COMMUNITY RESOURCES: INTELLECTUAL PROPERTY, INTERNATIONAL TRADE AND PROTECTION OF TRADITIONAL KNOWLEDGE

Vol. 16 No.5 (May, 2006), pp.364-368

COMMUNITY RESOURCES: INTELLECTUAL PROPERTY, INTERNATIONAL TRADE AND PROTECTION OF TRADITIONAL KNOWLEDGE, by Johanna Gibson. Burlington, VT: Ashgate Publishing Company, 2005. 396pp. Cloth. $114.95/£60.00. ISBN: 0-7546-4436-7.

Reviewed by Robert G. Brookshire, Technology Support and Training Management Program, University of South Carolina. Email: brookshire [at] sc.edu.

Modernization and globalization sometimes proceed through the exploitation of the land, cultural practices, religious customs, traditional knowledge, or biological assets of traditional societies by governments, companies, and individuals. First world bio-prospectors appropriate plants, recipes, and procedures from third-world communities. Modern artists lift the symbols and techniques of folk artists, using them in ways that may violate taboos or traditions. Tourists trample sacred lands, and manufacturers reproduce holy images and artifacts for sale in the global market.

In COMMUNITY RESOURCES: INTELLECTUAL PROPERTY, INTERNATIONAL TRADE AND PROTECTION OF TRADITIONAL KNOWLEDGE, Johanna Gibson develops a proposal for an international convention to protect traditional communities from exploitation and permit them to manage their own intellectual, social, and physical resources. Gibson is a lecturer in the Queen Mary Intellectual Property Research Institute, Centre for Commercial Law Studies at Queen Mary, University of London. Her background fits her well for undertaking this book, as she holds degrees in cultural and critical theory, animal sciences, and law. She practiced intellectual property, communications, media and technology law in Australia, and has published extensively on the protection of Indigenous cultural, intellectual, and biological resources.

The book is organized into an introduction followed by nine chapters. Readers interested solely in the projected international convention may focus on Chapter 9, which contains Gibson’s framework for her proposed law. The introduction and subsequent eight chapters present a magisterial survey of the intellectual, legal, and cultural landscape of traditional or Indigenous knowledge protection, along with Gibson’s closely argued critiques of existing national and international laws on the subject. Gibson brings to bear not only her legal training but also her training in critical theory as she examines the cultural and philosophical underpinnings of current legal practice.

In the Introduction, Gibson presents an overview of the book and defines her terms. Traditional knowledge, “the totality of Indigenous and traditional cultural production” (p.28), is only one aspect of community resources. Community resources may also include rights to land, biological assets, or any other resources deemed important by the community. The ownership of traditional knowledge is determined strictly by the [*365] rules of the group. In contrast to western ideas of intellectual property, traditional knowledge might not belong to its creator. It is not necessarily community property, however; ownership is determined by the customs of the community.

Gibson tries to define community in a way that it is not necessarily bound by geography or scale, thus including dispersed communities such as the Roma. At the same time, Gibson limits communities to those which have a traditional basis, in order to exclude communities defined according to shared interests such as the online or artistic communities.

In Chapter 1, Gibson elaborates her conception of community. In her framework, “community” must have legal status internationally, rather than through states. This is not only because many communities transcend national borders, but also because nations have proven to be poor custodians of traditional community resources.

Gibson is a staunch proponent of communalism, as opposed to individualism. “Neo-liberal doctrines of individualism arguably undermine the traditional values of community, and a neo-liberal democracy may even render community impossible” (pp.68-69). Her criticism of individualism leads to her rejection of intellectual property law as the mechanism for the protection of traditional community resources in Chapter 2.

She argues that current intellectual property laws do not effectively address the special requirements of traditional communities. Gibson bases her analysis on Lyotard’s notion of “grand narrative,” characterizing current intellectual property as a narrative of innovation that opposes or ignores traditional knowledge. Modern intellectual property law is established to permit owners to commercialize their property, while traditional communities often seek to prohibit commercialization of their knowledge.

Chapter 3 details the ways in which intellectual property law is unsuited to protecting traditional knowledge. Some of the problems Gibson identifies include that the law requires an identifiable, individual source of creation; intellectual property must have a fixed material form; it must demonstrate originality; and intellectual property rights are of fixed duration. Intellectual property must be disclosed, licensable, and imitable, while many types of traditional knowledge are secret, protected, and inimitable. Intellectual property law “facilitates the exploitation of traditional and Indigenous knowledge, by excluding it from protection” (p.130) through setting standards that traditional knowledge does not meet, while at the same time protecting the products that exploiters create using this knowledge.

Chapter 4 covers current international law with respect to intellectual property. Most international law seeks to extend intellectual property law to cover the protection of traditional knowledge, a wrong approach in Gibson’s view. International laws often put the responsibility for managing traditional knowledge in the hands of states rather [*366] than traditional communities. Traditional communities are not necessarily limited by national boundaries, however, and when they are, nations do not always do a good job of protecting traditional resources. Gibson argues that an international law not based on intellectual property is the only way to proceed.

Chapter 5 considers the open source model as a method of protecting traditional knowledge. In Gibson’s view, this model is fundamentally flawed, as open source means freedom of access, use, and dissemination of the material, which is diametrically opposed to the protection of traditional knowledge. The open source model depends on the idea of progress in the development of knowledge through sharing the responsibility of innovation among many users of the property. Traditional knowledge does not always share this idea of the “linear model of innovation” (p.158), and those in the traditional community who innovate do so within the confines the community and its strictures.

Chapter 6 deals with biological resources. Gibson presents a detailed discussion of the Convention on Biological Diversity (CBD), which has many laudable aspects with regard to community resources. It has a host of problems, as well, in Gibson’s view. The CBD is unratified by the United States and is “implemented in mostly unsatisfactory ways in other developed countries.” The CBD emphasizes the sovereignty of states, and “may be read more strictly as a means for ensuring the sustainability of the bio-prospecting industry” (p.196). The CBD is based on contractual arrangements between states; communities are not involved. It also evinces a materialistic relationship toward resources, and threatens to “coerce Indigenous peoples into participation in the economic exploitation of their knowledge and resources” (p.222).

Chapter 7 discusses the concept of land as a community resource. Gibson demonstrates that Western legal conceptions of land rights do not fit many traditional communities well. Traditional communities may have strong relationships to territory, relationships that persist even if the communities are dispersed. Gibson wants to protect this relationship without pinning communities down to particular physical places.

In Chapter 8, Gibson examines the rights of Indigenous peoples within the framework of human rights. In keeping with her suspicion of neo-liberal individualism, Gibson prefers to frame the discussion in terms of obligations, rather than rights. As she writes, “A human rights framework remains driven by an individualist and materialist model and does not, therefore, provide an adequate framework for the recognition of the capacity and authority of the community” (p.265). She advances the idea of “internal self-determination,” the notion that traditional communities have the right to practice self-government within the nation-state.

Chapter 9 presents Gibson’s model for an international convention protecting community resources, “a legal [*367] framework vesting the authority for management and regulation of ownership of traditional resources in the community . . . where management of those resources is according to customary law” (p.275). It would be called the Convention for the Promotion and Protection of Community Resources (CPPCR), and might be located within the framework of the WIPO or WTO. Gibson recommends that a United Nations Conference on Community Resources be called by the General Assembly, which might lead to the creation of an international body like a “United Nations Community Resources Programme” (UNCRP).

Under this model, a four-step process would be used to permit communities to assert authority with respect to their resources, and have the international community recognize that assertion. First, a community asserts that it is a community under “the principle of long-standing ancestral and cultural cohesion and tradition,” including “communal, holistic and shared cultural development, ancestral ties, kinship, religion, and belief systems” (p.288). Next, the community asserts that it has certain resources “integral to its self-identity, freedom of expression, coherence, and dignity” (p.287). Following these assertions, other parties may attempt to rebut the claims of the community. If the rebuttal is successful, competing interests will be resolved according to “equitable principles of international law” or “proportionality.” Communities may then regulate or protect their resources, and may commercialize them, allowing others access on the principle of free and prior informed consent.

This brief summary does little justice to Gibson’s exposition, which is far ranging and includes many topics and arguments I have not mentioned. She anticipates many of the objections critics might raise against her model, including the largest, that “the resistance of countries like the United States would severely compromise its efficacy as an international framework” (p.293).

Gibson always champions the rights of the traditional community and does not address the poor record that some traditional communities have had in protecting their own resources. Historical and archeological evidence shows that traditional cultures are not necessarily able to practice sustainable use of their own resources (e.g., Rapa Nui or Easter Island culture), even in the absence of commercial exploitation. More frequently, contact with industrial cultures has caused traditional communities, often in concert with colonizing or exploitive outsiders, to participate in the destruction of their own resources. There is no mechanism of accountability for communities under her model.

Likewise, communities can be oppressive in their traditional practices. Gibson maintains that fundamental human rights are not compromised by her model, yet she argues that individual self expression can be limited by the community. This leaves the door open for the protection of traditional cultural practices that constrain individuals. Limiting the scope of women in society which, it is traditionally argued, protects their integrity and safety but limits their [*368] self-expression, would be permitted under this model.

Gibson makes every attempt to include a diversity of traditional communities in her examples, and mentions, among other groups, the Sámi, the Roma, the Aka, the Zia, the Maori, the Cherokee, and the Kurds. Some of the groups she includes, however, are less easily classified as traditional, such as Cubans or the Québécois. She most often relies on Australian examples, about which she has encyclopedic knowledge, but it is not always obvious that the Australian experience transfers well to other settings.

Her definition of traditional communities prevents some modern communities from being included in the proposed international convention. It might be useful, however, to consider the possibility of, for example, the Internet community regulating Internet resources on the same basis that traditional communities regulate their resources under the convention.

Gibson writes dense academic prose, much of it in the passive voice. Consequently, some of her arguments are more convoluted or obscure than they otherwise might be. She repeats some of her points from chapter to chapter, which sometimes arises when authors combine separate papers into a lengthier exposition. The extensive and valuable bibliography is organized according to the type of work, with academic papers, documents from international organizations, legal cases, and other materials under their own headings. This can make tracking down a reference in the text tricky.

In spite of these problems, COMMUNITY RESOURCES is a challenging, thought-provoking work. Gibson skillfully combines anthropological, political, sociological, legal, and philosophical perspectives to shape the justifications for her proposed international convention. The book will be of special interest to those in the fields of development, public policy, intellectual property, and international law, and will serve as a resource for scholars and policy makers concerned with the protection of traditional cultures and their resources.

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