Sakshi Jain & Adithya K S
Traditional Knowledge (TK) means a unified collection of knowledge that has evolved and come into existence and has been preserved over the ages by the sustained effort of indigenous, local, or native communities passed on through generations, to such an extent. This sphere of knowledge becomes an undeniable aspect of the identity of such communities. The only indispensable trait of TK is that of its ancient roots.
With the unsettling reality of a capitalistic society strengthening its roots in a significant part of the global village, it has become imperative to protect TK from its unauthorised and commercial misuse. This commercial utilisation of TK without proper authorisation is called “biopiracy.” Acknowledging indigenous people’s contributions and developing a regime to avoid unwarranted use of their ancient knowledge and practices is essential not to strip them of their fundamental identity. Moreover, an organised regime would ensure an authorised and calculated use of these ancient treasures.
Protection of Traditional Knowledge
A crucial aspect of protecting TK is that it must be valued judiciously by those who use it. To put it simply, it must be made sure that access to TK associated with genetic resources is contingent to the prior informed consent of the local and indigenous communities to whom its development can be associated with and that they obtain “fair and equitable benefits arising from its use.”
As of date, no Sui Generis system of protection of TK exists. Nonetheless, a Defensive Mechanism exists, which translates to preventing wrongful acquisition of intellectual property rights over TK.
An example of a defensive measure is setting up the Traditional Knowledge Digital Library (TKDL) in 2001, collaborating with the Council of Scientific and Industrial Research (CSIR) and the Ministry of Ayush. It is a deterrent against biopiracy. However, the shortcomings of the digital library far outweigh its merits. Ranging from translation problems to public disclosure of entire traditional knowledge, which consequently causes fishing expeditions. Moreover, a good portion of TK is passed orally, which implies no documentary records, and TKDL maintains no record of oral traditional knowledge. Therefore, there is visible inadequacy in the protection of TK.
Permitting unsolicited and unwarranted commercial use of TK without securing equitable benefits to the indigenous and local communities will lead to a sub-optimal outcome where these TK are pirated and lost forever.
A game theory justification can elucidate this sub-optimal result of unprotected TK, and this shall be analysed in the subsequent sections. To a great extent, this explanation will mirror considerations that arise in a prisoner’s dilemma game.
Understanding Game Theory
Game theory is a branch of mathematics concerned with models of strategic interaction among rational decision-makers for dealing with competitive and cooperative “games.” In the context of game theory, “games” are choice-making situations where the outcome of or payoff to a participant’s choice of action depends critically on the decisions of other participants. Game theory assumes that each player, or economic agent, is a rational decision-maker motivated solely by his/her preferences. This refers to a ranking of subjective welfare, called utility, or change in subjective welfare that the agent derives from an event’s occurrence.
To analyse the ill effects of biopiracy, the most famous of all games, the Prisoner’s Dilemma, must be understood. Suppose the police have detained two individuals they suspect have committed a crime together but lack the evidence to convict. They give each person, kept in separate rooms, the option to confess or stay silent. If both confess, each will be sentenced to five years in prison (1). If one confesses and the other remains silent, then the former will go free (3), while the latter gets sentenced to 10 years (0Howeverer, if both remain silent, then each will be sentenced to 2 years (2), based on adequate evidence of the getaway car’s theft. Suppose the subjective (ordinal) utility functions of both players are the same, where payoffs corresponding to outcomes are given in the parentheses above. The matrix depicting this game is as follows:
Player A reasons their choice as follows. If B confesses, I will do better by confessing also. On the other hand, if B stays silent, I would still do better by confessing. Hence, no matter the situation, A would confess. B goes through similar reasoning and concludes that they must also confess. Therefore, in this scenario, both A and B receive 5-year sentences. The dilemma here is that both players can do better (2-year sentences) by staying silent. However, as they cannot communicate and cooperate, both players individually make decisions that are the best for themselves, and in doing so, reach a collectively sub-optimal outcome.
Traditional Knowledge and a Game Theory Justification
Given the current ethos of opportunistic capitalist behaviour, it is not surprising to learn that TK faces the threat of dissipating and disappearing into the corporate jungle if not adequately protected. Indigenous communities are also wary of the potential for misuse of what is essentially the heartbeat of their respective cultures. What is interesting to know, however, is how the lack of protection for TK is a collectively sub-optimal outcome for everyone involved. This suboptimality can be explained using the Prisoner’s Dilemma.
Assume there are two communities, A and B, each with their own treasured TK. In a regime where there is no adequate protection for this knowledge, each community has two choices: to gain control over the other community’s TK and commercially utilise the same or not indulge in this form of biopiracy. Let these choices be Choice 1 and Choice 2, respectively. If both communities pick Choice 1, both would essentially lose a part of their heritage, but what they gain in terms of control will feel foreign to them and not adequately make up for the loss (0). If one of them picks Choice 1, and the other Choice 2, the former would essentially have control over the knowledge of both communities (2). At the same time, the latter would be at a stark positional disadvantage (-1). If both pick Choice 2, they will be satisfied with not losing an essential part of their culture (1). Let these communities have the same ordinal utility functions, where the payoffs corresponding to outcomes are as given in the parentheses above. This game plays similarly to the Prisoner’s Dilemma.
Following similar reasoning to the prisoners, both communities, to maximise their payoffs, pick Choice 1. This inevitably leads to a suboptimal outcome, due to the existence of a scenario where both could have higher payoffs. The suboptimal outcome is also, unfortunately, a Nash Equilibrium, which implies that neither community has an incentive to change their choice once they are privy to the other’s choice. The higher payoff scenario would also preserve the communities’ respective identities and ensure that they do not feel like foreigners. Alas, in a regime where TK is not protected, this scenario simply does not play out.
The argument put forth is that biopiracy and misappropriation of TK will lead to a sub-optimal outcome in terms of the disappearance of traditional knowledge, loss of identity to indigenous communities, and on a global scale, loss of long-term economic interest in conserving traditional knowledge. Moreover, deviating from a Nash Equilibrium situation towards a more optimal outcome where Traditional Knowledge of indigenous communities are protected opens a plethora of unrealised and plausible potential of boosting economic, medical, scientific avenues of civilisation significantly.
Notwithstanding the provisions of the Convention on Biological Diversity, the Nagoya Protocol, and the exclusive involvement of the World Intellectual Property Rights Organization (WIPO), there are traces of inequity, misappropriation, and unjust enrichment in the legal systems when viewed globally concerning the protection of traditional knowledge. Looking at it through the lens of economics, the opportunity cost of indifference towards traditional knowledge is that of an unmitigated adversarial impact on global scientific research, universal knowledge exchange, and international trade.
Moreover, to resonate with and cater to society’s capitalistic tendencies, it is economically lucrative for the source nations who host genetic resources and TK to regulate resource conservation and benefit-sharing access. Therefore, the rewards of providing adequate and sincere security to indigenous communities are plenty and cannot be overlooked.
The prisoner’s dilemma analysis of the regime’s challenges presents a foundational understanding of the importance of protecting TK. We must do away with the notion that TK is discovered and not cultivated. A ‘Sui generis’ legislation, including a befitting legal framework of protection of TK, protection, and enforcement of indigenous communities’ rights, communities’ rights, consequently preventing misuse and biopiracy, is the way forward. It would not only assist in combating the endangerment of TK but also create a conducive environment for scientific research and international trade. A sustained and devoted effort to give intellectual property protection to TK is the only path to an equitable future. The global community is on the fence about it is nothing short of a sartorial plight!
Sakshi is a student in the 7th Semester of the BBA LLB (Hons.) course in the School of Law, Christ (Deemed to be University), Bangalore, while Adithya is a 7th Semester in the BSc-MSc Economics course at the Department of Humanities and Social Sciences, Indian Institute of Technology, Kharagpur.