Nurturing Traditional Knowledge Systems for Development NotesKI "Traditional knowledge systems are cover the human and financial capital frameworks for continuing creativity invested in the discovery of the new and innovation in most fields of tech- drug. Although both parties have de- nology, ranging from traditional medici- rived their innovations from the same nal plants and agricultural practices, to source, it is difficult to ascertain the music." WIPO, 2001.1 extent to which the scientist's discov- ery was based upon the healer's prior knowledge of the medicinal properties T raditional Knowledge (TK2) sys- of the Bintangor tree. tems are the essence of the so- In 1992, the Convention on Biologi- cial capital of the poor and the cal Diversity (CBD) attempted to ad- source of their survival strate- dress these issues by acknowledging http://www.worldbank.org/afr/ik/default.htm gies. Rooted in tradition, TK is also the value of indigenous knowledge and contemporary knowledge, defined by resources. It established a framework its inherently dynamic nature. It is con- for providing access to genetic re- stantly evolving as individual and com- sources and a means for fair and equi- munity responses to the challenges table benefit sharing. Two years later, posed by their environment. the WTO's Trade Related Intellectual Recent interactions between modern Property Rights (TRIPS) Agreement scientific knowledge and traditional came into force and created an interna- knowledge systems have created ten- tional standard for minimum intellec- No. 61 sions between the two streams of tual property rights (IPR) protection. October 2003 thought. In the tropical rainforests of By extending patent regimes to cover East Asia, local healers have been using the bark of the Bintangor tree to treat IK Notes reports periodically on headaches and skin rashes for centu- Indigenous Knowledge (IK) initiatives ries. Along comes a scientist, to collect in Sub-Saharan Africa and occasionally on such initiatives outside the Region. samples from the same bark, under- It is published by the Africa Region's take vigorous laboratory tests and iso- Knowledge and Learning Center as late a chemical to treat certain forms part of an evolving IK partnership between the World Bank, communi- of cancer. Who should benefit from the ties, NGOs, development institutions discovery of the new drug? and multilateral organizations. The World Bank Traditionally, local healers are not views expressed in this article are those of the authors and should not be accustomed to procuring economic attributed to the World Bank Group gains from their communal knowledge or its partners in this initiative. A of medicinal plants. The scientist on webpage on IK is available at // the other hand, seeks a profit to re- www.worldbank.org/afr/ik/ default.htm 2 resources that are intangible in nature such as plant and ge- tices can help save lives, increase food security and incomes. netic resources derived from TK, the TRIPS Agreement Modern IP systems cannot respond to all these characteris- raised major environmental concerns. tics of traditional knowledge systems. At the same time, there is a need to distinguish between the IP system per se and its poor application in cases, where a patent should not IPR needs of traditional knowledge-holders have been granted. The report indicates that "not all tradi- In order to gain a clearer insight into the IPR needs and ex- tional knowledge is collective and not all IPRs are individual- pectations of traditional knowledge holders, WIPO con- istic." Certain knowledge is held in the custody of particular ducted nine Fact Finding Missions (FFMs) across the six con- groups or individuals within a community. IPR systems are tinents from 1988­99. Hundreds of interviews were con- broadly defined to include geographical indications, trade ducted to gather new perspectives on IPRs from local com- secrets and sui-generis4 forms of protection that could be munities, NGOs, governments, civil society, academia, legal applied for the benefit of entire communities. The report institutions and the private sector. The results were pub- recommends testing options for the collective acquisition, lished in a report in April 2001 that raised several issues. management and enforcement of IPRs by TK holders. TK holders, local communities and government officials in As a result of the limited interaction between informal and developing countries have very little knowledge, under- modern IP systems, TK holders and others have great expec- standing, or experience with formal IP systems. They tend to tations regarding IPRs as a tool to protect TK. According to rely on customary laws and protocols governing access and the report, "much of traditional knowledge lies outside the benefit sharing. According to the report, "indigenous scope of IP". An enormous wealth of TK is already in the pub- peoples possess their own locally-specific systems of jurispru- lic domain and hence cannot be patented, such as the use of dence with respect to the classification of different types of the Bintangor tree bark to treat headaches and skin rashes. knowledge, proper procedures for acquiring and sharing Moreover, "a patent on an invention derived from TK does knowledge, and the rights and responsibilities which attach not prevent the continued use of the TK by the relevant com- to possessing knowledge, all of which are embedded munity". Farmers for example, will not be deprived of their uniquely in each culture and its languages." traditional practices such as the informal exchange of seeds, Traditional knowledge passes from one generation to the as a result of IPRs. next as an oral tradition. It is not well-documented, which The report concludes that many of the problems encoun- poses challenges of retention. There is an urgent need to tered by TK holders are less "legal" than "operational" in document and preserve the knowledge that is held by elders application. Often a lack of know-how and financial resources and communities. The report stresses that documentation is conspire to prevent local communities from accessing the IP critical for the prevention of unauthorized acquisition of system. The costs involved in the acquisition, maintenance IPRs over TK. Documenting and publishing TK as searchable and enforcement of IPRs tend to be prohibitive, from the prior art can serve as defensive publications to refute false perspective of a local healer. New ways to reduce the transac- claims, as in the Turmeric case3. tion costs need to be explored. To help address these con- The protection of TK could also help raise its profile in the cerns, several innovative access and benefit sharing agree- development arena. The value of such knowledge is often ments such as MTAs (material transfer agreements) have overlooked by modern reductionist approaches to science. been developed and adopted by governments to reward TK Unless a product is subject to clinical trials and scientific holders.5 scrutiny, it is viewed as `inferior', regardless of its potential value. According to WIPO's report, a healer may not be able Traditional knowledge enters the WTO to describe the effects of his treatment on the body in mo- lecular interactions, but bases his prescription upon genera- Several developing countries have raised concerns on these tions of clinical trials undertaken by healers before him. As a issues in various WTO forums, such as the Committee on result, traditional medicine and related practices are seldom Trade and Environment (CTE). In 2001, the Doha Ministerial prioritized in national development policies. If effectively Conference issued a Declaration that included traditional harnessed for development, traditional knowledge and prac- knowledge in the WTO's work program for the first time: 3 "We instruct the Council for TRIPS to examine the rela- · Practical information and training workshops on the IP sys- tionship between the TRIPS Agreement and the Conven- tem and the protection of TK (e.g. contracting procedures) tion on Biological Diversity, the protection of traditional · IP information, training and standards for the documenta- knowledge and folklore, and other relevant new develop- tion of TK ments raised by Members.6" · Practical studies of actual examples in which TK protection has been sought under the IP system with a focus on suc- In June 2003, the `African Group' submitted a proposal to cesses, failures and lessons learned the WTO's Council for TRIPS to adopt a Decision on Protect- · Feasibility studies on the applicability of customary laws ing TK. This represents the official position of most Sub-Sa- and protocols to TK haran nations. · Pilot project on the collective acquisition, management The Doha Declaration instructs the CTE to "give particular and enforcement of IPRs in TK. attention to" the TRIPS Agreement in its work program. This will enable member states to address their trade and WIPO has begun to provide training to IP offices, govern- environmental concerns arising from the enforcement of IPR ments, NGOs and communities at the grass roots level to regulations mandated by the Agreement. increase the understanding of the role of IPRs in the protec- Recent actions taken by governments in response to public tion of traditional knowledge. Creating new standards for health needs have created further controversy about IPRs. documentation has provided a framework to help manage The Doha Ministerial issued a separate Declaration on the IPR implications in the TK documentation process. This will TRIPS Agreement and Public Health, allowing for implemen- enable national IP offices to integrate the TK documentation tation "in a manner supportive of WTO Members' right to into their existing procedures for conducting prior art protect public health and to promote access to medicines for searches to examine applications for patents related to TK- all". Countries were also granted the right to determine based inventions. what constitutes a national emergency in relation to epidem- ics such as HIV/AIDS, malaria and tuberculosis. In addition, to encourage the discovery of new drugs de- World Bank supports indigenous knowledge rived from TK and to reward its custodians, the Declaration for development pledged a commitment from industrial countries to "provide The World Bank's Indigenous Knowledge (IK) Program has incentives to their enterprises and institutions to promote helped document and disseminate TK through its IK database and encourage technology transfer to least developed coun- of over 200 cases. Most of the information provided by the IK tries." This could help build up the research and develop- program has been in the public domain in terms of knowl- ment (R&D) capacity of national drug laboratories to under- edge content. All the cases cited are published elsewhere take clinical trials on herbal treatments derived from TK. A and provide some form of protection against being claimed partnership could develop between the local healers and sci- by somebody else. The IK Database is also linked to WIPO's entists to share their knowledge of medicinal plants and the TK Databases to help patent offices in their prior art subsequent economic gains derived from the end-products. searches. The IK Program has helped integrate traditional knowl- WIPO responds to the fact-finding missions edge systems into World Bank-supported projects in Africa related to healthcare, agriculture and the environment. It In response to the IPR needs and expectations raised by the has enhanced recognition of the potential value of IK for de- Fact Finding Missions (FFMs), WIPO has set up an Intergov- velopment, by supporting stakeholder workshops to develop ernmental Committee to examine the protection of tradi- national strategies for the sustainable use of IK. The Program tional knowledge systems in more detail. In concrete terms, has partnered with organizations such as WIPO to promote WIPO has incorporated the following activities in its current the validation of IK. It recently brokered a partnership be- work program: tween the US National Institutes of Health and an African · The development of information materials on options un- NGO called the Tanga AIDS Working Group, to test the sci- der existing IP systems for the protection of TK entific efficacy of herbal drugs used by local healers to treat HIV/AIDS patients of opportunistic infections. 4 Conservation and Sustainable Use While IPRs have implications for various aspects of tradi- of Medicinal Plants Project in Sri Lanka tional knowledge systems, they do not provide a one-stop solution to all the problems arising from their protection and In 1998, the Bank began to harness untapped (IK) po- use. They should be viewed as one part of a larger process. A tential for development through a GEF sponsored more holistic approach is needed that depends on fostering project on medicinal plants. The following activities dynamic partnerships between the custodians of TK, civil so- were facilitated by the Ministry of Indigenous Medicine and IUCN Sri Lanka: ciety, governments, donors and the private sector. Several · In just over three years, the project has documented initiatives have begun to broker a dialogue between differ- ancient medicinal knowledge in a community-owned ent stakeholders to jointly explore IPRs as one of several database and developed participatory approaches to tools available for the protection and sustainable utilization conduct baseline socio-economic and ethno-botanical of traditional knowledge systems for development. surveys. · Promoted the in situ conservation and cultivation of medicinal plants in local home gardens in the five des- ignated medicinal plants conservation areas (MPCAs). · Mainstreamed IK through putting in place effective marketing techniques for herbal remedies derived from medicinal plants. · Transcribed ancient palm leaf manuscripts that con- tain information on diseases and their diagnosis, as well as prescriptions into Sinhalese. · Established a program to enable the bearers of tradi- 1 WIPO Report on Fact Finding Missions on Intellectual Prop- tional knowledge, community elders, to transfer their erty Needs and Expectations of Traditional Knowledge Hold- ers. Geneva, April 2001. skills to selected acolytes. 2 Traditional, local and indigenous knowledge systems refer to · Created a legal and institutional framework for the knowledge derived from local communities. Some of the litera- protection of traditional knowledge through the de- ture on the subject and UN bodies prefer the term `TK", while velopment of a National Biodiversity Strategy. others use "IK". These are equally applicable. 3 In 1995, the US Patent Office granted a patent for Turmeric to be used to heal wounds. The Indian Council for Scientific and Industrial Research (CSIR) claimed that this was existing pub- Conclusion lic knowledge (prior art). CSIR won the case by providing writ- ten documentation proving traditional wisdom, citing an an- This note has attempted to disentangle the different compo- cient Sanskrit text and a 1953 Medical Journal. The patent nents of traditional knowledge systems from the IPR puzzle. was cancelled. 4 Sui generis (of its own kind: constituting a class alone) refers to From this process, four major challenges emerge for the pro- methods of protection other than the use of a patent. These tection and sustainable utilization of TK: include Plant Breeders Rights and the UPOV Convention for · Oral traditions are dying with older generations, hence the the protection of new varieties of plants. need for documentation 5 For example, the Andean Pact adopted by Bolivia, Colombia, Ecuador, Peru and Venezuala, empowers the national authority · IPRs are needed for the protection of TK and to reward the and local communities in each country, as the holders of tradi- custodians (communities) tional knowledge and resources, to grant prior informed con- · Validation of TK systems are needed to build credibility sent in exchange for equitable returns. 6 The WTO Ministerial Declaration, Ministerial Conference, · Since it is an under-utilized resource for development, Fourth Session, Doha, 14 November 2001. mainstreaming is critical. This note was written by Siddhartha Prakash, Consultant, World Bank, based on information provided by the World Bank, UNCTAD, WIPO and the WTO. For more information contact: Sprakash@worldbank.org