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Protecting
traditional knowledge
By Dr JACOB SIMET
The debate on the protection and ensuring access to traditional
knowledge continues in different forms around the world.
Traditional knowledge is only part of that body of knowledge which
we now refer to today as cultural resources, in the context of
indigenous communities. Indigenous communities who now mostly live
in the developing or least developed world are owners or
custodians of these resources.
Debate on this issue has been going on for at least a decade now.
The main fora for debate are the World Intellectual Property
Organization (WIPO), the Convention on Biological Diversity (CBD)
and the Council of Trade Related Aspects of Intellectual Property
(TRIPPS) within the World Trade Organization (WTO). The debate
began when traditional knowledge, as a component of cultural
resources, was recognized as intellectual property.
For a long time intellectual property, as products of the mind,
was confined works of authorship and inventions. Books, music,
films and mechanical inventions, were products of the mind and
which were considered as intellectual property. As the notion of
intellectual property came from the West, most of these properties
were in the West. This meant that non-Western works such as music,
dance and innovation were not considered to be intellectual
property. In this sense, no one had any intellectual property
rights over them. They were considered to be all in the public
domain and were free for all. Most of this knowledge was in the
hands of indigenous people. Anyone who wanted to use this
knowledge did not have to ask them or pay them anything if they
made financial gain from their use.
About ten years ago, countries of the developing and least
developed world decided that the cultural resources of their
peoples had to be protected from further misuse and abuse by
others. They wanted to have some control mechanisms put in place
for the exploitation of these resources. Further to this, they
wanted to ensure that in any use of these resources where there
was economic gain made, the original owners should be equitably
rewarded. On the other hand countries of the developed and
industrialized world did not really want to accept protection and
wanted for there to be easy access at minimal coast, to these
resources.
At WIPO the debate started off with traditional knowledge being
all in one basket. But then this ran into difficulties when
protection and access could not be done in the same exercise. This
led to a split in the debate to have the scientific component of
traditional knowledge (TK) become genetic resources (GR) and the
rest become TK and Traditional Cultural Expressions (TCEs). In
this debate there are those of us who maintain that Traditional
Knowledge is the survival mechanism for indigenous people, and in
this sense it cannot be broken up into scientific and
non-scientific components.
In the CBD, Traditional Knowledge is addressed in two main areas;
articles 8(j) and 15 of the Convention. Article 8(j) deals with
the protection of Traditional Knowledge, while Article 15 deals
with the matter of Access and Benefit Sharing (ABS). The main task
is to balance protection and ensuring access. At the TRIPPS
Council, there is that debate which centers on the requirement for
patent applications to have Certificates of Origin. This means
that any application for patent which is derived from traditional
knowledge has to have a certificate declaring this source. As to
be expected, the developed and industrialized world are not in
support of this. On the other hand, the developing and least
developed world want this to be an important requirement for
patent registration. This creates that polarization between the
developed and lesser developed world.
In the Pacific we have been working on a legal instrument for the
protection of traditional Knowledge, since 1999. The result is the
'Pacific Model Law for the Protection of Traditional Knowledge',
which was endorsed by the Pacific Ministers of Culture in 2004.
This draft was then to all the member states and territories of
the SPC, to consider for adaptation of adoption, consistent with
their own legal systems and needs. In PNG, on receipt of the
draft, we are now going through the process of considering it for
possible adoption. The National Cultural Commission is now
conducting four Workshops in the four regions of the country, to
gauge people's views on the draft model.
While the debate rages at international fora and some work is
being done nationally in PNG, Toimtop, a little village in the
East Pomio District of East New Britain, has taken steps to
protect its cultural resources and conserve its cultural
resources; from unauthorized exploitation and as heritage for
future generations. With the assistance of K33,000-00 from the
World bank, the Toimtop Youth were able to build the Toimtop
Bio-Cultural Resource Center.
While the Center is multi-purpose, one of its main functions was
to document the cultural resources of Mengen and Sulka tribes, and
for storage in perpetuity. While this documentation will start off
with three main items; music, dances and folklore, it is
anticipated that it will also cover areas of traditional knowledge
such as medicinal plants and techniques, animal husbandry, plant
propagation and gardening techniques and other areas of creative
innovations.
The Bio-Cultural Resource Center relates to earlier work
undertaken by the village in the 1980s and 1990s; to fight
commercial logging in the area and won the battle, resulting in
the establishment of a large tract of forest as conservation area
inland from the village. According to the youth of Toimtop, while
initially there was interest in nature or environmental
conservation, they felt that there was a very strong link between
culture and the environment. The conservation of the environment
was important to culture and vice-versa. Thus it is called the
'Bio-Cultural Resource Center'.
 
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