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The following paper is on the question of whether and to what extent intellectual property rights can productively help protect the different forms of indigenous knowledge. My initial inclination is to argue that IPRs are not a good instrument to further the interests of indigenous peoples. (An underlying assumption being that indigenous knowledge cannot be divorced from indigenous people's interests). This is a short outline of my argument, and will appreciate comments or recomendations of other works on the subject to read. This is part of a work supposed to present the paper at a colloquium in the beginning of April this year.

Thank you and Best wishes,

Arun Agrawal
gswyeiu@minerva.cis.yale.edu

In recent years indigenous knowledge (IK) resources (technical knowledge, knowledge about biodiversity, and actual organic materials) have come to be recognized as increasingly significant in development. Reasons lie in their possible utility in medical treatments, through crop cultivars that might yield signposts to help solve food problems, and their role in the cultural practices of numerous tribal and indigenous populations. India, with its tremendous biological and cultural diversity, and deep historical roots to indigenous knowledge systems, has a special interest in the protection of such resources.

As these resources have become more significant, fears have grown that populations who have been responsible for developing and preserving this knowledge will lose them to unscrupulous outside operators. To resolve the irony -- increasing value and increasing fear of loss of what is valuable -- many policy analysts and theorists have advocated the use of intellectual property rights to protect the rights of indigenous peoples. In the current climate of economic liberalization and valorization of private property rights, it is not surprising that intellectual property rights appeal to so many people. This article, however, argues that intellectual property is a poor tool to help protect the interests of indigenous peoples or their knowledge resources.

Viewing property as "a mechanism to allocate benefits from resources among competing claimants," those who propose intellectual property rights, seek to resolve three types of dilemmas that become prominent as the value of indigenous knowledge grows: ethical, mangerial, and preservationist.

Ethical tensions arise because IK resources lie mainly in marginal environments, in developing countries, with poverty-stricken populations, and are being lost at a rapid pace. At the same time, the technological prowess to realize the full commerical potential of these resources lies largely with scientists in developed countries with access to capital intensive research facilities. The ethical dilemmas would be less severe if indigenous populations had not been so substantially involved in the maintenance and protection of extant germplasm resources. While technological developments have made it possible to isolate new natural products by manipulating genetic materials, the research can be simplified if scientists learn from the populations living closely with these biological resources, often developing important insights into their uses. Recognizing the intellectual property rights of indigenous actors allows them to be compensated for their efforts through the profits new natural products bring as they are marketed. Compensation legitimized and formalized through recognition of intellectual ownership, thus, can solve the ethical problem, at least, partially.

The managerial issue relates to the familiar, if complex, question of creating ownership rights over IK resources that will ensure reparations to innovators, and thereby maximize future innovations. The concern is based upon the belief that the increasing poverty of indigenous populations is leading them to undertake activities that erode biodiversity. If, therefore, they received material benefits in exchange for their stewardship of genetic materials, the decline would be halted. Intellectual property rights, thus, can simultaneously satisfy the ethical and managerial dilemmas created in the extraction of IK. Once indigenous populations possess formal ownership rights, they should be able to negotiate rules of access and use, fees, and royalties with interested outsiders.

Preservationist issues arise in terms of long term management and protection of existing indigenous knowledge resources. Most analysts believe that the guarantee of material and ownership rights to indigenous peoples would also safeguard the future of indigenous knowledge, helping resolve preservation issues in a decentralized fashion.

What is notable about these solutions is that they all focus primarily on the material aspects of knowledge, little on the cultural contexts in which knowledge is created and practised. In questioning the reasoning behind these arguments, I first suggest that despite the diversity in different forms of indigenous knowledge, there are some common aspects that make it incompatible with protection under a system of rights that grants benefits primarily to individual or corporate actors possessing legal identities. Second, I suggest that this incompatibility is likely to lead ultimately to the disappearance of different types of indigenous knowledge unless national governments, and international agreements gurantee political rights and space to indigenous peoples. If Indian IK resources are to survive, the Indian government, in international forums and within the territory of the Indian nation-state, should seek to protect the political rights and geographical terrain of indigenous and tribal communities collectively.

The first common feature of most forms of indigenous knowledge is that they have survived and exist in marginal or relatively isolated environments. As mainstream populations have expropriated the most fertile, ecologically well-endowed, high rainfall regions, various indigenous and other disadvantaged groups have been pushed to the outskirts of development -- spatially as well as figuratively. But their marginality and isolation has provided a refuge as well. Because they must confront and solve problems posed by a harsh and relatively isolated environment, without much access to the capital and capital-intensive technological innovations, they have created institutional forms, technical innovations, and behavioral strategies that today seem valuable in a world increasingly without boundaries.

The second common characteristic is the collective ownership and use of various forms of indigenous knowledge. Without their own "legal" regulatory institutions to "protect" knowledge and resources, knowledge in most indigenous groups is either shared by the various members of the group, or remains the province of individuals such as a "shaman" or specific elders. Where knowledge is retained by specific individuals, the retention is not an artifact of law, but of secrecy. It is, therefore, difficult to defend or protect legally.

If these two features are common to various forms of IK--a marginal location, and collective orientation--it should be obvious that the loss of indigenous knowledges and resources is a consequence of general trends that characterize the processes of development and social change, not of indigenous peoples' activities. If their subsistence leads to the depletion of some resources, this depletion is evidence of the shrunken space within which they are confined. It is the operation of capital and the need for an ever-increasing field of raw materials that destroys diversity and associated knowledges. On a global scale, deforestation results less from the harvesting activities of various indigenous, poor or marginal populations, far more from the felling practices of timber companies and concessionaires and the policies of national governments. Depletion of crop germplasm, similarly, takes place because of the spread of modern high-yielding varieties of seeds and increasing capitalization and mechanization of agriculture. And, the loss of traditional medical practices is, similarly, due to the power of the modern medical corporation.

Indeed, the extension of ownership rights to all intellectual products authorizes the very processes that contribute to the appropriation and erosion of IK. In promoting mechanisms through which indigenous resources can be incorporated into the system of science and technology that has colonized most of our world, we subscribe in three ways to undermining the indigenous knowledge resources.

First, we subvert its collective orientation by extending to indigenous knowledge resources the protection of a formalized, legalistic, individual-actor-oriented mechanism. The notion of private property hinges on the recognition of human labor mixed into nature, and on rewarding the expenditure of that labor. The vesting of exclusive rights to resources in legally recognized actors destroys the incentives to maintain a collective orientation to IK.

The loss of collective orientation may not be a foregone conclusion. It depends on the manner in which rights are created in IK, and the extent to which community representatives are accountable to community members. But even were it possible to avoid a strict correspondence between effort and reward, the problems posed by the replicability, mobility, and the non- endemism of IK resources remain. As such resources become commercially valuable, individual incentives to cheat would increase, undermining any newly devised collective institutions.

Second, the incorporation of indigenous knowledges into the system of patents and copyrights strengthens the material forces that have corroded the resources and the strength of indigenous peoples. Because capital-intensive medical and agricultural industries depend on large-scale production and homogenization, the incorporation of more knowledge into these industries will further shrink the space available to indigenous peoples. Mass adoption and production of new useful natural products inevitably will colonize the isolated and marginal spaces that still survive, and condemn diversity to extinction. The commodification of biodiversity and IK resources consumes its very source to flourish in the short term.

Finally, the extension of legal protection to indigenous knowledges through property rights is problematic at a far more fundamental level. Converting knowledge into a good for exchange commodifies and fetishizes the "indigenous" into yet another instance of the transformation of the world into a system of production and resource management. Rather than viewing indigenous knowledge as a cultural artifact with a status that derives as much from its position within the daily life of a group of people as its instrumental utility, current advocacy of intellectual property situates indigenous knowledge primarily within a utilitarian calculus of costs and benefits.

I believe indigenous peoples are caught on the horns of a dilemma that arises from the spreading interest in their knowledge and culture. Without control over their intellectual products, their knowledge stands to be expropriated without any material benefits reaching them. But even with intellectual property, and even if some capture significant material gains, their cultures will inevitably be radically transformed. I will not be misunderstood! My point is not that indigenous knowledges and peoples have not undergone change historically. It is, rather, that current attempts to exploit inidgenous knowledge are a threat that has no historical parallel. While a principled stand by powerful government actors might help protect indigenous knowledge and peoples by opening options where future changes will take place in response to their decisions, the likelihood of such stances by governments is rather low. Ultimately, perhaps, we may have to come to terms with the conclusion that the "indigenous" cannot survive as long as interest in it endures on the part of powerful economic and political actors, and indigenous peoples do not organize and unite in the defence of their own knowledge and livelihoods.