Tamsin Thomas is a JD candidate at Osgoode Hall Law School and is taking the Intellectual Property Theory course.
In his article, “Some Realism about Indigenism”, Professor Michael Davis argues that TRIPs “is the biggest disaster faced by the Third World since the end of the territorial-based colonial era.” In the context of protecting traditional knowledge, he argues that TRIPs and Western IP regimes will not benefit the “owners” of this information because the concerns do not match what IP systems can do and they shouldn’t even try. He argues that TRIPs should be repealed although he does at least admit that is unlikely to occur. Davis makes convincing arguments that IP protections are incompatible with the goals of protecting traditional knowledge, but is it an answer to simply repeal TRIPs?
Davis begins by identifying five different goals of “indigenism,” gathered mainly from the literature. They are 1. ownership and control of cultural information; 2. ability to exploit and profit from the use by others of that information; 3. promotion and encouragement of cultural information; 4. protection and preservation of bio-cultural information, including biodiversity; and 5. protection and preservation of cultural artifacts. As an example of Davis’ critiques, with respect to the ownership and control of cultural information, Davis’ critique is that IP regimes are in place to serve as an efficient means of commercializing information. IP owners exercise ownership and control in order to make a profit, either by pay for use or licensing, but indigenism doesn’t want so much to commercialize this information as to assert ownership and control in order to protect it.
I think all of these goals can be boiled down to the single concern that the more powerful countries should not be permitted to commercialize and profit from the products of traditional knowledge. There is something morally wrong about this practice but is the situation as bleak as Davis suggests? He seems to suggest that as long as countries are forced to join TRIPs, the poverty will only increase. I would hazard to say that this view reflects a bit of a stereotype about those living in developing countries. For example, Davis says “After all, if the indigenous were advanced societies, they would have all sorts of institutional devices to preserve and protect their heritage” (at 818). Perhaps “advanced societies” is a term of art in a particular field of study – I am truly not sure – but it strikes me as rather harsh and stereotypical. Yes there is extreme poverty and copyright issues for example are not at the forefront of people’s minds. I would argue those issues are not so much at the forefront of most Canadians’ minds either. My point is that there is rich culture and great potential in addition to, and building from, traditional knowledge. They too are interested in access to new technologies and the growth of culture. Of course, TRIPs will not make developing countries rich overnight, but it seems as if it might be a partial answer.