Having worked as one of the indigenous observers and commentators at the IGC, and at the Convention on Biological Diversity, I believe a fair summation may go along the following lines. The core problem is that indigenous peoples have customary laws that regulate the use of their knowledge, and they both have serious problems both practicing their traditions on their lands and having their customary laws respected when their knowledge has diffused across their borders. IPRs, in some cases, have allowed corporations to patent genetic resources and made it illegal to plant and freely reproduce and share traditional crop varieties. The current IPR system has often allowed much of their knowledge to be in the public domain, or part of a national or global “cultural commons”, which has also allowed others to use their most sacred and secret symbols, their languages, and other cultural expressions in offensive (and in their worldviews, cosmologically dangerous) ways.

Certainly, the vast majority of indigenous peoples are against the IPR system as it currently stands. The current system is based largely on economic incentives and short-term private and corporate monopolies, and is ill-equipped to protect collective cultural heritage. On the other hand, many indigenous representatives have argued for a sui generis (legal term for “without precedent) forms of protection. The term “sui generis” itself is somewhat equivocal – what is sui generis is embedded in a particular framework. Sui generis as used by intellectual property lawyers means “wothout precedent in the existing IPR system”. This is a little ironic, in that the IPR system itself is not very old. What indigenous representatives point to when they refer to “sui generis” is customary law, which, like common law, is very old and with extensive precedence.

Most indigenous representatives have argued that the justification for the protection for traditional knowledge will not be found in the standard IPR logic of that suggests that IPR law should be based on efficient short-term economic incentives to promote innovation ad the arts. Traditional knowledge is not static, but innovations occur through locally-salient motivations. Indigenous peoples have commonly climaed that the source of the logic for the right to have their traditional knowledge protected is based in human rights law. By this they are not referring to individually-based human rights, but to collective cultural rights to collective identity and self-determination. Many use the Law of Nations to support stronger claims to sovereignty in determining thei own governance systems.

While the fundamental basis for the right to have their customary laws respected originates in collective human rights and sovereign rights, some indigenous peoples have argued that they need to have these rights reflected in existing IPR laws. They see that the aim is not to have existing IPR logic applied to traditional knowledge, but in limiting the application of that logic through exceptions based on their human rights and sovereign rights. Laws are often needed at times of conflict.

Most of the indigenous peoples I have worked with generally try to avoid legal approaches and litigation, and would prefer to work through conflicts locally and informally. But we live in a globalized world in which many of the problems are far beyond the local scale. A basket maker in Pakistan, for example, may flood distant markets with copied “traditional” Hopi baskets, violating customs and destroying local crafts markets. The IPR system (and, coincidentally, some of the strands of the cultural commons movement) treat traditional knowledge as part of the global public domain or global cultural commons.

IPR approaches that respect customary law are one possible approach to protection. This is not any kind of radical idea. I live in the United States, and if I purchase a book published in Canada, I don’t have the right to copy and distribute that book because the United States has entered into agreements with Canada to respect their copyrights. In return, Canada has agreed to respect US copyrights. This is what sovereigns do. In the United States, government documents are automatically in the public domain (unless superceded by privacy, national security, and other concerns). In Canada, government publications are immediately protected ny Crown Copyright. If I buy a Canadian government publication, I can’t publish it simply because the same material would be in the public domain under US intellectual property law. And I couldn’t claim that Canadians are “trying to impose their beliefs” on me. The mutual respect (known as “comity” and “cross-recognition” in law) is based on negotiations among sovereigns limiting their sovereignty, or on the mutual recognition of natural or agreed-to limits on sovereignty (in the case of human rights).

I don’t wish to sidestep difficulties here, and recognize issues like to social and political construction in indigeneity and authenticity, the potential conflicts of laws and ethics (indigenous peoples in the past have made slaves, made human sacrifices, and abused women under “customary law” – tradition won’t always simply trump larger social concerns). But rather than get bogged down in counterfactuals, it is better to focus on the core cases. Indigenous peoples have beliefs about the proper use of their knowledge, and largely non-aboriginal people do not respect their customs).

As I have often emphasized, indigenous peoples often wish to share their knowledge. Sharing is a common and highly valued cultural norm. Most, if not all, indigenous peoples believe sharing is a fundamental spiritual value. But even though indigenous peoples generally do not have concepts that are exactly equivalent to common property concepts, they still have rules and processes related to regulating the flow and uses of knowledge. There is knowledge that is secret, knowledge restricted to gender, to family, to spiritually elected or heriditary individuals, and to individuals. There are often obligations and restrictions attached to the proper uses of shared knowledge.

Indigenous peoples are wary whenever any form of law is imposed on them, whether through enclosure by IPR or exclosure into a supposed global commons or public domain. These may cause damage to their customary ways of life. Whatever solutions are at hand, these should be based on fundamental respect for indigenous self-determination and aspirations.

There are many issues that can’t be explored in dpeth here. For more extensive treatment or traditional knowledge and IPR issues, see:

Hardison, Preston D., The Report on Traditional Knowledge Registers (TKRs) and Related Traditional Knowledge Databases (TKDBs). Ad Hoc Open-Ended Inter-Sessional Working Group on Article 8(J) and Related Provisions of the Convention on Biological Diversity, Fourth meeting. UNEP/CBD/WG8J/4/INF/9. Secretariat of the Convention on Biological Diversity (CBD), Montréal, 2005.

http://www.biodiv.org/doc/meetings/cop/cop-08/official/cop-08-07-en.doc
or
http://conserveonline.org/workspaces/commons/PDF%20Background%20Documents/Indigenous%20Knowledge%20-%20CBD%20Status%202006.pdf

Hardison, Preston (2006). Indigenous Peoples and the Commons. On the Commons.org
http://onthecommons.org/node/1022

Tulalip Tribes of Washington (2003). Statement by the Tulalip Tribes of Washington
on Folklore, Indigenous Knowledge, and the Public Domain, July 09, 2003. Intergovernmental Committee On Intellectual Property And Genetic Resources, Traditional Knowledge And Folklore, Fifth Session, Geneva, July 5-17, 2003.
http://www.unctad.org/trade_env/test1/meetings/tk2/Public%20Domain.pdf

(Standard disclaimer: All comments here are my own, and do not necessarily reflect the official position of any indigenous peoples or my employer).

What I’ve found in my work in Australia is that indigenous communities are willing to take many routes to both protect and share their langauge, knowledge, “tradition” etc. In some cases indigenous communities invoke copyright - when companies come in and use designs to make a profit or when governments want to use images without seeking permission- other times they actively work to promote their own systems of knowledge managment in order to subvert the more heavy-handed national IP system.

However, IP “talk” has become the language through which many claims to knowledge and tradition are know filtered (nationally—internationally) This is not as easy as saying that this legal talk has been forced onto indigenous communities or that it (in all cases) distorts indigenous property-knowledge systems, but it does mean that we have to graple with the overlap of these multiple legal/property systems.

Closer scrutiny of the statement seems to suggest that protecting such knowledge must include protecting the contexts in which IK (and languages, by extension) are used.

For example, how to tie an effective noose for a lynching (ethnographic context somewhere in the South circa, say, 1930)?

For example, how to manage whores who step out of line (essential knowledge for pimps)?

I’m being deliberately rude; but isn’t “protecting the context” in which ALL “indigenous knowledge” is used a questionable idea?

Via Intellectual Property Watch (http://ip-watch.org/) comes something of an opposite case. Debra Harry, executive director of the Indigenous Peoples’ Council on Biocolonialism and a member of the Paiute tribe suggests that copyrighting traditional knowledge may actually harm indigenous groups. From Harry’s statement:

“Any attempt to develop IPR-based mechanisms to ‘protect’ IK [indigenous knowledge] actually poses much more threat to our knowledge, as a whole, than it can ever claim to prevent. Rather than protect, the imposition of IPRs over IK actually would serve to facilitate the alienation, misappropriation, and commercialization of IK.”

The reluctance to take steps to copyright or otherwise protect intellectual property, a language or otherwise, is intriguing. Closer scrutiny of the statement seems to suggest that protecting such knowledge must include protecting the contexts in which IK (and languages, by extension) are used.

The full statement is provided here:

http://www.ip-watch.org/weblog/index.php?p=480&res=1024_ff&print=0

In India too there have been some attempts to collect, codify and use the “orally transmitted knowledge of folk healers and herders” as this report calls it, which might be of interest to you.

I once heard a lecture by Prof. Madhav Gadgil, when he explained the need for such databases. Apparently, in Mangalore, a traditional medical practitioner was hired by a German medical company at a very low, per day basis (something like 150 Rupees per day), to idenitify the plants and their traditional medicinal use. This information was later used by the German company to apply for patents. Unfortunately, this anecdote was described in a talk he gave in IISc, and I am not able to locate any references to it on the web. More information on the biodiversity bill and people’s biodiversity registers are available at Prof. Gadgil’s page, which might be of interest to you and some of your readers.