Protecting Community Rights over Traditional Knowledge: Implications of Customary Laws and Practices

This paper describes an action-research project that, since January 2005, has focused on developing alternative tools to protect traditional knowledge (TK) that are rooted in local customary laws rather than based on existing intellectual property standards. The project explored customary laws, values, and practices relating to TK and biodiversity with indigenous and local communities in Peru, Panama, India, China, and Kenya, and developed local tools for protecting TK and biocultural systems. It sought to inform national and international policy on TK and "Access to Genetic Resources and Fair and Equitable Benefit-Sharing" (ABS), developed to support TK rights protection. In this project, community-level work was complemented by policy and literature reviews and discussion with stakeholders. It is a project of International Institute for Environment and Development - IIED (United Kingdom), Asociación ANDES (Peru), Fundación Dobbo Yala (Panama), Ecoserve (India), Herbal and Folklore Research Centre (India), Centre for Chinese Agricultural Policy (China), International Centre of Insect Physiology and Ecology (Kenya), and Kenya Forestry Research Institute.

As stated in the Objectives and Methodology section: "Existing intellectual property rights (IPRs) (e.g. patents, copyrights) are largely unsuitable for protecting rights over traditional knowledge because they provide commercial incentives, whereas traditional innovations are driven primarily by subsistence needs....To sustain biodiversity-based lifestyles, communities need to maintain control over their knowledge and related bio-resources and prevent others from unfairly exploiting or appropriating them, while taking advantage of market opportunities themselves. Many communities are facing increasing threats to their resource rights due to the spread of western IPRs (e.g. patents ...), often through Free Trade Agreements. IPRs can confer rights over community resources to others [outside of communities]... and do not require consent or benefit-sharing when community resources are used by others...."

The research involved the participation of different stakeholders: elders, youth, healers, and farmers (men and women). "The issues were explored in multi-stakeholder and single actor groups - from small family groups to community and supra-community meetings to share and validate the results. Customary approaches were combined with ‘modern’ participatory and scientific approaches. Indigenous and community authorities were closely involved at every stage, ensuring adherence to local customary laws." Environmental and natural resource management reasons for protecting these rights include both what the study identifies as a moral imperative and also the generation of conservation incentives, the implementation of parts of the Convention on Biodiversity, and continued stimulation of adaptation to climate change. As stated here, customary laws, if protected from erosion through outside authorities, and natural resource laws may be more sustainable and able to evolve to address new challenges. As a result, more sustainable agriculture and forestry, including the growing of traditional varieties of local foods and medicinal plants, may protect plant species from extinction and increase biodiversity protection.

Key findings include the following communication-related strategies and trends:

• Customary laws tend not to be recognised in formal courts, particularly if they conflict with formal law, because they are orally held and considered inferior. To improve recognition, customary legal structures/systems need to be strengthened, respected, and better understood. In addition, elements of customary law may need to be written down - the challenge is to capture the essence of oral customary laws whilst ensuring they can still evolve freely.
  
• Even where customary authorities have been weakened, many important decisions are still made collectively. This means that decisions about access (or prior informed consent) should be made collectively by neighbouring communities, and benefits should be shared amongst them, to support TK systems and avoid conflicts amongst communities.
  
• The studies identified the following key drivers of TK transmission and renewal:
  1. Collective activities at communal and family level (e.g. non-timber forest products (NTFP) collection, agriculture, festivals)
     
  2. Use of diverse biological resources, both wild and domesticated
     
  3. Communal access to sacred areas for healing, rituals, etc.
     
  4. Cultural and spiritual values and worldviews that underpin traditional lifestyles
     
  5. Customary laws that require TK transmission and customary use/practices
     
• Equitable benefit-sharing should be based on the principle of reciprocity or equal exchange. When communities share their knowledge and resources, they expect to receive these in return. However, while they have shared much of their knowledge and bio- resources with outsiders they have received little in return, and are often denied access to genetic resources held ex situ, even if collected from their lands.
  
• A range of local tools can be used for TK protection, including non-legal tools, e.g. collective resource management, community registers/databases, value addition; and legal tools, e.g. collective land rights, access, and benefit-sharing protocols; and use of ‘soft’ IPRs such as collective trademarks. Strengthening TK systems for community food and nutrition (i.e. subsistence) should take priority over market-based tools that can undermine cultural incentives.
  

The document concludes with recommendations for the international ABS regime and 6 case studies on the protection of TK related to bio-resources based on customary laws and holisitic bio-cultural systems.