Protecting Assets which are Not Property

By: Phyllis Speser, CEO

The SARIMA (South African Research & Innovation Management Association) meeting began today in Durban South Africa with a fascinating session on Traditional Knowledge Systems (TKS) and biodiversity and the protection of native African knowledge, plant, and animal resources. A key challenge for protection is how to wrap communal resources into Western-inspired intellectual property regimes.

The problem can be explained this way. Traditional medicine is a communal asset. It does not belong to anyone, it is there for all to share. So it is not property, which is the exclusive asset of its owner. It is import to emphasize that traditional knowledge has no owner. Who owned the myth of Odysseus. “Western Civilization”?  “The ancient Greeks?” No-one has ever owned it so it makes no sense to talk about copyright rights. Yet under current Western legal regimes, outside biological researchers can come in, document traditional plants and the practices by which these are used to treat patients, do some supplemental research to explain the underlying mechanisms, and then patent the results. It’s a first to file world. Similarly, an anthropologist or a tourist can film a ritual with permission, add an explanation to the video, and it can be called a documentary and copyrighted.

Intellectual property rights give the assignee a right to exclude others. The owner of IP rights can end up exploiting the rights in ways counter to the cultural intent of indigenous practitioners. We can even imagine scenarios where the assignees might be able to prohibit the “make, use, or sale” of a traditional medical practice, because under western IP laws, there is not any obligation to remunerate the practitioners of traditional medicine or other indigenous knowledge unless they have established an underlying claim. Of course, since the notion of property is weak or non-existent among indigenous people so using it as a basis for asset protection literally makes no sense. What is desired is not a right to exclude others (a right to exclusive appropriate the benefits). What is desired is a right that prevents misuse (a right to prevent misappropriation).

Intellectual property is, of course, just a subset of intellectual assets, which in turn are a subset of intangible assets. Something can be an asset without being property. Yet without it being property, there is currently no legal way to protect it from misuse and misappropriation. The environment or the climate are also not property. We use a legal fiction to treat them as if they were property, but as traditional knowledge systems highlight, the legal fiction itself distorts what the common asset is and what kind of protection non-property assets deserve. I don’t have a solution for this problem. It is something to mull over.

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