Journal of Business Ethics The Role of Ethics in the Commercialization of Indigenous Knowledge --Manuscript Draft-Manuscript Number:
BUSI3162R1
Article Type:
Original Article
Full Title:
The Role of Ethics in the Commercialization of Indigenous Knowledge
Section/Category:
International Management - Nicola M. Pless
Keywords:
bio-prospecting; Business ethics; Corporate social responsibility; Ethics in management; indigenous knowledge; intellectual property; stakeholder theory; traditional knowledge
Corresponding Author:
David Orozco, J.D. Florida State University Tallahassee, FL UNITED STATES
Corresponding Author E-Mail:
[email protected]
Order of Authors:
David Orozco, J.D. Latha Poonamallee, PHD
Abstract:
Much has been written about traditional knowledge and intellectual property rights (IPRs) in fields like anthropology and law. However, it remains an under-examined topic in business and management literature. In this article, we review the emerging contentious discourse, definitional issues and underlying assumptions of the western IPR and traditional knowledge management systems. We highlight the similarities and differences between the two approaches. We argue that adopting a view that law is socially constructed with ethical underpinnings helps sort out the thorny issues related to traditional knowledge 'expropriation'. To do this, we draw on the role of ethical norms in the historical evolution of intellectual property rights regimes. Finally, grounded in Stakeholder Theory, we conclude with a discussion of managerial implications.
Powered by Editorial Manager® and Preprint Manager® from Aries Systems Corporation
Response to reviewer's comments(excluding authors' names and affiliations) Click here to download Response to reviewer's comments(excluding authors' names and affiliations): Response to reviewers comments.d
Reviewer #1 Comments: At the end of the very first sentence, I would add more citations; having just one citation to represent all those that focus on knowledge as a key resource for competitive advantage is weak. We agree with the Reviewer’s comment. We added three additional citations to support the statement.
The introduction, especially at the beginning, seems focused on "traditional" knowledge, but the paper seems to want to focus on "indigenous" knowledge. I recommend getting the reader on board from the start by using the terminology you intend to use later. We agree with this comment and appreciate the suggestion. We changed the introductory section to focus exclusively on indigenous knowledge. Any confusion, we believe, has been eliminated due to this revision.
At the end of the second paragraph of the Introduction, you have the phrase, "law as a facilitator that can enable a manager to do the right thing." I found this phrase confusing in the context of your other comments. The laws you mention have to do with intellectual property rights and are a codification of ethical principles, which seems to be the point you are making. But most laws are codifications of ethical principles: we have laws against stealing as a means of protecting people's private property rights because we believe people have a right to the fruits of their labors; we collect taxes so we can fund programs for people who are out of work because we believe it's appropriate for the members of a society to help other members of that society who are in need; and so forth. IPR law isn't any different from most laws in its focus on encouraging ethical behavior. We agree that the statement was confusing. To eliminate this confusion, we state that laws can be disregarded under a cost-benefit calculus, which would de-emphasize the ethical foundations of law. We also provide a citation for this statement. We then contrast our approach with the alternative cost-benefit approach towards the law.
At the beginning of the third paragraph of the Introduction, you talk about "the rights of people and nature." I don't see anything anywhere in your paper about nature's rights everything focuses on the rights of humans - so I'm not sure why you have chosen to say this. We agree, and eliminated any reference to the rights of nature to avoid the confusion.
At the beginning of the third paragraph of "Definitional Issues," You begin a quote about cosmopolitan knowledge, but the close quote is missing. The closing quote was added.
You take 2-1/2 pages to distinguish between "traditional knowledge" and "indigenous knowledge," but it's never clear throughout the rest of the paper why this distinction is so important. Is it really important? Are there types of "traditional knowledge" that aren't important to protect from exploitation by profit seekers? Is "traditional knowledge" not "intellectual capital"? Is "indigenous knowledge" more valuable than "traditional knowledge"? If so, why and in what way? I would also hasten to point out that you talk frequently about "traditional knowledge" in much of the rest of the paper, even in places when it would seem equally appropriate to be focusing on "indigenous knowledge" (e.g., pp. 16, 30). This was an important point, and we addressed it by emphasizing early on in the article that we would deal exclusively with indigenous knowledge. We identify the conceptual distinction between these two types of knowledge, and mention how many cases of appropriation have involved indigenous knowledge, particularly in areas like bio-prospecting. We then eliminated references to traditional knowledge to avoid any confusion. This comment was greatly appreciated, and helped focus the paper.
You also tie indigenous knowledge to local ecology in a couple of places, but you say it as an off-hand remark. Given that your examples (neem, turmeric, etc.) of exploitation of indigenous knowledge seem to require the indigenous people's keen understanding of local flora, perhaps this is more central than it comes across as being. We addressed this comment by expanding our discussion of the link between ecology and indigenous knowledge on page 6. This link is provided by further examining and discussing the concept of ecological embededness, which helps to identify knowledge-sharing norms among indigenous groups.
In the second paragraph of "Indigenous Knowledge as Intellectual Capital," expand further on each similar characteristic between IK and IC before getting into your (third paragraph) example. Then tie the example tightly to each of the characteristics you just mentioned.
We followed the reviewer’s advice and provided examples that highlight and expand our discussion of the characteristics shared between indigenous knowledge and intellectual capital.
In the third paragraph of "Indigenous Knowledge as Intellectual Capital," I don't understand how the monetary value of plant-based medicines or the sales of crop-based genes is relevant to the points you are focusing on in this section of the paper.
We agree with the reviewer that this sentence was out of place. We eliminated any confusion by moving the statement regarding the monetary value of pant-based medicines to the introduction section of the paper.
The fourth paragraph of "Indigenous Knowledge as Intellectual Capital" needs work. The initial sentence is not a topic sentence, so the reader struggles to figure out what the paragraph is supposed to focus on. In fact, placing this paragraph here seems odd; what you are addressing doesn't seem to follow naturally from what you addressed in the previous paragraph. We agree, and added a topic sentence. We believe that this sentence now offers a natural transition from the prior paragraph, since the prior paragraph was also modified to highlight the tensions associated with applying traditional property concepts to indigenous knowledge.
In "Indigenous Knowledge Rights and the Firm," you describe the case of the San people. It seems an equivalent case to that about neem, turmeric, and basmati, all of which involve exploitation of indigenous and activism. Why is it not included along with those cases? We use the cases for purposes of illustration rather than in a traditional qualitative data method. Therefore, we think that the case of the San people belongs where it is as an example to support our explanation of the material in the section on Indigenous knowledge rights and the firm.
In the neem case, please note that the company's name is W. R. Grace, not W. G. Grace. The company’s name was corrected. In the first paragraph of the section "Managerial Dilemmas Related to Appropriating Indigenous Knowledge," the following sentence appears: "Whiteman and Cooper (2000) define the relationship between managerial knowledge and place of practice as ecological embeddedness which encapsulates notions of ecological respect, caretaking, and reciprocity." I have no idea what this sentence means, especially given the rest of the paragraph as context.
We agree this sentence was out of place and have moved it to a different section in the paper that discusses ecological embdededness. We believe this change eliminates any confusion.
In the third paragraph of the section "Indigenous Knowledge Rights and Intellectual Property Rights," please provide a citation for your comments about French droit de suite. A citation was provided.
You provide Tables 1 and 2, and you provide a lengthy discussion of trade secrets, copyrights, patents, and trademarks; but you need to tie the discussion tightly to the Tables. As it is, the tables seem rather disembodied. We moved the placement of Tables 1 & 2 to follow our in-depth discussion of the relationship between the ethical foundations of indigenous knowledge and intellectual property. We believe that the current placement of the tables, preceded by this lengthy discussion integrates the tables in an effective manner.
In the third paragraph of the section "Social and Ethical Norms Underlying IPRs," the third sentence ("The case of copyright is similar?") is very confusingly worded, using the word "another" three times. We agree, and re-worded the sentence to avoid repeating “another”. We believe this eliminates any confusion.
In the paragraph immediately following the first quote in the section "Social and Ethical Norms Underlying IKRs," you talk about "behavior." What behavior? "Managerial interest" is not a behavior. Surely you can't (and shouldn't) regulate interest?.
We agree with the Reviewer’s comment, and modified the sentence to avoid suggesting that interest should be regulated. In the section "Social and Ethical Norms Underlying IKRs," you talk at length about Native American tribal insignias. This doesn't seem to be terribly relevant to a discussion of knowledge. These insignias are roughly the equivalent of trademarks, but those are more tangible than knowledge and therefore seem more easily identified and protected. The real issue your paper seems to want to raise is the protection of useful indigenous understandings and practices. Can you find a better example of U.S. protections of indigenous knowledge?
The Reviewer’s comments were carefully considered. The authors respectfully disagree, however, with the Reviewer’s statement that insignias are more tangible than other forms of indigenous knowledge. Insignias are symbols that signify many aspects of the tribes’ cultural heritage, and represent the meaning of cultural heritage, much of which is intangible yet represented by the insignia. The authors added a brief discussion of the U.S. Indian Arts and Crafts Act of 1990 as an example of legislation that protects cultural heritage and practices among Native American societies.
The entire section "Implications for Management" needs more focus; it is the least sophisticated section of the paper because it is disjointed. You describe a variety of perspectives, but the reader cannot understand the connections between them. This section has been completely rewritten, with more recent literature addressing corporate social responsibility.
The third sentence ("There are those who?") of the second paragraph of "Implications for Management" is a run-on sentence that is very difficult to understand. We agree, and modified the sentence to avoid any confusion. The second sentence ("However, widely accepted definitions?") of the fifth paragraph of "Implications for Management" needs rewriting - it is a confusing mixture of two definitions of stakeholders by two authors. We have rewritten this sentence. Freeman has indicated that he doesn't see stakeholder theory as properly being characterized as separately "descriptive," "normative," and "instrumental." Rather, he sees it as being "managerial." That is, you cannot separate the normative from the instrumental. I would recommend you use this terminology, as you are making a point about managerial functions. I believe the citation is either 1994 or 2000. (Sorry, but I can't put my hand on it at present.) We have used the term, ‘managerial’ as suggested. In the last sentence of paragraph 7 of "Implications for Management," you say, "it is prudent for firms?" I would stick with the terminology you've already introduced: this is an instrumental move, not necessarily a normative one. Yes, we have argued that normative and instrumental cannot be really separated.
Reviewer # 2 Comments:
I am aware that scholars like Chidi Oguamanam and Tonye Mahop have published several articles/books recently in this area. If the authors would review their manuscript to reflect recent scholarship, I would recommend its publication. We thank the Reviewer for suggesting these relevant and timely sources. We cite Oguamanam on pages 2 and 8. We cite Mahop on page 9.
*Title Page (containing all authors contact details)
David Orozco* Assistant Professor of Legal Studies College of Business Florida State University 821 Academic Way Tallahassee, FL 32306 850-644-9733
[email protected]
Latha Poonamallee Assistant Professor of Organizational Behavior Michigan Technological University 1400 Townsend Drive Houghton, MI 49931-1295 Ph: 906.487.1631 Email:
[email protected]
*Blinded Manuscript (excluding authors' names and affiliations) Click here to download Blinded Manuscript (excluding authors' names and affiliations): BUSI3162_JBE_RR.doc Click here to view linked References 1 2 3 4 The Role of Ethics in the Commercialization of Indigenous Knowledge 5 6 7 8 9 10 11 12 13 14 15 16 Abstract 17 18 19 20 21 Much has been written about indigenous knowledge and intellectual property rights 22 23 (IPRs) in fields like anthropology and law. However, it remains an under-examined topic 24 25 26 in business and management literature. In this article, we review the emerging 27 28 contentious discourse, definitional issues and underlying assumptions of the western IPR 29 30 31 and indigenous knowledge management systems. We highlight the similarities and 32 33 differences between the two approaches. We argue that adopting a view that law is 34 35 36 socially constructed with ethical underpinnings helps sort out the thorny issues related to 37 38 indigenous knowledge ‘expropriation’. To do this, we draw on the role of ethical norms 39 40 in the historical evolution of intellectual property rights regimes. Finally, grounded in 41 42 43 Stakeholder Theory, we conclude with a discussion of managerial implications. 44 45 46 47 48 49 50 Keywords: bio-prospecting, business ethics, corporate social responsibility, ethics in 51 52 53 management, indigenous knowledge, intellectual property, stakeholder theory, traditional 54 55 knowledge. 56 57 58 59 60 61 62 63 1 64 65
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Introduction
Knowledge is a key resource that is used by firms to sustain competitive advantage (Kogut and Zander, 1992; Nonaka and Takeuchi, 1995; Grant, 1996; Teece, 2000; ). The potential for knowledge generated and employed by indigenous peoples (“indigenous knowledge”) to create and add value within and outside the boundaries of indigenous communities is well documented (Dutfield, 2000; Norchi, 2003; Oguamanam, 2004). For example, one study estimates that the market value of plant-based medicines sold in OECD-member nations is $61 billion dollars (Dutfield, 2000). Another study (RohtArriaza, 1996) estimates that at least $50 million in yearly sales were achieved in the U.S. from genes derived from 15 crops developed via traditional methods. Indigenous knowledge is, therefore, treated like other forms of capital with the potential to create monetary value. Paradoxically, however, indigenous knowledge is also viewed as falling within the property commons, or as a knowledge system that is altogether excluded from a property rights, or intellectual capital discourse. This article discusses several ethical issues related to the appropriation and commercialization of indigenous knowledge. Central to our discussion is the fact that indigenous knowledge has yet to be integrated within management discourse as a potential source of legitimate recognizable intellectual capital with attendant property rights. For example, a search performed on past issues of Administrative Science Quarterly, Academy of Management Review, Academy of Management Journal, and Organization Science reveals that only one article (Whiteman and Cooper, 2000) addresses the implications of adopting indigenous knowledge in modern organizations.
2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Even the more recent exhaustive work of Dean and Kretschmer (2007), which examines the ‘arrival of a distinct new factor of production – intellectual capital’, fails to mention traditional or indigenous knowledge as a component within the taxonomy of intellectual capital. In this article, we attempt to address the gap in the current managerial treatment of indigenous knowledge through a review of this emergent and contentious discourse. Our position is that it is important to distinguish between ethical and legal treatments of knowledge and find ways to align them with each other. Our paper is based on the argument that ethical norms provide a foundation for laws and legal decision-making (Feldman & Nadler, 2006; Kagan et al., 2003; Feinman, 2000). This approach highlights and promotes the ethical foundations of law. This perspective stands in contrast to the competing perspective that law is an external regulatory force that can be avoided or disregarded by managers as long as the non-compliance penalties are less than the benefits (Bird, 2008). This article, therefore, argues that Intellectual Property Rights (IPRs) are not only about protecting knowledge but also about protecting and acknowledging the rights of people. Specifically we 1) highlight the definitional issues with respect to indigenous knowledge, 2) establish the practical relevance of this discourse for knowledge management in business firms through examples of contentious cases that illustrate the mechanisms employed by indigenous communities and advocates against the appropriation of indigenous knowledge, 3) unpack and describe the fundamental assumptions, attributes of, and ethical norms that underlie Western IPRs and indigenous
3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
knowledge management systems, and 4) discuss relevant implications for managers using Stakeholder Theory. It is worth highlighting that this paper does not intend to resolve these important and complex issues. Instead, it seeks to disambiguate the meaning of indigenous knowledge and introduce this conception in the management literature as a form of indigenous knowledge property with implications relevant to stakeholder theory. Moreover, the authors acknowledge that firms often have utilitarian justifications for seeking and exploiting all types of knowledge. Yet, managers who are cognizant of the ethical and emergent property attributes of indigenous knowledge may be better equipped to foresee the potentially negative consequences of misappropriation and may mitigate this risk. We also hope to demonstrate that opportunities arise for managers to reach out and dare to care for the communities who developed this valuable category of knowledge.
Definitions Indigenous knowledge is defined as “knowledge that is held and used by a people who identify themselves as indigenous of a place based on a “combination of cultural distinctiveness and priori territorial occupancy relative to a more recently-arrived population with its own distinct and subsequently dominant culture (UNEP, Mugabe, WIPO.net:2-3)”. In the extant literature however, the term indigenous knowledge has been sometimes used interchangeably with the term traditional knowledge. Traditional and indigenous knowledge have a commonality since both forms of knowledge involve the development of a distinctive cultural identifier that binds a community together (Subbiah, 2004). The analytic distinction between the two types of knowledge is often
4
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
glossed over since it is often assumed that both indigenous and traditional knowledge(s) are established on past experience, modified and transmitted over generations, are a collective property of a society and located in, and intimately linked to, a particular or local socio-ecology. Indigenous knowledge, however, unlike traditional knowledge, relies on a sense of place or ecological embeddedness (Whiteman and Cooper, 2000) and achieves cultural significance from the community's relation to a particular environment. Traditional knowledge, on the other hand, is a broader concept that may transcend the idea of place. Therefore, Indigenous knowledge is a subset of traditional knowledge (Mugabe, WIPO.net). Mugabe (WIPO.net) draws on the definitions proposed by the International Labor Organization (ILO) Convention Concerning Indigenous and Tribal Peoples in Independent Countries to establish this difference. It is important to reinforce that indigenous knowledge emphasizes the relation of an indigenous group's association with the knowledge viz. a viz. a foreign culture and is dependent on the indigenous people’s keen understanding of the local flora and ecology. In this paper, we address the type of traditional knowledge most likely to be accessed by firms who are almost invariably alien to a local indigenous community, i.e. indigenous knowledge. This article refers to indigenous knowledge (IK) and conceptualizes the attendant property rights and ethical norms supporting them as indigenous knowledge rights (IKRs). Relevance to Management Discourse In this section, we establish the relevance of this topic to management theorists and practitioners. To do this, we first establish IK as a source of intellectual capital. We then describe risks and challenges to firms that adopt IK without acknowledging the rights of
5
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
the originating communities, including the risk of non-market mechanisms used by communities to resist such appropriation. We then conclude this section by summarizing the managerial dilemmas that arise when firms adopt IK. Indigenous Knowledge as Intellectual Capital Intellectual capital (Dean and Kretschmer, 2007) represents many emergent and intangible sources of capital, such as structural (Edvinsson and Malone, 1997), human (Dzinkowsky, 2000) and relational capital (Stewart, 1997). Yet, these new types of capital are conceptually distinct from the traditional notion of capital since they are not durable, measurable, and ownership exclusive (Dean and Kretschmer 2007). However, some of the common characteristics of intellectual capital and the other modern capital sources are their relationship-driven nature, ambiguous ownership, difficult measurement, and dynamic and transformational effect on production (Dean and Kretschmer 2007). It is these latter characteristics that highlight the similarities between intellectual capital and IK. Indigenous knowledge is relationship-driven among a community which determines the way the knowledge is disseminated and practiced (Harrison, 1992; Whiteman and Cooper, 2000). Ownership of indigenous knowledge is ambiguous since the development and diffusion of knowledge practices in these societies is governed by communal norms rather than legalistic notions that disembody the knowledge from the community or culture. For example, Whiteman and Cooper discuss how the Cree beaver trappers of James Bay in northern Quebec have developed sustainable knowledge hunting practices that incorporate important communal norms, for example, the requirement that
6
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
trappers: live in the wildnerness, value elders’ experiential knowledge and demonstrate respect for wildlife’s willingness to be captured. Indigenous knowledge is similar to intellectual capital since it is dynamic and has the capacity to transform production and create competitive advantage. The measurement of knowledge-based assets, however, is difficult across cultures and IK is often laden with values that extend beyond the pecuniary (Harrison, 1992). Indigenous knowledge, for example, is often linked to a deep understanding of and interconnection with a specific local ecology that possesses social, spiritual, and ecological dimensions. For example, Soleri, et.al. (1994) describe how Zunis farmers regard their folk crop varieties as sacred gifts from the Creator. Whittaker (1994) discusses the transfer of Ayers Rock in Australia to aboriginal ownership as a public discourse on sacredness. Whiteman and Cooper (2000) define the relationship between managerial knowledge and place of practice as ecological embeddedness which encapsulates notions of ecological respect, caretaking and reciprocity. The commercialization of indigenous knowledge, therefore, can be a dis-embedding practice that disassociates knowledge from its context, disregards its broader meaning and results in an ethical quagmire. An inherent tension arises nonetheless when IK is analogized as a form of intellectual capital. In its present usage, IK conveys misguided and incomplete notions of property and ethical norms shared among societies with vastly diverse cultural and sociopolitical realities. IK has strong ecological ties, and assumes symbolic and cultural significance and, therefore, in that important cultural sense, IK extends beyond the established Western notions of intellectual capital. This conceptual difference obscures relevant property and ethical dimensions of IK in relation to a dominant discourse
7
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
surrounding Western, knowledge-based intellectual property rights (WIPO). There are many differences between Western IPRs and IK management systems (Oguamanam, 2004). Indigenous knowledge does share, however, some unrecognized and legitimate attributes with Western knowledge-based property rights. It is this complex and misunderstood relation between IK, intellectual capital and Western property rights which merits a re-evaluation for management theory. As will be discussed below, IK that is dis-embedded from its original context may invoke significant moral, strategic, and operational dilemmas for both the communities that regulate their usage and the firms who seek to employ that type of knowledge for financial gain. Indigenous Knowledge Rights and the Firm Appropriation of IK by firms is sometimes complicated by conflicting institutional settings. For example, Bratspies' (2007) discusses the different aspects in the exploitation of indigenous knowledge involving biological resources. One setting involves knowledge governed by a framework where the State owns biological resources. The second is private ownership of these resources stipulated by World Trade Organization’s (WTO) Trade Related Aspects of Intellectual Property (TRIPS) agreement. The third aspect involves the indigenous community’s struggle to retain control over the resources through indigenous knowledge rights. Indigenous leaders and groups who inhabit the territories and lands in which most of the world's remaining biodiversity exists, view these resources as part of their cultural and social heritage. Their fight for control over their indigenous resources is, therefore, their call for self-determination of their heritage and its economic exploitation (Oguamanam, 2004). For example, various indigenous leaders from Brazil filed the following statement at WIPO:
8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
As traditional indigenous peoples who inhabit diverse eco-systems, we possess knowledge on the sustainable management and use of this biological diversity. This knowledge is collective and is not a commodity that may be commercialized as any good in the market. Our knowledge on biodiversity is not separate from our identities, our laws, our institutions, our system of values and our cosmological view as indigenous peoples.
All three perspectives may co-exist in almost every contentious situation and this makes developing a broad categorical classification challenging. The confusion surrounding the ethical, legal and institutional characteristics of indigenous knowledge rights has generated difficulties for some firms. This section explores some of the negative outcomes firms have faced when they failed to take into account the complex aspects of IK, and the various mechanisms communities employ to safeguard their claims to IK. In their quest for productive knowledge, some firms have raised serious ethical challenges involving IKRs. For example, bio-piracy (Dutfield, 2000; Banerjee, 2003) is a critique of the colonization (via property) of the genetic commons that is at the heart of the natural world (Rifkin, 1999:170). Moreover, firms and non-profits such as universities that appropriate such knowledge without the consent of the community run the risk of violating the community’s norms related to how their knowledge can be used (M.T. Mahop and M. Mayet, 2007). For example, Hoodia is a cactus plant used by the San people, hunter-gatherer indigenous groups in South Africa, to suppress their appetite during long hunting expeditions. We draw on Bratspies (2007) to provide a summary of
9
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
the case. A South African research organization that patented the molecule for its use as a weight loss medicine sold the commercialization rights to a biotechnology firm and the rights were subsequently purchased by Pfizer for $21 million. The San people had no knowledge of the transaction and did not receive any benefit. International social action after the event led to a modest benefit-sharing program for the San people. However, as critics (Barnett, 2001; Bratspies, 2007) argue, not only have the San people lost an opportunity to profit from their knowledge, but they lost the power of self-determination with respect to their IK. Scholars critical of the bio-prospecting efforts undertaken by Western corporations among indigenous communities (Banerjee, 2003; Dutfield, 2000; Norchi, 2003; Odek, 1994; Schuler, 2003; Shiva, 2000) advocate social activism by NGOs to protect communities from exploitation. This is because, as Schuler (2003) argues, discipline around the issue of indigenous knowledge patents is more likely to originate from the efforts of activists rather than a careful examination by local patent granting agencies, which are often unfamiliar with IK. There is a growing activist movement, both at the local and international level to define and secure indigenous knowledge from commercial exploitation. Both governmental and non-governmental activist pressure has been deployed in this effort. The governments of emerging economies are likewise calling for greater security with regards to their indigenous knowledge stocks (WIPO, 2007). In many cases, governments coordinate with NGOs to shape the knowledge rights landscape. Government pressure may also manifest itself through coordinated action through international treaty mechanisms and also through enactment of legislation at the
10
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
national level. For example, the Governments of India and Africa require prior informed consent for access to genetic resources, and the sharing of commercial benefits with the source of the indigenous knowledge. In a number of cases where governments mobilized to protect traditional knowledge, it was triggered by stakeholder pressure and activism. For example, in India a coalition of social activists and farmers engaged in large scale protests and demonstrations against Cargill, Monsanto and RiceTec. These efforts pose a serious risk to firms who invest in the commercialization of indigenous knowledge. Next, we describe the key mechanisms employed against firms that appropriate IK and examine how these were deployed in three high profile and well known bio-piracy cases described by Schuler (2003). Activism that Shapes the Knowledge Rights Landscape Firms use mechanisms to strategically shape the intellectual property regimes of their competitors (Pisano, 2006). These may involve defensive publication of technical knowledge through collaborations with external parties, e.g. university researchers or open source communities, and use of a patent re-examination and invalidation procedure. Interestingly, both strategic mechanisms have been employed by stakeholders against firms that appropriate IK. Defensive publications are used by parties to weaken the patent position of competitors. Pisano (2006) provides the example of Merck collaborating with Washington University scientists to publish scientific research and thus weaken the patent position of biotechnology competitors (Pisano, 2006). Under the existing laws, anything that has been published is part of the stock of public domain knowledge and exempt from patenting. Along similar lines, NGO's and governmental bodies have
11
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
encouraged indigenous communities to record and publish their knowledge to prevent its downstream appropriation by private entities. The Indian Government, for example, is in the process of developing a computerized database on traditional knowledge called the Traditional Knowledge Digital Library (TKDL) so as to bring most of what it calls traditional knowledge into the public domain and prevent its future patenting. However, the challenge in this approach is that documentation will not ensure benefit sharing with the developers of the knowledge since it can be freely used by anyone, and in this way it does not preserve the community’s power to self-determine the IK use. Also, the TKDL does not extend public domain status to knowledge that remains tacit, a significant category which may slip through the patent laws of several developed nations. The shaping of a knowledge rights landscape can also be initiated by stakeholders who have challenged patents in local jurisdictions through the patent re-examination and invalidation process. The re-examination proceeding is initiated by any party during the lifetime of the patent and requires that some previously undisclosed new and relevant prior art be presented to the patent authority to reconsider the invention’s novelty (Graham, et al. 2002). Re-examination, when successful, removes patents claims from the private domain and releases them back into the public domain. The procedure is used by firms to limit competitors’ patent claims. We will next describe how these procedures were used in three bio-piracy cases involving the commercialization of ethno-botanical knowledge summarized by Schuler (2003) involving neem, turmeric and basmati. Neem
12
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
The neem tree has been mentioned in Indian writing for over 2000 years and it has been common knowledge that neem has many medicinal properties as well as effective use as a pesticide. There are many patents on neem held in the U.S. and Europe. Banerjee (2003) writes how claiming intellectual property rights over neem extracts was based on a system of multiple exclusions that denies the legitimacy and ownership of indigenous knowledge and agricultural practices. Although it was in prior public domain, a nonnovel entity was claimed to be novel and patented. The most recent contentious debate happened when W.R. Grace, a U.S. company, collaborated with a local partner, P.J Margo Pvt. Ltd, to produce and sell neem-based pesticides. This led to large scale protests and public demonstrations. A coalition of activist groups challenged the U.S. and European patents on the grounds that they lacked novelty. The European patent was revoked while the U.S. patent was held valid. In this case, the patent challenge was initiated by Vandana Shiva, director of the Research Foundation for Science, Technology and Ecology, Linda Bullard, president of International Federation of Organic Agriculture Movements and Magda Alvoet, currently the Health and Environment Minister of Belgium. The determination of these activists sustained their battle over a five-year period. Shiva (2000) writes about how the initiative began with the Neem Team, activists who conceived a 'Free the Neem' campaign given that neem has held such a high symbolic and cultural value for Indians throughout their history. She also makes the case that the Indian government should take the neem example seriously and pay attention to critics' claims that Western patent systems are flawed and that the Indian government, as a trustee of that country's cultural and biological heritage, has a duty to build on the neem victory (Shiva, 2000).
13
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Turmeric Turmeric is a spice used in Asian countries, including India where its medicinal property was well documented in the Ayurveda form of medicine. Two U.S. scientists obtained a turmeric-related patent in 1995. The Council for Scientific and Industrial Research (CSIR), an Indian government organization challenged this patent citing evidence from Ayurveda texts that challenged the novelty of the U.S. patent. A re-examination of the U.S. patent granted for the wound-healing properties of turmeric has led to the patent being revoked on the grounds that there was no novelty due to its prior use and disclosure in India. Basmati A third and well-known case involves basmati rice. Basmati rice is the long grain rice native to the foothills of the Himalayas and is produced only in India and Pakistan. In the 1980s, Rice Tec, a Texas-based company developed strains of basmati that would grow in North America and filed a utility patent for basmati rice in the U.S. (Subbiah, 2004). The Indian Government, in collaboration with a number of non-governmental organizations (NGOs), objected and sought invalidation through the USPTO reexamination procedure. The USPTO subsequently limited the scope of these patents. The U.K. Food Standards Agency allows the 'basmati' labeling only for rice grown in the specific region. In the U.K. the case was decided on a premise of national geographical indication law, which is similar to trademark law. In the Basmati rice case, the Government of India and several NGO's initiated a re-examination procedure before the United States Patent Office challenging all twenty of RiceTec's basmati rice patent claims. This was after RiceTec had spent four million
14
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
dollars in research and development expenses (Subbiah, 2004). In the end, given the prior art submitted by the Indian parties to the U.S. patent office, RiceTec withdrew fourteen of the original claims and modified an additional one. This was widely considered a victory for the stakeholders seeking to preserve indigenous knowledge related to Indian Basmati rice (Subbiah, 2004). Managerial Dilemmas Related to Appropriating Indigenous Knowledge To summarize, firms that wish to appropriate IK as a source of intellectual capital can find themselves involved in difficult scenarios. A moral dilemma arises from appropriating knowledge that may never have been intended for exclusive use by anyone. Another ethical dilemma involves the appropriation of knowledge without compensation to the community that developed the knowledge. Some argue that such moral considerations have no place in competitive business decisions. Frequent cases of companies embroiled in scandals involving sweatshops, employee harassment, or environmental abuse, however, demonstrate that these moral dilemmas have a way of developing into issues of strategic relevance. As increasingly recognized by scholars, the link between ethics and strategy is found in each managerial action, and actions taken with respect to indigenous knowledge should not be viewed as amoral or neutral in content or strategic implication (Melé and Guillén, 2006). This idea is further examined below since the legal knowledge rights landscape is founded on ethical concepts that are also observed in indigenous knowledge systems. Strategic challenges arise from the competitive advantage that might be gained and subsequently lost due to the efforts of motivated stakeholders who assert indigenous knowledge rights if they feel these rights have been abused by firms. Alternatively, the
15
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
acquisition of indigenous knowledge through cooperation with appropriate communities may become a race among firms and hence another strategic issue. Differences in cultural norms related to property also pose an operational dilemma from a cross-cultural, ethical and legal standpoint. For example, Mugabe (WIPO) highlights the debate about the adequacy and ethics of intellectual property protection given the lack of consensus about whether and how to extend IPRs to IK. This institutional uncertainty has clearly been exploited by some firms. Other firms may see it as an ethical challenge that merits a serious re-evaluation of IK as a potential intangible asset. To guide this re-evaluation, the following section discusses the relationship between IK and IPRs. Indigenous Knowledge Rights and Intellectual Property Rights Western intellectual property discourses have largely treated IPRs as a phenomenon centered on individuals and the modern firm. Also, intellectual property is often discussed within the context of Western notions of objectified knowledge viz. a viz. individual subjects (Nonaka and Takeuchi, 1995). The emphasis on firms, individuals and objective, disembodied intellectual property rights creates a veil that obscures some important ethical foundations common to both intellectual property and IK. In this section, we will examine the ethical norms that underlie both forms of knowledge management systems. The argument advanced here is that IPRs are also founded on strong ethical concerns which societies recognize and then later seek to protect through a socially constructed legislative or juridical process. Law and society research suggests that compliance with intellectual property laws can be moderated by the ethical norms
16
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
prevalent among groups of individuals (Feldman and Nadler, 2006; Kagan et al., 2003). One study, for example, shows that social norms trump copyright laws among students who view copyright laws in a negative light and regard file-sharing as socially acceptable behavior (Feldman and Nadler, 2006). Other research indicates that the ethical views of a particular culture impact the development, adoption and respect for IPRs. Lehman (2006) discusses how China has struggled to implement IPRs due to a long-standing social belief that knowledge cannot and should not be owned. Western IPRs, like IKRs, are based on ethical norms co-created by society. A prominent policy justification for IPRs is to encourage innovation across distinct domains, such as functional knowledge, expressive works, designs, and reputation (Orozco, 2009). The reward is a bargain struck between society and the innovator whereby society rewards the innovator with a limited monopoly right. This justification may be grounded in utilitarian reasoning where social efficiency is the outcome and goal of the reward (Resnick, 2003). From Resnick’s (2003) pluralistic account of IPRs there are alternate moral theories for respecting the labor of the innovator and these are grounded more along the lines of a Lockean ethical theory of property rights. Some jurisdictions, for example, explicitly enforce autonomy-based moral rights related to IPRs, for example, the French droit de suite, which recognizes that the author of a work of art never completely forfeits important rights even after a sale of the artwork (Bird, 2009). An examination of the ethical norms that provide a foundation for modern IPRs can provide a lens through which managers and researchers can examine IKRs. First, an examination of the ethical norms that support modern IPRs is discussed. Following this, a comparison is made to some of the ethical foundations for emergent IK legislation.
17
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Social and Ethical Norms Underlying IPRs Trade secrets, one of the most ancient forms of intellectual property rights, can be traced to The Middle Ages where merchant guilds in Europe controlled commerce under strict controls and supervision by the ruling class. These merchant guilds preserved their status by acting as gate keepers of valuable knowledge and limiting the amount of information diffusion that was permitted under the guild’s rules of craft (Merges, 2004). Punishment for revealing guild secrets carried severe penalties and social sanctions. The guilds, through their regulation of valuable commercial, craft, and trade-related knowledge played an important information governance role that complemented the ruling class’ political goals. This information regulation served an economic function since it posed a barrier to entry for non-guild members (Merges, 2004). However, it oftentimes served equally important non-economic purposes, such as maintaining prestige among the guild and maintaining a strictly stratified social order. Elaborate social norms, rituals, practices and ceremonies surrounded guild activities, e.g. the practice of apprenticeship. Today, trade secret law does not prevent third parties from attaining the same knowledge as long as it was independently derived, highlighting that the social policy is to protect the autonomy of the information source rather than the actual information. To infringe a trade secret is currently defined as a knowledge misappropriation, signaling an unethical trespass of the knowledge in violation of a socially recognized right to respect controlled access. Copyright and patent laws are both stated in the U.S. Constitution as means to promote the progress of arts and sciences. The rights of patents and copyrights are
18
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
extended in the Constitution to authors and inventors respectively (U.S. Const. Art. 1, §8, Cl. 8). The case of copyright is similar to trade secret in that an author may independently create a work without infringing a different author’s copyright. Also, among the rights protected by copyright is the right of attribution. By acquiring copyright to a book, a publisher does not acquire the right to list someone else as the author (Miller and Davis, 2000; Resnick, 2003). This suggests a goal of the law is to protect the personhood related to the source of authorship rather than the actual work. This again illustrates how society recognizes and encodes a certain ethical concept of personhood and dignity in the law in relation to the author’s identity and autonomy viz. a viz. their knowledge. Patent law does not allow third parties to independently practice the patented technology, thus granting the inventor the full monopoly right for a limited period of time. Some of the ethical foundations of patent law, however, extend to the respect for proper attribution of inventorship. Under current U.S. law, the ownership of invention is granted to the inventor absent any contracts, which require the inventor’s consent. Even if the inventor consents to transfer the invention rights by contract, the official issued patent document has to by law list the inventor’s name as the source of the invention. Lastly, the law of trademark has its origins in unfair competition law rather than property law. The earliest cause of action in pre-industrial Britain and eventually the U.S. granted a trademark owner the right to stop an unauthorized trademark user on the basis of consumer confusion, i.e. a fraud on the market theory. Only eventually, towards the beginning of the 20th century did the courts acknowledge a specific and separate property right in trademark ownership. The clear ethical foundation of trademark law is thus predicated on fair usage of a mark to avoid deceit upon the consuming public. This
19
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
highlights the ethical concept of disclosure owed to the public and respect for the consuming public’s reliance on information used to guide consumption. Next, we review the underlying ethical norms of existing IKRs. Social and Ethical Norms Underlying IKRs Various efforts have been taken to protect IK under domestic and international legislation. A careful analysis of the efforts to socially construct laws protecting IK shows that the ethical justifications for the various types of IK are similar to those used to socially construct and justify several of the IPRs analyzed above. Some IK is closely related to the works of authorship that are secured under copyright laws, e.g. dances, poems, songs and myths. These forms of knowledge are often referred to as Traditional Cultural Expressions and Folklore. Some of the efforts underway to protect this rich form of IK involve international treaties and conventions through WIPO. For example, WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore lists, as a policy objective, respect for the community as the source of knowledge:
(ii) promote respect for traditional cultures and folklore, and for the dignity, cultural integrity, and the philosophical, intellectual and spiritual values of the peoples and communities that preserve and maintain expressions of these cultures and folklore;
Similar ethical foundations are shared with Western IPRs in legislative attempts involving other areas of IK. Biological diversity is a prominent target of managerial
20
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
interest and attempts have been made to regulate the access to knowledge that pertains to biological diversity so that it conforms with ethical principles. For example, the U.N. Convention on Biological Diversity’s Article 8(j) indicates an important ethical objective: “(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.”
This clause explicitly recognizes the ethical foundations for granting indigenous groups an initial knowledge-based property right that can be transferred only with prior approval, involvement and equity sharing. Other legislative efforts seek to protect the autonomy and identity related to IK sources. In the U.S., Native Americans have sought to preserve their heritage and identity through legislation that protects their tribal insignias. This has led to a legislative effort that charged the U.S. Trademark Office with studying how Native American insignias can best be reserved for the communal well-being of Native American tribes (Title III of Public Law 105-330). As part of its study, the Trademark Commissioner stated that the autonomy of the tribes should be respected in their self-determination of what constitutes their insignia (Audet, 2000). Also the Commissioner’s position is that registrations are refused for:
21
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
“trademarks that falsely suggest a connection with a particular Native American Tribe. Registration is refused, even if the applicant appears to be “authorized” by a Native American tribe, because only the true owner of a mark may apply for registration. Thus, only Native American tribes themselves can obtain registration of their official insignia [as trademarks], although they are free to license use of the official insignia” (Dickinson, 1999)
Another U.S. law that protects Native American cultural heritage and practices is the Indian Arts and Crafts Act of 1990. This act is a truth-in-advertising law that prohibits misrepresentations in marketing of Native American arts or crafts. The law makes it a criminal offense to sell any art or craft that falsely suggests it is produced by Native Americans. As these examples demonstrate, the U.S. is prepared to recognize the property rights to Native American tribes that view their insignias and affiliations as communal property. This is relevant to the tribes since according to one scholar, they view the tribal insignia as a communal right related to a sacred cultural symbol (Lury, 1999) and use existing laws to prevent its cultural misappropriation by others. In summary, managers can and should be cognizant of the ethical foundations shared between IPRs and IKRs, several of which are represented below in Tables 1 &2 respectively. ------------------------Insert Tables 1 & 2 ---------------------------
22
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Some of the norms examined in this section deal with autonomy, dignity, personhood, attribution and disclosure. It is important to note, however, that WIPO acknowledges the respect for people’s and communities’ cultural integrity, rather than individual personhood as in the case of Western IPRs. This highlights a fundamental difference between Western IPRs and IKRs. In the next section, we address the implications for management research and practice. We anchor this discussion in the Stakeholder Theory.
Implications for Management Practitioners and scholars of management have yet to adequately frame the use of IK and how it impacts managerial decision-making. One of our objectives in this paper is to provide managers and researchers with viable alternatives that can prevent value dissipation and conversely enable value creation for all stakeholders. In this section, we draw on Corporate Social Responsibility (CSR) discourse to discuss the management implications of treating IKRs as legitimate property interests. Poonamallee (2012) highlights the conflict between the two major paradigms that underlie the various versions of CSR theory and practice. These two paradigms are the dominant economic paradigm and the eco-social paradigm (Korhonen, 2002; Jonker & Marberg, 2007). These two paradigms respectively adopt capitalistic/instrumental and normative perspectives to CSR. Globalization, specialization, mass production, economic growth and competition are the central features of the economic paradigm (Korhonen, 2002). This paradigm advances the perspective that a firm’s responsibility is restricted to
23
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
its shareholders. The eco-social paradigm takes the stance that we live in societies, and that the economy is just one aspect of society (Waddock, 2004). This perspective advocates the concept of common good (Arangandona, 1998), sustainable natural ecosystems (Ehrenfield, 2000) and the use of organic or holistic metaphors (Korhnonen, 2002) towards CSR. According to the eco-social paradigm, a firm’s social responsibilities include a wider ranger of stakeholders than just the shareholders. The economic paradigm can be said to be more aligned with the western IPR model while the eco-social stance is more closely aligned with the IKR systems that treat indigenous knowledge as a socially and ecologically embedded phenomenon. However, this paper takes a more convergent managerial approach, which attempts to marry economics and ethics. One strand of CSR that operationalizes this fusion of ethics and economics is the stakeholder theory (Matten, et.al. 2003). Stakeholder theory provides a managerial framework to understand the relationships between the firm and various groups in its social and physical environments, therefore, providing a convergent theory that integrates the normative and the instrumental CSR theories (Freeman, 1984). Hendry (2001) proposes social relationships rather than economic contracts as a foundation for building a normative stakeholder theory. There are others who argue that stakeholder theory is defective because it is incompatible with business (Sternberg, 1996). However, if IKRs are to be considered capital and operationalized by a firm then the indigenous groups with claims to the knowledge are legitimate stakeholders of the firm and should be considered in the calculus that determines how economic surplus will be allocated among the various stakeholders. Through its comparative treatment of IPR and IKR, this article likewise
24
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
endorses the view that ethics and business cannot and should not be separated (Freeman et al., 2004) because values are an essential part of doing business and there is a moral basis behind the stakeholder theory (Gibson, 2000) with a focus on the common good (Argandona, 1998). Managerial roles require balancing stakeholders’ interests to achieve and maintain a cooperative solution (Hill & Jones, 1992). It is important to generate managerial alternatives that will help firms and managers move to the normative ideals proposed by stakeholder theorists. We, therefore, look to stakeholder theory as a pragmatic theory that fits within a pluralistic account of IK (Resnick, 2003), that balances the competing interests of utility, autonomy and justice (Freeman, et al., 2004). Hendry (2001) offers an alternative conception of social relationships rather than economic contracts as a foundation for normative stakeholder theory. He describes possible moral responsibilities to select stakeholders including shareholders, employees, suppliers and communities. This perspective raises an interesting question: where do the holders of indigenous knowledge rights belong? If this knowledge can be truly considered capital (in an economic sense), do the claimants of indigenous knowledge belong with shareholders? Are they to be considered suppliers with an economic relationship with the firm? Hendry (2001:228) writes that in the case of suppliers, contractual relationships may be supplemented by relationships based on noncontractual expectations, and/or power imbalances. If the firm is local, they may even belong to the stakeholder group called 'communities' who in Hendry's framework do not have any kind of economic relationship with the firm. Assuming that firms want to engage indigenous knowledge holders as stakeholders, we present two mechanisms that may serve legitimate purposes.
25
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Voluntary Screening One of the primary flaws in the current IPR regime as pointed out by scholars (Dutfield, 2000) is that during the patent application stage, the patent granting authority has limited resources to perform an exhaustive search to establish invention novelty. Furthermore, there is a potential loophole in the U.S. system that allows U.S. inventors to patent inventions that are practiced abroad but not publicly recorded. Many traditional knowledge sources fall under this loophole. Ideally, the patent applicant is required to disclose the origin of knowledge and establish novelty. However, as the earlier examples demonstrate, important and relevant IK is often overlooked by the patent granting authorities. A suggestion for firms that wish to exploit indigenous knowledge is to adopt a voluntary screening process for disclosing the origin of the knowledge. While a voluntary screening approach may perhaps never be as potent a deterrent as legislation, firms can use this process to prevent future legislative tangles, loss of R&D investments in innovation, and loss of patent rights and existing or potential revenue. Furthermore, in today’s climate of heightened corporate social responsibility, voluntary screening and publication of indigenous knowledge sources may well be part of the social bottom line in the triple bottom line concept (Laszlo, 2007) or provide some brand equity value. The United Nations Global Impact, though not devoid of criticism, offers lessons in adopting this approach. The UN Global Compact is a global corporate citizenship initiative focused on building social legitimacy for businesses and markets. It is a voluntary initiative that aims to mainstream ten universally accepted principles regarding human rights, labor, the environment, anti-corruption and is meant to trigger corporate
26
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
actions to support goals of sustainable development. These principles are drawn from the Universal Declaration of Human Rights, International Labour Organization’s Declaration on Fundamental Principles and Rights at Work, the Rio Declaration on Environment and Development and the United Nations Convention Against Corruption. It advocates treating the implementation of these principles as an integral part of business operations. While the Compact itself is an umbrella organization and provides support to businesses that would like to embark on adopting the ten principles, it offers corporations a model for how to implement these principles. Firms may draw on the Compact's process model to implement a voluntary screening approach concerning their adoption and use of indigenous knowledge. We acknowledge that voluntary screening is much like the normative stakeholder theory and managerial volunteerism models that have been previously criticized (Mellahi and Wood, 2003). However, this article assumes that firms that desire to adopt and commercialize indigenous knowledge are interested in finding a win-win approach towards stakeholder management. Joint Benefit Sharing Along with voluntary screening, we suggest that firms that intend to draw on and use indigenous knowledge approach this process from a joint benefit-sharing model with key stakeholders. As Sergio-Pena Neira (2003) writes, equity is the practical side of justice and joint benefit sharing is one way to ensure distributive equity. In this recommendation, we describe two key studies (Norchi; 2003; Kate and Laird, 2004) which offer suggestions and examples for how this can be accomplished. Norchi (2003), in his case study on the Onge tribe, suggests that the Onge tribe can form a closely held corporation called the Onge Corporation. He writes that this option would provide the tribe with the
27
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
right to self-determine the fate of their indigenous knowledge on their own terms. He writes that trust and reciprocity, fundamental Onge community values, would fit within a corporate form. Their knowledge would be collectively owned by the community and the related money account would be established as a trust and managed by a corporate board. He also suggests the induction of nonvoting directors on the basis of external expertise, for example, anthropologists with expertise in the local culture, international lawyers and indigenous peoples' advocates. While the very same configuration may not work in all contexts, providing the structure and space for multi-stakeholder representation on the board is a positive suggestion. As Norchi (2003) claims, this approach would guarantee short-term and long-term compensation to indigenous knowledge developers. Kate and Laird (2004) provide an example of benefit sharing with the Kani community in India. The Kani is an ethnic group of around 16,000 people in India. The Tropical Botanical Garden and Research Institute (TGBRI) learned about the antifatigue properties of a wild plant from the Kani and worked on developing a drug called Jeevani. While TBGRI transferred the manufacturing rights of Jeevani to Aryavaidya Pharmacy Coimbatore, Ltd. they also agreed to share the license and royalty income with the Kani on a split 50-50 basis. They write that while it took a while for the various clans to agree to this proposal, this resulted in the formation of Kerala Kani Samudya Kshema Trust to manage this income. This Trust Society which is fully managed by the Kani tribe has invested the interest from earnings to fund self-employment schemes for the Kani youth. This proactive approach by TGBRI provides a viable and alternate pluralistic model. Kate and Laird (2004) also suggest that product discovery programs in which indigenous
28
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
knowledge is sourced as a first-stage input can also generate and sustain income for local populations. In addition to corporate or trust mechanisms, firms may develop cooperative ownership structures for productive business enterprises that generate employment and economic value to the community and respect the indigenous community’s dignity and autonomy. These approaches, however, may not be appropriate for indigenous knowledge that is not located in a geographically restricted area. For instance, in the turmeric and neem cases, knowledge regarding the properties suitable for commercial exploitation did not reside in any one bounded group but across generations and centuries. The use of such indigenous knowledge, especially because it is already in the public domain and given the difficulty of pinpointing its ownership, offers an additional layer of challenges. The unique facts and context of each case may determine whether a mix of these various approaches is necessary to reach an arrangement whereby the transfer and appropriation of indigenous knowledge is performed in an equitable manner. Conclusion The application of intellectual property rights to what has been called indigenous knowledge has proven controversial. This is mainly due to a conceptual disagreement over the nature of what are defined here as indigenous knowledge rights, which possess some intellectual capital attributes, but lack others, in relation to Western intellectual property rights. The issue is further complicated by the significant commercial value that can be derived from this type of knowledge, most of which resides within emerging economies and therefore raises issues of equity, fairness and justice to stakeholders.
29
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Considering the role spiritual and ecological dimensions play in the development and use of indigenous knowledge, finding ways to build bridges between ecologically embedded knowledge (Whiteman and Cooper, 2000), that is focused on communal well-being and Western intellectual property rights, that emphasize objectification and commoditization presents a managerial challenge. In this paper, we have provided a bridge to overcome the challenge by: (a) examining the various ethical foundations that are common to both IKRs and IPRs, (b) highlighting the inseparability of ethical, legal, and strategic issues in the appropriation and commercialization of indigenous knowledge, (c) using stakeholder theory as a grounding discourse to unpack normative, instrumental, and pragmatic issues in this matter, and (d) proposing managerial solutions to engage indigenous knowledge stakeholders and sustain competitive advantage in an ethical manner. To achieve this, we draw on controversial cases and exemplary business models that can promote distributive fairness among parties. References Argandona, A.: 1998, ‘The Stakeholder Theory and the Common Good’, Journal of Business Ethics 17, 1093-1102. Audet,M.: 2000, ‘Native American Tribal Names as Monikers and Logos: Will These Registrations Withstand Cancellation Under Lanham Act § 2(b) After the Trademark Study on Official Insignia of Native American Tribes?’, Chicago-Kent Journal of Intellectual Property 2. Banerjee, S.B.: 2003, ‘Who Sustains Whose Development? Sustainable Development and the Reinvention of Nature’, Organization Studies 24(1), 143-180.
30
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Banerjee, S.B. and Linstead, S.: 2004, ‘Masking Subversion: Neocolonial Embeddedness in Anthropological Accounts of Indigenous Management’, Human Relations 57(2), 221247. Barnett, A.: 2001, ‘In Africa the Hoodia Cactus Keeps Men Alive. Now Secret is “Stolen” to Make us Thin’, The Observer. Bird, R.C..: 2008, ‘Pathways of Legal Strategy’ Stanford Journal of Law, Business and Finance, 14. Bird, R.C.: 2009, ‘Moral Rights: Diagnosis and Rehabilitation’, American Business Law Journal 46. Bratspies, R.M.: 2007, ‘The New Discovery Doctrine: Some Thoughts on Property Rights and Traditional Knowledge’, American Indian Law Review 31. Carroll, A.: 1993, Business and Society: Ethics and Stakeholder Management (SouthWestern Publishing, Cincinnati). Clarkson, M.B.E. :1995, ‘A stakeholder framework for analyzing and evaluating corporate social performance’, Academy of Management Review, 20: 92-117. Correa, C.M.: 2001, ‘Traditional knowledge and intellectual property – Issues and options surrounding the protection of traditional knowledge’, Quaker United Nations Office Geneva, available at: http://www.quno.org. Dean, A. and Kretschmer, M.: 2007, ‘Can Ideas be Capital? Factors of Production in the Postindustrial Economy: A Review and Critique’, Academy of Management Review 32(2), 573-594. Dickinson, T.Q.: 1999, ‘Commissioner of Patents and Trademarks, Official Insignia of
31
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Native American Tribes, Statutorily Required Study’, (Report to Congress, pursuant to Title III of Public Law 105-330), 28, available at: http://www.uspto.gov/web/offices/com/sol/notices/insgstdy.pdf. Donaldson, T. & Preston, L.E.: 1995, ‘The Stakeholder Theory of the Corporation: Concepts, Evidence and Implications’, Academy of Management Review 20(1), 65-91. Dutfield, G.: 2000, ‘The Public and Private Domains: Intellectual Property Rights in Traditional Knowledge’, Science Communication 21(3), 274-295. Dzinkowski, R.: 2000, ‘The Measurement and Management of Intellectual Capital: An Introduction’, Management Accounting 78(2), 32-36. Edvinsson, L., and Maloney, M.: 1997, Intellectual Capital: Realizing Your Company’s True Value by Finding its Hidden Brain Power (Harper Collins, New York, NY). Ehrenfeld, J.: 2000, ‘Industrial Ecology: Paradigm Shift or Normal Science?’ American Behavioral Scientist 44.2: 229-44. Feinman, J.: 2000, Law 101 (Oxford University Press, New York, NY). Feldman, Y. and Nadler J.: 2006, ‘The Law and Norms of File Sharing’, San Diego Law Review 43, 577. Freeman, R.E., Wicks, A.C. and Parmar B.: 2004, ‘Stakeholder Theory and The Corporate Objective Revisited’, Organization Science 15(3), 364-369. Freeman, R.E.: 1984, Strategic Management: A Stakeholder Approach (Boston, MA: Pitman). Friedman, A.L. and Miles, S.: 2002, ‘Developing Stakeholder Theory’, Journal of Management Studies 39(1), 1-21.
32
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Gibson, K.: 2000, ‘The Moral Basis of Stakeholder Theory’, Journal of Business Ethics 26, 245-257. Graham, J.S., Hall, B.H., Harhoff, D. and Mowery, D.C.: 2002, 'Post-Issue Patent ‘Quality Control': A Comparative Study of US Patent Re-examinations and European Patent Oppositions', NBER working Paper W8807. Grant, R.M. “The Knowledge-Based View of the Firm", In C. W. Choo & N. Bontis (Eds.), The Strategic Management of Intellectual Capital and Organizational Knowledge: 133-148. Oxford: Oxford University Press. Harrison, S: 1992, ‘Ritual as Intellectual Property’, Man 27(2), 225-244. Hendry, J.: 2001, ‘Economic Contracts versus Social Relationships as a Foundation for Normative Stakeholder Theory’, in Business Ethics: An European Review (Blackwell Publishers, Malden, MA). Hill, C.W.L., and T.M. Jones: 1992, ‘Stakeholder-Agency Theory’, Journal of Management Studies 29.2: 131-54. International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries: 1989 (referred to as Convention 169). Jonker, J., and A. Marberg: 2007, ‘Corporate Social Responsibility Quo Vadis? A Critical Inquiry into a Discursive Struggle’, Journal of Corporate Citizenship 27: 107-18. Kagan R.A., Gunningham, N. and Thornton, D.: 2003, ‘Explaining Corporate Environmental Performance: How Does Regulation Matter?’, Law and Society Review 37, 51.
33
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Kate, K.T. and Laird, S.A.: 2004, ‘Bioprospecting Agreements and Benefits Sharing with Local Communities’, in Finger, J.M. and Schuler, P. (Eds.) Poor People’s Knowledge – Promoting Intellectual Property in Developing Countries (World Bank and Oxford University Press, Washington, DC), 133-158. Kogut, B., and Zander, U. “Knowledge of the Firm, Combinative Capabilities, and the Replication of Technology,” Organization Science (3:3), 1992, pp. 383–397. Korhonen, J.: 2002, ‘The Dominant Economics Paradigm and Corporate Social Responsibility’, Corporate Social Responsibility and Environmental Management 9: 6780. Laszlo, C.: 2008, Sustainable Value (Stanford University Press, Palo Alto, CA). Lehman, J.A.: 2006, ‘Intellectual Property Rights and Chinese Tradition Section: Philosophical Foundations’, Journal of Business Ethics 69, 1-9. Lury, A.A.: 1999, ‘Official Insignia, Culture, and Native Americans: An Analysis of Whether Current United States Trademark Law Should Be Changed to Prevent the Registration of Official Tribal Insignia’, Journal of Intellectual Property 1. Mahop, M.T. and Mayet M.: 2007, ‘En Route to Biopiracy? Ethnobotanical Research on Ant-Diabetic Medicinal Plants in the Eastern Cape Province, South Africa’ African Journal of Biotechnology, 6, 13. Matten, D., A. Crane and Chapple W.: 2003, ‘Behind the Mask: Revealing the True Face of Corporate Citizenship’, Journal of Business Ethics 45: 109-20. Mellahi, K. and Woods, G.: 2003, ‘The Role and Potential of Stakeholders in ‘Hollow Participation’: Conventional Stakeholder Theory and Institutional Alternatives’, Business and Society Review 108(2), 183-202.
34
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Melé, D. and Guillén M.: 2006, ‘The Intellectual Evolution of Strategic Management and its Relationship with Ethics and Social Responsibility’, IESE Business School, Working Paper No. 658, 14. Merges, R.: 2004, ‘From Medieval Guilds to Open Source Software: Informal Norms, Appropriabability, Institutions and Innovations’ in: Conference on the Legal History of Intellectual Property, University of Wisconsin, Madison. Miller, A. and M. Davis: 2000, Intellectual Property: Patents, Trademarks, and Copyright (West Publishing,St. Paul, MN). Mitchell, R.K., Agle, B.R. and Wood, D.J.: 1997, ‘Toward a Theory of Stakeholder Identification and Salience: Defining the Principle of Who and What Really Counts’, Academy of Management Review 22(4), 853-886. Mugabe, J., Intellectual Property Protection and Traditional Knowledge: An Exploration in International Policy Discourse, available at: http://www.wipo.int/tk/en/hr/paneldiscussion/papers/pdf/mugabe.pdf Norchi, C.H.: 2003, ‘Indigenous Knowledge as Intellectual Property’, Policy Sciences 33, 387-398. Nonaka, I. & Takeuchi, H.: 1995, The Knowledge-Creating Company (Oxford University Press, New York, NY). Oguamanam, C.:2004, ‘Localizing Intellectual Property in the Globalization Epoch: The Integration of Indigenous Knowledge’ Indiana Journal of Global Legal Studies, 11, 139. Odek, J.O.: 1994, ‘Biopiracy: Creating Proprietary Rights in Plant Genetic Resources’, Journal of Intellectual Property Law, 2, 141.
35
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Orozco, D.: 2009, ‘Rational Design Rights Ignorance’, The American Business Law Journal 46(4), 580. Pejovich, S: 1990, The economics of property rights: towards a theory of comparative systems (Kluwer Academic Publishers, Norwell, MA). Pena-Neira, S.: 2003, ‘Equitably sharing benefits arising from natural genetic resources in Costa Rica and India: Comparative analysis on the interpretation at the national level of Article 15.7 of the Convention on Biological Diversity’, presented at the Institute of Advanced Studies in the United Nations University in Tokyo, Japan. Available at: http://ssrn.com/abstract=429383 Pisano, G.: 2006, ‘Profiting from Innovation and the intellectual property revolution’, Research Policy 35(8). Poonamallee, L.: 2011, Corporate Citizenship: Panacea or Problem? The Complicated Case of Hindustan Unilever. Journal of Corporate Citizenship, Winter 2011: 9-28. Resnick, D.B.: 2003, ‘A Pluralistic Account of Intellectual Property’, Journal of Business Ethics 46(4), 319-335. Rifkin, J.: 1999, The Biotech Century. Roht-Arriaza, N.: 1996, ‘Of Seeds and Shamans: The Appropriation of the Scientific and Technical Knowledge of Indigenous and Local Communities’, Michigan Journal of International Law 17, 919. Schuler, P.: 2003, ‘Biopiracy and commercialization of ethnobotanical knowledge’ in Finger, J.M. & Schuler, P. (Eds.) Poor People’s Knowledge – Promoting intellectual property in developing countries. (World Bank and Oxford University Press, Washington, DC), 159-183.
36
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Shiva, V.: 2000, Public communication through listserv, available at: http://www.gene.ch/genet/2000/Jun/msg00032.html Soleri, D. Cleveland, D., Eriacho, D. Bowannie, Jr. Laahty, A. and Zuni Community Members: 1994, ‘Gifts from the Creator: Intellectual Property Rights and Folk Crop Varieties’ in Greaves, T. (Ed.) Intellectual Property Rights for Indigenous Peoples: A Source Book. (Society for Applied Anthropology, Oklahoma City, OK). Sternberg, E.: 1996, ‘The Defects of Stakeholder Theory’, Governance Quarterly (HK) 2(1), 4-18. Stewart, T.A.: 1997, Intellectual Capital: The New Wealth of Organizations (Currency Doubleday, New York, NY). Subbiah, S.: 2004, ‘Reaping What They Sow: The Basmati Rice Controversy and Strategies for Protecting Traditional Knowledge’, Boston College International & Comparative Law Review. Teece, D. J.: 2000, Managing Intellectual Capital (Oxford University Press, New York, NY). Trevino, L.K. and Weaver, G.R.: 1999, ‘The Stakeholder Research Tradition: Converging Theorists – Not Convergent Theory’, Academy of Management Review. 24(2), 222-227. U.S. Constitution, Article I, Section 8, Clause 8. U.S. Patent Act: 2005, 35 U.S.C. Sections 101 and 102. Waddock, S., 2004: ‘Parallel Universes: Companies, Academics, and the Progress of Corporate Citizenship’, Business & Society Review 109.1: 5-42.
37
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Whiteman, G., and Cooper H.W.: 2000, ‘Ecological Embeddedness,’ Academy of Management Journal, 43(6). Whittaker, E.: 1994, ‘Public Discourse on Sacredness: The Transfer of Ayers Rock to Aboriginal Ownership’,.American Ethnologist 21(2), 310-334. World Intellectual Property Organization, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore – 12th Session, (2007), (accessed March 31, 2008), available at: http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_12/wipo_grtkf_ic_12_5_b. doc
38
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Table 1: IPRs and their Non-Utilitarian Ethical Foundations
IPR Regime Trade Secrets
Legally Defined Subject Matter
Socially Encoded Norms
Any information that is not generally known to the public, confers something of economic value to the owner, and is the subject of reasonable efforts to remain secret.
To respect the autonomy of the knowledge source and punish unethical misappropriations
Patents
Any new, useful, non-obvious and fully disclosed product, machine, method, compound or improvement.
To recognize the source of inventorship.
Copyrights
Independently derived and authored works of expression.
To protect the personhood and source of the author with respect to their works.
Trademarks
Any name, image or device used to indicate the source of a good or service.
To protect consumers and the public from deception and unfair practices.
39
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
Table 2: Examples of Indigenous Knowledge Secured Through Legislation
Type of Indigenous Knowledge
IPR Equivalent
Traditional Cultural Expressions and Folklore
Copyright
Traditional Knowledge & Genetic Resources
Indication of Origin
Patent and Trade Secret
Trademark
Scope
National Legislation
International Treaties and Model Acts
Languages, heritage history, handicraft, fine arts, oral literature, traditional lore, beliefs, archeological findings, theater
American Folklife Preservation Act of 1976.
WIPOUNESCO Model Act for Protection of Folklore;
Plants and animals for food and agriculture, traditional healing systems, handicrafts and rural industries
Biodiversity Law of Costa Rica; Brazil’s Conselho de Gestao do Patrimonio Genetico (CGEN); Chile’s National Program for the Protection and Conservation of Plant Genetic Resources.
WIPO Protection of Traditional Knowledge;
Art that is derived from heritage, origin or community membership; Products whose characteristics are due to geographic
U.S. Indian Arts and Crafts Act 1990;
Lisbon Agreement of 1958
Ethical Norms Reflected
Respect for a community’s and people’s cultural integrity.
The Berne Convention Article 15(4); WIPO The Protection of Traditional Cultural Expressions/ Expressions of Folklore Respect for a community’s ecological knowledge practices, & co-determination
U.N. Convention on Biological Diversity, Article 8(j)
To protect communities and tribes from cultural misappropriation.
France's Code de la Propriété Intellectuelle, art. L. 721-1
40
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65
factors, e.g. wine
41
Figure Click here to download Figure: Table 1.docx
Table 1: IPRs and their Non-Utilitarian Ethical Foundations
IPR Regime Trade Secrets
Legally Defined Subject Matter
Socially Encoded Norms
Any information that is not generally known to the public, confers something of economic value to the owner, and is the subject of reasonable efforts to remain secret.
To respect the autonomy of the knowledge source and punish unethical misappropriations
Patents
Any new, useful, non-obvious and fully disclosed product, machine, method, compound or improvement.
To recognize the source of inventorship.
Copyrights
Independently derived and authored works of expression.
To protect the personhood and source of the author with respect to their works.
Trademarks
Any name, image or device used to indicate the source of a good or service.
To protect consumers and the public from deception and unfair practices.
1
Table 2: Examples of Indigenous Knowledge Secured Through Legislation
Type of Indigenous Knowledge
IPR Equivalent
Traditional Cultural Expressions and Folklore
Copyright
Traditional Knowledge & Genetic Resources
Indication of Origin
Patent and Trade Secret
Trademark
Scope
National Legislation
International Treaties and Model Acts
Languages, heritage history, handicraft, fine arts, oral literature, traditional lore, beliefs, archeological findings, theater
American Folklife Preservation Act of 1976.
WIPOUNESCO Model Act for Protection of Folklore;
Plants and animals for food and agriculture, traditional healing systems, handicrafts and rural industries
Biodiversity Law of Costa Rica; Brazil’s Conselho de Gestao do Patrimonio Genetico (CGEN); Chile’s National Program for the Protection and Conservation of Plant Genetic Resources.
WIPO Protection of Traditional Knowledge;
Art that is derived from heritage, origin or community membership; Products whose characteristics are due to geographic
U.S. Indian Arts and Crafts Act 1990;
Lisbon Agreement of 1958
Ethical Norms Reflected
Respect for a community’s and people’s cultural integrity.
The Berne Convention Article 15(4); WIPO The Protection of Traditional Cultural Expressions/ Expressions of Folklore Respect for a community’s ecological knowledge practices, & co-determination
U.N. Convention on Biological Diversity, Article 8(j)
To protect communities and tribes from cultural misappropriation.
France's Code de la Propriété Intellectuelle, art. L. 721-1
2
factors, e.g. wine
3
