Traditional knowledge encompasses the information possessed and developed within a community. Such knowledge arises and is used to inform the activities of the community–it is “traditional” in this way. The authors of a AAAS handbook, in a discussion of TK, point out how intellectual property rights–statutory rights established or recognized by a state, along with trade secrets–may conflict with TK:
Intellectual property rights should guarantee both an individual’s and a group’s right to protect and benefit from its own cultural discoveries, creations, and products. But Western intellectual property regimes have focused on protecting and promoting the economic exploitation of inventions with the rationale that this promotes innovation and research. Western intellectual property law, which is rapidly assuming global acceptance, often unintentionally facilitates and reinforces a process of economic exploitation and cultural erosion.
Often, the conventional statutory formulations of patents, copyrights, and the like are at substantial odds with TK. One might consider IP, in this regard, to be a tool of disruption–breaking apart existing activities in favor of ones sanctioned by the state, which is indifferent to private or community approaches to knowledge, expression, invention, and education.
Indigenous peoples have worked to articulate the conflict. One statement in this regard is the Cooangatta Statement, published in 1999. It is focused on education, but by education it means the rights of a community to make its own decisions with regard to how knowledge is created, passed on, and used by the community. At the heart of this statement is a claim to self-determination:
We, the Indigenous peoples of the world, assert our inherent right to self-determination in all matters. Self-determination is about making informed choices and decisions and creating appropriate structures for the transmission of culture, knowledge and wisdom for the benefit of each of our respective cultures.
The roles for non-Indigenous people is clearly of a secondary nature:
Indigenous peoples at the local level must determine how and to what degree non-Indigenous peoples are involved in Indigenous education. Once this role is determined it is the responsibility of non-Indigenous peoples to respect and adhere to the wishes of the local community.
This self-determination is rooted in choice:
Indigenous self-determination involves choice and diversity. If an Indigenous person chooses to access an Indigenous education system, then this is a choice, which must be respected. If an Indigenous person chooses to access non-Indigenous education, than this choice must also be respected. If an Indigenous person chooses to access both non-Indigenous and Indigenous systems of education, then this choice too must be respected. Not to do so is in itself a violation of a basic human right.
Here, “system of education” means the methods by which knowledge is created, possessed, and transmitted; essentially, an equivalent of intellectual property rights and practice. The Coolangatta Statement argues that choice and diversity are not only essential but are basic human rights.
We do not often think of intellectual property and basic human rights in the same moment. Perhaps briefly with regard to the basic rights of authors under the Berne Convention, but then it is on to the technicalities about how these rights, but for bits of moral rights, can be expeditiously extracted from authors through operations supported by law, or rather by the government, or by fear of the cost of appealing to the government for relief.
Maui Solomon, a Moriori Maori attorney representing tribes in New Zealand, connects traditional knowledge with a spiritual relationship between people and the earth. This connection figures in a number of TK statements. Solomon writes of the problems posed by the introduction of IP regimes on indigenous culture:
Acknowledging the spiritual dimension of their universe and respecting the mauri or central life force of every living thing was fundamentally important to the Maori world view. In other words, the reciprocity of obligations was balanced against the right to use and exploit. This can be contrasted with the notion intellectual property rights which focuses on the economic right to exploit for profit and financial gain. The needs of the individual, and corporate legal personalities such as multinationals, are preferred to the collective good.
Under this capitalist model, resources are viewed entirely as a means of exploitation for economic gain. There is little or no reciprocity or respect for the integrity of the resources as living and breathing entities with their own mauri or life force.
One might say, the use of IP rights can readily undermine local knowledge economies. It does not have to be this way, but often it is. Solomon recounts how English colonialists confiscated Maori land, broke treaties, and gained the endorsement of their own courts for their actions:
The problem in Aotearoa, as in every other country where peoples have been colonised, the colonisers judge the colonised by their own set of cultural values and standards. Invariably the “conqueror” wrongly assumes that their own values and way of life are superior to those they have “conquered”. Only now are they gradually beginning to see how wrong they were.
Maori cultural rights were addressed substantively by the Treaty of Waitangi and related New Zealand legislation, that allows issues to be addressed retrospectively, back to 1840. As one might expect, however, this sort of thing causes fear and unrest among the post-colonial population. Solomon has a number of arguments why the fears are unfounded, all of them insightful. This one, however, stands out:
Maori culture makes New Zealand unique from the rest of the world. Whenever there are international leaders visiting such as the recent APEC Conference, Maori are called upon to undertake the welcoming ceremonies and cultural performances.
One direction this line of discussion can go is toward addressing natural product rights in licensing arrangements, humanitarian licensing, and the like. That is an interesting direction, but I am going to move a different direction.
Universities have operated for nearly a thousand years by creating communities that stand apart, but engage, the broader society in which they operate. They form, as it were, a kind of indigenous culture, though one not tied spiritually to Mother Earth, perhaps to their disadvantage. The information developed in such a community is traditional knowledge, and those who participate in university life have every bit as much right to self-determination as other such communities.
The activities of faculty and their students form a commons, a community with its own practices, territories, ethos, and leaders. The movement of university intellectual property policies, along with the baggage of commercialization, contracting, administration, and economic development has been one of colonization. Business culture is superior to that of university culture. Business people know more about how to do research, discover things, and exploit these things economically than anyone else, and the virtues they bring are more important than the virtues of the university culture that they seek to exploit, if not change.
When I hear yet another technology licensing officer, or university president, talking about “changing the culture” of the faculty, presumably to make it “more entrepreneurial”, so that there are more “Porsches” in the parking lot, by introducing business people into the university setting to capitalize on research discoveries, and by imposing intellectual property claims that extract the ownership of those discoveries from the academic culture in which they have been developed, to be passed off to legal and administrative technicians for the purpose of making money on speculative bets, I can’t help but think of the Dutch West India Company and other such colonialist operations.
I read attacks on the outcome of Stanford v Roche–Make IP ownership compulsory with present assignments! Don’t undo the approach to technology transfer that has taken place, despite the fact that it has ignored the law and appropriated property it should never have taken! There is no better system than the one we have made and control! To my eye, these are the arguments of colonialists, of folks pleased with the idea of order that comes from captive labor and the superiority of formal intellectual property positions–especially those of patenting–over any other ways of disposing of research discoveries. The claim made is that a system of “technology transfer” has been set up that is orderly, controlled by experts much more talented and aware than the indigenous and largely clueless (or so the argument goes) faculty and students, and profitable. Gone are platforms, standards, networked innovation, non-market innovation, open innovation. Gone is rapid uptake, local practice, informal collaboration, personal initiative.
What has happened, actually, is that approaches to the disposition of research discoveries, approaches created by faculty and students, and which included the use of the patent system from time to time for both defensive and investment purposes, have been replaced in the past thirty years by a new approach. The prior approaches were based on choice–self-determination–which led to a diversity of options for those involved in discovery. One could choose indigenous methods (and create the internet) or non-indigenous methods (and deploy tools for environmental remediation, rodent control, and gene-splicing). The essence of these approaches was the self-determination of the community by and from within the community. It was self-determination that made university research and associated publication and technology dissemination an important part of national innovation policy.
The problem has been, once research became established as important, then the colonial impulse kicked in to capture the benefits of that importance for institutions. The present “system” of American university technology transfer is, essentially, a means to force as much technology innovation as possible through institutional hands so administrators can claim a share of any proceeds. The cost of doing so is a huge suppression of the many other ways that the academic community deals with discovery, data, tools, and dissemination, and the suppression of outcomes in the broader community. The cost, so the argument goes, is worth it, since the measure of success is the money obtained by administrators.
Of course, in some formulations of the argument, no one admits there is any cost at all. The premise is that nothing would happen but for the present compulsory system that interposes administration and its servants to take over from academic culture in the disposition of research discoveries. This, despite the fact that the present system was built on top of–or as it were in the ruins of–a system that operated so well that the federal government was induced to pass Bayh-Dole in recognition of its worth. The sad irony is that Bayh-Dole, the law that was to introduce even more research inventions into the academic culture of management became the instrument by which the colonial powers destroyed the indigenous approaches in favor of institutional ownership and process-bound systems.
In this, I am making no particular assertions about the character or intentions of individuals involved present practice. There are as always good, capable people and shoddy, sketchy people. But look at you all: what have you participated in creating? You had it as good as it gets, and now it’s turned into a nightmare of bureaucratic controls, led by spokesmen like Mr. Allen, trying for unfathomable reasons to keep the compulsory system in place. It wouldn’t be so bad if university tech transfer officers, mostly of the shoddy, sketchy kind, weren’t gleefully sending around Mr. Allen’s arguments as if they sealed the deal for a compulsory system.
The traditional knowledge argument for faculty and students starts with the premise that academic culture is and will continue to be productive. In both education and research, we see that this is true, despite the foolishness about “ivory tower” academics. The research components have provided both a spur to industry and a check on its abuses; academic freedom has allowed a range of inquiry that no government officer or industry captain could imagine or justify on a prudent cost basis. Despite the mockery for waste–and there is necessarily waste in research, because one has to try things at the margins, not just where it is safe and results already assured–university research, in its academic culture manifestations, has been a very good thing.
With regard to intellectual property, university faculty have pioneered both the use of copyrights (and publication infrastructure) and patents (the technology transfer infrastructure). They have worked out ways to collaborate (despite the stiff contracts devised by administrators) and circumvent invention capture (despite stiff policies devised by administrators). The research world in universities, until recently, was largely created by and managed by, faculty. Only in the past few decades has the idea of “commercialization” come to dominate practice, as if the problem in commercialization lay in taking ownership of more things, sooner, and with less interaction or respect for the academic society from which it is taken. Of course, taking things early and often and always separates these things from their Mother Earth–the research context in which they have been developed.
If one wished to create a Statement on the matter, one might paraphrase from the quoted material above:
Academic culture makes universities unique from the rest of the research and corporate world.
Intellectual property rights should guarantee both an individual’s and a group’s right to protect and benefit from its own discoveries, creations, and products.
Academic self-determination involves choice and diversity. Self-determination is about making informed choices and decisions and creating appropriate structures for the transmission of culture, knowledge and wisdom for the benefit of each of our respective cultures and communities.
If a faculty member or student chooses to access an academic system of managing knowledge, then this is a choice, which must be respected. If faculty member or student chooses to access a non-academic system of managing knowledge, then this choice must also be respected.
Within this framework of traditional knowledge, which as one can readily see is simply a recasting with very little change a set of core statements regarding the rights of indigenous people, we can assert the following:
Academic culture is productive culture, with regard to innovation through teaching, research, and engagement with community. Academic culture is capable of finding collaborators, assessing expertise, deciding when to act, and when to leave well enough alone. Academic culture is diverse culture. It generates new choices and conserves past choices. It recognizes many pathways to opportunity and impact and follows them. Academic culture is innovative culture. When academics have seen a need, they have created technologies and institutions to address those needs. Research foundations. MRI. The internet. It’s all very impressive what academic culture has done without any demand that everything worth doing pass through the hands of administrators, so they can extract their benefit and impose their way of doing things.
The imposition of administrative IP systems, compulsory ownership claims, demands for the use of self-interested institutional licensing agents, and dedication of academic research and instructional resources to exploitation for “commercialization” (by which is meant institutional profit-making) represents a profound violation of basic human rights. In the words of Maui Solomon, only now might they see how wrong they are to impose their colonialist values on a vibrant, productive academic culture.
It is no easy thing to let go of one’s colonizing ideals. Yet this is what technology transfer offices must do. Doing so does not mean that technology transfer offices should go away. Hardly. They are, in their evolutionary pasts, also creatures of the academic culture that has produced both innovation by discovery as well as innovation by way of the social arrangements that might cultivate discovery.
The Coolangatta Statement wrestles with the problem of who then should benefit, if not the well organized, culturally dominant (and arrogant) colonializers:
There are no single, simple or common answers to the question of Indigenous self-determination. Only Indigenous peoples who are spiritually focused and land-based.
We might paraphrase:
There are no single, simple or common policy statements that anticipate academic research and instructional self-determination. We have only the faculty and students themselves, who are committed to working within the context and using the resources of the academy to better themselves and their community.
And for a long time, that traditional knowledge in academic research culture has been very, very productive. Bayh-Dole intended to tap into that productivity. Instead, Bayh-Dole has been used to co-opt and distort that culture. Folks who unsure they should be supporting the colonial position taken by folks like Allen and AUTM should consider whether they are on the right side of history, ethics, and research innovation dynamics, and if not, then work to restore academic culture’s self-determination and with it the many opportunities for innovation and economic development.