Protecting Indigenous Knowledge in Intellectual Property Law
Ruth Okediji is a renowned legal scholar in international intellectual property and its role in social and economic development at Harvard Law School. She is also the Co-Director of the Berkman Klein Center and has advised the United Nations and other international organizations. The Harvard Undergraduate Law Review sat down with Professor Okediji to discuss the current state of international intellectual property law and the protection of traditional Indigenous knowledge.
The interview below was conducted in the Fall of 2022. It has been edited for brevity and clarity.
Harvard Undergraduate Law Review: Our first question relates to the work you've done in the past. You've previously worked with governments and international organizations, regional economic communities and were even appointed by Secretary General Ban Ki Moon, to work with the United Nations. What do you see as the role of collaboration between legal scholars and policy oriented fields, and what are the existing pathways for cooperation between these realms?
Ruth Okediji: For legal academics, our greatest hope is that our work will have impacted field policy and that policy makers will consider our ideas and arguments when there is a need for change or legal reform. The hope is that we will be at the table helping to shape policy, rethink the established patterns of doing things, present policymakers with tools to enable them to make better choices or to consider an existing legal regime that may be having unintended consequences. And so, a lot of my work with governments entails both an educational component, a research component, and sometimes an advocacy component.
HULR: In your article, “International Intellectual Property Roots of Geographical Indications,” you mentioned how the weakness of the TRIPS agreement was essentially “the failure of the international intellectual property system reflecting interests or values that are not manifestly dominant in the societies of post-modern economies.” How can the international community at large and policy makers on a national level combat this failure in your opinion?
RO: I think it's important to remember that, when we're forging international collaborations, we're looking for at least two things. We're looking for commonalities. What are practices or values that we hold collectively, as an international community, that we can build on to strengthen not only economic partnerships but also political and other forms of social networks that enable democracy to flourish and that enable human flourishing? So, when we create international agreements that reflect only the practices, cultures, or interests of the most powerful countries, then we hinder the capacity of smaller, marginalized, non-dominant communities to benefit from the globalization of goods and services. It makes it harder for these communities to participate with their own goods and services in ways that are both faithful to their ways of living, and that are consistent with some of our broader ideals in the Human Rights field; for example, the right to self determination, the right to benefit from the fruits of science and technology, the right to maintain their own systems of innovation.
International agreements need to foster greater collaboration between minority groups and minority cultures, but also to forge possibilities of collaboration on grounds that we all hold firmly. One example of this is the right to benefit from science and technology, which is an economic and political right. You have to balance that with the right, for example, of Indigenous people to self-determination. Some Indigenous people who use genetic materials in their environment to create medicines, or to create therapeutic protocols to treat disease in their communities, may not necessarily want to be part of the traditional system of institutions. We need to think about how we encourage innovation in communities that may have concerns about the modern intellectual property system. Those are the kinds of questions that interest me, both from a policy perspective, but also from a human rights perspective and a human flourishing perspective.
More powerful countries, and when they are negotiating, should keep in mind that we can benefit from minority communities as much as minority communities can benefit from us. It's not always the case that the most advanced industrial economies have the best knowledge and learning; for example, Indigenous communities are the ones that are stewarding the vast abundance of biodiversity. Most of our biodiversity is being protected by Indigenous communities around the world. If we're serious about the problem of climate change, and we're serious about innovation, then we need to think about the way these communities protect their biodiversity and innovate at the same time, and we might have lessons to learn from them.
HULR: Your discussion of the role of collaboration between minority communities was really interesting. Do you want to touch a little bit more on what you mean by that or how you see that happening?
RO: In international agencies, it's important to actually create space for Indigenous and local communities to engage and share ideas. It’s important for Indigenous communities to be represented in these international negotiations that often affect their interests and affect the way that they live. I'm very keen on mechanisms that allow international actors that are not states to be at the table in negotiating international agreements. I think that's a really important structural adjustment because international law is typically understood as the law of nations. So if you're not a nation, then you don't often participate in the lawmaking treaty making events that occur globally. And I think it's important for Indigenous communities, First Nations, and local communities, to have a say in lawmaking globally, and certainly to have a say in the kinds of legal frameworks that affect their interests.
HULR: So, I'm actually from Kashmir, which doesn't have a state, so I'm curious if you see the possibility for places like Kashmir to be embedded into these legal frameworks of international law that don't currently have space for non-recognized nations and states.
RO: Yes. There is certainly a place in the area that I'm working on currently, which is traditional knowledge. This is essentially knowledge that has been passed down from generations that has both economic, cultural, and spiritual value to the communities that hold it within our international human rights systems. We recognize the rights of non-state actors, and it is also the case that there's a tension between the rights of the state as a political notion and the right to self-determination of people. But the recognition that these communities exist and have interests that lead to difficulty, and that there are mechanisms for them to come to the table for their self-dignity and self-worth to be acknowledged, I think is an important step. So recently, for example, over the last 20-30 years, International Law has started to recognize non-state actors, like international civil society organizations, that now really play an active role in international law. We also see there's been a big effort and attention to protect refugees and stateless persons. So I think there is clearly a sensitivity to that. And we need to build on the sensitivity that every human community should have an opportunity to participate in the lawmaking processes that affect their interests and destinies. In that, there’s a crucial component of the human right to self-determination.
HULR: You mentioned negotiating a bit. What has been the most effective approach when negotiating with other countries to adopt institutional and technological tradeoffs to reform and address inequalities in IP law?
RO: Specifically, the first has been to listen. I think listening is key. We live in a culture dominated by digital communication networks that make talking easy, fast, and frictionless and that means that we are even worse listeners today than we were a decade ago. Listening is one of the ultimate acts of respecting the other person. Loving your neighbor. Being humble in the idea that you can learn from someone who has a different perspective and a different background. No matter how much we talk about it as a concept, diversity meaningfully happens when we actually listen to each other. In negotiations, I have found that there's nothing more effective than actually listening to the person with whom I may not agree — the person whose objectives in the negotiations may be very different from mine. But I'm not going to know what the points of difference and convergence are until I actually listen. When you listen to other negotiators, you may find that what appears to be a point of difference is actually not as deep division as it appears. So, we find ways to identify: ‘oh, we actually are starting from the same place’ or ‘we actually want the same outcome on this issue,’ so how can they work together to get there?
For me, the art of listening is something that I'm very intentional about. It's hard because it always feels better to say something than it is to listen. But actually, the best results come when both parties have an opportunity to speak. The idea is that you may see perspectives that you haven't seen before.
The second important thing to remember is that the goal of negotiating is not just to produce a product but to produce an end result that is meaningful and beneficial to human society. We can argue about what a benefit is or whether it's as beneficial as it could be, but I think that understanding that the end goal is not just a piece of paper, but a set of doctrines or rules or practices that will improve conditions for human society around the world, is really critical. That is a helpful reminder. I like to be reminded of it and I also like to remind the negotiators of it that we are here because we want to improve on what we have. Not because we want to destroy or make things worse. That can help us identify what is common to our interests. What are the things that we all care about? What is our vision of human flourishing, and how can we take aspects of our vision and implement it here? Always trying to find places of convergence and afterward listening is very productive. Then, the last thing I would say is, never start with the hardest places first.
HULR: Related to your earlier discussion of traditional knowledge, in your article on grafting traditional knowledge into a common law system, you discuss the protection of knowledge and international communities and how common law has limitations when it comes to fully adapting to Indigenous knowledge. As you said, regardless of potential improvements in IP law, if they're unevenly enforced, or if the administrative procedures are too expensive, complicated, or otherwise prohibited, the entry costs will prove too high for Indigenous people. I'm curious how you see global common law systems being designed to protect Indigenous traditional knowledge and what procedural changes can be implemented to prevent this uneven enforcement of improved laws?
RO: Courts have to be better equipped and prepared to address questions at the intersection of sovereignty and Indigenous knowledge. The really big concerns and the big challenges for many Indigenous communities are that they come face-to-face with laws that are passed by legislature, and many legislatures don't include representation from these communities. And the laws are passed, not considering the things that are sacred to those communities. So in modern intellectual property and scientific regulation, we don't think knowledge is sacred: knowledge is a good, something that we trade in. It has economic value, but we don't think of knowledge as having separate value. But in many Indigenous communities, knowledge has an intrinsic value. The competition between these two visions of knowledge is something courts have to be sensitized to.
It's important for us to be able to draw meaningful and useful analogies between what we understand in a constitutional framework and what Indigenous people hold dear in their own constitutional framework. So educating judges so they are more aware of the possible analogies is important. I think it's also useful to have experts who study the field and who can translate. A lot of times there is a difference not because the things are qualitatively different, but because there's no one doing the translation, almost like with a foreign language. You could be saying, I want a cup of coffee in French, and I can be saying it in English, but unless someone translates for both of us, we're not going to know that we're asking for the same thing. It’s a social translation and even cultural translation that needs to take place, and lawyers and courts are a big part of that process.
HULR: You mentioned rights and having more property rights. In your piece, “Does Intellectual Property Need Human Rights?” you mentioned “as human rights frames continue to exert moral force on the direction and exercise of IP rights, they also must exert similar force on the design of those rights and the means by which States become obliged to adopt them within local conditions” back in 2018. Since then, have you seen an improvement of human right interface constraining states to make choices that incentivize innovation?
RO: Wow, that's a good question. I would answer that question by saying COVID-19 was an eye-opener for most of the world. For the first time, we saw more powerful countries, more developed advanced economies, having to make choices that historically have only been made by developing countries and smaller countries. So, for example, there were no COVID-19 vaccines that were available or could be easily bought in the open market. So countries like Israel, for example, issued the first compulsory license basically saying, ‘if you can make this vaccine, make it, we don't care about the intellectual property.’ And so you can see that this is a debate that has been going on since the HIV/AIDS crisis, when South Africans were dying by the thousands because they couldn't afford the cost of patented drugs; so, South Africa decided that they were going to make those drugs themselves. There was a huge outcry from the U.S. saying, ‘you're stealing our property’. You see the tension between countries wanting to use legal tools, but looking at their citizens down and saying, ‘we have to save these lives.’ For me, I think my work tries to ask, what are these legal tools for? Who are they meant to serve? What objectives are they trying to accomplish? Because COVID-19 really brought home that all of us could be in this situation where we can't afford the medicines that our citizens need to live.
Countries were doing lots of different things, you know, some countries like India, you could not export the vaccines until there was enough for India. There were many emergency regulations that were put in place in order to make sure that citizens were served first. We call this vaccine nationalism, where you were taking care of your own citizens first, before you were exporting it to make it available to countries in the Caribbean or in Sub-Saharan Africa. Before, the conversation was only about property. All of a sudden public health emergencies and put pressure on that debate. South Africa and India, for example, submitted a proposal for a waiver of intellectual property rights for the first time in recent history. The U.S. supported a waiver for intellectual property rights in order to facilitate access to vaccines. So you can see where the human right to access medicines, the human right to be able to live was affected by property rights, and ultimately, the nature of the pandemic. The global nature of the pandemic ended up with the moral pressure on property rights. So I think emergencies and national disasters impose constraints on countries because it's hard to watch people die when there's something to do.
HULR: You’re a renowned legal scholar with expertise spanning international intellectual property, traditional knowledge, and genetic resources. I'm really curious what inspired you to specialize in these fields and what your journey looked like to where you got to be today.
RO: When I started in the field, there were no people of color in this field. Most law schools were not teaching intellectual property. And there were no women. So I was a minority among minorities among minorities. In a field that didn't even really exist at all. But I was looking for a topic to write on for an honors paper and one of my mentors went to a conference and came back and said, “Go read these papers.” And those four words changed my life. I locked myself up in the dorm, and I read those papers on the role of patents in transferring technology to developing countries. It was like going from black and white TV to color. I had never heard about patents and knew nothing about property. I didn't understand that there were rules and laws that regulate intellectual creativity and ideas. And I was fascinated. So I wrote my honors paper and it ended up being 138 pages on the transfer of technology to developing countries to that system. It was this whole field that didn't really exist in that sense. Back in those days, people who studied patent law were all engineers, who were not going to be lawyers but wanted to be patent agents and so they needed to talk to us at the law school. Patent law was not something that had a lot of theory to it. It wasn't connected to the broader society or to everyday life. And I remember people would ask me, “Well, what do you want to do?” And I'd say “I want to do intellectual property.” And they’d say “what’s that?” And now I get into a cab in Paris, or in Lagos, or, in Rome, or in Johannesburg, and the cab driver says, “Oh, what do you think about this lawsuit against Jay Z for the song that he stole?” or “What do you think about the Maderna vaccine and how much it costs?” It's now the language of everyday people to cab drivers and janitors and PhDs and presidents — it's now a universal language. And it's amazing to me, when I think of how hard I used to have to work to just explain what intellectual property was to my peers. I never cease to be blown away that now it's just common currency.
It was hard not having many women and people of color in STEM. That shows up when you're doing intellectual property because people who are interested in science and the law, and science and innovation, often themselves have scientific backgrounds. But it was still a very lonely place for me as a woman and as a woman of color. But this was my passion. I had found my passion and that passion drove me. I wanted to see a different world. I read a speech by Gandhi when India was changing their patent law because the price of medicines in India was higher than the prices in the United States. And then, the Indian government changed its patent law to eliminate patents on pharmaceuticals and that sacred change is what created India as the generic supplier of pharmaceuticals.
So, to your earlier question about policy, and that sudden change in the generic firms spreading government today, India supplies so much of the world's medicines. And that's because until the TRIPS Agreement, India didn’t allow you to get a patent on pharmaceuticals. Actually, until recently, many countries never really patented medicines.
As another example, previously, we weren't allowing copyrights on educational materials. Now, if you'd asked my law students how much they're paying for their books, my casebook for copyright is $300. So, we are fighting with my publisher to drop the prices because I can't be fighting for access to medicines and access to educational materials and then my own book is somebody’s rent. We have to begin, as copyright scholars, to think of ways to reduce the barriers to access to what we call public goods, access to the things that make it possible for you to realize all the other rights that you have. Because if you were not educated, your capacity and your ability to exercise your rights are diminished. That’s not because you don't have rights; it’s because you don’t have the tools to use those rights. And so, you have to imagine people who can't access books because the books are too expensive — students all over the world and the Global South in the Caribbean, in Asia, and America, South America, South Africa, who are having to rely on photocopies of older forms of knowledge because they can't afford the price of textbooks, and these are all governed by intellectual property rights. And so, I have a deep and strong passion for justice, and the places where justice really holds for me is in intellectual property and making sure that the rules that govern innovation, which is supposed to enhance human flourishing, shouldn't be the rules that prevent humans from actually flourishing.
I am always looking for young women, women of color, who want to be in the field. We need those voices and we need those perspectives. I think until we have a diversity of perspectives around the table, we cannot improve the systems that we have.
HULR: At what stage do you think progress is at? How much more work do you think there is to be done?
RO: Robert Frost, if he were here, would say ‘there are miles to go.’ There’s progress because more people understand the consequences of intellectual property laws that are not attuned to the differences in economic capacity that make it almost impossible for countries and groups of people to benefit from. A lot of my work has been fighting to open up space for poor countries. All of them tend to be communities of color or communities that were former colonies, and so, there is a lag in the use of intellectual property for economic development. The U.S., as a former Britain colony, our earliest intellectual laws were very internal looking. For example, we did not protect the wealthy. Charles Dickens traveled to the U.S. and complained all the time about how he would see his books being sold on the streets in the U.S. and he was not getting anything in return. This famous author really felt disrespected, dishonored, and cheated because his work had no protection in the U.S. But the U.S. was doing that because we needed to educate our citizens as a young democracy, a young country. The Founding Fathers understood that if we don’t educate the citizens, we will never be able to be truly independent.
If you look at our earliest intellectual property laws, they were very internally focused. They discriminated against foreigners. Why? Because we were trying to create a technological infrastructure, which requires education. So we needed access to books and needed access to technology and so our laws were designed to do that. It wasn’t really until we became more capable of producing for ourselves that we began to adopt the higher standards of intellectual property that Europe had.
Developing countries are in the same exact situation too. If we adopted the golden rule, do unto others what you would want done to you, I probably wouldn’t have written half the articles that I have. But that’s not the rule. We not only create these rules locally, we then create international systems that embody the disparate treatment into the international legal system. That is an injustice that needs to be addressed because justice is not just about outcomes; it’s about giving people the opportunity and capacity to make the best of their own lives. We can learn from community-based innovation and values because those kinds of values preserve the climate and environment. We don’t see the kind of segregation when you look at Indigenous innovation the way we see it in our industrial state. That sharing of knowledge and sharing of how you value knowledge is a really important thing. And then, it is very reminiscent to me that slaves were not allowed to own intellectual property and many inventions were by slaves. The consequence of that is when you look at the rates of people getting patents — women of color, people of color — it’s small.
Now the U.S. patent trademark office is now involved in a pilot project, trying to encourage and see what are some things we can do to increase the rate of women and people of color getting into enterprises and getting patents because patents are expensive. So there’s a structural system, where even if you have the idea, you can’t get the patent because you can't hire the most expensive lawyers and you can’t pay the patent filing fee. That’s important to know as well. I’m currently working on an essay that examines how the woman who co-invented the Moderna COVID-19 vaccine was not included in its patent.
HULR: Bringing it back to the TRIPS agreement, what has been the biggest challenge you’ve witnessed within getting communities in the Caribbean and nations in Sub-Saharan Africa to implement the TRIPS agreement?
RO: First is just the cost. You have to train a whole cadre of lawyers on intellectual property. Remember, I was at Harvard in 1991, and there was only one intellectual property class in the curriculum. It wasn’t until the TRIPS agreement that intellectual property became kind of a hot ticket item for the law school curriculum. So, you can imagine developing countries thinking about how we feed our citizens, investing in intellectual property laws is not going to be high on that list of priorities. Just the cost of doing that, the trade-offs: do we not teach people to go to vocational schools? What are we going to sacrifice if we are a third-world country in order to comply with the TRIPS agreement? Economists have actually calculated how much money from poor countries to rich countries as a result to implement intellectual property and it is a lot of money. Remember, intellectual property makes it illegal for you to just take the technology without paying for it or for you to even imitate the technology without paying for it.
And so, the cost of compliance is so high in most countries. When you are a technology-importing country, your funds go towards technology rather than food, education, infrastructure, roads, schools, hospitals. It’s a high cost of enforcement.
The second challenge is what I shared with you earlier, that many developing countries clearly innovate but not in the way that the IP system recognizes. For example, many Indigenous communities create patterns, beautiful textiles, but these are not cultures that necessarily rely on written traditions. The women train each other. There's not a book. The women gather. When they train, they pass it along orally from generation to generation. But you know what the criteria for getting a copyright is that it must be fixed. So if you are an oral culture, you immediately are excluded from that system.
It's difficult to speak about compliance with TRIPS in countries where intellectual property doesn't resonate or reflect the way that innovation and creativity occurs in societies. And that's true not only in countries, but it’s true of communities even in countries where you have intellectual property rights. So Native Americans, for example, the United States, a lot of their innovation and creativity does not get protected. Any culture that is not fundamentally a formalistic culture tends to not fare as well under these groups. So culture affects the nature of innovation, and culture clearly affects who benefits from the IP system in terms of who actually acquires intellectual property. These are the kinds of challenges that my work really looks at with governments, encouraging them to think about the laws. China is now the number one patent country in the world. And China has not only patents, but what we call pending patents, which essentially makes it possible for innovations that are only incremental innovation, and you can still get protection for it. There's a lot that countries and policymakers can do to improve both the sense of justice of the system, but also the way in which the system is intended to benefit the economic trajectory of governments, countries, and the economic possibilities of local communities.
HULR: For our final question, we're curious to hear about what you see as the direction for global IP law in the next couple of years and where it's headed?
RO: Well, I’m off to Geneva next week. We have been asked to help train the negotiators. When countries aren’t able to invest in a particular subject and when you're making international agreements, there are no negotiators to represent your country's interests. So training negotiators and really working with policymakers to help them understand the stakes is, I think, an absolute crucial need as the field goes forward. We need to really address the differences between the international system and the national system.
Very few schools teach international intellectual property, so a lot of the lawyers do not know the international agreements as well as they should. I would say education is huge. Understanding the international system is pretty big. I think the other thing is COVID-19 has drastically changed the language of “can we have exceptions to these rules?” And what are those assumptions? Can we save lives? What can we do? There are ways in between to improve the international system by creating new exceptions that allow knowledge to flow freely across geographical borders. So those are the things that I think are important. Countries are really going to think about whether we can create limits on the system that we created in 1995. That is what the big battle is about. And if we can create limits, what should those limits look like? Who should get to benefit from those limits? And I think we have fairly heated battles ahead of us.