The Beyond-Intellectual-Property Moment in Context

In 1996, Darrell Posey and I published Beyond Intellectual Property: Towards Traditional Resource Rights for Indigenous Peoples and Local Communities. We must have given the impression from the title that the book was about patents, copyright, trademarks, and other legal rights in creative productions as they affected Indigenous peoples. It was about these things. But there was much more to the book. It offered a broad “bundles of rights” framework to comprehend and advance Indigenous peoples’ rights in knowledge, resources and territory. In addition to our lack of schooling in the discipline of law, the book had another unique feature diverging from mainstream legal publications: rather than legal scholars or practising lawyers, its primary target readership was Indigenous peoples. We intended it as explicatory and practical, and we conspicuously avoided paternalism.

Ten years before work on the book began, it would not have been conceived; ten years later it would have been redundant. This article offers reflections on the book’s timing, placing its publication in context. I do this to highlight its historical and anthropological significance, something certainly not apparent to me at the time. In hindsight the book, in the guise of a volume ostensibly about intellectual property law, embodied an ongoing shift in thought regarding the relationship between Indigenous knowledge and territory. 

Whereas hitherto Western mainstream thinking saw them as distinct and separate, in fact they were linked profoundly and inseparably, and this mattered not just to scholarship but to the making of law and policy. These inseparable links were common knowledge to Indigenous peoples, and Western thinking was only catching up with them. But it mattered a lot because with respectable scholars providing scientific evidence demonstrating the anthropogenic nature of “wild” landscapes, their struggle for rights in territory, resources and knowledge was now grounded in formal science whose validity was harder to dismiss. 

The career of the book’s lead author, the ethnoecologist Darrell Posey, is essential to my narrative. For Darrell, the book was a logical extension both of his scientific work on the ecological practices of Indigenous peoples in the Amazon, and of his activism which for him was a morally compelling consequence of his scholarship. It was he who turned the academically interesting ethnoecological discoveries he and others were making into a program for political mobilization. This enabled later ethnoecologists who saw Darrell as an inspiration to see the political implications of their work. It may also have encouraged them to undertake such work in the first place. In passing, I was a geographer with interests in bioprospecting and the Amazon, but with none of his fieldwork experience. I am now a law professor but that is another story.

Indigenous peoples as intellectual and cultural property owners: a novel idea

At the end of the 1980s, Darrell became an early promoter of the idea that Indigenous peoples had rights in their knowledge, not just in lands, natural resources, and folkloric productions. Mainstream as it may be now, for non-Indigenous audiences it was a highly novel idea at the time, flying in the face of five centuries of destructive and dispossessory doctrines, norms, beliefs and practices cruelly inflicted on Indigenous peoples by European colonizers.^[1]These include the following: (i) misapplying the state of nature doctrine in a blanket fashion to non-European societies; (ii) the discovery and terra nullius doctrines; (iii) social evolutionary thinking that treated the practice of visibly cultivating food crops in fields as necessary for property and land rights to be assigned and as a positive step towards becoming civilized societies; (iv) the progressive framing of possessive individualism of which rights in relation to land, resource and knowledge ownership were in large part derived; and (v) the assumption that cultural extinction was inevitable and assimilation was the only realistic and humane response. Looking back, it is quite extraordinary that in just a few years Indigenous peoples’ “intellectual and cultural property rights” advocacy,^[2]This term was commonly used in the early 1990s but fell into disuse well in time for “traditional knowledge” and “traditional cultural expressions” to take over. which adherence to these doctrines and beliefs made unthinkable, emerged and became widely debated and even accepted. Typically accompanied by critical views on international intellectual property legal frameworks, widely shared perspectives that facilitated transnational alliance building of the like-minded,^[3]Such as international movements opposing globalisation, neo-colonialism, environmental destruction, and industrial agriculture that were typically critical of intellectual property laws. this new advocacy provoked intense debate on its merits, the ethical responsibilities of scientists studying other societies, and just as heated diplomatic negotiations.^[4] Hence the drawn-out negotiations on two legally binding international agreements having provisions on Indigenous knowledge: the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010), and the World Intellectual Property Organization Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (2024). Negotiations on the latter took more than 20 years.

The science of the Mebêngôkre-Kayapó

In 1982, Darrell conceived an empirical research programme that became Project Kayapó. Initially, the team’s research focus was on identifying plants and animals currently used by local people with a view towards more effective conservation and development policy. It became evident that the value of Indigenous science was not just in their knowledge and use of individual plant and animal species, but in their management of whole ecosystems. As scientists elsewhere using empirical, historical and diachronic approaches were discovering, the team’s findings suggested that the Mebêngôkre-Kayapó, like many Indigenous peoples, were highly knowledgeable landscape ecologists and effective ecosystems managers, and had been for generations. Studying Indigenous peoples’ practices showed that environmental determinism was false: many groups did much more than eke a desperate living from hostile landscapes, but actually shaped them to the extent of having co-evolutionary relationships – sometimes kinship based (Miller 2019) – with landscape and landscape elements including biota. It followed that sustainable development, the maintenance of biodiverse ecosystems, and ecological recovery could all best be achieved by, or with, Indigenous peoples unencumbered by violations of rights and intrusions on responsibilities over land, resources, knowledge and cultural expressions. 

Darrell’s great innovation was not these findings in themselves but his taking them to their logical, but politically controversial, conclusions. Indigenous peoples were already demanding their right of self-determination be recognised globally. What he added to the mix, and subsequently helped popularise, was to say – at least by implication – that this meant Indigenous peoples also had legal rights in their knowledge. It followed from this, and the radical nature of this argument cannot be understated, that rights in knowledge entailed property rights also in landscape, which is to say, in territory. Such sentiments are articulated impliedly in Indigenous peoples’ public declarations and statements,^[5] Fifteen of these declarations and statement dating between 1984 and 1997 are surveyed in Dutfield 2002. The full texts of several of these are reproduced in Posey and Dutfield 1996. and in the 2007 United Nations Declaration on the Rights of Indigenous Peoples. But I have nowhere come across an express statement to this effect. It is certainly hard to find anything written by any other Western scholar that elicits such a clear implication.

From a Western perspective, how does this work logically? I haven’t found in any of Darrell’s writings specific texts echoing to the letter what I attribute to him in the previous paragraph,^[6]Interested readers are referred to Kristina Plenderleith’s excellent two-volume anthology of Darrell’s writings: Posey and Plenderleith 2002 and 2004. though he may have expressed it in our many conversations. Allow me to offer the following logical steps of my own construction, which I’m certain he would agree with. If mixing one’s labour with land by means of tilling the soil and cultivating domesticated plants could, in Lockean fashion, constitute the archetypal property claim assertable against the world, something else logically flowed from this: that the utility of Indigenous knowledge amply justified a legal claim not just to the knowledge itself but to the landscapes their applied knowledge had domesticated, or at the very least had rendered permanently liveable. No choice between claiming land or knowledge needed to be made. Claiming one was claiming the other. Just as farmers turning forest into farm were deemed to improve land and thus could lay claim to it where there was no prior legal owner, Indigenous peoples had for long been performing their own improvements, whether from a subsistence, economic or a sustainability perspective – it didn’t really have to matter which. Whether or not they plough the land and have permanent crop fields, or ever did, is neither here nor there (Cunha 2019). The general applicability of the propertyless state of nature to Indigenous peoples described by John Locke in the 1680s, and which for him was America, is as much a gross misrepresentation then as it is now.^[7] In Locke’s (1689) actual words: “in the beginning all the world was America” (Chapter V Of Property). It is worth noting that most recent scholarship in English on historical and philosophical justifications for intellectual property finds Locke’s writings on property in his Second Treatise to be highly relevant.

Darrell’s position was sometimes misunderstood. He was not downplaying the importance of land rights claims in favour of knowledge rights ones (Greene 2002). This is the reason for his coinage of traditional resource rights as an integrated rights concept that bundled and impliedly merged together land, knowledge, resource and other claims within its ambit, and which were covered under a whole range of international legal instruments. They also fell into the mandates and activity areas of numerous international organizations. 

A global Indigenous peoples’ alliance

From the 1970s through to the 1990s Indigenous peoples became important political actors for justice at both national and international levels. Some of the instrumental factors fall outside the scope of this article. But alongside the Indigenous organizations and some very impressive individual representatives, the increased engagement of international humanitarian non-governmental organizations and networks and concerned academics, often working closely with these organizations, was certainly helpful (Martí i Puig 2010, 79).

Activist anthropologists included ethnobiologists, many of whom came together to form the International Society for Ethnobiology (ISE) that Darrell was instrumental in founding. They lent vital support including offering important strategic input, and providing representation and forums for Indigenous leaders to express themselves. As Martí i Puig (2010, 78-79) expressed it, it was activist anthropologists “who produced studies and chronicles of the indigenous communities that created a definite perception of and knowledge about them. They also established interpretive frames including respect for these communities and concern for their survival, linking cultural diversity with biodiversity.” 

The Declaration of Belém that resulted from the ISE’s first congress in 1988 and which Darrell helped to draft, noted “that native people have been stewards of 99% of the world’s genetic resources, and … that there is an inextricable link between cultural and biological diversity.” The Declaration also urged that “procedures be developed to compensate native peoples for the utilization of their knowledge and their biological resources.” In quick time, debate on whether and how knowledge about plants and the management of ecosystems might form a potential or even necessary subject of legal protection as intellectual and cultural property, became a modest albeit very noticeable part of the world’s conversation, and at some very high levels. It also helped keep academic printing presses busy, and still does. 

What of other factors? A key one is the then new and highly fashionable popularity of information society discourse and policy in the West driven by rapid advances in, and the ever broader accessibility of, digital information and communication technologies. This was frequently accompanied by the immense popularity of the view, perhaps expressed first by Lyon Playfair as far back as 1852, that “the competition of industry has become a competition of intellect” (1852, 3). This helps explain the perceived importance of intellectual property rights for economic growth and its relevance to trade. In consequence of the latter, intellectual property was added to the ongoing trade negotiations agenda culminating in the World Trade Organization.^[8]For a critical perspective, see Drahos with Braithwaite 2002.

Once the worrisome stakes entailed by global intellectual property rights became more evident, biopiracy, coined by Canadian activist Pat Mooney, emerged as a counter-concept to the intellectual property piracy that developing countries were being accused of. In consequence, the aggressive globalisation of European and North American legal norms inadvertently encouraged the idea that Indigenous knowledge, innovations and practices were no less deserving of legal protection than the intellectual assets of companies, inventors and authors. At the international level, one consequence is that the World Intellectual Property Organization, a United Nations specialised agency, has for over 20 years been holding intergovernmental sessions to discuss policies and measures including possible legal instruments (treaties) concerning genetic resources and traditional knowledge including cultural expressions. As regards the latter, such an instrument was adopted in May 2024.

My sense is that Darrell, like me, would have derived most gratification from successful local initiatives embodying what he stood for. Here are two that he helped inspire. In New Zealand’s Rēkohu (Chatham Island), the Moriori people are recovering their culture with great determination. This is despite school history books informing children in that country they were extinct. They have successfully negotiated the return of ancestral lands and skeletal remains of their people from museums, and received financial redress from the government (Ainge Roy 2020). Maui Solomon, who drafted the ISE’s code of ethics, is a leader of this movement. In Peru, Alejandro Argumedo, another former close colleague of Darrell’s, set up the Parque de la Papa, a Biocultural Territory bringing together five Quechua-speaking communities to protect and increase potato biodiversity in the species’ centre of origin, and to establish micro-enterprises for monetising the area’s traditional culture whilst maintaining their cultural integrity and according with customary ethical and legal norms.

Therein perhaps lies the legacy of the book, or at least of the era the book represents.  But for anthropologists there is more to reflect on than these achievements and others like them. Darrell saw his activism as flowing naturally from his ethnoecological research. He really did not know what else he could do other than take the stand that he did. And in doing so, he, together with that book we wrote together 28 years ago, helped to establish a brand new research agenda. Not only did established anthropologists like Marilyn Strathern, Manuela Carneiro da Cunha and Philippe Descola feel compelled to engage in debate on intellectual property law’s suitability, or otherwise, for Indigenous peoples (Strathern et al. 1998). But scholars in numerous other disciplines got involved, in time attracting the attention of diplomats, and ultimately transforming international law. 

Acknowledgements

I am grateful to Rosanna Dent, Kristina Plenderleith and Maui Solomon for helpful feedback on previous versions of this article. 

Read another piece in this series.

Works Cited

Ainge Roy, Eleanor. “After More Than 150 years, New Zealand Recognises ‘Extinct’ Moriori People,”  The Guardian, February 14, 2020, visited 7 June 2024. 

Cunha, Manuela Carneiro da. 2019. “Antidomestication in the Amazon: Swidden and Its Foes.” HAU: Journal of Ethnographic Theory 9 (1): 126–36.

Drahos, Peter with Braithwaite, John. 2002. Information Feudalism: Who Owns the Knowledge Economy? Abingdon, UK: Routledge.

Dutfield, Graham. 2002. “Indigenous Peoples’ Declarations and Statements on Equitable Research Relationships.” Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice. ed. Sarah A Laird. London, UK: Earthscan Publications, 228–232.

Greene, Shane. 2002. “Intellectual Property, Resources or Territory? Reframing the Debate over Indigenous Rights, Traditional Knowledge, and Pharmaceutical Bioprospection.” Truth Claims: Representation and Human Rights. ed. Mark Bradley and Patrice Petro. New Brunswick, NJ:  Rutgers University Press, 229–249.

Locke, John. 1689. Second Treatise of Government.

Martí i Puig, Salvador. 2010. “The Emergence of Indigenous Movements in Latin America and Their Impact on the Latin American Political Scene: Interpretive Tools at the Local and Global Levels”. Latin America Perspectives 37 (6): 74–92.

Miller, Theresa L. 2019. Plant Kin: A Multispecies Ethnography in Indigenous Brazil. Austin: University of Texas Press.

Playfair, Lyon. 1852. Industrial Instruction on the Continent. London: George E. Eyre & William Spottiswoode.

Posey, Darrell A. and Kristina Plenderleith. 2004. Indigenous Knowledge and Ethics: A Darrell Posey Reader. New York, London: Routledge.

Posey, Darrell A. and Kristina Plenderleith. 2002. Kayapó Ethnoecology and Culture. New York, London: Routledge.

Strathern, Marilyn, Manuela Carneiro da Cunha, Philippe Descola, Carlos Alberto Afonso and Penelope Harvey. 1998. “Exploitable Knowledge Belongs to the Creators of it: A Debate.” Social Anthropology 6 (1): 109–126.