Traditional Knowledge at the International Level

1
Traditional Knowledge at the International Level

• Debra Harry
• Executive Director
• Indigenous Peoples Council on Biocolonialism
• dharry_at_ipcb.org
• www.ipcb.org

2
Indigenous Cultural Heritage Broadly Defined

• The heritage of indigenous peoples includes all
  moveable cultural property
• all kinds of literary and artistic works such
  as music, dance, song, ceremonies, symbols and
  designs, narratives and poetry all kinds of
  scientific, agricultural, technical and
  ecological knowledge, including cultigens,
  medicines and the rational use of flora and
  fauna human remains immoveable cultural
  property such as sacred sites, sites of
  historical significance, and burials and
  documentation of indigenous peoples, heritage on
  film, photographs, videotape, or audiotape.
• Madame Erica Daes, Human Rights Special
  Rapporteur on the Study of Cultural Heritage

3
Traditional Knowledge ? Indigenous Knowledge

• While IK is inappropriately subsumed under the
  broad category of TK but in reality, IK is
  separate and distinct
• Any discussion of Indigenous Peoples knowledge
  necessarily requires the recognition and
  protection of the international human rights of
  Indigenous peoples.

4
Indigenous Knowledge in the Market Economy

• Indigenous peoples . are considered potential
  market players because they offer unique
  commodities such as traditional knowledge. But
  they are not quite market-ready because their
  unique commodities have not been made market
  ready, that is they have not yet been
  discovered in the research sense nor have they
  been commercialized in terms of intellectual
  property.
• Dr. Linda Tuhiwai Smith, Decolonizing
  Methodologies

5
Protection vs. Protection

• IPR based protection of IK
• Defensive Measures (databases, certificate of
  origin)
• Positive Measures (registers)
• Indigenous Peoples Protection of IK GR
• Safeguarding the continued existence and
  development of the knowledge protecting the whole
  social, economic, cultural and spiritual context
  of that knowledge

6
IPRs or Modified IPRs for Protection are Not
Appropriate

• IPRs
• Monopoly Rights
• Short Term, Time Specific
• Alienability
• Post-Protection Public Domain

• Indigenous Systems
• Collectively held resources
• Benefit for future gsenerations
• Inherent and Inalienable

7
Real Dangers of IPRs over IK

• IPR protections are a threat to IK by placing IK
  in the domain of the market, and public domain.
• IPRs transform the nature of Indigenous Knowledge
  from collectively held cultural heritage to an
  alienable commodity.

8
Protection vs. Protection

• Do States have a right to protect Indigenous
  knowledge?
• Western law has no right to protect my
  knowledge because it has no right to my
  knowledge. No more than,say, would any other
  Indigenous peoples have such a right.
• Mike Myers, Seneca Nation

9
The Rights of Indigenous Peoples
10
Protection of Indigenous Knowledge

• Indigenous Peoples positions
• It is our knowledge and we have rights to it.
• We have a right to protect that knowledge
  according to our cultural values, principles and
  customary law.
• States must recognize that right, and it is not
  for them to try to define the forms, levels or
  degrees of protection.

11
UN Declaration on IPs Rights - Article 26

• 1. Indigenous peoples have the right to the
  lands,territories and resources which they have
  traditionally owned, occupied or otherwise used
  or acquired.
• 2. Indigenous peoples have the right to own, use,
  develop and control the lands, territories and
  resources that they possess by reason of
  traditional ownership or other traditional
  occupation or use, as well as those which they
  have otherwise acquired.
• 3. States shall give legal recognition and
  protection to these lands, territories and
  resources. Such recognition shall be conducted
  with due respect to the customs, traditions and
  land tenure systems of the indigenous peoples
  concerned.

12
UN Declaration on IPs Rights - Article 31

• Indigenous peoples have the right to maintain,
  control, protect and develop their cultural
  heritage, traditional knowledge and traditional
  cultural expressions, as well as the
  manifestations of their sciences, technologies
  and cultures, including human and genetic
  resources, seeds, medicines, knowledge of the
  properties of fauna and flora, oral traditions,
  literatures, designs, sports and traditional
  games and visual and performing arts. They also
  have the right to maintain, control, protect and
  develop their intellectual property over such
  cultural heritage, traditional knowledge, and
  traditional cultural expressions.
• In conjunction with indigenous peoples, States
  shall take effective measures to recognize and
  protect the exercise of these rights.

13
Permanent Sovereignty Over Natural Resources

• Special Rapporteur Erica-Irene Daes Report (2004)
• . international law and human rights norms
  demonstrate that there now exists a developed
  legal principle that indigenous peoples have a
  collective right to the lands and territories
  they traditionally use and occupy and that this
  right includes the right to use, own, manage and
  control the natural resources found within their
  lands and territories.
• Natural resources includes genetic resources
• (Indigenous Peoples Permanent Sovereignty Over
  Natural Resources, E/CN.4/Sub.2/2004/30)

14
Requirements for States for True Protection of IK

• 1. States must recognize the right Indigenous
  Peoples as owners of their knowledge, including
  the right to control access to, and use of, that
  knowledge.
• 2. States must recognize our own customary and
  codified systems of protection for our own
  knowledge.

15

• Our heritage cannot be separated into component
  parts. We do not award different values to
  aspects of our heritage and we do not classify
  them into different categories such as
  scientific, spiritual, cultural,
  artistic, or intellectual, nor separate
  elements such as songs, stories, and science.
• We do not see the protection of our rights to our
  cultures as separate from our territorial rights
  and right to self-determination.
• Victoria Tauli-Corpuz, Workshop
  Report-Biodiversity, Traditional Knowledge, and
  Rights of Indigenous Peoples, 2003.

16
Two Row Wampum

• Two Row Wampum- Haudenosaunee (Iroquois) and
  Dutch Treaty (1514)
• Reflects the existence of parallel societies as
  equals going down the river of life
• The right and responsibility to protect IK rests
  with the Indigenous system of governance.
• These mechanisms need to be respected as from a
  principle of equity.

17
Asserting Self-Determination

• my governments right to protect its people,
  knowledge, creations, ways, and territories, is
  inherent as a government. What mechanisms we use
  within our context is equal to whatever ways they
  use to protect theirs. They need to be seen as
  equal, and be treated as equal in forums where
  issues and challenges about the balance of that
  equality are raised.