Traditional Knowledge at the
International Level
Debra Harry
Executive Director
Indigenous Peoples Council on
Biocolonialism
[email protected]
www.ipcb.org
Indigenous Cultural Heritage
Broadly Defined
The heritage of indigenous peoples includes all
moveable cultural property …
all kinds of literary and artistic works such as music,
dance, song, ceremonies, symbols and designs,
narratives and poetry; all kinds of scientific,
agricultural, technical and ecological knowledge,
including cultigens, medicines and the rational use of
flora and fauna; human remains; immoveable cultural
property such as sacred sites, sites of historical
significance, and burials; and documentation of
indigenous peoples, heritage on film, photographs,
videotape, or audiotape.
Madame Erica Daes, Human Rights Special Rapporteur on the
Study of Cultural Heritage
Traditional Knowledge 
Indigenous Knowledge
• While IK is inappropriately subsumed under the
broad category of TK but in reality, IK is separate
and distinct
• Any discussion of Indigenous People’s
knowledge necessarily requires the recognition
and protection of the international human rights
of Indigenous peoples.
Indigenous Knowledge in the
Market Economy
• Indigenous peoples …. are considered potential
market players because they offer unique
commodities such as traditional knowledge. But
they are not quite market-ready because their
unique commodities have not been made market
ready, that is they have not yet been ‘discovered’ in
the research sense nor have they been
commercialized in terms of intellectual property.
– Dr. Linda Tuhiwai Smith, Decolonizing Methodologies
“Protection” vs. Protection
IPR based protection of IK
• Defensive Measures (databases, certificate of
origin)
• Positive Measures (registers)
Indigenous Peoples’ Protection of IK & GR
• Safeguarding the continued existence and
development of the knowledge protecting the
whole social, economic, cultural and spiritual
context of that knowledge
IPRs or Modified IPRs for
Protection are Not Appropriate
IPRs
• Monopoly Rights
• Short Term, Time
Specific
• Alienability
• Post-Protection
Public Domain
Indigenous Systems
• Collectively held
resources
• Benefit for future
gsenerations
• Inherent and
Inalienable
Real Dangers of IPRs over IK
• IPR protections are a threat to IK by placing
IK in the domain of the market, and public
domain.
• IPRs transform the nature of Indigenous
Knowledge from collectively held cultural
heritage to an alienable commodity.
“Protection” vs. Protection
Do States have a right to protect Indigenous
knowledge?
“Western law has no right to protect my knowledge
because it has no right to my knowledge. No more
than,say, would any other Indigenous peoples have such
a right.”
Mike Myers, Seneca Nation
The Rights of
Indigenous Peoples
Protection of Indigenous
Knowledge
• Indigenous Peoples’ positions:
• It is our knowledge and we have rights to it.
• We have a right to protect that knowledge
according to our cultural values, principles
and customary law.
• States must recognize that right, and it is not
for them to try to define the forms, levels or
degrees of protection.
UN Declaration on IPs Rights - Article 26
1. Indigenous peoples have the right to the lands,territories
and resources which they have traditionally owned,
occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop
and control the lands, territories and resources that they
possess by reason of traditional ownership or other
traditional occupation or use, as well as those which they
have otherwise acquired.
3. States shall give legal recognition and protection to
these lands, territories and resources. Such recognition
shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous
peoples concerned.
UN Declaration on IPs Rights - Article 31
1.
Indigenous peoples have the right to maintain, control, protect and
develop their cultural heritage, traditional knowledge and traditional
cultural expressions, as well as the manifestations of their sciences,
technologies and cultures, including human and genetic resources,
seeds, medicines, knowledge of the properties of fauna and flora,
oral traditions, literatures, designs, sports and traditional games and
visual and performing arts. They also have the right to maintain,
control, protect and develop their intellectual property over such
cultural heritage, traditional knowledge, and traditional cultural
expressions.
2.
In conjunction with indigenous peoples, States shall take effective
measures to recognize and protect the exercise of these rights.
Permanent Sovereignty Over
Natural Resources
Special Rapporteur Erica-Irene Daes Report (2004)
“…. international law and human rights norms
…demonstrate that there now exists a developed legal
principle that indigenous peoples have a collective
right to the lands and territories they traditionally use
and occupy and that this right includes the right to use,
own, manage and control the natural resources found
within their lands and territories.”
Natural resources includes genetic resources
(Indigenous Peoples’ Permanent Sovereignty Over Natural Resources,
E/CN.4/Sub.2/2004/30)
Requirements for States for
True Protection of IK
1. States must recognize the right
Indigenous Peoples as owners of their
knowledge, including the right to control
access to, and use of, that knowledge.
2. States must recognize our own customary
and codified systems of protection for our
own knowledge.
• Our heritage cannot be separated into component
parts.… We do not award different values to
aspects of our heritage and we do not classify
them into different categories such as ‘scientific’,
‘spiritual’, ‘cultural’, ‘artistic’, or ‘intellectual’, nor
separate elements such as songs, stories, and
science.
• We do not see the protection of our rights to our
cultures as separate from our territorial rights and
right to self-determination.
– Victoria Tauli-Corpuz, Workshop Report-Biodiversity, Traditional
Knowledge, and Rights of Indigenous Peoples, 2003.
Two Row Wampum
• Two Row Wampum- Haudenosaunee (Iroquois)
and Dutch Treaty (1514)
• Reflects the existence of parallel societies as
equals going down the river of life
• The right and responsibility to protect IK rests
with the Indigenous system of governance.
• These mechanisms need to be respected as from a
principle of equity.
Asserting Self-Determination
• [m]y government’s right to protect it’s
people, knowledge, creations, ways, and
territories, is inherent as a government.
What mechanisms we use within our
context is equal to whatever ways they use
to protect theirs. They need to be seen as
equal, and be treated as equal in forums
where issues and challenges about the
balance of that equality are raised.