By Graham Reynolds
Abstract:
Professor Graham Reynolds reviews Dr. Oguamanam’s book, International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity and Traditional Medicine. The book discusses how traditional knowledge, specifically, indigenous plant-based therapies, can best be protected. Reynolds reflects on Oguamanam’s contention that intellectual property rights, a Western world system, may not be the best method of preserving and protecting traditional knowledge. Instead, a “cross-cultural” solution is proposed. This solution would be respectful of both Western and indigenous methods. By incorporating indigenous customs and practices into the solution for the preservation of traditional knowledge, Reynolds summarizes Oguamanam’s argument that the epistemic schism between indigenous and non-indiegnous knowledge systems will be overcome and traditional knowledge will be better preserved.
Article:
A community’s traditional knowledge is an integral part of its cultural identity. [1] Noting that political empowerment is “best rooted in cultural identity,”[2] Dr. Chidi Oguamanam, in his book, International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity and Traditional Medicine, argues that indigenous and local peoples can achieve enduring political empowerment, in part, through the use and control of their traditional knowledge.[3]
Since the early 1980s, the question of how best to preserve and protect traditional knowledge has been a topic of global debate. Many of the proposed solutions focus on the ways in which indigenous and local peoples can preserve and protect their traditional knowledge through the use of intellectual property (IP). [4] Oguamanam examines, in the context of traditional knowledge of plant-based therapies (TKPT), the possibility that protecting traditional knowledge through IP may “threaten, rather than fulfill, indigenous expectations.” [5]
He states that protecting traditional knowledge through IP could have unintended negative side effects for indigenous and local peoples. Specifically, he argues that as a result of the “epistemic schism between indigenous and non-indigenous knowledge systems,” [6]
the attempt to protect traditional knowledge through IP could compromise indigenous cultural identity and traditional values. Moreover, Dr. Oguamanam notes that attempts to “reconcile the Western concept of intellectual property rights with indigenous knowledge forms have not been cognizant of the epistemic schism between indigenous and non-indigenous knowledge systems.”
[7] If political empowerment is “best rooted in cultural identity,”
[8] the protection of traditional knowledge through IP could, by compromising cultural identity, hinder the process of political empowerment of indigenous and local peoples.
Instead, Oguamanam suggests an alternate path to the preservation and protection of traditional knowledge, which does not compromise “indigenous identity, culture, world view, epistemological contributions, and broader aspirations in contemporary international law.”
[9] Namely, he suggests a cross-cultural approach to the preservation and protection of traditional knowledge. Such an approach would help bridge the epistemic schism between indigenous and non-indigenous knowledge systems. Oguamanam’s book falls within the category of works which debate whether traditional knowledge can be protected effectively by IP rights. This work extends the discussion “to the converging realm of plant biodiversity and traditional medicine within the contemporary effort to integrate the indigenous question in the global decision-making process.”
[10]
As Oguamanam notes, there are two broad categories of opinion in relation to the question of whether it is suitable to preserve and protect traditional knowledge through IP rights. The first category of opinion holds that IP rights are not suitable for protecting traditional knowledge. The second category of opinion holds that IP rights are flexible enough to preserve and protect traditional knowledge. Oguamanam advocates for a
sui generis option which falls between these two categories of opinion. The
sui generis option has an IP or IP-like regime for traditional knowledge and can also accommodate multiple epistemologies.
[11]
Oguamanam’s work is split into six chapters. The first chapter introduces the reader to the various topics addressed in the work. The second chapter emphasizes “the epistemic conflict between Western and non-Western or indigenous approaches to natural resource exploitation and reward over knowledge” by discussing biodiversity, traditional knowledge, intellectual property rights, and international law relating to indigenous peoples.
[12]
In the third chapter, the extent to which TKPT is recognized and protected in international law is discussed.
[13] Oguamanam illustrates his thesis through TKPT, a specific aspect of traditional knowledge. Chapter Four addresses the sociocultural context of TKPT. This chapter emphasizes the central role played by plants in indigenous cultures. Oguamanam also concludes, in this chapter, that “traditional medicinal practices embody indigenous culture, knowledge, and world view in their full essence.”
[14] Chapter Five demonstrates how the incorporation of traditional knowledge into the conventional intellectual property regime would strip traditional knowledge of its “cultural essence, context, and content in the indigenous experience.”
[15]
Chapter Six discusses the “cross-cultural approach” to preserving and protecting traditional knowledge. Oguamanam takes the position that if the goal of preserving and protecting traditional knowledge is to serve the economic, cultural, and political interests of indigenous and local communities, then those communities should be involved in the process of determining how their traditional knowledge is protected.
[16] Solutions should be canvassed which “have their basis in indigenous epistemes” and which are “based on indigenous customary ethos.”
[17]
In essence, Oguamanam advocates for a “bottom-up” approach in dealing with how to best preserve and protect traditional knowledge. Rather than attempt to impose a system developed in the Western world upon indigenous and local peoples, Oguamanam believes that one should begin by looking to the customs and practices of indigenous communities themselves. In so doing, a solution can be crafted which will provide protection for traditional knowledge in a manner that is respectful of indigenous and local peoples’ cultural identities. Ultimately, this type of solution will create a strong foundation upon which enduring indigenous political empowerment can be achieved.
*Assistant Professor at the Faculty of Law, Dalhousie University. Member of Dalhousie University’s Law and Technology Institute, and the Co-Editor-in-Chief of the Canadian Journal of Law and Technology.
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