Protecting traditional knowledge from the grassroots up
For indigenous peoples around the world, traditional knowledge (TK) based on natural resources forms the basis of their culture and identity, and yet it is under threat. Indigenous communities are increasingly vulnerable to eviction, environmental degradation and outside interests keen on taking over their traditional resources. Intellectual property rights are not suitable for TK because of their commercial focus, as opposed to fundamental indigenous principles such as resource access and sharing. Findings from China, India, Kenya, Panama and Peru show that local customary law is more suitable for TK. This brief discusses the common principles behind customary law and its suitability for TK and the concomitant policy implications.
The brief argues that customary laws share the following common principles:
- reciprocity – what is received is what is given back in equal measure
- duality – everything has a complementary opposite
- equilibrium – the need to maintain balance and harmony in nature and society.
The paper then introduces the following customary practices that span different cultures:
- customary rights over genetic resources – tangible and intangible resources are inextricably linked and are at the disposal of indigenous communities to use and develop as part of their adaptive resource management systems
- collective rights and decision-making – TK and genetic resources are developed over generations and become a community’s heritage meaning that decisions about access should be made collectively
- equitable benefit-sharing among communities – benefits need to be shared equitably among communities to strengthen collective rights and resource management systems to ensure that benefits reach the poor and conservation incentives are spread
- managing external access to traditional knowledge between users and communities should be guided by community rules and procedures based on their customary laws and practices in the absence of state policies.
The briefing adduces the following policy implications:
- intellectual property – protection centred on commercial rights is unsuitable for safeguarding traditional knowledge
- local customary law can effectively safeguard TK by protecting collective rights
- customary principles are common across many cultures and can be developed as a basis for policy
- the customary rights of communities over genetic resources they domesticate and improve should be recognised
- policy to protect TK should be developed in concert with indigenous communities and supported by international legal frameworks
- TK rights need to be tied to biocultural heritage rights like ancestral territories, resources and culture.