Can we protect “traditional knowledge?” Should we?

In much of the world, the possibility of providing protection for traditional knowledge — indigenous music, stories, dances and even genetic material — is a very lively topic.  Even though such protections are a form of intellectual property right that clearly impacts issues of scholarship and copyright, I have not previously dealt with these discussions in this space.  That is largely because of the great uncertainty I feel about the whole issue of whether such protections are appropriate and what form they should take.

It is not difficulty to find stories of how native peoples have been exploited for economic gain by companies that will appropriate and market traditional knowledge forms — everything from music to medicine.  Such exploitation causes one to think that there is a hole in copyright laws that needs to be filled.  But any attempt to expand the scope of our copyright protections, which already seem to cover too much and last too long, is likely to have a detrimental effect on scholarship.  Thus I find myself caught between warring impulses — respect for the intellectual creations of native peoples  versus the desire to foster widespread knowledge of different cultures .  This latter impulse is a corollary of the general belief that a robust public domain is a good thing overall for all societies.

I was finally prompted to address the topic of traditional knowledge by this announcement that Ghana plans to start enforcing provisions of its 2005 copyright law that create fairly strict protections for “folklore.”  This short blog post led me to look at the Ghana Copyright Act itself to see how it address some of the problems that seem inherent in such protection.

One obvious problem is how to define folklore, which is the term used in the Ghanaian law.  The definition given at the end of the Ghanaian act is very broad and not terribly specific.  Because so many things fall into the category of traditional knowledge, it is important to have clear definitions of the subject matter of protection.  Does “folklore” in Ghana, for example, encompass dance?  What about traditional medicines?  Should such diverse subject matter be treated under the same law as works of authorship?

Another issue is very clearly dealt with by the Ghanaian law — the issue of who owns folklore.  In section 4 of the attached document, the law states that “the rights of folklore are vested in the President on behalf of and in trust for the people of the Republic.”  However noble the intent, this is an assertion of state ownership over folklore, an assertion which is always open to the challenge about whether the state really best represents the interests of all of the varied and ancient peoples who created this wisdom.  Also, because it is the state that holds these rights, the protection of folklore is perpetual.

The protections provided for folklore in Ghana are the same as the copyrights vested in more typical subject matter.  Rights in folklore are also subject to the same set of exceptions as Ghana provides for other content, and these are a pretty good set of user rights (found in section 19).  No permission is needed, for example, for purely private and personal uses, for quotation in another work (as long as attribution is provided), for use in teaching and “public education” and for news reports, including broadcasts.  Many of the uses that would be important to scholars of Ghanaian folklore would be included in these exceptions except for the fact that they are so often limited by the caveat that for the exception to apply the work must have been “made public.”  The problem here is that so much indigenous knowledge may not have been made public in any recognizable way, so scholars of these works may still be forced to seek permission.

To get permission one must apply to a government-run National Folklore Board, established in sections 59-64.  Since this Board will both approve or reject the proposed use and set fees, its potential for skewing research into Ghanaian culture seems tremendous.  The statements made in this longer article about folklore from the Minister of Chieftaincy and Culture  are very frank in saying that the goal of the board is to exploit folklore as an economic asset of the nation and to “repackage” culture as a source of employment.  It seems possible and even likely that those goals could conflict with efforts to study Ghanaian culture and to make its subtleties better known amongst students of Africa around the world.  Would the Board deny permission, for example, for a scholarly work that is critical of aspects of Ghanaian folklore on the grounds that such an evaluation could cause economic damage?

Even as Ghana asserts stepped up enforcement of its rules regarding folklore, South Africa is considering new protections for traditional knowledge or “Indigenous Knowledge Systems,” about which more information can be found here, here and here.  Ghana’ approach is apparently quite unusual, so comparison with the South African proposal can be very instructive.  And finally, a fuller expression of the reservations one might have about all these attempts to restrict use of traditional knowledge can be inferred, I think, from this eloquent celebration of the benefits of Open Folklore Project in the United States.  I am still unsure how to balance the two approaches, but I remain convinced that balance is what is needed.