From Dave Hansen, J.D., the 2010-11 intern for Duke’s Scholarly Communications office:

A while back Kevin wrote a blog post highlighting the Ghanaian copyright law’s treatment of traditional knowledge and folklore. He pointed out two very basic ambiguities in Ghana’s domestic protections: (1) How exactly is “traditional knowledge” defined, and (2) who owns it?

These two questions are coming up again this week as a group of intellectual property delegates will meet at the World Intellectual Property Organization (WIPO) headquarters in Geneva to discuss a draft text for the international protection of traditional knowledge. As the WIPO meeting agenda indicates, the discussion will focus on a heavily annotated draft text produced at the last meeting of WIPO’s traditional knowledge working group.

First, delegates must address the contentious question of what, exactly, constitutes “traditional knowledge.” Although the working text of the agreement has more bracketed terms than anything else, it generally focuses on protecting three general classes of knowledge:  (1) knowledge created or preserved in a “traditional context,” (2) knowledge customarily recognized as belonging to traditional groups, and (3) knowledge integral to the cultural identity of a particular community. These definitions, while just as vague as those in the Ghanaian copyright law, are the subject of intense comment and seem likely to change.

What is more interesting is the discussion of who should be granted traditional knowledge rights—a debate which largely centers on the type of protection afforded by the agreement. Traditional knowledge protections can come in two basic varieties: “defensive” and “positive.” Defensive traditional knowledge protections ensure that rights to pre-existing content will not become restricted from use by the original community. This protection is typically achieved by instituting a registry or database of existing TK, providing prior art which will defeat future claims of originality or novelty by those trying to assert copyright or patent rights over TK content. Positive protections, however, grant exclusive rights over traditional knowledge that are analogous to the rights granted by copyright or patent law—rights that can be asserted to exclude, license, and profit from particular works. While the draft agreement certainly provides for some increased defensive protections, the bulk of the rights granting language focuses on positive rights.

The implications that this positive-defensive rights debate has on the scope of the global public domain is not lost on negotiators. While defensive protections essentially seek to document what should already be available for public use, positive protections seek to pull some works out of what, in the United States at least, would be considered the public domain. In the comments to the draft text it is clear that some delegates are resisting the push for strong positive rights. Norway and the United States, among others, are asking that the agreement find the “right balance between TK that was subject to protection and knowledge which was or had become part of the public domain.” The United States, echoing this concern, cited the WIPO Development Agenda’s call to “support a robust public domain in WIPO’s Member States” as reason to resist a broad positive rights framework.

On the other end of the spectrum, representatives from developing nations made the point that already  traditional knowledge—some of which would be thought of as in the public domain in the United States—is not freely available for anyone to use, and those given access should have responsibilities and obligations extending indefinitely into the future. The representative of one indigenous tribe made the following comment:

Public domain was a western concept that was designed for commerce and was a bargain that was set for a grant of private property rights for a limited amount of time after which knowledge would go into the public domain. Such a concept did not necessarily exist in indigenous knowledge systems.

True enough, but the underlying “commerce” concerns of the western public domain, in the United States at least, go to the very heart of its philosophy on the appropriate encouragement of the “progress science and the useful arts” and the scope of acceptable limitations on free speech.

As the draft text develops, it seems increasingly likely that this agreement will provide the first ever legal definition of the scope of the international public domain—something ACTA, TRIPS, Berne, and all other international IP agreements have thus far failed to do. While the move toward international protection of traditional knowledge has been a long time coming, this deliberate new focus on the scope of the public domain is, hopefully, a sign that that IP and trade representatives from the United States and Europe have (finally) come to acknowledge the importance of a vibrant public domain.

Bringing this back to the world of scholarly communications, positive protections that award rights over certain traditional knowledge works is somewhat worrisome because it is library collections that house some of the rare copies of expressions of traditional knowledge existing in the United States and other developed nations. Expanding international protections may severely curtail what academics can do with those works, and it will almost certainly limit their ability to collect some of these works in the future. The big picture impact of this traditional knowledge agreement remains to be seen, but the scope of the public domain is at play—for traditional knowledge specifically, but inevitably outlining its scope in general—and that is a concern which extends far beyond libraries and the scholarly world.

 

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