Traditional knowledge & the patent dilemma
Our intellectual property laws do not serve all the people of the United States, or the World
During the first week in June 2022, the United Nations, World Intellectual Property Organization met in Geneva to discuss technical aspects of a draft treaty to protect the traditional knowledge of indigenous people around the world. WIPO is the intergovernmental body that serves as a convenor for an eclectic disapora of the world’s intellectual property law regimes for 193 member-nations.1
The UN draft treaty is the culmination of years of advocacy by indigenous people and their allies to have their traditional knowledge – passed down through generations often orally – formally recognized and given protection under international law.2
The issue of intellectual property protection for traditional knowledge is not new. In 2001, WIPO convened a conference to discuss the topic and in 2003, issued a set of recommendations.3 But the UN draft treaty is the first time that member-states are being asked to take concrete action to protect traditional knowledge.
The problem is that intellectual property laws – as they exist today – do not adequately serve the needs of indigenous people. These laws were created by and for Westerners, and they do not take into account the unique nature of traditional knowledge.
Traditional knowledge is often shared communally, rather than individually. It is passed down from generation to generation, often orally. And it is deeply intertwined with cultural and spiritual beliefs.
As a result, traditional knowledge does not fit neatly into our existing intellectual property categories.
“Biopiracy” is the theft of biological materials with its centuries of knowledge, although it is not an actual crime, like piracy. The neem tree is the classic example of biopiracy, where numerous patents were filed to claim the use of the neem tree (from India) for its contraceptive use and other functions. The people of India never received any benefit from this commercialization of their knowledge of their tree, but worse perhaps, is they were excluded from using their own tree because of exclusionary patents.2
It has been a long journey to find ways to utilize amazing indigenous knowledge for the world while sharing in the benefits from that sharing. It started with the Convention on Biological Diversity in 1992, when it was acknowledged that environmental management decisions3 as well as protection of traditional knowledge and the right to own it4 required consultation with indigenous tribes by the countries in which they resided. Since Indigenous people use 1/4 of the earth’s surface, 11% of forests and 80% of the world’s biodiversity,5 one might wonder — what took so long to consult with the people who have been protecting and living with the land for millenia, and to share the benefits of what indigenous people have learned and practiced with this immense biodiversity?
Equity and benefits sharing is a sign of a maturing society that has left the “rape and pillage”6 phase of behavior and gone on to embrace ethical standards of conduct as a norm, and we are moving in that direction —-at least I like to think so. The Bonn Guidelines were developed to implement the Convention on Biological Diversity sections on indigenous peoples and intellectual property, were voluntary but became an industry norm. From that, the Nagoya Protocol became a binding requirement. No longer, for example, would large corporate pharmaceutical companies, i.e., Big Pharma, visit an isolated village in a South Pacific Nation and collect medicinal plants and record traditional knowledge about how it is used for the next blockbuster drug, without first setting the terms for a downpayment, royalties and other benefit sharing — if they hoped to get a patent on it.
But WIPO, the World Intellectual Property Organization did not have authority to implement these guidelines. They are an intergovernmental organization and a unit of the Social and Economic Branch of the United Nations, but they are not parties to the Convention on Biological Diversity nor mentioned in it as bound by it. The United Nations units have their own charters and have independence so they would need to act on their own — which they did. WIPO, on a resolution from its General Assembly in 20177 started developed a treaty to recognize this intellectual property area, and then, in 2019, a technical expert was appointed to develop a report on data available and a draft was developed which is the starting point for negotiations.8 The the plan is to draft regulations for patent review that will require compliance with these regulations.9
Knowing which plants and traditions are being used need to be identified. A working definition for traditional knowledge developed for WIPO is:
Traditional knowledge (TK) is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.
Within that category is traditional ecological knowledge (TEK), typically biological and genetic resources as well as environmental management traditions; and traditional cultural expressions (TCE), which is the expression of traditions through music, art, stories, techniques, processes and ceremonies. Placing these concepts in the framework of intellectual property law, patent law and trade secrets apply to TEK and copyright and trademark law apply to TCE.
But intellectual property law does not fit the traditional use of creative works. Here are some of the issues that do not serve to protect traditional knowledge:
•Patents have an “owner”; TK is a tribally owned creative work and there is no one inventor or creator
•Patents require the “hand of man” to create an invention, and the knowledge around a plant does not change the plant in order to qualify for patenting. Traditional knowledge does not alter plants but it is the knowledge around that plant that has been collected for hundreds of years that adds value and makes it useful, as required by patent law. But without an alteration to the plant itself, it will not meet the criteria for a patent.
•Patents require a new invention, and traditional knowledge has been likely widely known within the indigenous community for centuries.
•Patents exclude others, and the original owners of TK would be excluded from using their own TK. In an ironic twist, if a corporation owns the patent, then the tribe is excluded from using their own TEK.
• Patents provide exclusive protection of the invention for a limited time, and after that time the TK is open for use by anyone. Tribal cultures work on a timeline that actions are based on the effect on seven generations, not a patent limit of 20 years from filing date; or life of the author plus 70 years for copyright.
Solutions for this are being developed by WIPO to require patent applicants to show they consulted with the indigenous nation and developed a benefit sharing plans. Those plans include upfront payments to explore ideas, and then royalties for sales of any product commercialized.
The draft treaty does not apply retroactively.
The U.S. Patent Law system should also consider how to protect TK, and the U.S. Constitution does not say only some “authors and inventors” should be able to use this protection. But the “limited times” exclusion may not adequately protect those inventions that are considered sacred and not to be shared.
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;10
Analyzing this clause using originalism (most frequently associated with the Justice Scalia approach to Constitutional analysis), at the time the Constitution was being drafted, the U.S. had a policy of enhancing trade but taking land through treaties with the ultimate goal of genocide. It is not likely that this clause was designed to include protect the unique situation of TK of America’s indigenous Nations. But the Constitution is designed to apply to all people in the United States.
So traditional U.S. patent law may never adequately protect TK.
Meanwhile, potential solutions in the United States might include applying Native Nations’ own intellectual property law within their jurisdiction. This could criminalize the theft of intellectual property that is traditional knowledge. U.S. patent law and copyright law would not apply in the Native Nation’s jurisdiction. In one case applying a Native Nation’s law might have prevented the theft of music from the Hopi Nation. Prof. Trevor Reed is working on the Hopi Music Repatriation Project to return music recorded and commercialized without permission by an anthropologist who built her career on this music, commercialized it, and never gave back anything to the Hopi Nation. Prof. Reed proposes applying Native Nation’s own intellectual property law within their jurisdictions to prevent such thefts from occurring.11 Prof. Tsosie proposes a self-determination model, with the U.S. providing legal protection to all Native Nations’ cultural property, and allowing them to make the decision as to how much they wish to participate in commercialism outside of their jurisdictional boundaries.12
Other thefts of creative works have been taken from Native Nations in the U.S., like the “ravenstail” design on a coat marketed by Neiman Marcus department store that was a copy of Tlingit artist Clarissa Rizal’s design. The settlement involved using Tlingit law to reach an equitable result in 2021. 13 To prevent these infringements and ethical misappropriations, a three part test is recommended for whether a design is an infringement or a misappropriation: designers should be guided by (1) a consideration of the source; (2) significance of the design; and (3) similarity of their design.14
U.S. law does provide useful protections for artists with the Indian Arts & Crafts Act of 199015 prohibits selling creative works claiming they are made by Native Americans if they are not. The Native American Graves Protection and Repatriation Act of 1990, 16criminalizes trade in articles of cultural patrimony (objects owned collectively by the Native Nation). The scope of these laws provides important protections, although narrowly.
The trademark law issue has been highly controversial around sports mascots, like the “Redskins”, which is considered a slur about Native Americans. The U.S. Supreme Court has invalidated trademark law that would allow rejecting trademarks that are offensive, in protection of Free Speech and Expression,17 and so the decision to stop using these types of mascots has been largely driven by powerful sponsors who threaten to drop their sponsorships of professional sports teams.18
The misappropriations are vast, from Disney’s flawed depiction of the Saami people in “Frozen”19 to Jennifer Lopez’s use of indigenous costumes in the American Music Award.20 These are not infringements, and have to be evaluated in an ethics framework, which often translates to social media approbation and/or sponsor abandonment.
Recent U.S. efforts to revamp federal consultation processes with Native Nations will go a long way to addressing most of these intellectual property law issues, but it is just as important that the private sector recognize that consultation and benefit sharing is essential. The White House joint letter to OSTP and CEQ to consult with Native Nations and to use indigenous traditional ecological knowledge (ITEK) is important but it also should include the protection of that ITEK, and it does not. 21
The WIPO is moving in the direction of making binding regulations for patent holders that seek registration in multiple countries through WIPO, and that is a good start.
Please share your thoughts in the comment section.
https://www.wipo.int/members/en/
http://nationalaglawcenter.org/wp-content/uploads/assets/bibarticles/marden_neem.pdf
Con on Biological Diversity, Art. 8(j).
Con on Biological Diversity, Art. 15.
Gleb Raygorodetsky, The Archipelago of Hope: Wisdom and Resilience from the Edge of Climate Change (2017).
Not limited to Vikings, see https://muse.jhu.edu/article/562876/pdf .
https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_43/wipo_grtkf_ic_43_inf_2_rev.pdf
ibid.
https://www.wipo.int/meetings/en/details.jsp?meeting_id=70088 (Documents page includes unofficial draft of treaty.)
U.S. Const., Art. I, Sec. 8, Cl. 8.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3736137
https://www.cambridge.org/core/books/abs/traditional-ecological-knowledge/indigenous-peoples-and-cultural-sustainability-the-role-of-law-and-traditional-knowledge/28C04FB2C7C37CD1B5E082B33875A452
Sealaska Heritage Institute v. Neiman Marcus (2020). https://www.ktoo.org/2021/03/03/sealaska-heritage-settles-ravenstail-coat-case-with-neiman-marcus-other-defendants/
Susan Scafidi, “Who Owns Culture?: Appropriation and Authenticity in American Law” (2005).
https://www.doi.gov/iacb/ (first passed in 1935).
https://www.nps.gov/subjects/nagpra/
Matal v. Tam, 582 U.S. ___ (2017) at https://www.oyez.org/cases/2016/15-1293 and See https://www.nytimes.com/2017/06/19/us/politics/supreme-court-trademarks-redskins.html.
https://www.washingtonpost.com/sports/2020/07/10/private-letter-redskins-fedex-said-it-will-remove-signage-if-name-isnt-changed/
https://www.cbc.ca/news/canada/north/frozen-2-consultation-sami-1.5370801
https://www.mic.com/articles/129037/jennifer-lopez-wears-tribal-outfit-for-american-music-awards-opening-number
https://www.whitehouse.gov/wp-content/uploads/2021/11/111521-OSTP-CEQ-ITEK-Memo.pdf