Anthropology does IPR, Part 2
A curious development in the struggle to protect traditional knowledge (TK) from unwanted exploitation by outsiders is a strategy called “defensive publishing.” This largely applies to the realm of the patent, not copyright or trademark, because patents are supposed to be granted only for processes, substances, or devices that are truly novel. (There are other criteria as well, but they needn’t concern us here).
If you can prove that something isn’t novel, that it has been known and used for a long time, then it can’t be patented.
To defend traditional knowledge from exploitative patenting, then, there are two basic and fundamentally opposed choices under existing law: define it as a trade secret or protect it in plain view. The goal of the latter is to establish that patent applicants who make use of this information fail to meet the novelty standard.
Although the trade-secrets approach sounds promising, and some legal scholars argue that it’s the way to go for the protection of traditional IPR, it has certain problems. For one thing, a lot of TK isn’t especially secret. It is, almost by definition, in wide circulation within a society. Trade-secrets laws typically say that anyone who can duplicate trade secrets independently–say, through reverse engineering–is free to use them. Still, one can argue that the Aboriginal “keeping-places” emerging in Australia, repositories for TK that have strict rules of access, follow something like a trade-secrets approach. To a more limited extent, protocols for the use of Native American TK in American archives are moving in a similar direction.
The plain-view approach has been adopted in a few important cases–notably, that of Ayurveda, which is documented by the Indian government in the Traditional Knowledge Digital Library. (Site is publicly accessible but requires a simple registration.) The idea is to establish “prior art” and therefore refute claims of novelty.
Yet as the sociologist Sita Reddy has argued in a provocative essay, “Making Heritage Legible,” just published in the International Journal of Cultural Property, the conversion of Ayurvedic tradition into a database generates all manner of contradictions and conflicts.
(A PDF of Reddy’s paper can be found here, the website of the Smithsonian Center for Folklife and Cultural Heritage.) What Reddy calls “state-based cultural documentation” has the effect of producing “new cultural objects that transform the nature of knowledge, and new cultural subjects–or ‘biological citizens’–who transform the politics of knowedge through contested claims of ownership.” She doesn’t claim that all the effects of the TKDL are negative, only that in the course of protecting Ayurveda from predation they also change it in complex ways. This echoes the assertion of Madhavi Sunder, the legal scholar, that “the concept of traditional knowledge, too, is a modern invention.”
What about the broader implications of reinventing TK and cultural heritage as a resource that should be subject to rational, bureaucratic management, much like energy or water? That’s the subject of my next post.
Michael thanks for your posts I appreciate your synopsis of these issues and the questions they raise, especially for those of us involved in projects creating databases with indigenous collaborators. One issue that sometimes gets passed over quickly is that many projects that focus on indigenous “traditional knowledge” are not necessarily, or even primarily, focused on making a legal claim. That is not to say that they cannot or won’t be injected into legal debates, but often the primary motivation for many database/archival projects is to reroute archival and display practices that often categorize and display indigenous materials (broadly conceived) without reference to indigenous systems of classification. One such project that I blogged about a few months back is the Traditional Knowledge Recording Project in northern Australia, the project has several aims:
1. Transfer of Traditional Knowledge from the Elders to their young people based on the traditional methods as determined by the Elders.
2. Digitally recording this Traditional Knowledge before it is lost forever.
3. Storing knowledge onto multi-versions of a digital knowledgebase.
4. Incorporating traditional knowledge in cooperative land management strategies and building this practice into “Best practice principles” in all land management.
5. Building and improving the profile of Indigenous Knowledge and its appreciation with other land managers and users both nationally and internationally. (Eg, pastoralists, government and the general public).
6. Creating practical action, research-driven, projects as live case studies to better collaborative land and community management.
You’ll notice that the goals here are about preservation, education and collaboration. In Australia, many projects focus on “getting back” objects or “preserving” knowledge and other materials within indigenous communities for their own revitalization projects—aimed at younger generations—as well as for tourists and other “outsiders” who may have access to the materials or be possible partners in other projects.
Rules for access to these materials—as you allude to—can be restrictive in the sense that the community can use a database (like the community archive I am working on with the Warumungu community, or like the Ara Irititja archive) to define access parameters that include such factors as country affiliations, gender, and ritual relationships. These types of access “codes” are often for material that is already in the public domain. That is, much of the archival materials in the Warumungu community archive are digital copies from museums, former missionaries in the area, national archives, etc., some of these materials cannot be viewed by all members of the community—the archive allows for these materials to be filtered, defined and catalogued within the community—but they remain in museums and archives simultaneously. These archives offer communities ways to maintain there own systems of knowledge distribution and access while simultaneously offering a new possibility for defining “traditional knowledge” more generally. This also gets to the point that Chris Kelty made in response to your first post. Kelty suggested that:
‘Indeed, the onus of making the Internet safe for traditional knowledge is on the putative possessors of “traditional” knowledge themselves; for better or worse it is they who must propose and create alternative ways to control, restrict or circulate that knowledge—and the important part is that the Internet allows them to do this (at least for the time being)—it’s about as agnostic with respect to innovations and possibilities as any technology in memory.”
I agree with Kelty here and these projects—and others that are online—can demonstrate the possibilities for articulating different systems of knowledge management and distribution—online and off. They present a way of viewing TK that does not have to make a legal frame the default. Certainly Sunder is correct that the concept of TK is a modern invention, and at the same time it is a political tool and an avenue for indigenous peoples to insert their claims into debates whose parameters have often already been defined. TK does not have to be a sign of retreat to secrets, but a way of redefining the parameters of knowledge circulation within overlapping property regimes.
sorry, I cut and pasted from a word document and it messed with the html tags
here are the links:
blog post
Warumungu community archive
Ara Irititja
Thank you for this thoughtful discussion. I think you will enjoy the Jonathan Lethem piece in this month’s Harpers for a very different take on ‘culture’ and whether it can or should be ‘owned’ by anyone:
http://www.harpers.org/TheEcstasyOfInfluence.html
Thanks for your link, Ron, which minds me of a similar website whose URL I’ll post with brief comments in a few days.
Kim’s discussion is a reminder of the double-edged impact of digital technology on indigenous communities. For every instance of destructive appropriation facilitated by the Internet, one can find an inspiring example of community-building and collective assertion that the Internet makes possible. (Kim’s own work on that front is about as forward-thinking as it gets.)
My only cautionary note–more of a diffuse anxiety, really–is that it is easy to mistake the map for the territory. Documenting and “preserving” heritage is OK, but it has to be _lived_ to survive in a meaningful way. There’s also the more prosaic problem of conservation: digital records are far more fragile than people realize. Institutions are discovering to their dismay that preserving, migrating, and supporting databases in perpetuity is an expensive proposition–perhaps more expensive than maintaining paper records. Think about it: perhaps you or some colleague you know has uploaded hundreds of terrific fieldwork photographs to a university website. But ten or twenty or fifty years from now, whose responsibility is it to see that those priceless images are still accessible via whatever software/hardware interfaces have replaced the original ones? Who provides (and pays for) the necessary tech support?
Full disclosure: I’m married to a professional archivist, so I hear about this stuff all the time. As a senior manager at the Library of Congress told me last summer, the cost-effective technology of the future is . . . the book!