Constructing a Complexity Framework for Traditional Knowledge

Indigenous legal forms are based upon very different logics and social relations that include humans, non-humans, and supernatural entities, and draw no distinctions between nature and culture, the natural product and the artefact. While the landscapes they inhabit are likely to be domesticated, their thinking tends not to be anthropocentric. It’s hard to see how the pursuit of justice can be effected by those who know nothing about any of this. But hybridisation does happen regardless of incommensurabilities. What difference does this make? For Indigenous peoples, knowledge really does matter. But intellectual property can only skim the surface and touch on a few concerns of Indigenous peoples. Nonetheless, Indigenous peoples who are increasingly embedded in the “information age” are involved in negotiations whether they are expecting solutions or striving merely towards damage limitation. 

Our hypothesis is that for Indigenous peoples to benefit from TK protection, the design of the system must take account not just of their economic needs but also of the complex ways in which they relate to the world by means of their knowledge, culture and custom. The questions we seek to answer are (i) whether a perspective informed by anthropology, diverse economics, history and law can clarify the discourses on property, Indigenous peoples, and traditional knowledge/cultural expressions. Specifically, can any adaptation of modern intellectual property law satisfy the hopes and expectations of today’s Indigenous peoples and local communities? And (ii) with an eye to the forthcoming WIPO Diplomatic Conference in June 2024 on a new treaty on IP and TK, could any diplomatically negotiated framework do so especially given the different motivations for pursuing TK protection?

A complexity theory umbrella may allow us jurists to contemplate concepts such as bio-cultural knowledge and heritage, alongside diversified non-capitalistic economies. It would allow policy makers – who have to implement and interpret a rather tricky WIPO treaty into national measures – to incorporate plural values including heritage values, customary rules on stewardship, trust and obligations, and trust. This underpins a recurrent theme in these dialogues – that property is a necessity in some contexts, but not others.  

Can a perspective informed by legal geography, anthropology, diverse economies theory, and history contribute to the structuring of the framework surrounding TK protection?Many Indigenous peoples occupy a hybrid world, or two worlds where they have knowledge and experience in navigating their way through formal law and regulation. Control more than income streams may be more important for many of them, while others seek monetary advantages. Pursuing legal solutions though formal law may make sense…in some cases. In other situations, a more informal network based on trust, custodianship, rituals and secrecy may be more satisfactory.