22 October 2011


Reading 'When Cosmology Meets Property: Indigenous Peoples’ Innovation and Intellectual Property' (Queen Mary School of Law Legal Studies Research Paper No. 90) by the great Peter Drahos.

He argues that -
The protection of traditional knowledge by means of intellectual property rights is one of the major work items of international organizations. Less attention has been paid to the relationship between systems of indigenous innovation and intellectual property. Using Australia as a case study, the paper argues that indigenous innovation systems are located within a connectionist cosmological framework. The distinctive institutional features of this innovation system are identified. A key feature is that it is innovation in systems to maintain the health of other systems. The commodity-based nature of intellectual property systems does not suit this kind of innovation. Property rights in land matter to this innovation system far more than intellectual property. Forms of intellectual property based on the right to distinguish one’s product in the market will generally be more useful to indigenous innovation than commodity regimes such as the patent system. Voluntary certification systems can probably be harnessed to much greater effect by indigenous business enterprises.
Drahos comments that -
Asking how intellectual property might protect TK presupposes an item of knowledge. The inquiry takes on a juridical bent, one in which lawyers excel as they investigate which intellectual property box offers the best fit or whether in fact a new box is needed.

A different question lies behind the analysis in this paper. Do intellectual property rights help the innovation systems of Aboriginal people? TK is often said to have a dynamic quality, but there has been little explicit analysis of the features of the indigenous innovation systems that must presumably be responsible for this dynamic quality.

Instead the tendency is to conceive of TK, either explicitly or implicitly, as an existing resource upon which one might draw. Yet the standard economic justification for intellectual property rights is that such rights encourage investment in the search for new knowledge by allowing the searchers to appropriate privately the social value of the new knowledge they find (Granstrand, 1999, p.56; Greenhalgh and Rogers, 2010, p. 32). As mentioned above, there are massive international efforts being made to design intellectual property solutions for the protection of TK. If this were simply about compensating indigenous people for the use of their existing knowledge then a targeted system of wealth transfers might be the best solution. But this option is not on the table. Instead one finds proposals to modify existing systems of intellectual property or to create new standards of protection. The assumption seems to be that intellectual property rights can have positive effects on systems of indigenous innovation. How plausible is this assumption?

In order to answer this question one needs to shift the analysis to the level of institutions that support an innovation system. If the incentive effects of intellectual property rights operate at all, they operate upon actors within an institutional setting. If we are to understand the dynamic effects of intellectual property we have to focus on the institutional system in which actors search and generate new knowledge and not on the abstract qualities of the knowledge that is produced. The generation of useful knowledge and techniques implies a set of institutions working in convergent ways to produce innovation (Mokyr, 2002). A systems perspective on innovation requires one to look more broadly at the institutions that contribute to innovative performance (Nelson, 1992).

Once we shift the level of analysis away from TK and the rules of intellectual property to institutions of indigenous innovation different questions arise. Innovation is often conceptualized in terms of firms developing new products and processes (Greenhalgh and Rogers, 2010, p. 4). Does indigenous innovation fit into this kind of standard definition?

The ethno-botanical record in Australia provides some examples of indigenous innovation that fit with this standard approach. For example, recorded interviews with Wagiman elders show that the Wagiman people developed products and processes. The leaves of the Ironwood tree, for example, were used as a fish poison and the roots provided the basis for the production of a glue (Liddy et al, 2006, 39). Similarly they discovered a method for producing a damper from the seeds of cycas canalis (bush palm) that has the qualities of long term storage and high food energy (Liddy et al, 2006, 34).

However, we will see that the most important innovative achievement of indigenous people lies in the innovation of systems to maintain systems, especially ecological systems. This is a form of service innovation, one that would have been hard for colonists to see, let alone understand. The scale of its achievement has only begun to be mapped by scientists in Australia in the last few decades.

A systems approach to innovation also requires one to identify the set of institutions that matter to innovation as well as the distinctive linkages and interactions amongst institutional actors that characterize an innovation system. In the context of modern economies this usually involves an examination of the linkages amongst firms and their industrial research laboratories, universities and government laboratories as well as looking at the role of institutions such as tax and venture capital markets (Nelson, 1992; Hall and Soskice, 2001). The third section of this paper identifies some institutional features of indigenous innovation, but this part of the analysis should be seen as preliminary. Clearly a full institutional analysis of indigenous innovation is an interdisciplinary quest in which a number of disciplines including ethnobotany, cognitive anthropology and human ecology play a crucial role (Brush 1993; Sillitoe 1998; Berkes, 2008, pp.22-25). From the discussion of indigenous innovation the paper moves to considering the role of intellectual property in supporting indigenous innovation.

The upshot of this section is that intellectual property rights are only likely to make a modest contribution to indigenous innovation and that the intellectual property systems that matter most are those based on rights to distinguish products in the market as opposed to rights to originate products. The property rights that matter most to indigenous innovation are land rights.