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Negotiating Tradition

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Stefan Groth

5. Multiperspectivity & Differentiation

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1As shown in Chapter 4, the relation between terms and their contexts is of great importance. This chapter surveys perspectives on traditional knowledge of indigenous communities, and highlights the connections and interdependencies between these perspectives. This chapter also outlines the different interpretations of terms used in WIPO’s IGC, showing specific social conceptions implicit in these interpretations, thereby shedding light on the constitution of IGC terminological constellations.

  • 194 For a discussion of tradition and value in the context of the IGC, see Groth 2009.

2These specific social conceptions can influence negotiations and the interpretation of the IGC’s subject matter at various levels.194 Opening statements, referential frames and micro-edits all draw from such conceptions, and the instantiations of communicative patterns and strategies can only be adequately understood by taking into account participants’ ideological presuppositions about the substantive issues discussed in the IGC. Although these issues – TK, TCEs and GRs – are relatively marginal in face of the mainly procedural discussions in IGC sessions, participants’s perspectives on these issues contribute significantly to the negotiation process. What will be examined here are the five different perspectives of differentiation and confirmation that actors in the IGC take with respect to TK and TCEs.

3Two prefatory remark are in order. First, because there is a close connection between the concepts of TK or TCEs and the attribute “indigenous” in IGC negotiations (sometimes called “indigenous knowledge”), it is necessary to combine these concepts when analyzing them. “Bearers” (Carneiro da Cunha 2009: 9) of TK in the context of the IGC are in most cases indigenous communities. An analysis of perspectives on traditional knowledge therefore inevitably has to deal with questions of indigeneity. However, this shall not attempt to fully grasp the complex usages and meanings of indigeneity. Rather, the specific terminology employed in WIPO IGC negotiations will be used to show how the interrelation of traditional knowledge and the attribute “indigenous” influences actors’ perspectives.

4Second, examining multiperspectivity in diplomatic – and therefore strategic – contexts raises questions about the intentionality and agency of linguistic utterances and negotiation strategies: what do actors try to achieve by framing subject matter in a certain way? This question points back to the relationship between direct and indirect speech discussed at the beginning of Chapter 4, a relationship centered around intentionality and metapragmatic awareness. Of interest to this study are mainly the four constellations in which: (1) the intentionality of an utterance is very obvious, so that speaker and audience are (mostly) aware of the implications and its indexical meaning. There is also a metapragmatic awareness since the pragmatic features of the utterance are commonly understood; (2) the speaker of an utterance is aware of its pragmatic features and potential implications, but the audience may not be completely aware of the pragmatic meaning of the utterance, and only anticipates the intended implications; (3) the speaker of an utterance is only partly or unconsciously aware of the indexical meaning of an utterance, and the utterance is part of a set of habitualized phrases or linguistic strategies. The audience, depending on its level of communicative competence in the specific kind of communicative event, may be aware of this strategy and perceive it as common for the context of negotiations; (4) the speaker of an utterance is unaware of its pragmatic features, but there is a reproducible effect that can be observed in correlation with such utterances. If the speaker realizes the pragmatic function of this type of utterance, his awareness of it can rise so that the utterance can be strategically and intuitively deployed. These four constellations are typical for communicative events, including communicative patterns with identifiable intended or perceived pragmatic qualities. Of interest for this study is an audience-focused view of communicative events and associated pragmatic strategies that takes into account the dialectics between the speaker of an utterance and his audience.

5Multiple perspectives on TK and TCEs find their expression in IGC communicative events. Whether explicitly or implicitly, the instantiations of communicative strategies and patterns (for instance, specific stalling tactics, or the framing of TK as primarily a matter of economic and cultural values disconnected from social and political struggles and inequalities) reflect these perspectives. In analyzing them, one must determine whether their indexical meaning of an instantiation or perspective is reflected by its speaker, and thereby whether the observed language use is conscious and intentional, or unintentional, habitualized and incidental. This is especially difficult because the IGC consists of multiple audiences with varying levels of communicative and professional competence in the implications of strategic language use. The problem is further compounded by the IGC’s emergent nature as a speech community: while some communicative conventions are prestructured as part of UN norms, others are flexible and constantly changing. Analyzing substantive discussions and perceptions along with abstract strategic language use poses the additional problem that actors not only depend on their communicative and professional skills (that is, to speak like a diplomat and weigh the implications of speech like a lawyer), but also on a sensitivity to different conceptions of TK and TCEs.

6I argue that one can use the notion “mutual partial intelligibility” – used in linguistics when speakers of different languages understand each other to some degree without being capable of speaking each others’ language – to understand this situation. In IGC negotiations, the arguments and basic ideological and substantive stances of opposed delegations and participants are understood, yet the fundamental presuppositions which lead to the different perceptions are lacking. However, the negotiations do reflect instantiations of diverging perspectives in communicative events. These instantiations are characterized by their differentiating relationship to each other: a given perception of TK or TCEs is contextually constituted by its presumed counterpart in negotiations. It is therefore possible to map the recipient design of communicative strategies onto the level of the three main IGC issues such that these different perspectives constitute each other in a dialectical relationship.

7Susan Gal and Judith Irvine describe these processes of differentiation as “fractal recursions” involving “the projection of an opposition, salient at one level of relationship onto some other level” (Irvine and Gal 2000: 38). Taking the example of the public/private dichotomy, Gal clarifies:

To be fractal, a distinction must be co-constitutive, so that the terms – like right and left or east and west – define each other. Such co-constitutive contrasts can be used to organize virtually any kind of social fact: spaces, institutions, bodies, groups, activities, interactions, and relations. Furthermore, whatever the local, historically specific cultural prototypes or images that motivate oppositions like public and private, the distinction can be reproduced repeatedly by projecting it onto narrower and broader comparisons. This always involves a change in perspective by those making the comparison. Fractal recursions are repetitions of the same contrast but at different scales. (Gal 2005: 26–27)

  • 195 As bilateral agreements and developments on the national level show, industrialized nations are no (...)

8The dialectics of strategic communicative behavior in international negotiations operate in a similar way with regard to ideological presuppositions about the subject matter. Switching referential frames or using strategically deployable shifters in micro-editing processes always implicitly involves a second scale separate from the specific negotiations. These processes also involve substantive stances and perspectives on what is being negotiated: the procedural scale is superordinated to a substantial scale that is made explicit only at times. The constitution of such scales occurs at, and draws from, different levels, so stalling and speeding up tactics in negotiations depend on each other. Since the scale of substantive perspectives determines the procedural scale, examining only the procedural level, meaning the instantiations of communicative strategies and patterns in negotiations, overlooks the essential scale. Thus, the EU’s position cannot be understood only in terms of the strategic value or pragmatic meaning of utterances in the context of negotiations; value-related and structural factors must be considered as well. Among these factors are the valuation of individual creativity in Western societies, and the fact that the current intellectual property system benefits the economic interests of industrialized nations.195

9The complementary nature of oppositions constituted as fractal recursions coincides with another situation in which overt distinctions potentially counterproductive to the interests of speakers are veiled. Irvine and Gal describe these situations as different forms of erasure that blur dichotomizing distinctions on the various scales:

The process of fractal recursion allows and indeed invites erasures. In general, erasures are forms of forgetting, denying, ignoring, or forcibly eliminating those distinctions or social facts that fail to fit the picture of the world presented by an ideology. […] One level of distinction can be foregrounded at the expense of another, eliding or ignoring that there have been several nested contrasts made. […] In these cases, fractal recursions focus on similarities between contrasts made at different scales, and the differences are ignored. The several (somewhat different) distinctions involved in the reiterations can then be conflated into a single contrast. But erasure can also operate in a way that does not entirely obliterate newly created nestings in existing distinctions but merely highlights their similarities. This makes new contrasts seem like old friends returning in somewhat different clothes, novel versions of familiar phenomena. (Gal 2005: 27)

10In IGC negotiations, one form of erasure is the switching of referential frames: by stressing stability on the indexically weak level, differences at another level are portrayed as being constituted not of substantive discrepancies, but rather of insubstantial technical and procedural discrepancies that can be solved over time. Fractal recursions and erasure are especially important for the analysis of IGC negotiations because of how they relate to intentionality. Because they expand the scope of analysis to different scales, these two processes exacerbate the already problematic distinction between intentional communicative behavior and utterances that have indexical meaning but lack metapragmatic awareness. The relationship between different scales emphasizes the need for both a contextualized study of negotiations (encompassing linguistic analysis as well as an ethnographic account), and for macro-level reflection on the broader ideological presuppositions that help construct observable communicative behavior.

11The relationship between scales also makes analyzing the intentionality of communicative behavior more complex, especially given the emergent nature of the IGC as a speech community. With regard to intentionality, Duranti argues that

[f]or anthropologists, the crucial issue is whether it is possible to separate intentional acts from the cultural context in which they are produced. Since the route to interpretation relies on conventionality as much as on intentionality, it is possible, and in fact quite common, that an audience may respond to what they judge to be contextually relevant conventions, ignoring the issue of the speaker's intentions. Ethnographers have also shown that the view that one can know what goes on in another person's mind is not shared by all cultures, and a difference in power or authority, sometimes defined in terms of expertise, may grant some individuals or groups the right to interpret while depriving others of the right to reclaim their original intentions. (Duranti 1999: 135)

12This view is essential for the study of IGC negotiations and for the discussion of intentional or unintentional communicative acts. In the context of the IGC, Duranti’s idea of conventionality is heavily contested. At the heart of any definition of conventional communicative behavior lie questions of power, since the prerogative of interpretation can be a crucial advantage in pragmatic strategies and negotiations. Any such definition is thus unstable.

  • 196 Povinelli 2002; see also Trouillot 2003.

13The concept of intentionality is equally contested and vague, as intentionality (consider the notion of erasure) is sometimes blurred or veiled, contingent on various scales of interaction and not necessarily shared within the speech community. In strategic communicative behavior, however, the process of ascription and self-ascription is often intentional (Barth 1969). Though fieldwork indicates that actors in the IGC are sometimes fully cognizant of the strategies they employ, I would argue that the dialogical constitution of communicative events (in the sense of both fractal recursions and habitualized communicative practices) is equally important in this context. Furthermore, ex post facto rationalizations of successful strategies cannot be excluded. This is because it is more important to observe the communicative strategies actually employed in the IGC than to hypothesize about whether an utterance was made with an intentional strategy in mind. The fluid character of the IGC as a speech community leads to a constant shifting of communicative conventions, so any pragmatic strategies observed are more an expression of reactions to this fluidity and contingency on the basis of stable intentions than the reflexive use of pre-structured behavior. This contingent and dynamic relationship between actors and their strategies is illustrated by Elizabeth Povinellis’ work (2002) on recognition practices in the context of Australian indigeneity. She shows that overtly direct claims to cultural property can be counterproductive to the interests of indigenous groups, as such claims are viewed as not “authentic” to these groups.196 These limitations on discourse prevent overt strategies of positioning using the notion of indigeneity.

14Taking into consideration this complex relationship between terminology and utterances and normative presuppositions about substantial issues, the following will outline a survey of different perspectives on the traditional knowledge of indigenous groups in IGC negotiations.

Stigma

15In many African countries, the term “indigenous” refers to those who originally lived on the land – it is a temporal difference to something else, a dichotomy that is only functional with a counterpart in the past, in this specific case with colonialism. As a discursive marker, the attribute “indigenous” is open to interpretation and exploitation. It is used in varying contexts for different purposes, of which the dichotomy between colonialism in the past and sociopolitical regimes of the present is only one example, albeit a very powerful one. Indigeneity is a relational concept:

[S]ocial groups become indigenous or aboriginal or native by virtue of the recognition that someone else arrived in a place and found them or their ancestors ‘already’ there. (Pratt 2007: 398)

16Indigeneity exists and is constituted by virtue of difference, and the representation of difference exists and is constituted by opposition. As a semantic label, the poles of this dichotomy point to interpretations and ideologies that attach positive or negative meaning to it.

17During the first IGC in 2001, the Zambian delegation emphasized this dichotomy and argued for an expansion of the term:

  • 197 WIPO/GRTKF/IC/1/12:1–2.

[48] In the Zambian context, Indigenous and Local Communities refers to people who by necessity or own desire depend on living off their ancestral land and/or live under traditional authorities and share common cultural values. These must include communities in urban and peri-urban areas of Africa. Some members of urban and peri-urban communities have strong ties with people who live off their ancestral land and/or live under traditional authorities and share common cultural values. Traditional knowledge systems, traditional knowledge and innovations are manifested through traditional practices and lifestyles. The introduction of foreign values, foreign religions, changing lifestyles and the legacy of colonialism have contributed greatly to lowering the status of traditional knowledge systems, traditional knowledge and innovations in Zambia.197

18The delegation argues that the viable difference exists between foreign or external influences in contrast to TK systems tied to the past and including geographic materializations of the past. Similarly, a WIPO publication on “Traditional Knowledge & Indigenous Peoples” stresses this dichotomy of perspectives on TK as the difference between colonial actors and indigenous peoples:

[49] Within this context, perceptions of indigenous knowledge rested on the dialectical tension between the “colonial” views of indigenous historic, cultural, and intellectual knowledge and the understanding of these bodies of knowledge as expressed by indigenous peoples themselves. (Popova-Gosart 2009: 17)

19This dichotomizing view is commonly held by stalling delegations in IGC negotiations. As outlined above, it coincides with the construction of different actor categories in communicative events where ILCs and their knowledge are portrayed to be spoken for by speeding delegations in contrast to external actors either causing or not acting against acts of misappropriation and misuse. A typical instantiation of this perspective can be found in a statement by the delegation of Senegal on behalf of the African Group at IGC 14:

  • 198 WIPO/GRTKF/IC/14/12:5, my italics.

[50] The Delegation reaffirmed that only the adoption of a legally binding international instrument could guarantee the effective protection of folklore and traditional knowledge as well as genetic resources of indigenous and local communities of Member States.198

20The aspect of claimed representation is of importance for this dichotomy, as it conceptualizes the debates of the IGC as a dichotomous conflict between speeding delegations and ILCs on the one hand and other actors on the other hand.

21On one level the dichotomy between indigenous and non-indigenous is national, domestic policy as related to history and to the confined territorial space demarcated on maps – however artificial those demarcations are culturally. As such, the colonial (or outsider) versus indigenous dichotomy influences social relations and the institutionalized forms of mutual recognition (Hegel 2006). The dichotomy also fleshes out power relations between urban elites, the holders of traditional knowledge, and of everybody in between and beyond. The idea of representation, meaning the state as the representative of ILCs and their cultural resources, reflects these power relations on the national level.

22At IGC 16, the representative of the ILC Indian Council of South America (CISA) argued that at the national level, the indigenous/non-indigenous dichotomy is both highly problematic and powerful:

  • 199 WIPO/GRTKF/IC/16/8:45–46.

[51] What needed to be avoided were so-called national authorities where the colonizer was effectively making the law and reducing the ability of the indigenous peoples to be protected. He stressed that the indigenous peoples were recognized as colonized peoples, and that national authorities were actually colonial authorities.199

23Thus, as a political concept, it points back to the past to have an influence on the present, to be used as political leverage. A large number of non-governmental organizations that deal with these power relations and the inequalities they cause are a vivid demonstration of how powerful this concept is.

24In its negative connotation “indigenous” is an attribute that is imposed on a social group as a stigma: you are indigenous, therefore you are backwards and not modern. Its semantic proximity to and frequent conjunction with the notion of “community” as an outdated form of social structure points to the way in which it is conceptualized as negative ideological residue of pre-modernity:

As a rule, groups represented as “communities” are comparatively isolated, subaltern, and not considered to be viable autonomous collective subjects. Indeed, “community” is in part a euphemism conferring dignity and value on groups in a negative position: it is a verbal gift from the rich to the poor. At the same time, insofar as the label implies a refusal of individualism, it distances its referent from modernity. (Noyes 2006: 29)

25In this terminological constellation, indigenous communities are construed as distancing themselves from the promises of modernity and adhering to the past without embracing and contributing to the present. While the concepts of traditionalism and conservatism are commonly linked to the idea that something from the past is pursued to redound to the benefit of society, the notion of community as a social actor grounded in the past is frequently associated with isolation, subalternity, and reproduction rather than with innovation.

26Numerous actors at the IGC, especially those representing ILCs and NGOs, make reference to indigeneity as a stigma:

[52] In the post-colonial context, indigenousness remained a characteristic that denoted an inferior and temporary social state of peoples, now approached as territories possessed by their respective states. This characteristic did not reflect the actual conditions of the indigenous societies – conditions that differed significantly across the world and, in many instances, even within one country. The later proposed theory that all post-colonial peoples were equally victims of the colonial regimes and should be uniformly deemed indigenous only enhanced the abstracted character of the term indigenousness. (Popova-Gosart 2009: 23)

  • 200 WIPO/GRTKF/IC/10/INF/5(d).

[53] The colonial project largely succeeded in depicting TK as barbaric, heathen, and satanic. Although the formal structures of colonialism have been dismantled, resurgent religious fundamentalism and the hangover of colonial mindsets make it very difficult for TK and forms of CE [cultural expressions, SG] to take their pride of place.200

27Both passages stress the construction of ILCs and their knowledge as inferior to other forms of knowledge and social organization on the one hand and the persistence of this constellation on the other hand. The derogatory view on ILCs and TK is especially present in the realm of cultural creativity. As Valdimar Hafstein observes, not only European peasants, but also colonial subjects were (and are) denied the ability to artistically create: “The subaltern do not produce, they reproduce.” (2004:79).

  • 201 See Bauman and Briggs 2003 for a discussion of the connection between language ideologies, moderni (...)

28In consequence, indigenous communities are in a Catch-22, with their indigeneity accusation and impediment at the same time. As the Other in a differentiation not of their own making, they are confronted with a dissociation that is constructed as reprimand: you are indigenous, therefore you are not modern – and, therefore: we are modern.201 Employing this notion of exclusion makes it possible to distance oneself by ascribing a negative social position to the Other, here the indigenous, and placing it in the past (Fabian 1983). Concurrently it places oneself at the other pole of this dichotomy in the present and as a part of modernity.

29In terms of cultural creativity, with the rise of individualism comes an acknowledgement of individual innovation. Such innovation is denied to the Other:

[…] creativity and originality were the privilege of the bourgeoisie, while the masses were unoriginal and could only transmit the songs and tales of earlier generations. The art of the common people consisted only of copies. (Hafstein 2004: 79)

30What Hafstein describes for the European concept of the original author in contrast to the unoriginal communal subject is analogously true for the relationship between indigenous communities and their self-proclaimed modern counterparts, at least in this specific constellation. This is illustrated by a passage from a work regarded as one of the foundational documents of the WIPO IGC process.

31In one particular instance, a lawsuit was filed in Australia in 1989 by an indigenous artist claiming a T-shirt manufacturer had used his artworks without permission. Prior to this case, it was generally assumed that indigenous artworks were not protected by copyright:

[54] Indigenous artworks were not “original” because they are based on traditional creation designs; they are passed on through the generations and are not the independent creative effort of the individual artist. (Janke 2003:52)

32The case was decided in favor of the indigenous claimant, and it was argued there was a large amount of individual creativity in the respective artworks.

33Yet, the underlying notion that traditional knowledge and folklore do not satisfy the requirements of originality persists in WIPO negotiations and in national settings. As Gregory Younging of the Creative Rights Alliance argued before the indigenous panel of IGC 17 in December 2010,

  • 202 WIPO/GRTKF/IC/17/INF/5(a):3.

[55] [d]espite the advances made by knowledge systems throughout the Indigenous world, the Western world’s general response throughout the colonial and most of the post-colonial periods was to dismiss the value of TK. Since only European people could progress, all Indigenous knowledge was viewed as static and historical.202

34The influence of this perspective of differentiation and the allied negation of innovativeness has considerable influence on international processes that try to agree how to protect traditional knowledge and folklore.

  • 203 There is also a pragmatic dimension of narratives, though specific social practices at times super (...)

35Of course, the practices of differentiation that are at play in this constellation are not bound to the national level. All social encounters draw from broader narratives and discourses, so though their status as viable social entities is sometimes denied to indigenous communities, socialization with these communities nevertheless exists. To exist, the self-conscious subject needs to recognize other self-conscious subjects as such (Hegel 2006: 120-136), and intersubjectivity depends on mutual self-consciousness. The attribution of otherness, as delimiting as it might be, is always acknowledgement of entanglement with other self-conscious subjects, so in practice, there is more social practice involved than mere narrative.203

36As property relations are social (as a process of recognition and differentiation of desires towards an object), so are the practices of differentiation. They are manifested in social events and rituals (in the sense outlined by Silverstein 2004) and as such influence communicative practices in and between social groups.

37To give an example, in a side event of an IGC meeting in October 2008, a WIPO pilot project in Kenya was presented. Its aim was to provide the necessary competence to the Maasai community of southern Kenya to document and digitize their traditional knowledge and folklore – a prime example for the “capacity building” programs that make up a large part of the UN’s development initiatives.

  • 204 Author’s notes, October 16, 2008.

38During the ensuing discussion, an indigenous representative of the Samburu community of north-central Kenya voiced her concern that by documenting traditional expressions with a view to protect them, other cultural communities might be legally excluded from their rights or discriminated against.204 As the Maasai and the Samburu share a significant amount of cultural artifacts and traditional knowledge and expressions, seeking protection for Maasai resources was potentially in conflict with competing claims, such as those the Samburu could make.

39Hence such local entanglements multiply difference. An international process might valorize one indigenous community to the exclusion, even stigmatization, of another. Difference, in this instance, means contestation between “competing” stakeholders seeking to improve their social status. In addition to the reservations she voiced, the Samburu representative inquired whether there were plans to include her community in the documentation and preservation efforts: this would clearly mean a revaluation and strengthening of the Samburu in this context. But at the national level, changing the how indigenous communities are viewed or treated is a selective and ambiguous process. The statement given by a representative of the Maasai Cultural Heritage Foundation at a WIPO panel on traditional knowledge illustrates this:

[56] The Maasai heritage in its all forms is facing serious problems and challenges. In most circumstances, the indigenous governance systems are not recognized by the Government as most of these cultural practices are considered to be primitive and do contribute to underdevelopment of the Maasai people. (Ole Kaunga 2006: 4)

40When considered opportune by a government, indigenous communities may be supported. Otherwise, the stigmatization of indigenous communities is the rule rather than the exception. This is in line with the view that constructs ILCs not as autonomous social entities, but as being represented and administered by nation states, including with respect to rights involving TK, TCEs and GR. This conception was illustrated during a discussion of the scope of beneficiaries and the management of rights at IGC 17. The EU proposed adding a paragraph to the “Draft Articles on the Protection of Traditional Knowledge” that read:

  • 205 WIPO/GRTKF/IC/17/5.

[57] the competent authority shall report to WIPO each year and in a transparent way on the distribution of benefits arising from the use of TK.205

41This proposal was aimed at ensuring a higher degree of control in the distribution of benefits, to ensure ILCs would profit. The Nigerian delegation countered that it was “ridiculous that people should report to WIPO”, thus both stressing the principle of national sovereignty and the view that ILCs are not autonomous entities. In IGC negotiations, member states often portray themselves as speaking on behalf of “their” indigenous and local communities. As the representative of the Indigenous People (Bethechilokono) of Saint Lucia (BGC) put it, it was not clear

  • 206 WIPO/GRTKF/IC/16/8:37.

[58] whether those States that spoke about their respective indigenous and local communities were mandated to participate in the Committee and speak on their behalf.206

42There is thus an awareness of this situations on part of ILCs in the context of IGC negotiations, that was moreover voiced by ILCs in private conversations during IGC sessions.

Potential

43The “indigenous stigma” described here applies not only to individual and communal subjects, but also to material artifacts (Martínez Novo 2005), biological resources (Pilcher 1998), and traditional knowledge. The last is frequently conceived as something of potential value that is stuck in an archaic, irrational and mythical belief-system. It is seen as something pre-modern that needs to be subjected to modern science or rational calculation in order for it to be utilized and exploited (Latour 1997). Yet,

[59] […] it is not considered so when non-Maasai have expropriated and used the same culture and used it for economic gains. The Maasai culture is a resource and it is being used by unauthorized non-Maasai for their own benefits. (Ole Kaunga 2006: 4)

  • 207 http://wipo.int/export/sites/www/tk/en/consultations/draft_provisions/pdf/pdf-tce-tk/coe.pdf, acce (...)

44In the context of the IGC, it is largely among the ILCs that one hears complaints about the devaluation of TK. One of these ILCs is Llamado de la Tierra, “an independent indigenous controlled initiative that supports and enables indigenous peoples to reframe the discussions and negotiations on intellectual property rights and traditional knowledge that are occurring in a wide range of forums, through our own perspectives and from within our own cultures”:207

[60] This construction of the intrinsic value of traditional knowledge compartmentalises traditional knowledge into categories of value recognisable to non-Indigenous cultures rather than treating traditional knowledge in the interrelated and holistic manner it is regarded in Indigenous cultures. This reframing of traditional knowledge into an intellectual property framework is at the core of our dissatisfaction with the Draft. There is no mention of the role of traditional knowledge in sustaining culture and passing on information which perpetuates Indigenous identity.

45The argument is that the intrinsic value of TK and its role in maintaining culture and identity is undervalued in international negotiations and specifically in WIPO’s “Draft Policy Objectives and Core Principles” for the protection of TK and TCEs. Added to this aspect of the value of TK, at the indigenous panel at IGC 17 Greg Younging pointed to a more general conception of value of TK:

  • 208 WIPO/GRTKF/IC/17/INF/5(a):7.

[61] In the early colonial period Western perspectives interpreted Indigenous Nations through the lens of Social Darwinism as subhuman and primitive. Consequently, despite it’s immense universal value, TK was also seen to be of little or no value.208

46The devaluation, or valorization, of traditional knowledge goes hand-in-hand with its perceived potential, be it for tourism, the marketing of crafts, biodiversity, or the development of pharmaceuticals. Yet, that potential needs to be revealed and to some degree separated from its aboriginal background. For tourism, a touch of “authenticity” is vital, yet it should be clean and free of conflict (Graburn 1976). For crafts, it needs to be standardized and receive a positive connotation (Chibnik 2003). For technological and agricultural innovation, it needs to be registered in databases and connected with modern knowledge (Seleti 2009). For biodiversity and potential use as medicine, the components of traditional knowledge need to be decoupled from interfering folklore and transferred to the laboratory (Hayden 2003a).

47A few examples of how this stigma functions are evident in the WIPO process:

[62] Traditional Medicine is a source of prosperity proper to Oman. However this intellectual asset has so far not been fully exploited, mainly because Omani are not yet fully aware of the value of the wealth they own. (Ghafele 2005: n. pag.)

48Reminiscent of the Marxist doctrine that the proletariat needs to be led by a “proletariat elite” to free themselves from oppression, this passage argues that the “wealth” hidden within archaic knowledge systems can only be capitalized on by transferring that wealth of knowledge to (scientific) processes that lie outside of these (indigenous Omani) knowledge systems. Similarly, the following alludes to the potential of traditional knowledge for pharmaceutical production:

  • 209 WIPO/GRTKF/IC/2/16:60.

[63] The [Egyptian] Delegation stated that traditional knowledge and its experiences were of paramount importance … to consumers, producers and breeders in general. In addition, the Delegation stressed the importance and potential of traditional knowledge in the field of pharmaceutical production.209

49It is not so much the current use and traditional practice that constitute the value of traditional knowledge, but rather the prospect of transforming it for use in “the development of scientifically acceptable products and processes” (Satish 2003). At IGC 11, the Moroccan delegation alluded in a similar vein to the potential of TK, GR, and TCEs for the development of modern technologies:

  • 210 WIPO/GRTKF/IC/11/15:12.

[64] In the region of North Africa, 70 per cent of wild plants had potential value in relation to medicine and biotechnology. That showed to what extent the increasing, and at the same time alarming, degree of misappropriation of GR, TK and EoF required the Committee to work for their protection.210

50Such views are common in the IGC, mainly with regard to GR, which was part of the decision to establish the IGC in the first place:

  • 211 WIPO/GA/26/6:para.1.

[65] With the emergence of modern biotechnologies, genetic resources have assumed increasing economic, scientific and commercial value to a wide range of stakeholders.211

51The “indigenous stigma”, that sees something as pre-modern and irrational, needs to be removed and the knowledge associated with indigenous communities translated into the language of science and rationality. The independent ability of those indigenous communities to create and innovate is thereby also negated. This is of a part with the notion that the traditional uses of genetic resources do not reflect human intellectual activity but instead discovery, in the sense that the properties of medicinal plants first need to be discovered in order to be of value:

  • 212 WIPO/GRTKF/IC/10/INF/5(d):15.

[66] The fact that TK is natural does not necessarily mean that there is an absence of human intellectual input. As already noted in the preceding pages, native healers in Ngwaland undergo many years of rigorous training and apprenticeship. Native healers in Ngwaland vary in their skills, competence, and knowledge. Some native healers are less knowledgeable than others. The difference in skill is often a function of their research abilities, experience, and willingness to experiment or innovate. It is therefore no coincidence that a decisive number of drugs derived from plant resources have been with the help of the most knowledgeable and innovative native healers.212

52Translation is in this sense also acquisition. By transferring knowledge from a state of “uselessness”, as those outside indigenous communities regard native knowledge, into something exploitable, one acquires the right to use this new knowledge. Bioprospecting, the patenting of genetic resources that have been discovered by studying traditional cultural expressions and plant use in traditional medicine (Hayden 2003) is a poignant example of this practice.

Rights

53From a different perspective, social struggles are fought with terminology: we are indigenous, therefore we have rights. In numerous instances, indigenous representatives in WIPO negotiations refer to the UN’s “Declaration on the Rights of Indigenous Peoples” (2007) to legitimize their claims as indigenous people. This is a very frequent reference to existing international law relating to the rights of indigenous groups, for instance voiced by the representative of the BGC at IGC 16:

  • 213 WIPO/GRTKF/IC/16/8:37.

[67] Referring to the UN Declaration of the Rights of Indigenous Peoples, he suggested that Member States should have a copy of the UN Declaration as many had adopted it. Article 31 of the UN Declaration stated that “indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions”. This issue was being discussed by the Committee and yet Member States, whilst having adopted the UN Declaration, had taken away this right from indigenous peoples.213

54The perspective is reversed in this case, such that in its positive connotation, the attribute “indigenous” is used for political and legal leverage. Existing regimes at the national and international level are referred to as legitimation for claims. The access to property, land and human rights can be established by making a link to their respective discourses.

55For indigenous communities and NGOs in the UN system, various avenues exist to frame an issue. For example, UNESCO has often singled out language, or an endangered language, as a distinct marker or means for determining whether a group is indigenous and hence deserving of protection. As a matter of strategy, NGOs or ILCs in such processes would be well advised to frame their concerns and desires from the perspective of an endangered linguistic community (Toivanen 2007). WIPO, on the other hand, deals with intellectual property rights in the context of traditional knowledge, so it would be advisable to avoid the issue of language and focus on traditional knowledge and folklore. The Convention on Biological Diversity (CBD) has installed access and benefit sharing (ABS) and prior-informed consent (PIC) mechanisms that are frequently referred to by IGC participants in order to claim these rights in the context of WIPO negotiations. The statement by the NGO ICRA International (Commission Internationale pour les Droits des Peuples Indigènes) at IGC 16 provides one example:

  • 214 WIPO/GRTKF/IC/16/8:15.

[68] It should integrate the principles of self-determination, PIC by the communities holding TK, equitable sharing of benefits derived from biodiversity, and respect for customary indigenous rules and protocols, as well as their integration into the hierarchy of the rules contained in domestic laws.214

56Different organizational settings or constellations require to frame issues accordingly, to translate oneself and one’s desires into that framework. Another effort by indigenous communities is to bring human rights language in, meaning to frame and translate issues of tradition as issues of human rights and become recognized by international bodies that deal with human rights issues. That increases the pressure, in their view, on those who do not want anything to result from WIPO's IGC meetings.

57The use of these discourses is not limited to references to international bodies, conventions or agreements. Global rights discourses also are entangled with national practices, since UN conventions feature in national discussions about indigenous communities as well. Indigeneity is used both as a dichotomizing marker and leverage, so terminology designed to denigrate a social group can be stood on its head and given a positive connotation. In the context of the IGC, references to indigeneity or indigenous communities then function as strategically deployable shifters. Still, to engage in such translation requires a knowledge of rights discourses, how differentiation discourses function, and be able to frame issues accordingly.

58Stigma, potential, and rights all highlight differences. When perceived as a stigma, indigenous communities are deprecated, and their traditional knowledge is nullified. As long as it remains untranslated, it is treated as not being of value. In terms of rights, indigenous communities can underscore their difference in order to tap discourses that can grant them rights.

Unity

59Yet, there are also perspectives that underline commonalities at the national level and externalize difference. The Declaration on the Rights of Indigenous Peoples does not contain a definition of the term “indigenous”, nor does the mandate for the United Nations Permanent Forum on on Indigenous Issues. Yet, more recent and critical definitions do focus on the social and economic marginalization of groups (Lee 2006, Cadena 2007). This is problematic if the perspective a state takes is one of “national unity”. The principle of national sovereignty, and domestic policy discourses, are at odds with claims of marginality due to an ascribed ethnic background or ascribed membership in a social group. Claiming indigeneity stands in opposition to national identity-building processes and struggles for national unity (Anderson 1983). Again, the resistance against this political concept (e.g. by NGOs and indigenous communities in WIPO’s IGC) is a vivid demonstration of how powerful it is.

60One way to resolve this is to externalize difference, for example by contrasting the present with some counterpart in the past. Points of reference can be specific historical events such as national independence or, more generally, colonial phases. Colonialism is used as a shared experience, characterized in an amalgamating spirit that temporarily bridges social gaps. Susan Philips’ (2000) analysis of language ideologies in Tongan courtrooms is a vivid demonstration of how linguistic regimes are used to construct a national identity that bridges social differences by referring to the past:

(…) they are invoking a relationship that establishes continuity between past and present political regimes. The distinctive features of the Tongan sister-brother relationship are viewed by Tongans as having existed prior to European contact (…) (254)

  • 215 A speech by Zimbabwean president Robert Mugabe in 2000, in which he stated that “the white man is (...)
  • 216 Popova-Gosart 2009: 22.

61Terminology is used to construct an overarching identity based on drawing a contrast to a manner of social organization that existed in the past. The externalization of difference in the IGC context is best illustrated by a “representational complex” in which national authorities speak on behalf of “their” indigenous and local communities, thus creating a dichotomy between different actor groups that is then used as leverage in negotiations. By portraying ILCs as both represented and in accordance with national governance structures and practices, opposing parties are constructed as acting against the legitimate interests of ILCs and indirectly supporting acts of misuse and misappropriation.215 In this process, ILCs are usurped by the respective member states and subordinated to national interests,216 legitimated by an external entity constituted by colonial experience.

  • 217 Author’s notes, February 2008, July 2009, December 2010.

62Yet colonialism is past. The time-frame in this dichotomy has changed: if colonialism is conceived of negatively, a break in time used to evaluate the past and the present, then those who lived on the land earlier become just another group of persons not judged by sociocultural realities but by an externalized entity lying in the past. The claim that every person who lived on the land before colonialism is indigenous can be heard both in diplomatic negotiations and from African delegates at the IGC.217 NGOs and indigenous communities contest this notion. There is a struggle over recognition (Honneth 1995), as the interests of traditional knowledge holders and NGOs are not identical with those expressed in national domestic or foreign policy.

63Still, some ILCs continue to refer to colonialism:

  • 218 WIPO/GRTKF/IC/10/INF/5(d):2.

[69] Consequently, the concept of TK is better understood within the context of colonialism and the irruption and truncation of the natural development of pre-colonial epistemological frameworks. In this framework, the attempt to use Western empiricism as the measuring rod for TK may be construed as a continuation of the colonial entrapment and marginalization of colonized cultures and peoples. Hence, the concept of TK is part of the legal and socio-cultural claims of indigenous peoples to shared equality, dignity, and respect with other peoples across the world.218

64They also contest the argument that TK and TCEs are to be administered by the state. The monopolization of the representation of interests by nation-states is, in effect, a continuation of the politics of difference of the national level. It denies indigenous communities the right to argue their own causes and desires. At the same time, the state appropriates traditional knowledge from these communities as it claims everyone is indigenous, or that the interests of the member state and of the ILCs in that state are perfectly aligned. That makes it easy to argue that the administration of rights to traditional knowledge lies with the national government and not the indigenous communities. National unity functions as political leverage in international negotiations such as WIPO’s IGC, and it is – as shown above – frequently contested by ILCs.

Justice

65To add emphasis to this argument, another dichotomy is invoked: the South versus the North, and related to it, transnational justice. Inequalities that exist between developing and developed countries are addressed in numerous UN fora (under aspects such as technology transfer, patents on essential medicines, education, and so forth). The question is whether the current UN system is fair, understood to mean in terms of equal representation of developing countries and industrialized nations (Gad 2006), and how it could be reformed.

66The combination of this North/South divide with the causes raised by indigenous peoples is especially powerful, as it combines economic/moral rights with human rights. One delegate from a developing country argued during an IGC session that the current system (of intellectual property rights) for the most part benefited the industrialized nations and continues to do so, but that “now it is time for us to finally get something” (author’s notes, July 2009). The statement by the Indian delegation at IGC 14 makes a similar point to invoke the notion of justice:

  • 219 WIPO/GRTKF/IC/14/12:45.

[70] For the first time developing countries were asking for protection of their rights and that as one NGO had pointed out, it was a very small portion of the global IP rights that developing countries were asking for, and that non-binding declarations or guiding principles or model laws would not be acceptable. The Committee was at a critical juncture where it had to be recognized that there was a need for equity, balance and justice, whether it be in IP, global equity in economy, political rights, and that it was the occasion to bring a certain semblance of proportion, equity and justice to the IP discourse.219

67As illustrated, these constellations of difference are not limited to WIPO’s IGC or to international negotiations. They expand to national and regional contexts and are reflected in the social realities and relationships between ILCs, the state, NGOs and a number of other actors, among them corporations interested in capitalizing on GRTKF. It would thus certainly be advisable to carry out case studies connecting the level of international negotiations with local contexts, especially with a focus on pragmatics.

68In this constellation, the reference is made to past injustices as well as to current imbalances in the UN system. Speakers use a constructed national (and regional) unity to make their argument, with indigenous communities (and their traditional knowledge) at one pole of the dichotomy between North and South, only this time as witnesses to injustice, not as autonomous communal subjects.

69In these last two perspectives, national unity and justice, the indigenous subject is subsumed and incorporated as part of an argument against an externalized entity located either in the past (colonialism and national unity) or the present (South versus North and international justice). All the perspectives outlined in this chapter relate to the past and organize the present by creating dichotomies and differentiations.

70The multiplicity of perspectives on the traditional knowledge of indigenous communities in international negotiations is in accompanied by isofunctional terminological fragments that refer to “property” (Carpenter 2009), “heritage” (Bendix 2009) or “value” (Myers 2001, 2004). These fragments are expressed in utterances and the instantiations of communicative strategies which draw on these substantive aspects. Contingencies and contested denotations (Silverstein 2004) in the terminology, for instance that used to refer to TK, TCEs and ILCs, can be better understood by taking them into account in the analysis of the IGC process. As perspectives on the substantive issues, they contribute to the specific manifestations of opening statements, referential frames and micro-edits. In the dialectical relationship between IGC participants, they play a constitutive role. They are part of the context that is needed to adequately analyze utterances. For an understanding of WIPO negotiations, the knowledge of these differing perspectives, at the level of substance, is essential, as they made a significant contribution to the communicative configuration of the IGC. By taking this level into account in the analysis of pragmatic strategies, minor utterance fragments such as “indigenous and local communities of Member States” ([50]) can be contextualized and connected to broader presuppositions about social organization, power and inequalities.

Notes

194 For a discussion of tradition and value in the context of the IGC, see Groth 2009.

195 As bilateral agreements and developments on the national level show, industrialized nations are not per se against agreements over TK, TCEs, or GR. However, they are cautious as to the implications an international and legally-binding agreement might have for the intellectual property system.

196 Povinelli 2002; see also Trouillot 2003.

197 WIPO/GRTKF/IC/1/12:1–2.

198 WIPO/GRTKF/IC/14/12:5, my italics.

199 WIPO/GRTKF/IC/16/8:45–46.

200 WIPO/GRTKF/IC/10/INF/5(d).

201 See Bauman and Briggs 2003 for a discussion of the connection between language ideologies, modernity and tradition, and the perception of others.

202 WIPO/GRTKF/IC/17/INF/5(a):3.

203 There is also a pragmatic dimension of narratives, though specific social practices at times supersedes it.

204 Author’s notes, October 16, 2008.

205 WIPO/GRTKF/IC/17/5.

206 WIPO/GRTKF/IC/16/8:37.

207 http://wipo.int/export/sites/www/tk/en/consultations/draft_provisions/pdf/pdf-tce-tk/coe.pdf, accessed 20 July 2011.

208 WIPO/GRTKF/IC/17/INF/5(a):7.

209 WIPO/GRTKF/IC/2/16:60.

210 WIPO/GRTKF/IC/11/15:12.

211 WIPO/GA/26/6:para.1.

212 WIPO/GRTKF/IC/10/INF/5(d):15.

213 WIPO/GRTKF/IC/16/8:37.

214 WIPO/GRTKF/IC/16/8:15.

215 A speech by Zimbabwean president Robert Mugabe in 2000, in which he stated that “the white man is not indigenous to Africa. Africa is for Africans. Zimbabwe is for Zimbabweans,” (CBC 2000) illustrates the violent potential here (Anderson 1983). Mugabe used colonialism not only as a marker in the past, but also as a political and ideological tool in the present. The “Indigenisation and Economic Empowerment Act”, passed 2007 and now in force, though not consistently enforced (The Economist 2010), states that 51 per cent shares of foreign enterprises or enterprises owned by white Zimbabweans must be transferred to “indigenous Zimbabweans”. Reference to the past, in this case, independence day, is made to create exclusionary practices by using the marker of indigeneity. The act defines “[I]ndigenous Zimbabwean” as “any person who, before the 18th April, 1980, was disadvantaged by unfair discrimination on the grounds of his or her race, and any descendant of such person, and includes any company, association, syndicate or partnership of which indigenous Zimbabweans form the majority of the members or hold the controlling interest.” (Indigenisation and Economic Empowerment Act, 1.2, 2007)

216 Popova-Gosart 2009: 22.

217 Author’s notes, February 2008, July 2009, December 2010.

218 WIPO/GRTKF/IC/10/INF/5(d):2.

219 WIPO/GRTKF/IC/14/12:45.

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