions of Folklore by Intellectual Property in
December, 1984. This meeting proposed the adoption of a treaty for intellectual-
property-type protection for expressions of folklore and to submit it to the executive
committee of the Berne Convention and the UCC committee for approval by member
States. However, this joint meeting in Paris was the last of its kind. UNESCO and
WIPO convened no further conferences on this matter for the remainder of the
decade. Participants at that meeting were unable to reach an agreement without
recognizing collective rights to certain indigenous and non-indigenous communities.
According to the records of that meeting, an agreement making such recognition
would have signified impairing the emerging globalization process. This defeated any
attempts at establishing protection for folklore at the international level and caused
WIPO and UNESCO to drop the issue of folklore from their programs for many
years. ~ . -
UNESCO continued its work on intangible cultural heritage through its programs
concerning tangible cultural heritage. They did not produce much advance on the
subject, until 1989.
137 United Nations, Educational, Scientific and Cultural Organization and World Intellectual Property
Organization. Secretariats of the United Nations, Educational, Scientific and Cultural Organization
(UNESCO) and World Intellectual Property Organization (WIPO). Committee of Governmental Experts
on the Intellectual Property Aspects of the Protection of Expressions of Folklore. General Conference,
Geneva June 28 to July 2,1982. Model Provisions for National laws on the Protection of Expressions of
Folklore Against Illicit Exploitation and Other Prejudicial Actions New York: United Nations, 1985.
Section 2. Online: > October 22nd 2002.
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The 1980s also saw the establishment of the Working Group on Indigenous
Populations (Indigenous Peoples Working Group) as a subsidiary organ of the
United Nations Sub-Commission on the Promotion and Protection of Human
Rights.138 The Indigenous Peoples Working Group felt the attention that folklore
and expression of folklore was having in international fora, and began to research
and include in their discussions all issues related to the intellectual property rights of
indigenous peoples. The Indigenous Peoples Working Groups findings were then to
be included in the writing of the Draft Declaration on the Rights of Indigenous
Peoples139 (Draft Declaration). The Indigenous Peoples Working Group discussed
the matter for a decade that culminated in the inclusion of intellectual property rights
of indigenous peoples in the Draft Declaration.
In the decade of the eighties the Food and Agriculture Organization (FAO) of the
United Nations became the main forum of what became known as "the seed
wars.140 Cary Fowler and Pat Mooney members of the Rural Advancement
Foundation International (RAFI),141 were among the most renowned activists to
protect the 'property rights' of the Third World through challenging industrialized
countries' access to genetic diversity.142 Developed nations increased interest in
genetic diversity created a movement calling for the protection of farmers rights.
Amidst the pressure to develop an international treaty concerning plant genetic
resources, FAO agreed in 1983, to establish the Commission on Genetic Resources
for Food and Agriculture.143 This commissions main purpose was "to ensure that
plant genetic resources of economic and/or social interest, particularly for agriculture,
138 The Working Group on Indigenous Populations was established pursuant to resolution 1982/34 of
the Economic and Social Council of the United Nations in 1982.
139 United Nations. Draft United Nations Declaration on the Rights of Indigenous Peoples. Economic
and Social Council. 36m Meeting, August 26th 1994. Resolution 1994/45. New York: United Nations,
1994.
140 Seed Wars is a term that was developed in the 1980s, for a more in-depth discussion on seed
wars, FAO and developing nations see, Kloppenburg Jack, Jr. and Daniel Lee Kleinman. Seed Wars:
Common Heritage. Private Property, and Political Strategy. 95 SOCIALIST REV. 6 1987.
141 Now called Action Group on Erosion, Technology and Concentration (ETC Group).
142 Fowler, Cary. Unnatural Selection: Technology. Politics and Plant Evolution. New York: Gordon &
Breach Publishing Group, 1994. Page, 180.
143 Food and Agriculture Organization. General Conference, 22nd Session, Rome 1983. Resolution 9/83.
Rome: FAO, 1983.
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will be explored, preserved, evaluated and made available for plant breeding and
scientific purposes."144 However, this commission had to ensure that plant genetic
resources are not detrimental to farmers rights.
With the appearance of the Breeders Rights concept in intellectual property law,
the FAO had to recognize the local knowledge of resource-poor farmers to enable
some kind of protection. Hence, through a resolution in 1989145, FAO defined
Farmers Rights and initiated the notion of local knowledge. Although this is a non-
legally binding resolution, it began an accreditation of grassroots knowledge to
traditional methods in agriculture.
In 1989, UNESCO adopted the Recommendation on the Safeguarding of
Traditional Culture and Folklore146 (1989 Folklore Recommendations). This
represents UNESCOs last attempt in the decade of the eighties to protect folklore.
This also represents the most cohesive attempt to codify a protection on folklore.
Although, equally non-legally binding, it symbolizes an effort to protect traditional
knowledge.
History: After 1990
It is said that the nineties decade was the technology period. Perhaps, the
nineties is best characterized by the aggressive advancement of intellectual property
rights and international trade development.
Although, the globalization process -the unification to create tariff-free common
markets- began as early as 1947 with the original General Agreement on Tariffs and
Trade147 (1947 GATT), the current international trade system began in 1982. Well,
early in the eighties decade, talks were beginning to take form on the establishment
of an international system of intellectual property.
144 Food and Agriculture Organization. General Conference, 22nd Session, Rome 1983. International
Undertaking on Plant Genetic Resources. Online: ftp.fao.org/waicent/pub/cgrfa8/iu/iutextE.pdf.> October 22nd 2002.
1 5 Food and Agriculture Organization. General Conference, 25th Session, Rome 1989. Farmers Rights.
Resolution 5/89. Online: October 22nd 2002.
146 United Nations Educational, Scientific and Cultural Organization. General Conference. November
15th 1989. 25th Session. 1989. Paris: UNESCO. 1989.
147 World Trade Organization. General Agreement on Tariffs and Trade. 1947. Geneva: WTO, 1986.
Online: October 22nd 2002.
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Even if WIPO was already managing several international agreements concerning
intellectual property in the early 1980s, there were still many countries that were not
an integral part of WIPOs governing legal texts. WIPO was nonetheless,
strategically positioned to unify the international arena and was set in a mission to
completely create an international cohesive set of intellectual property laws.
The international trade system as it is established today began to take strength in
the early eighties, and it was hard to envision that by the end of the century it would
have become the process by which the worlds nations would unite to establish a
common market utilizing intellectual property as one of the means to do it.
Rightly, in the nineties decade, we were all introduced to the advantages and
disadvantages of an increasingly global world.
Concerning traditional knowledge, the 1990s would become the period where the
study of this topic would be set in motion as one of the principal concerns in
international law and politics. The discussion on traditional knowledge has gradually
intensified ever since the nineties decade began. From the time when the
developments on folklore and expressions of folklore were carried out by UNESCO
and WIPO and ever since the advances on local knowledge by FAO, both in 1989,
the thematic of traditional knowledge was left dormant for almost three years,
although not completely.
There was little advance on traditional knowledge, even if folklore was still being
discussed within UNESCO and WIPO. It seemed as if with the 1989 Folklore
Recommendations UNESCO had been satisfied because the discussion had less
intensity in UNESCO since then. WIPO on the other hand concentrated less on
expressions of folklore and rather devoted more attention to other intellectual
property rights.
Indigenous peoples were thought to be controlled all throughout the eighties,
however, the nineties decade was also characterized as the period when indigenous
peoples became more active in international fora, and not only that, they were being
listened, especially through the Indigenous Peoples Working Group.
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Traditional knowledge has never ceased to be an issue for indigenous peoples,
however, it was until 1992 that the issue was again revived in international law and
politics. In accordance with a decision of the Economic and Social Council of the
United Nations,148 the Special Rapporteur Erica-lrene Daes was asked to prepare a
study on the protection of the cultural and intellectual property of indigenous peoples,
a report that had to take into account the information provided to her by indigenous
peoples and all the relevant international standards. Indigenous peoples made their
comments during the eleventh session of the Indigenous Peoples Working Group.149
This discussion recalled the notion that intellectual property rights of indigenous
peoples were very important and hence, needed to be included in every agenda with
a stronger force than ever.
The 1990s began a period of greater indigenous participation in meetings and
conferences. Between 1990 and 1992 a series of regional indigenous peoples
meetings discussed the issue of intellectual property rights and traditional knowledge
among other topics. No meetings until then were as fruitful as the one held in 1992.
A process that begun in 1989 was culminated in 1992 with the United Nations
Conference on Environment and Development (UNCED), celebrated in Rio de
Janeiro, Brazil. The Earth Summit, as it is commonly known, was an unprecedented
conference in terms of both its size and the scope of its concerns. Twenty years after
the first global environment conference, the United Nations sought to help
governments rethink economic development and find ways to halt the destruction of
irreplaceable natural resources and pollution of the planet.
This conference featured the participation of 172 governmental representatives
and over 17,000 scholars, specialists, professionals and observers.
However, the size of the UNCED presented another opportunity for other
meetings to take place, taking advantage of the enormous participation in Rio de
Janeiro. Important parallel meetings to the UNCED were also held, featuring
148 United Nations. Resolution 1992/256 of 20 July 1992. New York: United Nations, 1992.
149 United Nations. Working Group on Indigenous Populations. United Nations Social and Economic
Council. Document E/CN.4/Sub.2/1993/29. Paragraphs 163-176. Online:
October 22nd 2002.
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approximately 2,400 non-governmental organizations and 650 indigenous peoples
representatives. The UNCED conference was dominated by non-governmental
organizations who established a special importance on environmental protection and
the rights of local communities and indigenous peoples.
The UNCED conference resulted in several accords, documents and declarations
including Agenda XXI, The Rio Declaration on Environment and Development,
The Statement on Forest Principles, The United Nations Framework Convention on
Climate Change, and The Convention on Biological Diversity (CBD).
Although the CBD had already been widely discussed, it was open for signature
at the UNCED conference. The CBD originally did not address any issue concerning
traditional knowledge, however, amendments to the preliminary text allowed for the
inclusion of a provision concerning this topic.
The UNCED was characterized by the ample participation that was given to non-
governmental groups. These groups brought their concerns about the environment
and took over the conference. Among those concerns were biosafety of local
communities and bioprospecting.150 The latter concerned traditional knowledge
directly, since it dealt with the misappropriation and misuse of biodiversity,
specifically, the taking of indigenous biological knowledge or indigenous
environmental knowledge.
The strong pressure that non-governmental groups placed on the UNCED led to
the inclusion of a provision concerning traditional knowledge in the CBD, which until
this day is the only codified source of traditional knowledge in international law.
More importantly, one of the parallel meetings held was the Kari-Oca World
Conference of Indigenous Peoples on Territory, Environment and Development
(Kari-Oca Conference) in which over 92 different indigenous organizations and over
600 indigenous peoples representatives adopted the 109 point Indigenous Peoples
Earth Charter (IPEC) a document that strongly influenced the UNCED conference.
150 This topic will be discussed and addressed in more depth in subsequent chapters.
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The Kari-Oca Conference was specifically called because indigenous peoples
concerns were not included in the UNCED agenda.
The IPEC issued at the Kari-Oca conference, included provisions concerning the
respect, protection of, and the adequate compensation for, indigenous peoples and
communities traditional knowledge. Specifically, concerned were introduced about
indigenous peoples intellectual property rights.
These discussions occurring at the international level allowed for a renewed
dialogue on the subject of traditional knowledge. However, since then, discussion on
the issue has been intense but slow.
The highly multidisciplinary nature of intellectual property and the intense
discussion that was taking place on indigenous peoples rights brought together fields
as diverse as law, ethnobotany, pharmacology and anthropology, demonstrating the
increased attention the subject was having in international fora.
1993 was declared by the United Nation as the International Year of Indigenous
People, which would later be expanded into the Decade of Indigenous People. This
further demonstrates the intensity that the discussion on indigenous peoples was
having.
Concerning traditional knowledge, 1993 became an important year given that in
recognition of the international year of indigenous peoples the Nine Tribes of
Mataatua in the Bay of Plenty Region of Aotearoa New Zealand convened the First
International Conference on the Cultural and Intellectual Property Rights of
Indigenous Peoples (Mataatua Declaration).
Over 150 delegates from fourteen countries attended, including indigenous
representatives from Ainu (Japan), Australia, Cook Islands, Fiji, India, Panama, Peru,
Philippines, Surinam, United States, and Aotearoa.
The Conference met over six days to consider a range of significant issues,
including; the value of indigenous knowledge, biodiversity and biotechnology,
customary environmental management, arts, music, language and other physical
and spiritual cultural forms. On the final day, the Mataatua Declaration was passed
by the plenary.
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This declaration specifically addressed all of the issues of indigenous peoples
concerning their intellectual property rights.
This and other declarations, conventions and documents served as the main
influence for the report Dr. Erica-lrene Daes was producing that would be concluded
the following year. All of those documents served as the preamble for the adoption in
1994 of the Draft Declaration.
In 1994 after a decade of work, the Indigenous Peoples Working Group
succeeded in the adoption of the Draft Declaration on the Rights of Indigenous
Peoples. The Draft Declaration dedicated a few articles to the intellectual property
rights of indigenous peoples, further reaffirming that the world needed to recognize
and protect these fundamental rights to indigenous peoples.
1994 was a very important year in this study concerning traditional knowledge.
This year was not only important to the study of traditional knowledge, it also
represents a very significant beginning for the international trade system and for
international intellectual property law. During this year not only was the Draft
Declaration adopted but also the so-called Uruguay Round Negotiations
agreements were also signed in Marrakesh; Morocco in April.
The Uruguay Round Negotiations were a series of agreements principally to
establish the World Trade Organization (WTO) and to complement the 1947 GATT.
However, these new agreements featured not only a new General Agreement of
Tariffs and Trade (1994 GATT) and a series of agreements to complement it in
eliminating tariffs and barriers for international trade, but also included an agreement
on intellectual property.
The agreement on Trade Related Aspects of Intellectual Property (TRIPS)
became one of the most important agreements signed in Marrakesh and one of the
most important in the development of intellectual property.
Even if this topic will be discussed in further detail in subsequent chapters, it is
necessary to mention that the importance the TRIPS agreement had for the success
of the 1994 GATT is impossible to describe. The whole international trade system
established through 1994 GATT depended on the TRIPS agreement. As a manner to
79


secure international trade the 1994 GATT relied on intellectual property. Basically, if
intellectual property standards were equal across countries, developed nations could
use the multidisciplinary aspect of intellectual property to protect their investments in
developing nations.
Hence, the TRIPS agreement required all signatory states to provide a high level
of intellectual property protection, a level that had to be at least akin with the one
provided in developed nations.
Even though the 1994 GATT does not mention traditional knowledge, this
agreement allows for the unfettered exploitation of all trade aspects, including
bioprospecting, which of course related directly to traditional knowledge. Moreover,
the 1994 GATT represented the most identifiable danger for the advocacy of
traditional knowledge recognition and protection. The 1994 GATT is completely
opposite to the spirit of traditional knowledge and environmental protection and
development.
Although the TRIPS agreement, as well, does not mention traditional knowledge,
it does however facilitate the establishment of an intellectual property law system
that can easily be manipulated and can take advantage of the lack of protection of
traditional knowledge to benefit the international trade process. However, the TRIPS
agreement does introduce formally in international law the idea of sui generis
systems.
For a long time, the trend in international law was to centralize, to create a unified
body of laws that govern most (if not all) States. However, in the early nineties
decade this trend begins to shift, as more and more an inclination towards
decentralization was favored. This is reaffirmed by the 1994 GATT and TRIPS
agreements. Now the international law system does not seek to regulate everything
in a centralized body of norms. In contrast, the new idea is to establish international
principles that govern the creation of national laws.
It was widespread that regions had a common intellectual property legislation,
however, after 1994, countries were supposed to change their intellectual property
legislation to accord higher standard of intellectual property protection. This led
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countries to create their own, individual laws based on the general principles
established in the TRIPS agreement. This is the decentralization process that has
taken place ever since in international intellectual property law.
With this decentralization came the stronger idea of sui-generis system which
basically leaves the establishment of legal mechanisms to local governments.
The possibility of patenting live organism in the United States that was enabled in
the early 1980s by the Supreme Court of that country, and the newly established
international trade system described the intention of multilateral corporations in 1995.
These companies sought to endeavor in bioprospecting missions to be able to patent
live organisms and profit from it. Basically, since these companies were allowed to
patent live organisms in the United Stated, they traveled abroad in search of patent
material, mostly looking for agricultural and medicinal genetic resources that could
enable them to profit from discovering those resources.
This is what characterized the period from 1995 onwards. Although there was still
a lot of discussion on traditional knowledge, no important development occurred until
1997, except the notion of the seed wars.
Indigenous people during this period kept discussion and pushing for a debate on
traditional knowledge,however, even if it was the decade of indigenous peoples,
not much was accomplished in relation to their intellectual property rights.
WIPO which was concentrated on other intellectual property areas returned to the
issue of traditional knowledge in December 1996. With the signing of the WIPO
Performances and Phonographs Treaty (WPPT) a definition of performer was
adopted. This definition included performers of expressions of folklore.151
UNESCO and WIPO returned to their previous cooperative nature on folklore
and held in 1997 the World Forum on the Protection of Folklore in Phuket, Thailand.
This meeting adopted and Plan of Action to develop the actual, current needs and
issues concerning intellectual property andfolklore.
151 World Intellectual Property Organization. WIPO Performances and Phonographs Treaty. Signed in
Geneva, December 20th 1996. Geneva: WIPO, 1996. Article 2, section a. Online:
October 22nd 2002.
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In November 1997, WIPO established the Global Intellectual Property Issues
Division (Global Issues Division) by the then newly elected Director-General, Dr.
Kamil Idris. The Global Issues Division was created to enable WIPO to remain at the
forefront of global intellectual property developments by responding to the
accelerated technological advancement; the integration of the world economical,
ecological, cultural, trading and information systems; and the growing relevance of
intellectual property in a rapidly changing world.152
The Global Issues Division programs overall objective is to identify key areas
where economic, technological, cultural and social change may impact on the
intellectual property system and to consider how such impact should be explored and
addressed by WIPO and its member States. The programs findings were expected
to provide input and resources for policy formulation and for use in WIPOs other
activities, such as in the areas of development cooperation and, possibly,
progressive development. As the universality of intellectual property rights calls for
the exploration of new ways in which the intellectual property system can serve as an
engine for social, cultural, economic and technological progress of the worlds
diverse populations, one of the areas identified for exploration in the 1998-1999
biennium was the needs and expectations of groups which have until now had little
or incomplete exposure to the [intellectual property] system.153 The first group
identified was traditional knowledge holders. The main objective of the new WIPO
activities in respect of traditional knowledge was to identify and explore the
intellectual property needs and expectations of new beneficiaries, including the
holders of indigenous knowledge and innovations, in order to promote the
contribution of the [intellectual property] system to their social, cultural and economic
development.154
During the next biennium, WIPO took an explorative role to determine the most
suitable way to protect traditional knowledge. However, since WIPO was under
152 World Intellectual Property Organization. Intellectual Property Needs and Expectations of Traditional
Knowledge Holders. WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional
Knowledge (1998-19991. Introduction. Geneva: World Intellectual Property Press, 2001. Page 16.
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pressure from developed nations not to interrupt the development and implantation
of the TRIPS agreement and the globalization process, they were urged to take their
time in exploring traditional knowledge.
Basically WIPOs work on traditional knowledge began in 1998 and 1999 when
the embarked on what they have called Fact Finding Missions155 (FMMs), more
specifically, they initiated nine FFMs.
Between June 1998 and November 1999, WIPO conducted nine FFMs to twenty
eight countries in the South Pacific, Southern and Eastern Africa, South Asia, North
America, Central America, West Africa, the Arab countries, South America and the
Caribbean. The intention of these FFMs was to obtain directly from member States
and traditional knowledge holders their intellectual property needs and expectations
for traditional knowledge.
The FFMs consulted, regional intellectual property offices, practitioners, non-
governmental organizations and most importantly, traditional knowledge holder
themselves (local communities and indigenous peoples). Even if, these FFMs have
been criticized as incomplete, inaccurate, biased and a delay of the debate of
traditional knowledge, they remain, the United Nations biggest effort in two decades
to recognize and protect traditional knowledge. The FFMs were concluded in late
1999, and in April 2001 a final report was prepared and published a few months
later. They were accused of a tactical delay in order to buy time for developed
nations to implement the TRIPS agreement and other bilateral and multilateral trade
agreements.156
Still in cooperation with UNESCO, WIPO organized four regional consultations on
the protection of expressions of folklore, which were held in Pretoria, South Africa in
March 1999 for African countries; in Hanoi, Vietnam in April 1999 for countries of
156 Third World Action Network. Biodiversity, Access, indigenous Knowledge and Intellectual Property
Rights. TRIPS, Sui Generis and Plant Variety Protection. Online:
October 22nd 2002.
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Asia and the Pacific region; in Tunis, Tunisia in May 1999 for Arab countries; and for
Latin America and the Caribbean in Quito, Ecuador in June 1999.157
In July 1998 and November 1999, WIPO organized two Roundtables to facilitate
an exchange of views among policymakers, indigenous peoples and other traditional
knowledge holders on the more effective application of the intellectual property
system for the protection of traditional and indigenous knowledge.
These meetings intended almost the same as the FFMs. They wanted to find out
the intellectual property needs and expectations of member States concerning
folklore.
In the year 2000, WIPO continued its work now combining folklore and
traditional knowledge celebrating the WIPO National Workshop on Traditional
Knowledge with an Emphasis on Expressions of Folklore, in Cairo Egypt. This
meeting addressed intellectual property issues on folklore and traditional knowledge
establishing for the first time that the first should in fact be considered as a sub-
category of the latter. This meeting also showed preliminary results from the FFMs.
Also in the year 2000, WIPO held a meeting in Chiang Rai, Thailand, titled WIPO
Inter-Regional Meeting on Intellectual Property and Traditional Knowledge. This
meeting addressed the issue of traditional knowledge as a cohesive single entity
without making a difference with folklore.
In the year 2001, WIPO held three workshop meetings: The National Training
Workshops for Holders of Traditional Knowledge in Kingston, Jamaica; The National
Training Workshops for Holders of Traditional Knowledge in Paramaribo, Suriname;
and The Sub-regional Workshop on Intellectual Property, Genetic Resources and
Traditional Knowledge in Brisbane, Australia.
Finally in the year 2002, WIPO has carried out a total of four meetings until June,
2002: The Expert Meeting on Intellectual Property and the Protection of Expressions
of Folklore and Traditional Knowledge in Addis Ababa, Ethiopia; The Regional
Meeting on Intellectual Property and the Protection of Expressions of Folklore and
157 World Intellectual Property Organization. WIPO-UNESCO Regional Consultations on the Protection
of Expressions of Folklore. Geneva: WIPO, 1999. Online:
October 22nd 2002.
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Traditional Knowledge in Lusaka, Zambia; The WIPO-OAPI Regional Symposium on
Intellectual Property and the Protection of Expressions of Folklore, Traditional
Knowledge and Genetic Resources in Abidjan, Cote dIvoire; and The WIPO
International Seminar on the Preservation, Promotion and Protection of Folklore and
Traditional Knowledge in Sao Luis do Maranhao, Brazil.
All these meetings held between 2001 and June, 2002 have been directed at
establishing protective mechanisms through intellectual property rights making use of
sui-generis systems of protection to better meet the needs of traditional knowledge
holders.
The interdisciplinary nature of traditional knowledge made it necessary for WIPO
to participate in other international fora and meetings such as on food security,
agriculture, the environment, indigenous peoples, sustainable development, trade,
culture and biological diversity. These were mostly organized byintergovemmental
agencies within the United Nations system and certain national, regional and non-
governmental organizations. Several of these fora have recently highlighted the
intellectual property aspects of traditional knowledge and have requested technical
information from, and cooperation with, WIPO.
Finally, WIPO also undertook, in cooperation with the United Nations Environment
Programme (UNEP), an On-site Documentation Project on the Role of Intellectual
Property Rights in the Sharing of Benefits Arising from the Use of Traditional
Knowledge, Innovations and Creativity and Associated Biological Resources. This
project produced case studies which WIPO and UNEP submitted to the fifth
Conference of the Parties to the CBD in May 2000.
Other meetings such as the Conference of the Parties to the CBD has addressed
almost annually since 1992, the implementation of the provision in the CBD
concerning traditional knowledge. However, there has been no advancement on the
implementation of sui-generis systems of protection for traditional knowledge.
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The Republic of Costa Rica was one of the first in 1998 to adopt a sui-generis-
type of protection158 to specifically address biodiversity, emphasizing on the local and
traditional knowledge held by local communities and indigenous peoples and access
to that knowledge.
Mostly, scholars, non-governmental agencies and international organization have
been preoccupied since 1992 with the biodiversity, environmental, ecological,
medicinal related aspects of traditional knowledge. The advancement of other areas
of traditional knowledge has been left stagnant or simply regarded as folklore.
158-Republica de Costa Rica. Asamblea Legislativa. Ley No. 7788 del 23 de Abril de 1998. Lev de
Biodiversidad. San Jose: Asamblea Legislativa, 1998.
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CHAPTER 4
NATURE OF TRADITIONAL KNOWLEDGE AND ITS HOLDERS
When you are collecting medicine healing herbs, you
have to collect for the individual sick person. You make
an offering to the plants in your prayers, you have to
know the plant's name, the person's name, and the
reason. The medicine plants that you have gathered
cannot be used for anyone else, nor can they be stored
and kept for use at a later time. When you are
collecting herbs, you cannot collect them [...] in large
quantities. There are specific sacred herbs for all kinds
of sickness [...] All these medicine plants have a
specific song and prayer to go along with them. When
you collect these herbs, you have to make an offering
to them to get the healing spirits of the herb to work.
You have to know the prayers and songs for the herbs
to collect them. You only collect what is needed,
nothing more or less.159
- Dine healer Mae Tso.
Before entering into a profound examination of traditional knowledge, this chapter
will illustrate the fundamental differences in view worlds between indigenous and
nob-indigenous peoples. This will enable an understanding of the importance of
several issues and how they must be addressed in the debate concerning traditional
knowledge. This chapter by exploring the different possible traditional knowledge
holders will also provide an answer for the question: whose knowledge?
Up to this point in the study, traditional knowledge has been referred to in a
theoretical and ethereal fashion. This study sets forth the spirit of a participatory
grassroots approach to traditional knowledge, in light of that methodology the study
of traditional knowledge is best understood with practical examples. This chapter
should clarify the nature of traditional knowledge; nonetheless, this will be done
159 Jenny Manybeads, et al. v. United States, et al. 532 U.S. 966; 121 S. Ct. 1504; 149 L. Ed. 2d 388;
2001. US Supreme Court. 2001. Affidavit of Mae Tso, Paragraph 35. Online: LexisNexis Academic.
October 22nd 2002.
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through the use of illustrations of traditional knowledge, in order to respond to the
question: what knowledge?
Finally, this chapter will explicate where traditional knowledge comes from, and
why it is so important. This should enable a cohesive understanding of all the
aspects of traditional knowledge, in order to move on to contextualize the
problematic surrounding this topic in the next couple of chapters.
Different Worlds. Different Views
The late Professor Bernard Nietschmann, of the University of California at
Berkeley, was among the first to coin the term fourth world to describe and situate
the indigenous peoples of the world. Nietschmann writes that of the 120 military
conflicts in the world in 1987, three fourths involved indigenous peoples seeking to
survive the encroachment of nation-states.160
Many of these conflicts continue even today. One cannot help but ask why these
conflicts occur? A possibility might be the suppression of the native alternative,161
writes Jerry Mander, or maybe on some level we think that however beautiful Indian
culture once was, however inspiring their religious ideas, however artistic their
creations and costumes, however wise their choices of life within nature,162
continues to argue Mander, our own society has advanced beyond that stage of
evolution [...] [f\hey are the primitive stage and we have grown beyond them. They
have not adapted as we have. This makes us superior. We are the survivors.163 This
is what Mander calls Cultural Darwinism."164
The view of the Western world that indigenous peoples failed to adapt their
lifestyle165 reflects how different both perspectives really are. We believe in the
Western world that time proceeds in a linear fashion, failing to consider the spatial
160 Nietschmann, Bernard. The Third World War. In Cultural Survival Quarterly. Militarization and
Indigenous Peoples. Part 1: The Americas and the Pacific. 1987. Volume 11.3,1987. Cultural Survival,
1987. Pages 1-16.
161 Mander, Jerry. Supra note 19. Page 195.
162 Mander, Jerry. Supra note 19. Page 209.
163 Idem.
164 w---
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aspect of time. As time passes, we progress and move forward in that line that we
have created. It is wrong not to progress, progress is inevitable.
From an indigenous perspective, time and space are intertwined together, existing
in unity. It is really a concept that is difficult to explain from a non-indigenous
perspective, without venturing further in the field of religion. However, the indigenous
idea that time proceeds in a cyclical fashion completely contradicts our Western
logic. Even so, the notion of time proceeding in a cyclical fashion does not preclude
the idea of progress. Indigenous societies are dynamic, just as the Western world is.
Time has an unusual limitation. It must begin and end at some real points, or it must
be conceived as cyclical in nature, endlessly allowing the repetition of patterns of
possibilities.166 The Western world chooses to believe that time must begin and end
at some point. In contrast indigenous people just believe that time transcends a
single beginning or end, thus time does not begin, end or change, simply exists.
However, it is the egotistic notion that because indigenous peoples believe in a
progress with certain limitations -such as a respect for nature and community- that
the Western world considers cyclical conceptions of time as stagnation rather than
progress. Nonetheless, it is not the notion of time that really distinguishes us. What
truly set us apart is the idea and perception of space. The belief that time and space
are actually integrated reflects yet another aspect that differentiates indigenous from
technological worldviews.
The world [...] is not a global village so much as a series of nonhomogeneous
pockets of identity that must eventually come into conflict because they represent
different historical arrangements of emotional energy.167 Inevitably we all are
involved with time, whether we want to or not, it is the perception of space and
believing in different relationships to nature what truly sets us apart, differences that
ultimately collide and create conflict. This is Vine Deloria's framing of relations
between indigenous peoples, Western society and thinking in time and space.
166 Deloria Jr., Vine. Supra note 21. Page 71
167 Deloria Jr., Vine. Supra note 21. Page 65
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Identity is the true connection to territory, rather than geopolitical demarcations
constructed to sustain an order through one sole perspective.
The Western world believed that land is dead, regarded as an inanimate
commodity. A scientific revolution that established a set of paradigms that prove our
superiority to nature is the main differentiation between the two different
perspectives. Logically, when indigenous peoples refuse to sell their land to allow
government to extract natural resources, the Western view is altered or interrupted.
Indigenous peoples stand in the way of progress, daringly some even claim in the
way of evolution. Indeed, indigenous peoples are believed to be the ancient
societies that did not progress, why else would anthropologists study living
indigenous peoples to find out about those extinct? It is because indigenous
peoples halt progress that conflict is created with the Western view. This dynamic is
age-old. Natural law imposed some constraints on the Indians freedom during the
European colonization process of America. Indians were required by European
notions and interpretations of natural law to trade with Europeans and to allow
missionaries to preach the Bible.168
There is another side to the story. Indigenous peoples progress, but the
relationship that exists between them and the land is a spiritual one, that surpasses
our notion of thinking of land as a commodity. Indigenous peoples do not believe
themselves to be superior to the earth. They do not believe that progress means
conquering peoples or nature, rather progress is believed as understanding ones
place in space. The way to do this is by understanding the environment, which
inevitably leads to a very close relationship with nature.
Indigenous peoples knowledge is going to be intrinsically bound to the land,
because their understanding of life has derived from the land. However, is
indigenous peoples knowledge: always linked to the land?
The belief that the world is alive and that knowledge derives from the
understanding of the environment (the earth) is a belief widely shared among
168 Williams Jr., Robert. Supra note 2. Pages 100-108.
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indigenous peoples the world over. Land is spiritually replete, and it is this spirituality
that nourished indigenous peoples knowledge.
In any indigenous society, the resistance to resource depletion is always
demonstrated as an effort to protect 'Mother Earth.169 Almost every indigenous
society, refers to the world as Mother Earth a living thing that feeds their existence.
This demonstrates the most profound difference between indigenous and non-
indigenous societies. The idea that the earth is alive, and whether knowledge is
derived from nature or it is resultant from an scientific analysis of nature.170
Alice Benally, a Dineh woman, who, facing the prospect of removal from her land,
expressed the incomprehensibility of that notion by commenting that in the proposed
relocation site the plants and animals would not know her:
If we are to make our offerings at a new place, the
spiritual beings would not know us. We would not know
the mountains or the significance of them. We would
not know the land and the land would not know us [...]
We would not know the sacred places [...] If we were
to go on top of an unfamiliar mountain we would not
know the life forms that dwell there.171
Indeed, according to some scholars in some native languages the notion of
relocation is literally unthinkable. Benallys indigenous society does not even have a
term for their physical removal from their homeland.
Knowledge is so intrinsically tied to the land that when relocation occurs many
indigenous peoples believe that their knowledge would be lost as well. Many
indigenous peoples further believe that come death, the knowledge they posses will
be returned to the land upon their burial.
169 Weaver, Jace. Defending Mother Earth: Native American Perspectives on Environmental Justice.
Minneapolis: Orbis Books, 1996.
170 Western scientists have also begun to embrace the indigenous perspective of the Earth as a living,
symbiotic organism. See, Lovelock, James. GAIA: A New Look of Life on Earth. New York: Oxford
University Press, 2000; Jackson, Wes. Becoming Native to This Place. Washington D.C.: Counterpoint
Books, 1996.
171 Jenny Manybeads, et al. v. United States, et al. 532 U.S. 966; 121 S. Ct. 1504; 149 L. Ed. 2d 388;
2001. US Supreme Court. 2001. Affidavit of Alice Benally, Paragraph 56. Online: LexisNexis
Academic. October 22nd 2002.
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The spiritual implications linked to the land are profound within indigenous people.
In contrast, within the Western context, burial denotes the end of something. Within
indigenous peoples it quite the opposite, burial signifies going back to Mother Earth
a new beginning.
That argument that Western society has a hard time accepting this logic, is an
understatement. Perhaps, we do understand it but still regard it as folk tradition,
superstition, or uncivilized non-science.
This discussion of the Western notion of a superiority of science would take up
much of this study, therefore for now, lets simply assume that no such hierarchy of
worldviews can beproved.
The idea of an intrinsic, profound and spiritual connection with the land may seem
strange to someone deeply schooled in, or committed to, the convictions that prevail
in Western philosophy and science. The Western tradition, embodied in the writings
of Rene Descartes,172 argue that knowledge of nature is ultimately distinct and
separable from nature and what is known are true propositions about reality are
usually Western beliefs that directly contradict indigenous philosophy of existence
and life.
For some, these Western beliefs will seem controversial and dubious. For others,
it will be so plain to see that it is not worth to continue an argument on the subject.
Still, others may find in it an excuse for reading on, but there is little more to say
about this, except that, we should not simply give in to Cultural Darwinism. Survival
of humans as a species may well depend on our willingness to think beyond our
conventional Western views, and that we must respect other views, no matter how
contradictory.
What truly worries is the position that indigenous and non-indigenous peoples are
taking on these differences. Indigenous peoples have come to realize that it may
simply be impossible to coexist in the same space as Western culture. Whereas, the
Western world has believed for centuries that it need not try to understand
indigenous peoples; rather, indigenous peoples must give way to the great civilizing
172 Descartes, Rene. Discourse on Method and Meditation. New York: Bobbs-Merrill, 1960.
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