Defining Traditional Knowledge - A Perspective From The Caribbean

Defining Traditional Knowledge: A Perspective from the Caribbean
Author(s): SHARON B. LE GALL

Source: Caribbean Quarterly, Vol. 58, No. 4, SOCIAL DEATH/RESURRECTION (December
2012), pp. 62-86
Published by: Taylor & Francis, Ltd.
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Defining Traditional Knowledge
A Perspective from the Caribbean
SHARON B. LE GALL
Introduction
Not a single Caribbean island looks like any other in terms of its ethnic composition,
including the different genetic and physical features and characteristics of the people.
And that is before you touch the question of different languages and different cul-
tural traditions that reflect the different colonising cultures.1
This characterisation of the Caribbean was made by Stuart Hall who fur-
ther remarked that "everybody in the Caribbean comes from somewhere else
. . . that is to say, their true cultures, the places they really come from, the
traditions that really formed them, are somewhere else".2 Similarly, Wendy
Knepper noted that "Caribbean identities, linguistic transformations, religious
beliefs, music, cuisine, and aesthetic practices have been shaped by the frag-
mentation and intermixture of various traditions"^
As a regional framework for the protection of traditional knowledge is con-

templated for the Caribbean, the intercultural and diverse nature of Caribbean
culture presents a challenge for policymakers to create an instrument that is
flexible enough to capture not only the various forms of traditional knowledge
found in the region but the manner in which such knowledge was formed and
developed.4
More than a decade ago, the World Intellectual Property Organisation
(WIPO) conducted fact-finding missions to the Caribbean to determine the
"intellectual property needs and expectations of traditional knowledge hold-
ers'^ One of the findings of those missions was that there was no commonly
agreed definition of traditional knowledge, and this seems to continue to be
62
DEFINING TRADITIONAL KNOWLEDGE 63
a challenge for the region. More than a

defining traditional knowledge but the
knowledge are engaging regional policym
landscape may appear to be more recept
have arisen for the region, primarily in te
proposed for traditional knowledge is fram
in which traditional knowledge developed
Historically, the protection of tradition
sense)6 engaged the attention of national a
the 1970s. Initially, the subject matter was
was articulated for the "unpublished work
the term 'folklore' gained currency, with
as a means for its protection.8
Subsequently, the discourse was transfor
tinguished between what is referred to
(the term that was offered as an alternati
used interchangeably with another term -
ditional knowledge',10 the former concern
belong to the literary, artistic and musica
are included in its ambit), and the latte
tends to belong to the scientific and tec
diverse, but related,11 categories of subjec
draft provisions (the Draft TCEs Article
have been developed over time, and are
WIPO.1* Those draft provisions - togeth
Articles - draw upon a wide range of comm
riences and were developed "over severa
WIPO member states, indigenous people
civil society organisations and a range of o
In this article, it will be argued that def
proposed by authors, as well as those pr
and in existing legislation in the Caribbe
way in which such knowledge develope
Articles will be the primary legislative
the ways in which traditional knowled
knowledge' will be used in its broad sens
64 Sharon B. Le Gall
'indigenous knowled
folklore' are used whe
The ways in which
generally) will be rev
posed by various auth
in the Draft WIPO A
Committee on Intell
Knowledge and Folkl
cles may be too narro
ditional knowledge
knowledge descriptive
WIPO's work in the C
that such legislation
'folklore' or 'express
aspects of traditiona
traditional knowledge
of WIPO missions to
the artistic and scient

ditional knowledge i
historical circumstanc
the Draft WIPO Art
strated that the interc
the protection net p
will address other iss
particular, the use o
that may exclude othe
tained. Also, it will b
domain' in the Draft T
edge' as knowledge no
in which that concept
include collectively d
peoples and commun
cannot be used - with
what it, by definitio
principles.
1. Defining "traditional knowled
In a 2002 WIPO report, it was observed that

edge in the national, regional and internatio
the policy framework governing the particu
decentralised and disintegrated set of appro
are subject to differing policy consideration
lytical tools. Different terms can therefo
matter, and the same term may be used in
However, common to most, if not all, th
knowledge traceable to a particular people, g
'indigenous' or 'traditional'; (2) the collect
knowledge; (3) the oral nature of that know
that knowledge; (4) the intergenerational
the importance of context in defining tr
definitions, and explicit in some, is the c
group or community to define what constit
the linkage of traditional knowledge to t
community is implicit (and at times explicit
Leistner noted,
[Traditional knowledge systems ... are inextr

ethical and religious aspects that touch at the v
nous group or local community. In this way
innovations are often at the same time "sy
system".18
The origin of knowledge traceable to a particular people, group

or community described as ' indigenous ' or ' traditional '
The association of knowledge with a traditional or indigenous community or

people is a common feature of definitions of traditional knowledge. Paul
Kuruk observed that there is a tendency to frame the debate in terms of the
rights of indigenous peoples, "where that term is taken to refer only to certain
minority groups in the Americas and Australia".1? This influences the ways in
which knowledge from such communities is defined, and may have the effect
of excluding knowle
communities (and ev
nous' or 'traditional
groups are the const
context of the prote
'local communities' a
discourse.
In a recent version o
the beneficiaries of pr
tural communities"20
to be broad enough t
'nation'", in cases wh
"national folklore" an
Other options refer
sible beneficiaries.22
ownership/custodian
Caribbean and other
for the various catego
The collective char
The collective and cu

often emphasised, sug
epistemology"2* whic
edge that is known in
ation to a group consc
collective characteris
far as this would neg
refers to a flexible co
development of trad
of ownership dependi
contributions.26 Leist
[T]he owning collective

be a moiety, a clan, a p
And even individuals -
- can distinguish themselves in some cases as sep

this role is very often embedded in the social life
fore reducing the "owner" to the function of a
The oral nature of traditional knowle

transmission of that knowledge
June George remarked that indigenous know

one generation to the next in the oral mo
there have been concerted efforts to docu
In addition to oral transmission, traditio
through demonstration and experience. P
problems that attend the interpretation and
in terms accessible and relevant to those out
the knowledge originated, remarked that
can be easily reduced to words because no
orally. Sillitoe asserted:
People transfer much knowledge between gener

municated through practical experience and are
everything they know in words . . . Knowledge
and practical demonstration; more often shown
as concept.2?
The intergenerational nature of traditional knowledge
Definitions of traditional knowledge tend to refer to the passage of knowledge

through generations^0 Edward Shils, for example, suggests that like heritage,
a tradition (and by extension, those practices and material objects in which
the tradition is manifested) can only be defined when it has been transmitted
at least twice across three generations. 31 This infers that the knowledge, or the
forms in which it is expressed, is not new.
The antiquity of traditional knowledge is sometimes expressly stated in def-
initions, as in the case of the Panamanian Law,32 which defines traditional
knowledge as the "collective knowledge of an indigenous people based on the
traditions of centuries, and indeed millennia". 33 However, a view which has
68
entered the legal

what makes know
means by which it
Graham Dutfield
'traditional' mean
he referred to th
Secretariat for t
of article 8(j) of t
not be interprete
parties to the co
knowledge, inno
embodying tradit
according to Dutf
change with the
community or re
The importanc
'Context' has bee

knowledge since
cultures, localities
edge as "knowled
used by lay people
further that whil
in response to spe
erated in other se
Also, Taubman su
and pass down tra
tomary laws and
their traditional
integral to the lan
context, as an im
framed within th
countries in the r
However, Arun
into 'Western' and 'indigenous', critiqued th

exists in a local context "anchored to a par
setting at a particular time" while Wester
epistemic framework in search for universa
latter is "as anchored in a specific milieu as a
Further, for those who adhere to radical
textual, relative and subjective. 43 On a com
cation and utility of the concept of the pub
law, for example (discussed in section 4),
and scholars.
In a general way, the core elements of def

proposed by various authors are reflected in
is understood in the Caribbean. A sense of c
traditional knowledge, for example, were is
the WIPO fact-finding missions to the Ca
Further, the Draft Articles (discussed in gr
of the general characteristics outlined in th
for example, provide that protection is prop
expression which has been passed from gene
a "distinctive" or "unique" product of the
cultural heritage of a community, and is
that community.45 Likewise, the Draft TK
protection shall extend to traditional knowl
of or is distinctively associated with ben
collectively generated, shared, preserved an
generation; and (3) integral to the cultural i
therein.46 However, on closer examination,
Articles in the Caribbean context can be q
2. Defining "traditional knowledge" descriptively
From 1998 to 1999, fact-finding missions were conducted in different regions

of the world to "enable WIPO to identify, as far as possible, the . . . [intellec-
tual property] needs and expectations of . . . [traditional knowledge] hold-
ers". 47 At the conclusion of the fact-finding missions and other related WIPO
activities, preliminary observations were made about the nature of traditional
70
knowledge of part
200I WIPO Repor
particular field
systems in the fie
and food and agri
A range of subje
mission49 includes
as well as traditio
Caribbean report
there is little or n
of traditional kno
which internatio
The Draft TCEs A
the Draft TK Art
been developed, a
questions raised b
TCEs Articles are
Also, WIPO expres
closely coordinate
tections2 This is
between 'traditio
relevant in the c
represent the wo
ties^ Further, no
to protecting tra
Panama's legislatio
and scientific sub
In the Caribbean,
some territories m
'folklore' or 'expr
tions of traditi
missions in the Ca
Such legislation
proposed either i
Countries, which
lore, or the appr
Protection of Expressions of Folklore Aga

Prejudicial Actions, which was an early at
draft sui generis provisions for the prot
described, inspired by copyright law.
Folklore is defined in the Barbados Cop
literary and artistic works that (i) constitut
and cultural heritage of Barbados; (2) wer
groups of the community; and (3) survive
The copyright legislation in Dominica pro
nition section by providing not only qualita
enumerative list of 'expressions of folklore'
poetry, and folk riddles; (2) folk songs an
dances and folk plays; (4) productions of
paintings, carvings, sculptures, pottery, ter
ware, jewellery, handicrafts, costumes and i
The Antigua and Barbuda Copyright Ac
'expressions of folklore' but provides protec
of folklore, provided it is original by rea
content, and it is in writing. The act also pr
expressions of folklore, and to that extent i
and Phonograms Treaty, 1996.59
The existing (copyright) approach to pro
the Caribbean, and by extension, the inte
tection, has its limitations. Intellectual prop
vidual and not collective or group rights,
requires (though not exclusively) that prote
in some material form as a pre-condition
will exclude oral forms of traditional kno
where it is expressly waived in the legislatio
edge, by its nature, is pre-existing, and pass
it may not satisfy either the originality crit
criteria in patent law. The durational lim
property rights may not be in keeping w
traditional knowledge which hinge on the p
of the source community or country, an
provided by intellectual property laws may
72
ditional knowled
expressions may b
use' exceptions, fo
Therefore, in add
tional knowledge
legislation, there
tional knowledge
criteria.
Further, utilitarian/economic justifications for intellectual property pro-

tection do not translate easily when such protection is proposed in relation to
traditional knowledge. Economic incentives in the form of rights to encourage
the creation of intellectual property are seldom (if at all) proposed as a catalyst
for the creation of traditional knowledge. Non-economic arguments such as
the preservation of cultural diversity and the protection of the cultural identity
of the community from which the traditional knowledge originates, appear
to be more relevant than economic considerations. This is not to suggest that
economic justifications for the protection of traditional knowledge are unim-
portant. Traditional knowledge holders have asserted that they should benefit
from any earnings resulting from the commercial use of their knowledge, and
have advocated for a regime of protection that includes a system of equitable
benefit-sharing.60
In summary, the ways in which traditional knowledge is defined descrip-
tively in existing regional legislation do not capture the ways in which tradi-
tional knowledge is understood in the Caribbean in terms of its artistic and
scientific subject matter. In addition, the intercultural nature of Caribbean
heritage is not addressed and should be, given the circumstances in which
Caribbean societies were formed. This disjunction between the legislative pro-
tection and the manner in which such knowledge is understood in the region
may be explained by the approach to law reform whereby law is transplanted
from another jurisdiction, which precludes the debate and reflection which
may result in the development of indigenous laws more suited to the cultural
conditions of the receiving country. Although the argument has been made
that law develops by a process of borrowing, and legal rules can serve as
a model for legal developments in very different societies, transplantation
without any re-interpretation or reshaping may not produce the appropriate
outcome.61
3. Defining 'traditional knowledge

and historical context of the Caribbean
Many of the traditions found in the Caribbean originated elsewhere. As

Professor Rex Nettleford writes, "the Caribbean is the story of 'arrivants' from
across the Atlantic and beyond, each group bringing a cultural equipage" and
building their own institutions with their own "inner logic and consistency".62
Out of this historical circumstance emerged what has been referred to as 'cre-
olisation' by Edward Kamau Brathwaite and other scholars, which is the
cultural interaction and convergence (or interculturation) that accompanied
the ongoing social interactions between the variety of peoples in the plantation
regions of the Americas.63 Members of the different populations creatively
drew on their diverse cultural heritages in an attempt to adjust to their new
natural and social environments. In the process, a creole culture consisting of
both reinterpreted Old-World and distinctively local cultural symbols and
practices gradually emerged.** The steel pan of Trinidad and Tobago as well
as Shakespeare Mas in Carriacou, and Jonkunnu in Jamaica and the Bahamas,
can all be characterised as creole or syncretic cultural products or practices.
In an earlier version of the Draft TCEs Articles, the criteria for the protec-
tion of traditional cultural expressions stipulated, inter alia, that they be "char-
acteristic of a community's cultural and social identity and cultural heritage".6*
It can be argued that implicit in this, is the requirement that the cultural
heritage of the community should be indigenous to the community and the
geographic space that that community inhabits.
Similar observations can be made in relation to earlier versions of the Draft
TK Articles which define traditional knowledge as "the content or substance

of knowledge resulting from intellectual activity in a traditional context, and
including] the know-how, skills, innovations, practices and learning that form
part of traditional knowledge systems [my emphasis] , and knowledge embodying
traditional lifestyles of indigenous and local communities . . ."66
Is it that the reference to traditional knowledge systems in earlier versions
of the Draft TK Articles alludes to systems indigenous to the geographic space
that the community inhabits? If the answer to that question is "yes", then
many Caribbean cultural products will not qualify as traditional knowledge
because they draw on traditional knowledge systems which originate from
elsewhere.
74
With respect to t
cles employs diffe
may be overcome.
Draft TCEs Article
"indicative of tra
generation to gen
extend to any tra
identity of the be
developed by them
option seems to b
that is reflective
need only be "ind
be "characteristic
heritage of the s
Draft TK Articles
practices and learn
regard, avoids the
context, is extern
To alleviate any
knowledge from t
that Caribbean sta
poses that eligibl
are such that are,
cultural commun
from such people
cultural heritage a
tainty about the e
knowledge emanat
to the Caribbean
Notwithstanding
the equivalent def
seem to create oth
What is proposed
protection exten
distinctive of or
cultural heritage o
Just as the most recent version of th

which require traditional cultural ex
text of the Draft TK Articles, where
of traditional knowledge which shall
may be difficult to satisfy as it is en
tural expressions, only those that can
a particular people or community c
cultural expressions or knowledge,
regions, may be excluded on this basi
Also, the requirement of "intellect
cles?1 indirectly introduces notions of
tion to traditional knowledge (broa
under an intellectual property sys
creativity that needs to be established
The inclusion of such restrictive cri
the purpose of creating an alternative

subject matter excluded from intellec
gested that as long as a traditional cu
practice", it should be protected o
of cultural knowledge and passed f
is reflected, to some extent, in Opt
Articles.74
4. Other eligibility challenges
References to "custom" in the Draft TCEs Articles^ and to a "traditional con-
text" in the Draft TK Articles?6 (in earlier and more recent versions) may not
reflect all the realities of how traditional knowledge or traditional cultural
expressions evolve, and their place in contemporary society.77 Traditional
knowledge can exist, and is transmitted, in multiple contexts. As one writer
remarked,
[N]o one's life is entirely traditional and no one's life is entirely modern . . . Tradi-
tional versus modern is better thought of as opposite ends of a scale . . . Each
community fits somewhere along the scale, in some combination of modern and
traditional. 78
76 ^ Sharon B. Le Gall
The case of the steel pan of Trin

may transcend its folkloric or tradit
text), yet still be culturally significa
with its source community or cou
popular/ traditional cultural signifie
icas where 'cultural identity' rather
as, more often than not, customar
where those survived the colonisin
porary organisational and managem
cultural practices.??
Further, 'public domain' referenc
versions of the Draft TK Articles wh
tional knowledge that is, inter alia
protected by an intellectual prope
(cumulative) eligibility criteria app
which the public domain is underst
The public domain has been descri
which may be "mined" by any memb
in the negative as those intangible
rights and containing intellectual pr
has run out; intellectual property th
those intangible goods that fall outsi
tection.^
Making specific reference to indigenous peoples, but recognising that his

analysis is equally applicable to any claims to knowledge whose legitimacy
does not derive from what he refers to as the "dominant view",g4 William van
Caenegem attempted to illustrate how the public domain concept, as part of

what he calls the dominant normative structure, may "inadvertently justify
the denial of the otherwise legitimate claims ... to control intangibles".8*
The absence of certain characteristics (namely, an identifiable creator, and
originality of expression) in particular forms of knowledge (for example, tradi-
tional knowledge) means that they often find themselves in the public domain
and not protected by intellectual property rights . The public domain notion then
functions as a way of justifying the denial of rights and rules relating to knowl-
edge that have legitimacy within the confines of certain communities. Van
Caenegem concluded that what "threatens the interests of peoples and groups
which adhere to other normative struct

the rule that all knowledge that is not ap
rights] is in the public domain, available
Therefore, the two cumulative criter
that protected traditional knowledge i
in Article i.2[e]) and "not protected by a
in Article i.2[f]) seem to be irreconcil
protected by an intellectual property rig
1.2 (e), will form a part of the public dom
principles.
The intention of the Draft TK Artic
from the public domain though unpro
resonates with a statement by the Tulal
Secretariat at the IGC's fifth session, wh
is no public domain in traditional kno
held in secret, other knowledge is share
confer an unrestricted right to use the
Many songs or stories, for example,
These songs and stories are performe
members of a community. However, the
stories falls only to the individuals or f
Creator's gifts.87
Further, many studies have documente
law that characterise the 'commons' o
strated that the kind of 'open access c
public domain in intellectual property
have complex rules for governing
resources.88
The intention of the Draft TK Articles

unprotected by intellectual property rig
domain cannot be achieved in light of es
ciples without a re-interpretation of tha
is used. If that concept is retained in fu
definitions of the public domain and tra
which capture the idea that traditional k
part of the public domain as it is und
notwithstanding a lack
practical drafting sug
1.2 (e) and 1.2 (f), but t
domain in relation to
that concept represen
which, as van Caenegem
gular perspective.^
Concluding though
As a framework of pro
is contemplated for the
the deliberations at the
ucts originating withi
net of the Draft WIP
drawn. In particular, pr
nature of much of the
is reflected in the relev
of maintaining and tra
by custom, exclusively
ing protected knowled
The use of intellectual
of protection for tradi
However, some principl
References to the publi
Articles without re-int
Also, the tendency to i
traditional knowledge
property law should be
crucial exercise, the res
that the alternative sys
ment or replace. XSJ
NOTES
i. Stuart Hall, "Negotiating Caribbean Identities", in New Caribbean Thought: A

Reader , ed. Brian Meeks and Folke Lindahl (Kingston: University of the West Indies
Press, 2001), 27.
2. Ibid., 27-28.
3. Wendy Knepper, "Colonisation, Creolisation, and Globalisation: The Art and Ruses
of Bricolage", Small Axe 10, no. 3 (2006): 70.
4. Note that at the WIPO Ministerial-Level Meeting on Intellectual Property for
Caribbean Countries held in Barbados in 2006, a resolution was passed requesting
WIPO's assistance in developing the appropriate frameworks of protection for tra-
ditional knowledge. That resolution was reproduced in WIPO/GRTK/KIN/08/i.
5. See Intellectual Property Needs and Expectations of Traditional Knowledge Holders ,
WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional
Knowledge (ippS-ippp) (Geneva: WIPO, 2001).
6. See Consolidated Analysis of the Legal Protection of Traditional Cultural
Expressions/Expressions of Folklore, WIPO Publication No. 785(E), 27. 'Traditional
knowledge* is sometimes used as a specific term, stricto sensu , and as a general term,
lato sensu. Traditional knowledge stricto sensu is understood to refer to 'technical'
know-how and knowledge related to or associated with, inter alia, biodiversity con-
servation, agriculture, medicine and genetic resources. Traditional knowledge lato
sensu is used in a broader sense to refer to technical know-how, knowledge, and also
traditional expressions and manifestations of cultures in the form of music, stories,
paintings, handicrafts, languages and symbols, performances and the like, falling
under the rubric 'traditional cultural expressions' or 'expressions of folklore'.
7. See Article I5(4)(a), Paris Act, 1971, Berne Convention for the Protection of Literary
and Artistic Works.
8. See the WIPO Tunis Model Law on Copyright for Developing Countries, 1976 (the
Tunis Model) and the UNESCO-WIPO Model Provisions for National Laws on
the Protection of Expressions of Folklore against Illicit Exploitation and Other
Prejudicial Actions, 1982 (the Model Provisions).
9. See the Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore (IGC), Twenty-Second Session,
Geneva, 9-13 July 2012, "The Protection of Traditional Cultural Expressions": Draft
TCEs Articles, WIPO/GRTKF/IC/22/4, Article 1, Annex, 4, for a recent formulation
of a definition of 'traditional cultural expressions'. The IGC was established by the
WIPO General Assembly in October 2000 as an international forum for debate and
dialogue concerning the interplay between intellectual property, traditional knowl-
edge, genetic resources, and traditional cultural expressions (folklore). The IGC
work programmes take into account, and are complementary to, related work under-
80
taken by oth
on Biological
tion.
io. See IGC, Twenty-First Session, Geneva, 16-20 April 2012, "The Protection of
Traditional Knowledge": Draft TK Articles, WIPO/GRTKF/IC/21/4, Article 1,
Annex, 6, for recent formulations of a definition of 'traditional knowledge'.
ii. WIPO initiatives utilise the terms 'traditional cultural expressions' and 'traditional
knowledge', and at the same time, reflect both a distinction and a relationship
between them. See IGC, Sixth Session, Geneva, 15-19 March 2004, "Traditional
Cultural Expressions/Expressions of Folklore - Legal and Policy Options":
WIPO/GRTK/IC/6/3, 11-12.
12. Recent versions of the Draft TCEs Articles and Draft TK Articles (as at July 2012) are
contained in WIPO/GRTKF/IC/22/4 and WIPO/GRTKF/IC/21/4, respectively.
13. Some jurisdictions, for example, protect both traditional cultural expressions and
traditional knowledge in a single instrument, while others use a range of laws and
instruments to address the two areas distinctly.
14. For a history of the Draft Articles, see http://www.wipo.int/tk/en/consultations/
draft_provisions/draft_provisions.html (accessed 20 July 2012).
15. The recent versions of the Draft TCEs Articles have omitted references to 'expres-
sions of folklore' and use the term 'traditional cultural expressions' only.
1 6. See IGC, Third Session, Geneva, 13-21 June 2002, "Traditional Knowledge - Oper-
ational Terms and Definitions": WIPO/GRTKF/IC/3/9, para. 15. Prior to some
level of consensus regarding terminology (and protection measures) by the IGC, the
terminology used in national and international discourse could be described as fluid.
The initial appearance and evolution of traditional knowledge as 'folklore' in national
and international discourse (the Tunis Model), the eclipsing of 'folklore' by 'tradi-
tional knowledge', the re-emergence of folklore as 'traditional cultural expressions'/
'expressions of folklore' as part of the folklore/ traditional knowledge bifurcation,
and the convergence of folklore and traditional knowledge, are all reflective of this
fluidity in the discourse.
17. See 2001 WIPO Report (n 5), 25. In the WIPO Report, it is expressly stated that
WIPO's description of the subject matter of traditional knowledge reflected its intel-
lectual property focus and acknowledged the right of indigenous groups, local
communities and other traditional knowledge holders to decide what constituted
their own knowledge, innovations, cultures and practices, and the way they should
be defined.
18. Matthias Leistner, "Part III: Analysis of Different Areas of Indigenous Resources -
Section I: Traditional Knowledge", in Indigenous Heritage and Intellectual Property,
Genetic Resources , Traditional Knowledge and Folklore , ed. Silke von Lewiński (Lon-
don: Kluwer Law International, 2004), 56-57.
19. Paul Kuruk, "Protecting Folklore under

Reappraisal of the Tensions between Indi
and the United States", American Univers
20. Article 2 of the Draft TCEs Articles, W
vides, inter alia-. " Option 2 : Beneficiaries o
sions, as defined in Article 1, are the holder
may include: (a) indigenous communitie
communities; (d) cultural communities;
within the categories listed above; and (h) w
not specifically attributable to or confined
it is not possible to identify the communit
determined by domestic law. Option 3: Be
cultural expressions, as defined under Ar
traditional communities, including small-
21. See IGC, Ninth Session, Geneva, 24-28
Cultural Expressions/Expressions of Folk
WIPO/GRTKF/IC/9/4, Annex, 17.
22. See note 20 above.
23. See "Commentary by the Facilitator", Draft TCEs Articles, WIPO/GRTKF/IC/

22/4 (n 9), Annex, 8.
24. Anthony Taubman, "Saving the Village: Conserving Jurisprudential Diversity in
the International Protection of Traditional Knowledge", in International Public
Goods and Transfer of Technology under a Globalised Intellectual Property Regime, ed.
Keith E. Maskus and Jerome H. Reichman (Cambridge: Cambridge University
Press, 2005), 536.
25. Ibid.
26. Leistner, "Part III: Analysis", 57.
27. Ibid.
28. June M. George, "Indigenous Knowledge as a Component of the School Curricu-
lum", in What is Indigenous Knowledge ? Voices from the Academy , ed. Ladislaus M.
Semali and Joe L. Kincheloe (London: Falmer Press, 1999), 80.
29. Paul Sillitoe, "The Development of Indigenous Knowledge: A New Applied Anthro-
pology", Current Anthropology 39, no. 2 (1998): 229.
30. See WIPO/GRTKF/IC/9/4 (n 21), Annex, 15-19, for examples of legislative provi-
sions which include this requirement in relation to traditional cultural expressions.
31. Edward Shils, Tradition (London: Faber and Faber, 1981), 15.
32. See Law No. 20 of 26 June 2000 on the Special Intellectual Property Regime with
Respect to the Collective Rights of Indigenous Peoples to the Protection and
Defence of Their Cultural Identity and Traditional Knowledge.
82
33. See Chapter i,

establishing regul
34. See "Four Dire
Contribution of th
Convention on Bio
Graham Dutfield,
in Traditional Kn
http://owninglife
35. Graham Dutfie
International Law
36. See "Four Direc
is traditional* abo
acquired and used.
edge, which is uniq
tionality'. Much of
and legal character
settlers and indust
37. Dutfield, "The

38. George J. Sefa
Knowledges in Glob
of Toronto Press,
39. George, "Indig
40. Ibid.
41. Taubman, "Sav
42. Arun Agrawal,
IK Monitor 3, no. 3
43. See Adam D. M
Canadian Journal
the nature and de
property.
44. See 2001 WIPO Report (n 5), 193. See also p. 195 where the need to document oral
traditional knowledge was discussed in order to, among other things, preserve it and
make it available for research and educational purposes.
45. See Article 1, Draft TCEs Articles, WIPO/GRTKF/IC/22/4 (n 9), Annex, 4-5, where
alternative drafting options are considered.
46. See Draft TK Articles, WIPO/GRTKF/IC/21/4 (n 10), Annex, 10. One version of
Article 2 defines the beneficiaries of protection of the proposed treaty as "indigenous
peoples/communities and local communities" referred to as the core types of bene-
ficiaries; and another version of Article 2 includes "traditional communities, families,
and nations" referred to as "additional types of beneficiaries that will require further
discussion".
47. See 2001 WIPO Report (n 5), 17.

48. Ibid., 211. The report stated that "exclu
items not resulting from intellectual activi
artistic fields, such as human remains, lan
ments of 'heritage' in the broad sense" (25)
49. The Caribbean fact-finding mission was
countries visited were Guyana, Jamaica, a
50. The subject matter identified as constitu
tional usage of fruits, plants and animals
traditional fishing methods; traditional b
techniques; cultural heritage; folk songs, d
tional psychiatry; religion; trapping, huntin
culture and preservations techniques; handi
vation and conservation methods; languag
51. At the national level, some jurisdictions
tural expressions and traditional knowledge
a range of laws and instruments to address
52. See the history of the Draft Articles, h
/draft_provisions/draft_provisions.html (
53. See Johanna Gibson, "Intellectual Prop
the Legal Authority of Community", Europ
7 (2004): 280-90, where she suggested tha
are related to the cultural expression, know
sion and integrity of a particular group.
54. See, for example, the Panamanian Law N
lectual Property Regime Governing the C
the Protection and Defence of Their Cultur
edge, Executive Decree No. 12, Article 2.
55. See, for example, the Copyright Act,
Act, Cap. 300, Barbados; the Copyright A
Act, 2000, St Christopher and Nevis.
56. See the Copyright Act, Cap. 300, s. 22(
the Copyright Act, 2000, St Christopher
refers to all literary and artistic works tha
ditional and cultural heritage of St Chris
Christopher and Nevis by various groups
generation to generation.
57. See the Copyright Act, 2003, s. 2, Domi
a group-oriented and tradition-based crea
unknown authorship, and which reflects
identity of a community, as transmitted or
58. The copyright legislat

Model Law and the cop
the Model Provisions, at
laws.
59. Note also that the copyright legislation of Dominica also provides protection for
performers of expressions of folklore.
60. This is reflected, for example, in the Nagoya Protocol to the Convention on Bio-
logical Diversity, Article 3.
61. Edward M. Wise, "The T ransplant of Legal Patterns", American Journal of Compar-
ative Law Supplement 38 (1990): 1-22.
62. Rex M. Nettleford, Caribbean Cultural Identity: The Case of Jamaica - An Essay in
Cultural Dynamics , 2nd ed. (Kingston: Ian Randle / Princeton, NJ: Markus Wiener,
2003), 2.
63. See, for example, Edward Brathwaite, The Development of Creole Society in Jamaica
1770-1820 (London: Clarendon Press, 1971). Creolisation, according to Lawrence O.
Bamikole, can be stated as the "coming together of different elements in an inter-
acting process, producing a new reality or entity which is neither one nor the other
of the original elements, but which nevertheless share some features with the original
elements" (Bamikole, "Creolisation and the Search for Identity in Caribbean
Philosophy", Caribbean Quarterly 53, no. 3 [2007]: 76).
64. Stephen Stuempfle, The Steelband Movement : The Forging of a National Art in
Trinidad and Tobago (Philadelphia, PA: University of Pennsylvania Press, 1995), 7.
65. The Draft TCEs Articles in WIPO/GRTKF/IC/9/4 (n 21) Article 1, Annex, 11, define
'traditional cultural expressions' as verbal, musical or tangible expressions which are:
(1) the products of creative intellectual activity, including individual and communal
creativity; (2) characteristic of a community's cultural and social identity and cultural
heritage; and (3) maintained, used or developed by such community, or by individ-
uals having the right or responsibility to do so in accordance with the customary
law and practices of that community.
66. See IGC, Ninth Session, Geneva, 24-28 April 2006, "The Protection of Traditional
Knowledge: Revised Objectives and Principles": WIPO/GRTKF/IC/9/5, Article 3.2,
Annex, 19. The full text of Article 3.2 reads: "For the purpose of these principles
only, the term 'traditional knowledge' refers to the content or substance of knowl-
edge resulting from intellectual activity in a traditional context, and includes the
know-how, skills, innovations, practices and learning that form part of traditional
knowledge systems, and knowledge embodying traditional lifestyles of indigenous
and local communities, or contained in codified knowledge systems passed between
generations. It is not limited to any specific technical field, and may include agri-
cultural, environmental and medicinal knowledge, and knowledge associated with
genetic resources."
67. See Draft TCEs Articles, Article 1 (2

Annex, 4.
68. See Draft TK Articles, WIPO/GRTKF/IC/21/4 (n 10), Annex, 6, where it is stated
that protection extends to traditional knowledge that is, inter alia, the unique prod-
uct of or is distinctively associated with beneficiaries defined in Article 2 therein.
69. See the explanation by Justin Hughes at note 219, in IGC, First Intersessional Work-
ing Group, Geneva, 19-23 July 2010, "Record of Deliberations at the First Inter-
sessional Working Group": WIPO/GRTKF/1WG/1/4, 15.
70. Note section 5.4 of the Swakopmund Protocol on the Protection of Traditional
Knowledge and Expressions of Folklore within the Framework of the African
Regional Intellectual Property Organisation (ARIPO), 2010, where it is expressly
recognised that two or more communities in the same or different countries may
share the same traditional knowledge and those communities shall be registered as
owners. This is so even though there is language which suggests that traditional
knowledge be "distinctly associated with a local or traditional community" in section
4 (ii). A comparable section in the Draft TK Articles provides that where traditional
knowledge is not attributable to a community, the administration of rights will be
done in accordance with the relevant national law; see the Draft TK Articles, Article
5.2 (n 10), Annex, 19. However, this provision does not directly deal with 'shared'
traditional knowledge among 'identifiable* communities.
71. See Draft TCEs Articles, Article 1.2, Option 1, WIPO/GRTKF/IC/22/4 (n 9),
Annex, 4.
72. See the contribution of N.S. Gopalakrishnan in WIPO/GRTKF/1WG/1/4 (n 70),
1 6.
73. Ibid.
74. See Article 1.2 which provides as follows: "Protection shall extend to any traditional
cultural expression that is associated with the cultural and social identity of the
beneficiaries as defined in Article 2, and is used, maintained or developed by them
as part of their cultural or social identity or heritage in accordance with national law
and customary practices."
75. See Draft TCEs Articles, Article 1.2, Option 2, WIPO/GRTKF/IC/22/4 (n 9),
Annex, 5, which provides, inter alia , that protection shall extend to any traditional
cultural expression which is used, maintained or developed by the beneficiaries,
thereof, as part of their cultural or social identity or heritage in accordance with
national law and customary practices.
76. See Draft TK Articles, WIPO/GRTKF/IC/21/4 (n 10), Annex, 6.
77. See, for example, the criteria for protection proposed in the Draft Legal Instrument
for SAARC Countries on the Protection of Traditional Knowledge (as compared to
those proposed in the Draft TK Articles) which specifies that protection should
extend to at least knowledge which is generated, preserved and transmitted in a
86
traditional context or
Draft TCEs Article
tices".
78. Michael J. Finger, "Introduction and Overview", in Poor People's Knowledge : Pro-
moting Intellectual Property in Developing Countrìes, ed. J. Michael Finger and Philip
Schüler (Washington, DC: World Bank, 2004), 31-32.
79. For a detailed treatment of this area, see Sharon Le Gall, "Reclaiming Collective
Knowledge: Can a Case Be Made for the Protection of the Steel Pan of Trinidad
and Tobago" (PhD diss., University of Cambridge, 2009).
80. See Draft TK Articles, WIPO/GRTKF/IC/21/4 (n 10), Article 1.2(e), Option 1,
Annex, 6.
81. See Draft TK Articles, WIPO/GRTKF/IC/21/4 (n 10) Article 1.2(f), Option 1,
Annex, 6.
82. Jessica Litman, "The Public Domain", Emory Law Journal 39, no. 4 (1990): 975.
Corresponding notions of the public domain include the 'intellectual commons'
and the 'public sphere'.
83. William van Caenegem, "The Public Domain: Scientia Nullius", European Intellec-
tual Property Review 24, no. 6 (2002): 324-30.
84. Ibid., 330.
85. Ibid., 326.
86. Ibid., 330.
87. See "Statement by the Tulalip Tribes of Washington on Folklore, Indigenous
Knowledge, and the Public Domain", IGC Fifth Session, submitted to the WIPO
Secretariat, Geneva, 5-17 July 2003, http://www.wipo.int/tk/en/igc/ngo/ngopapers
.html (accessed 4 March 2012).
88. Ibid., 3.
89. Van Caenegem, "The Public Domain", 324.

Defining Traditional Knowledge - A Perspective From The Caribbean

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Defining Traditional Knowledge - A Perspective From The Caribbean

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Defining Traditional Knowledge: A Perspective from the Caribbean

Author(s): SHARON B. LE GALL

As a regional framework for the protection of traditional knowledge is con-

a challenge for the region. More than a

the artistic and scient

1. Defining "traditional knowled

In a 2002 WIPO report, it was observed that

[Traditional knowledge systems ... are inextr

The origin of knowledge traceable to a particular people, group

The association of knowledge with a traditional or indigenous community or

The collective char

The collective and cu

[T]he owning collective

- can distinguish themselves in some cases as sep

The oral nature of traditional knowle

June George remarked that indigenous know

People transfer much knowledge between gener

The intergenerational nature of traditional knowledge

Definitions of traditional knowledge tend to refer to the passage of knowledge

entered the legal

'Context' has bee

into 'Western' and 'indigenous', critiqued th

In a general way, the core elements of def

2. Defining "traditional knowledge" descriptively

From 1998 to 1999, fact-finding missions were conducted in different regions

Protection of Expressions of Folklore Aga

Further, utilitarian/economic justifications for intellectual property pro-

3. Defining 'traditional knowledge

Many of the traditions found in the Caribbean originated elsewhere. As

TK Articles which define traditional knowledge as "the content or substance

Just as the most recent version of th

the purpose of creating an alternative

4. Other eligibility challenges

References to "custom" in the Draft TCEs Articles^ and to a "traditional con-

The case of the steel pan of Trin

Making specific reference to indigenous peoples, but recognising that his

Caenegem attempted to illustrate how the public domain concept, as part of

which adhere to other normative struct

The intention of the Draft TK Articles

i. Stuart Hall, "Negotiating Caribbean Identities", in New Caribbean Thought: A

19. Paul Kuruk, "Protecting Folklore under

23. See "Commentary by the Facilitator", Draft TCEs Articles, WIPO/GRTKF/IC/

33. See Chapter i,

37. Dutfield, "The

47. See 2001 WIPO Report (n 5), 17.

58. The copyright legislat

67. See Draft TCEs Articles, Article 1 (2

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