Community Resources

Intellectual Property, International Trade and Protection of Traditional Knowledge

Johanna Gibson

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781351950145
• Topic: Law
• Subtopic: Intellectual Property Law
• Index: Law

Protection of traditional knowledge and resources is of critical concern not only to the groups involved but also to the international trading community for which these resources are of increasing economic importance. This work examines the concept of 'community', intellectual property models and additional sources for protection at international law (including environmental and human rights frameworks). Intellectual property law is critiqued as an inadequate framework to address the fundamental object of protection for the communities themselves - the management of traditional use, as well as the biological and cultural sustainability of this use. The work sets out an international framework based on the concept of 'community resources', recognizing the unique claims embodied in traditional knowledge, incorporating customary law, and facilitating community management of resources. International in perspective and scope, the book will be a valuable resource for academics and researchers in law, international relations and cultural studies.

Chapter 1
Community, Resources, Resilience

What is being usurped here? The very expression of potential. Belonging ... It is the inescapable observation that belonging per se has emerged as a problem of global proportions. Perhaps the planetary problem. Neither celebration nor lament: a challenge to rethink and reexperience the individual and the collective. Which goes last?¹

Introduction

The "freedom" to practise tradition and to develop within community in ways that are compatible with the values of that particular community, are factors that are instrumental to the preservation of culture and community. A recent Report conducted by United Nations Children's Fund² maintains the inextricable nature of the link between survival of Indigenous children, self-recognition and cultural integrity, and rights to land and resources.³ The Report asserts that the survival of culture, through knowledge and resources, is integral to the survival of communities and the well-being, confidence, and welfare of young members. The integrity of culture is intrinsic to the self-recognition and identity of individuals, and the survival of cultural diversity is to the benefit of all members of the international "community":

Families, elders and community leaders have an important role to play in helping indigenous children to understand that they have special resources upon which to draw –spirituality, cultural identity and values; a strong bond with the land; collective memory; kinship and community. Indigenous children carry with them a reserve of knowledge that is their special inheritance, and from which we can all benefit. These fundamental values are increasingly coming to be acknowledged by both national governments and international organizations. Today, indigenous peoples are reaffirming their pride in their indigenous identity and are, in turn, nurturing this pride in their children.⁴

Furthermore, rather than identifying the management and protection of culture as an obstacle to international trade, the United Nations Development Programme (UNDP) Human Development Report 2004, Cultural Liberty in Today's Diverse World, identifies explicitly the need for promotion and protection of cultural diversity and pluralism in order to achieve the effective flow of cultural goods.⁵

Therefore, the need for sui generis systems of protection for the culture, knowledge, and resources of Indigenous and traditional peoples is drawn from the recognition of this relationship between community and its resources, and the need to recognise the authority of community and customary law, for the fundamental welfare and autonomy of Indigenous and traditional peoples. As will be examined in this chapter and developed throughout this work, a community-based system of management, custom, and protection of resources is optimal in order to identify and facilitate agency in distinctive communities. In respect of the sui generis qualities imagined in this system, that agency or authority is necessarily that of the community, and cannot be divested to individual members.⁶ This optimal system is further justified by the unique value of diversity in culture, environment, and in knowledge generation itself:

The nature of these collective rights corresponds closely to the indigenous world-view in that they reflect and promote the indivisibility of the community. This perspective is a particular strength and a special resource of indigenous peoples, and one that is increasingly acknowledged. The draft declaration elaborates collective rights to a degree unprecedented in international human rights law.⁷

Thus, at the community level, and in a global context, the capacity of communities for traditional forms of incremental and communal innovation and development promises an "international" benefit to society of biodiversity as well as heterogeneity of knowledge development and cultural practice. Indigenous and traditional peoples and their entitlement to the management, production, and dissemination of their knowledge according to the culturally specific norms of their communities merit recognition:

In a technologically advancing world where information is a global currency, such rights are crucial to the survival of Indigenous peoples. Indigenous people have the right to control their cultures in the interests of the continued preservation of their shared identity. Further, Indigenous people have the right to own and receive economic benefits from the fruits of their knowledge and cultural labour.⁸

In the following chapters, the potential for protection within currently existing frameworks will be examined. These include primarily intellectual property law, biodiversity, rights to land, and international human rights. This present chapter will establish the concept of community to be pursued throughout this work, with later discussion arguing that conventional intellectual property regimes do not accommodate ongoing cultural preservation in a model where private property rights and monopolies serve as the fundamental framework. Furthermore, other platforms for protection, such as rights to land, human rights, and environmental protection, will be shown to be approximations at best, rather than conceptualisations borne out of the concepts and objectives of community resources in and of themselves. Rather than attempting to approach viable protection and acknowledgement asymptotically, as it were, it is important to examine the potential for protection whereby customary laws of communities are given real public, political, and economic effect (not just merely reserved and partitioned effect) as necessary means by which to preserve intellectual interests through cultural and biological diversity, and through immutable international (customary) obligations.

Therefore, in anticipation of, and preparation for, the limitations of conventional intellectual property systems and other pre-existing forms of protection that will be considered in later chapters, this chapter establishes the need to strive towards what will be shown to be an optimal sui generis system, based on the concept of community resources. This chapter will examine critically the potential for authority to vest in the Indigenous or traditional "community." In doing so, it must be kept in mind the diverse range of communities, and the imperative against generalising communities in order to achieve legal clarity for this concept. Indeed, looking for the certainty of the concept within the particular community itself maintains an awkward preoccupation with classifying groups rather than facilitating development, and undermines the dynamic and organic process that is to be approached through a version of community resources. In other words, while a certain level of abstraction is necessary in order to establish community resources as a legal principle upon which international obligations can be motivated, this abstraction proceeds not from the definition of "community" but from the commonalities shared between communities towards achieving relevant and appropriate rights of self-governance and traditional development:

Ethnology is not innocent. It represents one of the forms of colonization. The interest that ethnology brings to popular culture assumes a relationship of forces between the bourgeoisie to which these ethnologists belong and the mass or the milieu that becomes the object of their gaze ...In a more general sense, every position of knowledge that establishes as an object a category of people implies, by definition, a relationship of force and domination.⁹

Rather than presuming externally to define and identify particular communities as objects of protection and cultural information, the model proposed is one of facilitation of the customary laws of Indigenous and traditional communities, by which those communities assert self-recognition, dignity, and integrity. This is a justification for a generalised approach, but not a determination of "community" as such. Community in any one instance will be established on a "case by case" basis.¹⁰ In other words, in preparing this model it is important not to "imitate" community, as it were. To presuppose knowledge of the particular "community" or even appropriate criteria would be fundamentally unjust. The community, as such, is unpresentable by the law,¹¹ which cannot presume to name community.

Therefore, the preparation of the system at the end of this work will present possible but not exclusive criteria by which communities may claim protection based on relations particular to each case. It is important not to use this model of international protection for community resources to define and regulate externally the particularities of an individual community; but rather, its application is to understand and realise the relationship between communities, nation-states, and international obligations, in this way, the model will be concerned with the obligations towards Indigenous and traditional groups rather than the mechanics within a group in the management of its resources according to particular customary laws and tradition. Indeed, it would be entirely inappropriate and inconceivable for international law to monitor, define, and regulate the internal self-governance of a traditional or Indigenous community. This move towards legal and customary recognition of the concept of "community" (otherwise outside the model for full international legal capacity), represents an important mechanism for the protection of traditional knowledge and indeed of communities in and through their resources.

Features of “Community”

To achieve authority and capacity as a legal actor, the community will necessarily have access to economic and legal systems through the international recognition of sui generis rights in community resources, rather than be generalised and moralised beyond a dialogue with the state.¹² If communities are forced to contract with various state departments, the imbalance in bargaining power will effectively constrain communities by market economies and national government agenda.¹³ Thus, the protection of traditional knowledge through the recognition of sui generis rights is necessarily an issue for the global juridical order. In this way diverse Indigenous and traditional communities would be able to express themselves in relation to their cultural resources and products. Rights to resources may be most effectively realised in the context of international obligations to community identity and cultural diversity. That is, the right to manage and use community resources in a particular way...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Acknowledgements
• Introduction: Community Resources: Coming to Terms
• 1 Community, Resources, Resilience
• 2 The Grand Plan – Intellectual Property and the Interpretation of Knowledge
• 3 Intellectual Property and Other Objects of Protection
• 4 Intellectual Property, International Trade, International Rights?
• 5 The Tragedy of the Commons
• 6 The Cultural Diversity in Biodiversity
• 7 All Over the Place – Land and the Yarding of Culture
• 8 Determining Knowledge – Human Rights and Community Resources
• 9 Community, Before the Law
• Conclusion: Community, Once and For All
• Resources
• Index