Open Access Research Article
REASSESSING TRADITIONAL KNOWLEDGE: RETHINKING PROPERTY CLAIMS AND COMPENSATORY JUSTICE IN BENEFIT SHARING.
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Article Details
REASSESSING TRADITIONAL KNOWLEDGE: RETHINKING PROPERTY CLAIMS AND COMPENSATORY
JUSTICE IN BENEFIT SHARING.
AUTHORED BY - DAVID JOHNSON
ABSTRACT
This paper questions compensatory
justice in benefit sharing, asserting that traditional knowledge, though
unique, lacks a property basis. It advocates for a distributive justice model,
emphasizing shared humanity. Analyzing traditional knowledge, it suggests
multi-lateral negotiations for distributive justice in global agreements.
Keywords:
benefit sharing, compensatory justice, distributive justice, global agreements,
traditional knowledge.
INTRODUCTION
Global
Welfare Inequities
The elimination of persistent
inequalities in global health, food security, and environmental quality poses a
significant challenge for humanity. Scientific discovery and technological
innovation are crucial in addressing these disparities, with genomics and
biotechnology potential drivers of progress. These advancements have the
potential to contribute significantly to health, food, and environmental development
on a global scale by introducing groundbreaking technologies and tailoring
solutions to local challenges.[1]
However, optimistic predictions about
the positive impact of biotechnology must be grounded in realistic perspectives
on technological development, actual products and services, and an
understanding of the social factors influencing the acceptance of new
technology. These social factors play a crucial role in determining the ability
of new technology to address welfare inequities.
This paper focuses on a prevalent
aspect of the discourse on traditional knowledge and welfare inequities,
asserting that the current lack of sharing financial and other benefits derived
from biotechnologies based on traditional knowledge is akin to theft and
warrants compensation. Two key elements shape this assertion: the belief that
traditional knowledge is a unique form of knowledge that can be owned and
protected, and the idea that the exploitation of traditional knowledge by
non-owners is inherently unjust and requires a remedy, often framed as
compensatory justice.
In this paper, we challenge the
conventional notions of traditional knowledge and compensatory justice in the
context of benefit sharing. We argue that traditional knowledge, despite its
special provenance, is fundamentally similar to any other form of knowledge.
This challenges the basis for property claims in traditional knowledge. While
traditional knowledge may have historical roots within specific ethnic or
geopolitical groups, we contend that this alone does not justify its protection
through property rights. Consequently, if there is no property right in
traditional knowledge, then there can be no wrongful taking by a third party,
rendering a compensatory justice claim invalid.
We acknowledge the separation of
proprietary rights in traditional knowledge and compensation for its use but
argue against modeling benefit sharing on compensatory justice. Instead, we
propose that distributive justice provides a more robust foundation for
conceptualizing the sharing of benefits arising from biotechnological
innovation. Distributive justice suggests allocating these benefits based on
our shared humanity rather than relying on compensatory measures.
Distributive justice provides key
advantages over a compensatory scheme. First, it does not depend on proprietary
claims. Rather, it relies on fundamental principles underlying liberal
democracies about fairness and access to fundamental resources. Second, because
it does not rely on property claims, it does not require proof of past
wrongdoing, thus liberating claims to share benefits from long discussions of
past conduct. Third, it is not historically contingent, it calls for the
sharing of benefits with all of the world’s poor countries and not simply those
rich in traditional knowledge.
We undertake our analysis and
discussion in the following order. First, we define traditional knowledge and
how it is wrongfully exploited which in turn gives rise to the call for benefit
sharing. We then consider benefit sharing as compensatory justice and discuss
the problems that arise with this approach. Finally, we present an alternative
model of benefit sharing that is consistent with a formal theory of
distributive justice. This position, we argue, indicates that benefit-sharing
agreements must be negotiated on a multi-lateral basis.
Traditional Knowledge and its
Wrongful Exploitation
The World Intellectual Property
Office (WIPO) defines traditional knowledge very broadly as follows:
“… tradition-based literary, artistic
or scientific works; performances; inventions; scientific discoveries; designs;
marks, names and symbols; undisclosed information; and all other tradition-
based innovations and creations resulting from intellectual activity in the
industrial, scientific, literary or artistic fields…”[2]
To share benefits from scientific and
biotechnological innovation, WIPO has confined this definition to “knowledge
about products or processes, natural or artificial, that are relevant to
biotechnology innovation, and known by some people but not all.” This
definition is consistent with the Convention on Biological Diversity (CBD) that
explicitly relates traditional knowledge to benefit sharing:
Article 1: The objectives of this
Convention, to be pursued in accordance with its relevant provisions, are the
conservation of biological diversity, the sustainable use of its components and
the fair and equitable sharing of the benefits arising out of the utilization
of genetic resources, including by appropriate access to genetic resources and
by appropriate transfer of relevant technologies, taking into account all
rights over those resources and to technologies, and by appropriate funding.
Art. 8(j): Subject to its national
legislation, respect, preserve and maintain knowledge, innovations and
practices of indigenous and local communities embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity and
promote their wider application with the approval and involvement of the
holders of such knowledge, innovations and practices and encourage the
equitable sharing of the benefits arising from the utilization of such
knowledge, innovations and practices. [3]
From these definitions of traditional
knowledge, one can notice two types of traditional knowledge that relate to
biodiversity and innovation. First, there is knowledge about the use of
biological resources in health or agriculture based on previous exploitation
(e.g. the medicinal uses of the neem tree and turmeric).[4]
Second, there is the information about the existence of particular plants or
animals with characteristics that may interest a pharmaceutical company. A good
example is Costa Rica’s establishment of the Instituto Nacional de
Biodiversidad (INBio) which enters into partnerships with companies wishing to
explore the country’s biodiversity.
Calls for the equitable sharing of
benefits arising from utilizing the aforementioned traditional knowledge types
often draw inspiration from a scenario characterized by unjust exploitation.[5] In
this scenario, an indigenous group possesses traditional knowledge, and another
group, often from an industrialized nation but not exclusively, recognizes the
knowledge's potential utility and exploits it. As a consequence, the exploiting
group gains exclusive access to and control over the benefits derived from the
knowledge, to the detriment of the indigenous group. This outcome is deemed
inequitable, and it is asserted that it would be preferable if all parties
involved could benefit from the knowledge exploitation and have equal access to
its advantages. The situation becomes more objectionable when the
industrialized party demands compensation from consumers in developing
countries for goods and services that incorporate the exploited knowledge,
resembling a form of extortion.
At least since the negotiation of the
CBD in 1992, the international community has recognized wrongful exploitation
and struggled to conceive of how to allocate both access to and the benefits
derived from traditional knowledge. Article 8(j) of the convention aspires to
protect this knowledge in some form without giving substantive content to the
form of protection required. Subsequent work has led to developing Bonn
Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the
Benefits Arising Out of their Utilization [6]
setting out voluntary guidelines on access to genetic resources which state
that “mutually agreed terms could cover the conditions, obligations,
procedures, types, timing, distribution and mechanisms of benefits to be
shared.”
The meaning of ‘traditional’ often
simply locates knowledge in a set of historical and geographical contingencies
– where the knowledge was used and by whom. Yet, however banal these
contingencies might seem from an epistemological standpoint, they constitute
the strongest evidence for the wrongful exploitation of traditional knowledge.
The agglomeration of modern seed banks in industrialized countries drawing on
resources from the developing world, for example, can be seen as a modern
outgrowth of traditional colonial practices of bio-geographical exploitation[7] . Place
and practice are likewise implicit in terms like ‘ethnobiology’ and
‘bioprospecting’ currently used to describe the study of people’s local
knowledge in the first case, and utility interests in that knowledge in the
second case.
Benefit sharing as compensatory
justice is premised on the belief that traditional knowledge gives rise to
special property rights. There are two primary arguments put forward that
justify treating traditional knowledge as property. First, there is the
frequently adopted position that traditional knowledge is knowable by certain
distinct groups but not necessarily by all people and so, traditional knowledge
demarcates a way of knowing. This unique way of knowing gives rise to a
property claim that should be compensated for if wrongfully exploited. For
example, Vandana Shiva states that people in developing countries understand
nature differently than do people in the West[8].
She finds evidence for the different epistemological outlooks on the
vulnerability of Eastern cultures to biopiracy.
Since individuals in these cultures
do not typically view nature as a source for technological extraction or
subject to intellectual property protection, they become vulnerable to
exploitation. Shiva emphasizes a stark distinction between Eastern and Western
knowledge systems to advocate for restrictions on utilizing genetic resources
from developing countries in Western biotechnological advancements.
Additionally, she contends that the distinctive ways of knowing in the East
establish a proprietary claim over traditional knowledge. By conceptualizing
traditional knowledge as a form of property, it becomes possible to mitigate
the intrusion of Western biotechnology in Eastern contexts. Thus, variations in
epistemological perspectives contribute to safeguarding Eastern proprietary
knowledge.
Another justification for treating
traditional knowledge as property is recognizing the unique nature of 'traditional'
knowledge, endowing a special status upon its possessor.
The emphasis on the special status of
'traditional' knowledge revolves around investigating whether the term
'traditional' imparts a specific standing to the knowledge or its holder,
thereby giving rise to a property right. This approach aims to reconcile the
tension between the push to safeguard proprietary interests in traditional
knowledge and the underlying cultures that have yet to acknowledge this
knowledge as 'ownable' or exploitable.
Standpoint epistemology, of the kind
advanced by Sandra Harding, has lent credibility to the idea that there are
different ways of knowing attributable to groups of people with unique
socio-economic circumstances[9]. How one
relates to one’s world may be subject to interpretations nuanced by place and
culture. One can further claim that localized knowledge constitutes not a
different set of knowledge but a different way of knowing. This seems to be a
good starting point for explaining why ‘traditional’ knowledge is special.
Unfortunately, it does not get us very far in the case of traditional
knowledge.
Benefit Sharing
Benefit Sharing and Compensatory Justice
Benefit sharing represents a
policy-level decision on appropriately managing traditional biotechnology-related
knowledge acquisition and utilization. It lacks an inherent normative
foundation but is seen as a mechanism to implement externally-determined
obligations. As previously mentioned, benefit sharing is often asserted to
derive its normative basis from the intrinsic value of traditional knowledge.
It establishes a framework to allocate this value between those who possess the
knowledge and those who exploit it, providing international organizations like
the Food and to the Agriculture Organization and the World Intellectual
Property Organization with benchmarks for distributing financial and other
benefits based on the contribution of material or samples.[10]
The nature of the obligation to share
benefits is contingent on the conceptualization of traditional knowledge. If
traditional knowledge is considered proprietary, benefit-sharing is a claim for
compensation for the unauthorized or wrongful use of that knowledge.
Conversely, if traditional knowledge is not seen as proprietary, benefit
sharing must seek its normative basis elsewhere, divorced from any inherent
special nature of traditional knowledge.
Despite this, international
agreements acknowledge the connection between benefit sharing and proprietary
claims to traditional knowledge. This connection can be traced back to at least
the 1992 Convention on Biological Diversity, which, upon taking effect in 1994,
recognized each state's sovereign right over genetic resources within its
territory. Benefit sharing gained prominence at the fourth Conference of the
Parties, which called for developing an international framework to fulfill
Article 15 of the CBD, addressing international access to genetic resources
under national control.
Expanding beyond traditional
knowledge, we see a similar compensatory link between benefit sharing and human
genetic information. Perhaps the clearest articulation of the compensatory
approach arises in the Human Genome Organization’s[11].
In that statement, HUGO endorsed a model of benefit sharing substantively based
on compensatory justice defined as “meaning that the individual, group, or
community, should receive recompense in return for [a] contribution…”[12].
While HUGO’s Statement refers most clearly to human genetic information, its
compensatory approach to benefit sharing has become paradigmatic for not only
human genetic information but also traditional knowledge about biodiversity. It
is also worth noting that there is a strong current of compensatory justice
thinking throughout the literature on ethnobotany, biopiracy, and benefits
sharing[13].
Critique of the Compensatory Approach
If international
agreements, guidelines, and existing literature acknowledge that benefit
sharing is rooted in a compensatory assertion related to the unauthorized
appropriation of proprietary traditional knowledge, one might assume that
articulating the reasons behind the proprietary nature of this knowledge would
be straightforward. However, it becomes apparent that these reasons are more
illusory than substantive. One might be inclined to argue, starting with the
premise that 'traditional' identifies knowledge based on place, history, or
culture, that this specific origin inherently leads to a proprietary interest
for those who share the same place, history, and culture. As discussed earlier,
such an argument is unsustainable. In other words, it is not logical coherent
to assert that traditional knowledge, once exploited and comprehensible to
others, is epistemologically so distinct from other forms of knowledge that it
justifies the creation of a property right. Therefore, if traditional knowledge
is to be subject to property rights, the justification for this must be sought
elsewhere, not in its purported special nature.
This assumption is subject to
disagreement, even though it serves as the foundation for the aspirational
aspect of international agreements on benefit sharing. This is particularly
evident in the context of intangible goods such as non-rivalrous knowledge, and
even more so for global public goods. Property rights challenge this assumed
state of freedom and, as a result, must be justified on a normative basis.
Therefore, if traditional knowledge does not inherently lead to a proprietary
claim due to its unique nature, those advocating for a property interest in
such knowledge bear the responsibility of persuading others of the validity of
their claim. The typical rationale for such arguments is rooted in a labor
theory of property or follows a utilitarian perspective. Those in favor of
asserting proprietary claims to traditional knowledge frequently rely on the
Lockean argument that posits the right to property where one has exerted labor.
Locating this natural property right
in traditional knowledge follows the Lockean model: Those who have property in
themselves and mix labor with the natural resources and thus have dominion over
the property, thereby have the right to prevent appropriation of their property
by others. Once we accept that traditional knowledge gives rise to a natural
property right, benefit sharing gains a very specific normative underpinning
associated with property rights. In the paradigmatic scenario described
earlier, appropriation and exploitation of traditional knowledge by third
parties violates the property holder’s right to exclude all others from that knowledge
and so constitutes theft. Although ‘biopiracy’ may sound metaphorical, in these
cases, it is meant literally.
Unfortunately for proponents of this
argument, not only is there contention surrounding the general Lockean
argument, but its application to traditional knowledge presents significant
challenges for two main reasons. Firstly, traditional knowledge, by its
inherent nature, has existed for an extended period. Consequently, individuals
using it today did not labor to create it (as they would already possess a
claim to traditional knowledge based on standard legal grounds if they had).
Therefore, these individuals lack a direct claim rooted in the expenditure of
their labor. Secondly, depending on the labor of one's ancestors and
subsequently assigning the property right to the present generation is
similarly unconvincing. This argument has historically not found favor, even
concerning inventions and artistic works, as we do not grant absolute rights to
ideas or artistic creations beyond a limited time period. Given that all
creative works receive relatively limited rights, those rights would have long
expired for the vast majority of traditional knowledge. Consequently, a
compelling Lockean argument for property in traditional knowledge is lacking.
If we cannot justify a property right
in traditional knowledge based on labour, another justification to consider is
utilitarianism. According to utilitarianism, the granting of a property right
is justified so long as it increases the benefit to society. The property
system covering intangibles most associated with utilitarianism is the patent
system. The central justification for the award of patent rights is the
utilitarian argument that patents lead to the creation and dissemination of
knowledge [14]. In
particular, patents provide a financial lure to would-be inventors to invent
new things. Without this lure, inventors may not undertake the risk and expense
of developing such knowledge. As Gold and Caulfield have pointed out, no such
arguments exist with respect to traditional knowledge[15].
By its very nature, traditional knowledge has been around for a long time,
having been built up over many years. Granting a property right will provide no
incentive to invent as the invention has already occurred. Patent systems have
long recognized this. The English Crown’s failure to accept it led to the
passage of the Statute of Monopolies. Patent systems thus apply only to ‘new’
knowledge, thus excluding what was previously known.
The conclusion is therefore that neither
natural property rights nor utilitarian arguments justify a property right in
traditional knowledge per se. This
does not mean that no traditional knowledge may become subject to intellectual
property rights on the same basis as other knowledge; it simply means that the
mere fact that knowledge is traditional is insufficient in itself to justify
the granting of a proprietary interest. Without a justification to limit
freedom, we can only conclude that we can use traditional knowledge as we wish.
Furthermore, the attempt to justify
proprietary rights in traditional knowledge only perpetuates an ideology of
proprietarianism that restricts access to other forms of knowledge, such as
that embodied in medications and agricultural research. This is because the
proprietary claim to traditional knowledge mirrors the strongest form of the
argument in favor of intellectual property rights including patents.
Increasingly, international discourse over intellectual property has taken on
the tone of this property being the natural right of its holder with any
limitation on this right being prima
facie illegitimate[16]. By
reiterating this argument, even in relation to traditional knowledge, we not
only condone but lend support to the creeping proprietarianism at the international
level. As whatever practical benefits developing countries may derive from
treating traditional knowledge as property will be far outweighed by a further
entrenchment of proprietarianism with respect to patents, the move to argue
that traditional knowledge is property can only be viewed as dangerous.
As previously discussed, asserting a
property right over traditional knowledge forms the basis for compensatory
justice benefit-sharing frameworks. However, the inherent incoherence of the
property right claim in the case of traditional knowledge removes the grounds
for seeking compensation. Consequently, in this context, bioprospecting cannot
be deemed as biopiracy. Following its internal logic, a benefit-sharing
mechanism should offer no recourse for a third party's use of traditional
knowledge, as no harm is inflicted upon the alleged holders of a non-existent
property right.
Nevertheless, it is crucial not to
disregard the influence of the discourse linking 'traditional' knowledge as
property with benefit sharing. However, recognizing the strength of this
discourse is distinct from wholeheartedly accepting it. Examining the
traditional knowledge debate further reveals different argument forms. The
proprietary argument, discussed earlier, is one form, while another
fundamentally centers on credit rather than property.
A foundational acknowledgment is that
the dispute over the value of traditional knowledge stems from its exploitable
nature. Discussions about benefit sharing arise due to the recognition that
traditional knowledge is valuable in providing access to genetic resources.
Biopiracy occurs when a bio prospector acts as if the traditional knowledge,
which was instrumental in identifying the genetic resource, either does not
exist or was not exploited before the prospector's actions. Distinctions
between bioprospecting and biopiracy are evident in disputes over whether
countries recognizing traditional knowledge consider it "foreign prior
art."
In the United States, recognizing
traditional knowledge as prior art is variable, leading to instances where
patents have been revoked. However, U.S. law does not explicitly require the
consideration of foreign prior art, potentially allowing patents to be filed,
enabling the exploitation of traditional knowledge regardless of whether the
patent withstands a novelty challenge. The remedy to the issue of credit-taking
is not the grant of property rights over traditional knowledge but the absence
of property rights over the claimed invention by the prospector. This argument
is not related to benefit sharing but aims to ensure the robustness of the
public domain.
In summary, it can be deduced that if
the intention was to offer compensation for the utilization of traditional
knowledge by establishing a benefit-sharing scheme rooted in a property
framework, the outcome is that not only will no compensation be directed to
those holding such knowledge, but access to other knowledge, medicines, and
goods may become even more challenging to attain. Strangely, we find ourselves
in a situation where the seemingly commendable objective of benefit sharing is
compromised by the strategy employed to achieve it.
Conclusion
The rationales supporting
benefit sharing cannot be based on claims to property rights in traditional knowledge,
either because natural property rights are inherently problematic or because
property is typically considered free unless there is a normative justification
for restricting access, especially in the context of knowledge assets. However,
this paper is less focused on these considerations and more on their
challenges. Adopting a right to property in traditional knowledge as the
foundation for a compensatory justice approach to bioprospecting and biopiracy
can perpetuate unequal distributions, particularly when compensation is
primarily contingent on factors such as the location of biological resources
and the presence of alternative potential sources. Institutions aiming to
acknowledge the value of traditional knowledge and establish a framework for benefit
sharing must endorse a new distribution method. Although this paper does not
delve into the intricate task of determining equitable distribution, it is
important to note that developing countries with valuable genetic resources
have a better chance of negotiating favorable terms within the WTO framework
then seek compensation after resource exploitation. Furthermore, a compensatory
scheme may reinforce a proprietary conception of knowledge, inadvertently
strengthening arguments favoring patent rights over critical goods like
essential medicines.
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Article Information
REASSESSING TRADITIONAL KNOWLEDGE: RETHINKING PROPERTY CLAIMS AND COMPENSATORY JUSTICE IN BENEFIT SHARING.
Authors: DAVID JOHNSON
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/18
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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