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1、G2G Grassroots to Global: The Knowledge Rights of Creative Communities Keynote lecture at Globalization & Justice: Interdisciplinary Dialogues, February 21-22, 2008 organized by the Center for the Study of Justice in Society and the Center for Global Justice at the SU School of Law, Seattle Universi
2、ty, USA and MIT, Boston. I am grateful to Arul S George for helping in putting together my ideas on the subject. Anil K Gupta Professor, IIMA and Executive Vice Chair, National Innovation Foundation (NIF), Ahmedabad Honey Bee Network began the struggle for protecting knowledge and resource rights of
3、 creative people almost two decades ago. Neither CBD was there, nor TRIPS at that time. It appeared obvious to us that for a development process to become dignified, we should build upon a resource in which poor people are rich. The tradition of protecting knowledge rights or drawing boundary around
4、 them exists in almost every society. This is not a post-industrial revolution development, as many studies on intellectual property rights protection suggest. Every ancient society had a tradition of some knowledge experts or the other using the principle of trade secret to withhold disclosure. As
5、a consequence, a great deal of traditional knowledge has been lost because it was not transferred to the succeeding generations. The opportunities in the domestic and international markets are not being harnessed by the communities because they lack the capacity, tools, institutional strength and /
6、or other legal and financial resources. The communities are not able to track the contemporary utilisation of their knowledge without any attribution or reciprocity by the third party who have not even taken their consent. Much of the publications by the academics bring knowledge of individuals or c
7、ommunities into public domain without explaining the implications of the same to the knowledge providers. The generosity of the knowledge providers has become therefore a reason for their continued poverty and deprivation. This is neither fair nor just. It is obviously not sustainable.The capacity b
8、uilding at community level requires appreciation of two basic conceptual issues (a) the barriers to the entry and exit of the knowledge holders in various markets and non-market exchange platforms, (b) lowering and eventually underwriting as far as possible the ex-ante and ex-post transaction costs
9、of the knowledge holders as well as other stakeholders can add value to the knowledge, generate benefits and share them in an equitable manner.Part one: Transaction costs involved in linking innovations, investment and enterpriseThe ex-ante transaction costs have four components: (i) searching infor
10、mation (ii) finding supplier, (iii) negotiating contract and (iv) drawing up the contract. The ex-post transaction costs include (i) monitoring and compliance, (ii) side payments, i.e., concessions which can make the contract enforeceable through modified inducements/discounts, (iii) resolution of c
11、onflicts if any and (iv) redrawing the contract if none of the above help in going ahead with the contract. Majority of the traditional knowledge holders and conservators of genetic resources have to be empowered to do following functions. Against each function, we also provide mechanisms through wh
12、ich the needs can be met. It is obvious that to make IP based mechanisms accessible and affordable, lot of non-IP based mechanisms will have to be put in the portfolio of incentives for various actors including the knowledge holders The portfolio of incentives may include material and non material i
13、ncentives and for individuals as well as communities as explained earlier ( Gupta, 1995), intellectual property is only one of the matetial individual kind. Everybody knows particularly in academic profession but that applies to all knowledge production industry, that material incentives only as far
14、 as they can. Even corporations realize that today. i. Searching information: How do traditional knowledge holders know as to what applications their knowledge has for which somebody (whom they dont know and who they cannot easily find out) is willing to enter into a contract, generate benefits and
15、share them. The access to multimedia, multi language databases may make it possible for people to learn from each other and also with other stakeholders. The transaction costs of the potential investors, entrepreneurs, and R&D players in seeking knowledge about the local communities with scientific
16、names of the plants is enormously high. In the absence of scientific names (which can only be ascribed after taxonomic authentication), the modern scientific institutions, drug, dye, nutriceutical companies may not be able to make offers of possible cooperation. Local communities and individual inno
17、vators also need to track the usurpation of their knowledge by unauthorized IP seekers. They will have to have access and the ability to scan the patent applications around the world, interpret and then inform themselves and the patent offices about any suspected violation USPTO has started recently
18、 a discussion forum around the patent applications and under certain condition, any prior art revealed by any one on the web can be taken into account while examining that application. But there is no doubt, it will improve the quality of the applications. This innovation is particularly important f
19、or those developing countries which do not have enough examiners like India. But the substantive issue is, how to enable communities and local innovators to read these patents put up for discussion in USA and published in other countries, How much public is public domain after all, and for whom? Wil
20、l information in English be accessible to the local communities not knowing English language. How should translation wiki, as was suggested by a student in Margaret Chongs class at Seattle Law School, be created for worldwide access to different language communities. May be on students worldwide can
21、 translate patents apparently based on traditional knowledge or biodiversity in different languages one page a week and soon, we will have enough resources for tracking the unauthorised IP. There is another way to tackle this problem., I have suggested that every patent applicant should declare that
22、 all the knowledge disclosed or used while making claims made in their application have been obtained lawfully and rightfully. . Otherwise they will remain dependent on the benevolence of the state or other civil society organization. The bringing of their knowledge into public domain without their
23、authorization by national and international scholars and institutions has been the single most important instrument of exploitation and unfair treatment of their knowledge rights (no research council in developing world or developed countries has yet characterized such a behaviour on the part of the
24、 scholars as inadmissible and unethical conduct). In the absence of such a reform as mentioned later in the paper, lawful and rightful disclosure is the only option. ii. Finding suppliers: Having found the sources of information, one has to find providers of information, services and other support s
25、ystems. For a local healer or conservator of genetic resources to take a sample of their material to a public or private sector R&D lab to get it analysed for potential negotiations is almost well neigh impossible. It is important to create capacity so that they can deal with the knowledge providing
26、, processing and managing institutions at their own terms.iii. Having found a supplier or potential user of their knowledge, they have to negotiate a contract and use a combination of IP instruments as a basis for negotiation. Having filed patent applications for grassroots innovators, we know how m
27、uch of empowerment one has to do to be able to provide simple access to existing instruments. The tension between individual and collective knowledge, organizing proper representation and nomination for negotiation and having internal as well as external negotiations are other dimensions that come i
28、nto play. iv. Drawing up the contract: To be able to exercise prior informed consent, and then arrive at reasonable terms of agreement which are acceptable within the community and as well as to the negotiating partner involves tremendous complexity, cost and resources. Without meeting these costs a
29、nd enabling the communities, the contracts may remain asymmetrical and sometimes difficult to enforce. v. Having entered into a contract, keeping track of the licensing and sub-licensing of technologies by the primary contractor becomes an obligation of the communities. It is possible that the contr
30、acting party, in this case, a company or a state agency, may not work the licensed IP from the communities directly. They may sub-license it to a third party who may generate revenues which may or may not be shared. It is important to keep track of such a process. The enforcement of the conditions t
31、herefore requires tremendously important skills and capacities have to be built for acquiring and using those skills. vi. Side payments: It is not always possible for communities to wait for benefits to accrue and share. Upfront benefit sharing may be necessary. Such concessions may have to be negot
32、iated. Some times offering concessions beyond the terms of contract generates confidence. Recently, a firm, Matrix Bioscience, to which SRISTI licensed twelve herbal products developed in its lab gave the name and photographs/sketches of the innovators on the package of these products. This was a si
33、de inducement so to say. Likewise, innovators can offer some additional leads if the deal on the earlier one goes well to induce the contracting parties go beyond the terms of the contract.vii. Conflict management: During the benefit sharing process, conflicts may arise. Such situations require capa
34、city building of the community to settle the disputes in an efficient manner, without damaging their interests and welfare. Hence, the capacity of the community to negotiate, identify the right platforms, engage public interest lawyers and supporters becomes crucial to achieving the ends of justice.
35、Part two: Globalization: quest for justice in knowledge economy James (2007) critiques the debate on globalisation between two extremes: free movement of commodities, regulated movement of people, vs. regulated movement of commodities and free movement of people. He suggests that an ethic of agonism
36、, rights, care and foundations that has to guide the discourse on globalisation. He observes quite poignantly: Principles such as the importance of reciprocity in co-operation or an emphasis upon equality are thus treated not as discrete liberal rights but as interwoven into a tapestry of contingent
37、 rights founded in relation to deeper “ways of being”. Personally agonizing over relativised private fragments of what you, as a single individual, think is right and good (the level of an ethics of agonism) even if it is institutionalised in an ethic of rights is not sufficient. Worse than that, in
38、 the individualising of questions of what should be done we are all left personally agonising over how much money to give to this or that charity, which party to vote for, and who to leave our wealth to when we die. The agony of deciding what feels right today is hardly a satisfactory way of reimagi
39、ning the future. While pleading for a slow cultural revolution, requiring living differently, James acknowledges the limits of concurrent responses through conflict and domination rather than long term engagement and solidarity. Having an authentic life and search for discovering relevance by taking
40、 concrete initiatives is suggested by Goldfarb (2006) through Politics of Small Things. Both seem to suggest that problems of globalization are not going to disappear by helplessly watching them. Cummings exhorts the public interest lawyers not to be taken in by simple market based approaches to dis
41、pense justice but engage in grassroots activism and networking to complement community based economic development. In other words, author seems to suggest what I will call moulding the markets in the way ends of social justice are met. Bagawati (2004) recalled the tyranny of the missing alternative
42、as the situation where the supporters and opponents of globalisation seem to use a very limited domain of discourse. He feels that many young people oppose globalisation because of inadequate accommodation of social justice. The capitalism is not seen as the system to destroy privileges and open up
43、new economic opportunities for the many. The connection between anti-globalisation, and anti-immigration takes the debate back into commodity vs. people debate. He misses the debate on flow of knowledge across the world and the asymmetry of rights and opportunities in dealing with the knowledge that
44、 common people produce. The debate on subsidiarity (i.e., taking decisions as close to the point of action as possible) is posited between autonomy and centralisation (Young and Tavares, 2004). To what extent should the autonomy be linked to the ability to negotiate local rights in global context ha
45、s not been pursued within the large corporations or for that matter, nation states or international fora. Almost in every international agreement, it is assumed that sovereign nations have complete and fully authorised right to represent the interests and preferences of individuals in those nations,
46、 particularly if they are in minority or social deviants. The discourse on globalisation provides little scope for international institutions to recognise the rights of deviant thought leaders, specially if they are articulating unpopular notions. The trampling of rights of knowledge producers seldo
47、m agitate the human right activists the same way as other violations. Is it because pervasiveness of violation by the activists themselves may weaken their resolve? Even at the cost of being unpopular and perhaps being misunderstood, I must say that a large number of activists against dominant tende
48、ncies of globalization do not try to bring about the same degree of personal transparency and authenticity through accountability to knowledge providers as they wish big institutions to achieve. The people whose causes they espouse, thus remain in the background and also as passive subjects, exclude
49、d from a share in their personal wealth and remuneration for their activism. Personal and professional remain apart, just as rights and responsibilities remain distant in market place. Increasing iniquity at global level among countries and within them has led to challenging the dominant consensus on globalisation (Milanovic, 2003). Whether the growth impulses in emerging economies i
