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Almost everyone who is interested in intellectual property rights should have heard by now about the Creative Commons (the entire content of this ipHandbook website is, after all, licensed under CC license 3.0). The Creative Commons is an organization which came into existence in 2001. The non-profit company seeks to help increase the amount of creative or unique works that are available to be used or built upon by the public. In order to do this the company helps clients create unique licenses. The main reason why these licenses are different from standard copyright licenses is that a simple set of standard licenses have been carefully crafted to allow users make their work available to others for non-commercial purposes There are certain rights which are inherent in all of the licenses that the Creative Commons offers, these are called baseline rights. These rights include, but are not limited to, the right of free distribution, display as well as certain other moral rights.
indigenous Recently there has been a movement to aid in the protection of indigenous knowledge (mostly medicinal preparations but also cultural products) using the Creative Commons licensing system. Certain individuals feel that the Creative Commons are an extremely effective method of protecting indigenous knowledge of substances and preparations. Since the free use defined by the Creative Commons is based on the assumption that there will be no commercial use of the copyrighted work, it is assumed that companies or bioprospectors cannot patent preparations specific to indigenous peoples’ knowledge. At the same time, using the Creative Commons licensing system also places the indigenous knowledge into the public domain for everyone to see.
However, I see a few problems with this approach. Copyright protects literary and artistic works. It serves to protect the “expression of THOUGHT” rather than “IDEAS” which can form the basis for patent protection. A scientific paper on the use of a certain plant can lead others to do some research and isolate the gene for the given compound and patent it without infringing any copyright, nor any Creative Commons license for that matter. Activists intend to use the various Creative Commons licenses to protect indigenous people from being exploited but they may in fact be severely harming indigenous peoples’ cultures and societies. After reading the blog by Preston Henderson, I now realize that there are many more factors at play in the arena of indigenous peoples and intellectual property.
The first thing Henderson’s blog drew to my attention was that we, as a society in the West, have a radically different way of looking at how knowledge passes through society. Henderson talks about how most Western experts feel that knowledge eventually becomes public domain over time. That is, that the knowledge is open and free to be used by all members of society. For example, in America (as well as most of the world) the term for a utility patent is 20 years. This means that 20 years after the filing date, the patent no longer prohibits others from using the invention For copyright, the typical term is 70 years from the date of creation or 50 years from the death of the author, whichever is longer. However many cultures do not have the same concept of ownership that Westerners do. Indigenous knowledge is often not owned, but it is something that is sacred and to be protected by the people. For example, Shamans in many cultures seek knowledge from various spiritual sources, gaining “information” about helpful plants or admixtures, and they become the custodians of this knowledge. When activists or other well meaning individuals put this information out into the world under a creative commons license, they are opening that knowledge up to people all over the world. As a consequence, those people who once held this knowledge are now no longer the guardians or custodians of it.
In my opinion, what comes closest to offering reliable, and arguably culturally contextual protection of indigenous knowledge, is silence. This would be the equivalent of a trade secret in the established intellectual property system. Whereas a trade secret is like a sound-proof room keeping the information enclosed and confidential, the Creative Common’s licenses are like a bullhorn announcing the information to the world.
The one problem that I have with activists who are seeking to protect indigenous knowledge through the current intellectual property system is that many seem to over-simplify the situation. They see the issue as one central problem that needs to be solved, and that failure to resolve the problem is keeping indigenous people from being taken advantage of. The activists see only the big biotech companies and scientist bioprospecting in the rain forest as their adversaries. Rather, they should verify their own understanding of the complex value-systems. What really must occur is communication between activists or government officials to protect indigenous knowledge and the indigenous people themselves. The current system of intellectual property must be carefully explained so that indigenous people can make the choice for themselves about what to do with their knowledge. Since indigenous knowledge can be disseminated over a large culturally varied area, any effective system to protect indigenous knowledge may well be beyond the reach of our times.
