New study on the meaning of the “public domain” in the context of TK

chidiLater this month, we will be welcoming Professor Chidi Oguamanam at the IP Unit for a research visit. Professor Oguamanam recently published a fascinating study ,entitled, “Wandering footloose: Traditional knowledge and the ‘Public Domain’ revisited,” in which he addresses the meaning of “public domain” in the context of traditional knowledge (TK). The study was picked up in a recent Intellectual Property Watch article by Damillola Adepeju and summarised as follows: The study highlights that it provides a non-Eurocentric conception of “public domain” in order to recognise the customary laws and practices of indigenous and local communities (ILCs). The idea of a public domain in intellectual property rights is that of limited term rights where such rights are seen as a trade-off as part of a social contract. “The state incentivises those who have made useful innovations or other creative works by way of a state sanctioned monopoly,” the paper states. “At the end of the monopoly, they are required to hands-off or take off tolls on the innovation so that it would be flushed into the sinkhole of the public domain for members of the public to freely access for various ends, including the creation of more useful innovation(s).” Regarding this public domain, the study highlights that the United States and its allies have been putting pressure on traditional knowledge stakeholders concerning the protection of traditional knowledge. These countries are of the view that effective protection of traditional knowledge will “undermine” the public domain, the study explains. This pressure, the study points out, is ironic considering that these countries, led by the United States, have “worked tirelessly over the decades to ratchet up intellectual property protection at the expense of the public domain.” These are the same countries that “have now reconstituted themselves into its later day champions when it comes to TK,” the study states. “United States insists that the primacy for the protection of TK lies with the recognition of ‘the value of a vibrant public domain, the body of knowledge that is available for all to use and which is essential for creativity and innovation,’” it says. But the study shows that indigenous and local communities have not disregarded the public domain. However, their worldviews differ as “[t]here is little or no emphasis on the appropriation narrative or appropriation imperative in the mould of Western social contract philosophy.”

Using two case studies from Australia, the study shows that for indigenous and local communities, “community or cultural environment is a form of a public that determines and delineates each creator’s individual creativity and corresponding responsibility.” “In this order, the proprietary is an adjunct of the ‘public’ interest, with both co-existing and mutually reinforcing each other,” it adds. “As such, there is no fascination or fixation with when knowledge was invented or who should have exclusive claim to it.” “The individual takes such credit as allowed by the community, recognizing that her interest is mutually fused with that of the community,” the study explicates. “This is an enduring and secured form of public domain that thrives organically.” Demonstrating the recognition of dissemination and diffusion of knowledge by indigenous peoples, the study adds that “Indigenous Peoples have left no doubt whatsoever that their customary laws and practices accommodate the role of TK in the promotion of education across board. … Similarly, Indigenous Peoples also recognize the role of education for preserving traditional cultural heritage and Indigenous cultural identity as a component of even their colonial relations and encounter.” Hence, the study maintains that “[w]ithout regard to understanding the complex customary law jurisprudence and practices of ILCs over their TK, colonial powers and other industrialized countries seek to extend Eurocentric intellectual property jurisprudence to TK.” The study further emphasises that “[d]eliberate blindness or contempt for Indigenous Peoples and various categories of the West’s ‘others’ is part of the hallmark of colonialism.” “The attempt to use or impose a Eurocentric construct of the public domain to leverage insistence upon the protection of TK is a reflection of a historical mindset that cares less about understating the other,” it says. “[F]or so long, ILCs and categories of the West’s ‘others’ are portrayed as if they have no approximation of intellectual property and, of course, the public domain. Nothing is further from the truth,” the study concludes. “For those who care to be respectful enough and who seek to understand, it is evident that the customary laws and practices of ILCs animate a robust jurisprudence on intellectual property and contingent concepts, including the public domain.”