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Contracts for ‘Compensating’ Creativity :


Framework for using market and non market based instruments for

rewarding grassroots creativity and innovations1


Vijaya Sherry Chand, Murali Krishnan, Kirit Patel, Anil K Gupta


1. Towards a re-interpretation of “compensation”


The Convention on Biological Diversity (CBD), by shifting the interpretation of biodiversity’s proprietary status from a “common global heritage” towards property subject to national sovereignty, enables states to control access through mutually-agreed terms and prior informed consent, and to claim equitable compensation. Article 8j of the CBD provides for states to take steps to reward individuals and specific communities embodying traditional lifestyles with in the above framework. At another level, revised national intellectual property protection laws under the sub-agreement relating to Trade Related Aspects of Intellectual Property Rights (TRIPS) may help in ensuring rewards to grassroots innovators provided appropriate modifications are made in the patenting procedures and mechanisms. However, doubts have been expressed about the feasibility of recognizing, and extending protection to, traditional knowledge, under current intellectual property laws (Axt et al. 1993). A third develop­ment, primarily in the field of biodiversity prospecting, is the effort to combine indigenous(1) peoples’ tangible rights over natural resources with compensation for their knowledge which, by identifying promising plants, helps prospectors reduce their own transaction costs.(2) These arrangements have rightly focussed attention on the issue of compensation to the providers of the raw material that derives from the natural resources to which the providers have access. However, most of them are premised on a particular, and very crucial, understanding of provider socie­ties.


This understanding, which has its historical roots in the En­lightenment, conceptualizes the “self” (in this case, the North) in terms of the various forms of liberal individualism, and the “other” in social or communitarian terms. Thus, the “self” is underpinned by rights which are legally-recognized claims at­tached to legal subjects (individual citizens or legal personali­ties). On the other hand, the “other” relies on “traditional” and communally owned or accessed property, and on knowledge claims which derive from “tradition”, may not be legally recognized, and thus may not qualify as “rights”. This approach may be attributed to an inability to appreciate the dynamics of the systems of ethics, rights, responsibilities and obligations within provider societies. But it has certain consequences for the way in which the issue of compensation has been hitherto discussed.


(a) The indigenous communities, and individuals who comprise them, have not been generally conceptualized as active agents, whose interests and abilities may extend beyond just providing material for screening elsewhere and in return undertaking com­munity development work. Capabilities concerning scientific exploitation of natural resources and legal negotiations may not exist at present, but a recognition of an agency function in provider groups is a necessary step for building in capacity-development initiatives, including technology transfer and local entrepreneurial activities.


(b) Traditional knowledge is supposed to be characterized by the fact that it has been “handed down for generations within the indigenous community” (Axt et al. 1993: 35). This position disre­gards the process of reconstitution of knowledge during its reproduction and transmission. In other words, inventiveness is a quality which, according to this conception, would seem to be absent in the perceivable forms of “traditional knowledge”.


(c) A corollary of the above is that the role of individuals (who are subsumed under “communities”) in improving, adding value to, modifying, practices which may have their origins in the distant past, is discounted.(3) In effect, the approach precludes recog­nition or rewards to such individuals.


(d) A more serious consequence is the conceptual split between material resources and knowledge, with the assumption being that “knowledge” resides in the receivers, and material with the providers. It should be realized that “knowledge” of a particular kind, for instance, biotechnology, cannot substitute for knowl­edges which reside in all communities. Not doing so has resulted in a devaluation of those knowledge systems which have been active in the conservation, management and development of natural resources. In other words, the claims are assumed to be associat­ed with only the natural resources, thus making them eligible for compensation commensurate with the value of the samples and/ or anticipated returns from commercialization.(4) Any attempts at sustainable development must valorize local knowledges associated with conservation, aim at building up the capacities of the holders of such knowledges and recognize the prerogative of the individuals or communities to share, on their terms, the material and associated knowledge, with external agents. Such an under­standing of the broad issue of compensation for the tangible property (natural resources, in a modified form or otherwise) and the associated intellectual property (knowledge of individuals as well as of communities) underpins the various initiatives of SRISTI in this regard.


2. Framework for rewards and incentives( Gupta, 1989, 190, 1991-96, Gupta et al, 1994, Patel et al, 1996)


The operationalization of the understanding of “compensation” outlined above implies attention to the following three aspects:


(i) recognition of the creativity and innovativeness of indi­viduals and collectives through a system of documentation and registration, thus establishing the issues of who should receive compensation and why


(ii) generation of models of rewards and incentives for differ­ent types of knowledge and for different types of skills


(iii) generation of rewards and incentives-monetary and non-monetary-at the individual as well as collective levels, for local innovations.


These three aspects, and the issues they raise, are discussed below. It should be noted that each aspect assumes attention to building capacities and capabilities of local communities.


2.1 Recognition of the creativity and innovativeness of individu­als and collectives through a system of documentation and regis­tration


As noted earlier, the knowledge systems of local communities have been dynamic enough to permit incremental modifications and adaptations of those practices which may be considered “tradi­tional”. Some times, such knowledge has been protected through processes akin to the modern system of trade secrets. For in­stance, there are many instances of experts within local communi­ties continuing to attach secrecy to unique knowledge in their possession. On the other hand, there are also many instances of local communities offering their knowledge to outsiders, often without any expectations of rewards. The documentation and publi­cation of such knowledge has the potential for promoting lateral learning among people who are struggling with problems that can be solved by such knowledge. However, publication of the knowl­edge has the potential to exhaust the intellectual property rights of the innovators, by bringing the knowledge into the public domain. (Whether such publication constitutes prior art will depend on the ease of access of the form of the publication.) In order to resolve this dilemma, SRISTI has adopt­ed a three-pronged strategy: dissemination of practices in a synoptic form; concurrent research on value addition; initiation of a system of registration of local innovations which will prevent third parties from seeking to derive benefits from regis­tered innovations without some form of licensing. (Efforts are on to formalize the system of registration described below.)


The benefits of such a registration system ( INSTAR- Internation­al Network For Sustainable Technologies and Applications) are the following:


1. acknowledgment of individual and collective creativity;

2. providing assurances to local innovators regarding a share in the benefits that may arise from commercial appli­cation of their knowledge, in the form in which it was registered or in a value-added form;

3. facilitating linkages between innovations, investments and enterprises, by reducing the transaction costs of small-scale investors and grassroots innovators. At the same time, it can facilitate the process of novelty searching. The World Intellectual Property Rights Organization offers complimentary help to third world innovators; however, it has been handling only about 600 cases every year in the recent past. In any case, the issue of access to novelty searching processes would remain, in the absence of the registration system;

4. the registration system would make it possible to create an autonomous authority for scrutinizing any contracts that may be based on the registered practices and for supervising extraction of natural resources to see that principles of renewability are being followed;

5. the contextual information pertaining to any registered practice or innovation, which can be updated periodically, will help in connecting communities facing similar ecologi­cal situations;

6. the registration can be extended to the award of inven­tors’ certificates or petty patents that allow protection for specific purposes, for a limited period of time. Such mechanisms can also help in gaining access to preferential credit and risk cover, in order to facilitate the transition towards value addition;

7. finally, the registration system can be part of a Knowl­edge Network (Gupta 1995) that can promote people-to-people learning and serve as a multi-language, multi-level, multi-media, clearing house for local communities.


In effect, registration, in the names of individuals or associa­tions of local communities, should award the registered practices right of precedence in matters of filing of applications for protection of intellectual property and exclude others from filing patent applications on the basis of the registered prac­tices. Several patent offices have been approached with a view to exploring the feasibility of getting formal recognition for such a registration system. The system will be particularly effective in extending protection to practices which involve wild plants that perform specific functions in domestic agriculture (for instance, green manuring, herbal pesticides, veterinary medicine, stress feeds, anti-oxidants). This aspect of biodiversity is neglected by the Plant Variety Act and UPOV. Also, it will enable protection of heterogeneous populations of many cross-pollinated and multi-line, self-pollinated land races, since breeders’ rights are granted only for varieties which are distinguishable by one or more characteristics which are stable and homogeneous. The heterogeneous varieties are likely to have greater value in terms of genetic material resistant to pests and diseases. Pro­tection of such plant-based practices through registration will also pre-empt applications in countries which allow patenting of plant forms. To conclude, establishment of a registration system can be a precursor to extending more concrete intellectual prop­erty rights, through patents for instance, to local communities and individuals.


2.2 Generation of models of rewards and incentives for different types of knowledge and skills


Specific attention has to be paid to conservation of knowledge, since conservation of biodiversity is inextricably linked with associated knowledge systems. For instance, classificatory knowledge relies for its existence on diversity in nature. Documentation of local taxonomies and identification of local taxonomists would be of help in conserving the local diversity. Eco-indicators constitute an important part of associative knowl­edge, since they act as early warning signals of desirable or undesirable natural events. They also help in coordinating the strategies of people competing for the same resource niche.5 Documentation and exchange of such knowledge would serve as incentives for conservation and for developing mechanisms for regulation of collective behaviour. A matching of various in­centives with the different dimensions of knowledge is present­ed in Table 1.


Table 1: Incentives for different types of knowledge


Knowledge Type Incentive


I) Reductionist


1. Discriminating/ maps of soils, trees etc. in local

Classificatory taxonomies, data banks that are

accessible to the local innovators

or conservators in local language,

gene banks which serve as safe

deposit vaults for the farmers

conserving germplasm in situ, local

herbarium and museums that are

linked to local ecological and

taxonomic systems; botanical and

medicinal gardens in schools or

common property lands, employment

for local taxonomists etc.


2. Attributional biodiversity competitions among

school children; providing career

scholarships to little genius for

studying as long as they wish to

become naturalists: inviting local

experts to school to impart observ-

ational skills (with or without

honorarium); compensation for

ethno-botanical knowledge provided

to outsiders etc.


2. Associative documentation of eco-indicators,

some of which could be used as

early warning signals


3. Causal Using causal knowledge of local

experts as vital inputs in projects

for restoration of ecological

balance, reclamation of degraded

lands; grassroots environmental

health monitoring units managed by

local communities etc.


4. Functional adding value to functional knowl

edge by converting it into technol-

ogy and /or discovering the science

behind it; strengthening local

capacity to carry out on-farm

experiments, creating community

laboratories or research farms

managed by creative communities;

venture capital grants etc.


5. Heuristics Congregational: getting them to

gether; compensating local innova-

tors when scientists use their

heuristics to make new discoveries

traveling seminars of local ex

perts; narrative-metaphorical learn

ing stimulated through small and

large group interactions


II) Holistic


6. Knowledge about Consult local experts while target-

limits/boundaries ting new technology, conserving

specific species or habitat since

they have knowledge about ecologi-

cal niches


7. Systematic linkages consulting local experts during

ecological crisis; conserving

linkage between sacred and secular;


Source: Based on Table 2, Gupta (1996: 15)


In practice, the application of knowledge is manifested in the form of skills. Providing incentives for the augmentation of skills is another route to conservation of the underlying knowl­edge. Very often, people combine repetitive skills in one sphere of their activity with judgmental skills in another. For in­stance, Karimbhai Sumera in Gujarat is an outstanding herbalist who provides his services at no cost. He earns his livelihood through pottery, which involves repetitive skills. Incentives for pottery, through technology, new materials, design or access to markets, may help reinforce the ecological ethics underly­ing free dispensation of herbal medicine. The incentives for judgmental skills (judging local cattle, predicting rains), would be different. Providing incentives to local experts to take on apprentices or mentoring roles, may be effective. Restorative skills may involve integration of knowledge of causal relations, associative knowledge, functional knowledge as well as knowledge of system linkages.6 Conservation or augmentative skills may be repetitive or judgmental. These may often be associated with culture and institutions. Hence conserving eco-ethics becomes as important as conserving the skill itself. These four kinds of skills and some applicable incentives are listed below (Table 2).

sultants and trainers for government schemes


Table 2

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