Protecting traditional knowledge

20 December 2012

Protecting traditional knowledge

Some of the latest thinking on how best to protect traditional knowledge and the culture associated with it is being made available for free to encourage research and debate.

Material presented at a conference hosted by the New Zealand Centre of International Economic Law at Victoria University in 2010 has been published online, as well as in book form, to reach a wider audience of indigenous people.

Victoria University Professor of Law Susy Frankel, who has co-edited the publication, says it summarises many of the issues in an area of growing international interest.

“A decade ago, intellectual property and indigenous knowledge inhabited separate worlds but that has changed with recognition of the economic value of indigenous knowledge and a determination by developing countries to secure international IP rights.

“Although the material in the book is itself intellectual property that could be protected, we want it to be widely available to all researchers, including those who wouldn’t necessarily want, or be able, to pay for it.”

Professor Frankel says traditional or indigenous knowledge has often been seen as useful, but separate from innovation which is commonly defined in the commercial world as firms developing new products and processes.

“So you can get a situation where an indigenous group has a special relationship with, and knowledge about, a plant and its properties. Along comes a company that wants to exploit those properties. They work with the indigenous people to access the traditional knowledge and perhaps even strike an agreement about using it.

“But once they have isolated the active ingredient they can apply for a patent to protect the intellectual property, an option which is not available to the indigenous people. That’s because our IP laws are based on the premise that you protect uses of knowledge, rather than the knowledge itself.”

Other issues, she says, are that IP is generally seen as belonging to individuals or companies, not communities, and is time bound with a link to commercial cycles, which is often in conflict with the intergenerational nature of traditional knowledge.

Professor Frankel says the mounting worldwide pressure for effective ways to protect traditional knowledge has strong relevance for New Zealand.

“As a nation, we are heavily dependent on trade and have tended to import IP law from our major trading partners. That used to be Britain and is now the United States. We are involved in trade negotiations where we are being asked to accept IP rules that are in the interests of our trade partners not our own.

“New Zealand needs to be considering how IP law can support what it wants to achieve in international trade. That includes having a sound policy about local innovation and creativity that addresses local needs for legal protection and economic support.”

How to protect matauranga Māori (or Māori traditional knowledge) is a significant issue for New Zealand says Professor Frankel.

She views the Waitangi Tribunal report on the Wai262 claim is an important milestone.

“It has significant implications for the use of New Zealand’s resources and indigenous knowledge, particularly if there is to be growth in Māori economic development. Māori people’s preferences will have to be taken into account if the development potential is to be realised.”

The publication, titled Indigenous Peoples’ Innovation–Intellectual Property Pathways to Development includes essays on issues ranging from protecting the indigenous knowledge and systems of indigenous people, including Australian Aborigine, Māori and Pacific Island peoples, to bio piracy and other forms of unrecompensed exploitation of resources, and how trade in indigenous cultural heritage can benefit indigenous people.

“The focus was once on how to protect traditional knowledge systems from IP but debate has moved towards looking for ways to protect it both from and, as appropriate, within the IP system.

“Additionally, many developing nations now make their demand for a fair and equitable IP system an essential part of international trade negotiations.”

Visit: www.victoria.ac.nz/law/centres/nzciel/publications/indigenous-peoples-innovation to download the publication.

ENDS

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