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UW Information Ethics and Policy Conference April 25-26, 2013 -- Do Not Cite or Circulate
INDIGENOUS INFORMATION AND LEGAL REMEDIES
Stephen R. Munzer
UCLA School of Law
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Many indigenous peoples have various forms of “traditional knowledge” (TK). Much
though not all of TK is informational: it consists of knowledge of plants and animals and ways to
use this knowledge within a particular culture. My problem is figuring out what should be done
when outside colonial powers purloin or destroy this knowledge, decimate the indigenous culture
that gave rise to it, and render the re-creation of this knowledge difficult or impracticable.
My plan is to start with a concrete example, identify some issues which arise out of that
example, and then offer some suggestions for their philosophical-legal resolution.
I.
THE MBUTI PEOPLE OF THE DEMOCRATIC REPUBLIC OF THE CONGO
I invite you to consider the colonization of the Democratic Republic of the Congo
(“DRC”), formerly known as Zaire. The Belgians colonized this area in the late nineteenth
century, when it was known first as the Congo Free State (1885-1908) and then as the Belgian
Congo (1908-1960). The Belgians brought war, murder, rape, starvation and segregation to the
indigenous peoples of the territory. The overwhelming majority were Bantu peoples. A
significant minority were Pygmies (more properly known as Abatwa or Batwa). The Abatwa
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I use TK as an equivalent for the more cumbersome label Traditional Knowledge, Genetic
Resources and Traditional Cultural Expressions/Folklore, or TK/GR/TCE.
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were nomadic or semi-nomadic forest dwellers who fell into different ethnic groups, such as the
Mbuti. Today most Mbuti live in small groups of 15 to 60 peoples in the Ituri forest in the
northeastern part of the DRC. Mbuti TK includes knowledge of animals, insects, plants and
medicinal remedies. Noteworthy Mbuti cultural expressions include songs, polyphonic music, a
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musical instrument called a molimo, and an animist religion. Mining, logging and other
Western practices displaced the Mbuti and other Abatwa peoples. Their displacement has lead to
loss of habitat, poor health, loss of knowledge of herbal medicine, cultural destabilization, and
disruption of their sense of identity as a people.
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Various persons and other entities belong in the dock for the harm suffered by the Mbuti:
King Leopold II of Belgium, Belgian corporations and industrialists that profited from the
exploitation of the Congo and its peoples, soldiers who killed and injured members of indigenous
groups, local managers from the late nineteenth century to the present day, and heirs of these
individuals and successors of these corporations that benefited in substantial fashion from the
exploitation. Here I also pay attention to those whose involvement was peripheral: adult
Belgians whose standard of living rose because of the exploitation of the Mbuti if they satisfy
two conditions: (1) they knew of the exploitation and (2) they did nothing to protest or alleviate
it.
If this brief account is factually accurate, it supports, though by itself it does not entail, a
moral remedy for the Mbuti. The Belgian monarchy, as the successor to King Leopold II, owes
2
“Pygmy,” in New World Encyclopedia, available at
http://www.newworldencyclopedia.org/entry/pygmy (last visited March 6, 2013).
3
Eugene Linden, Lost Tribes, Lost Knowledge, Time, Sept. 23, 1991, available at
http://www/time.com/time/magazine/article/0,9171,973872,00.html (last visited April 6, 2012);
“The Pygmies: Health and Violence,” Survival International, available at
http://www.survivalinternational.org/tribes/pygmies/health-and-violence (last visited March 6,
2013).
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something to the successors of the Mbuti tribes and individuals whom it harmed. Belgian
corporations and their successors owe them something as well. For descendants of Belgian
industrialists whom it is possible to trace, they owe something, too, though, one has to recognize
that some descendants may have frittered away family wealth acquired long ago while others
may now be much wealthier even after adjusting for inflation. It will not be generally feasible to
pursue corporations that have dissolved and therefore ceased to exist or long-dead industrialists
who have no survivors. As to peripherally involved Belgians whose standard of living rose
because of the exploitation of the Mbuti, and who meet the two conditions I mentioned earlier,
they, too, owe something to the Mbuti, but it will be much harder to calculate and collect the
amounts owed. Perhaps the costs of calculation and collection will often exceed the funds
obtained. In this case, a tax indexed to the increased standard of living in Belgium and the
diminished circumstances of the Mbuti would be a practical alternative.
Thus far, when I say that certain Belgians “owe” something to the Mbuti, I mean
“morally owe.” I suggest that the Mbuti have a moral grievance against the descendants or
successors of the Belgian monarchy, certain Belgian corporations, some Belgian industrialists,
and those Belgians whose standard of living increased and who satisfy my two conditions. Of
course, it is a separate question whether those described committed a legal wrong under thenapplicable Belgian law or then-existing international law. Yet even if they are not legally guilty,
they are guilty of a moral wrong, for they profited from actions against the Mbuti that bettered
their own situation. And a moral grievance might serve as the basis for a legal right to a remedy.
If the case can be made out, one form that remedy might take is IP rights in Mbuti TK. Other
forms include monetary compensation, health care, access to education, and well-planned
resettlement to their original areas in what is now the DRC.
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The issues are now how to develop the moral arguments and how to generate legal
remedies. As will become apparent, I spill more ink on morality than law.
II.
CORRECTIVE JUSTICE AND INTELLECTUAL PROPERTY
Elsewhere I offer a philosophical and legal corrective justice argument for the proposition
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that indigenous peoples should have some intellectual property (IP) rights in their TK. I said
that this proposition is justifiable “in principle,” even if the rights they should have “at a
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particularized level require[] judgment and detailed knowledge.” I claimed that my argument
did not invoke human rights, distributive justice, or theories of property. It depended entirely on
corrective justice.
That argument consisted of six basic steps. (1) Some wrongs have been committed
against indigenous groups, some or all of their members, or both. (2) The wrongdoers or their
successors are sometimes identifiable as a group, individual members of a group, some other
legal entity such as a corporation, or some combination of these. (3) The wrongs unjustifiably
harmed indigenous peoples, some of their members, or both. (4) Those harmed are identifiable
as indigenous groups, individual members of indigenous groups, or both. (5) Almost always no
excuse is available such that the wrongdoers or their successors lack a moral duty to rectify their
wrongs and undo the harm caused. (6) Finally, recognizing IP rights in TK can in principle be
part of an effective and reasonably efficient means of restoring justice to the indigenous peoples
4
Stephen R. Munzer, “Corrective Justice and Intellectual Property Rights in Traditional
Knowledge,” in Annabelle Lever, ed., New Frontiers in the Philosophy of Intellectual Property
(Cambridge: Cambridge University Press, 2012), pp. 58-87.
5
Ibid., p. 60.
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or their members who have been harmed, even if in some cases it is necessary to resort to other
remedies such as monetary compensation.
6
I recognize that the foregoing argument is skeletal and requires judgment in its
application to complicated historical situations. I recognize, too, that harm that involves TK
must distinguish between at least two different sorts of value. The first is the subjective value of
pertinent TK to a particular indigenous people. The second is the value of that TK in the global
marketplace. Quite often, the first sort of value is much higher than the second. For instance,
many TK medicinal remedies are prized by indigenous peoples but are not worth much on the
market because they are either ineffective once placebo effects are taken into account, or they
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have unwanted side effects such as hepatic toxicity at therapeutic levels. As another example,
most TK in the form of folk tales, which indigenous peoples value highly as part of their culture,
has little monetary value on the world literature market because non-indigenous readers usually
lack the cultural background to appreciate the stories. There is, however, a significant exception
in the case of TK music. World music is a more substantial phenomenon in Europe than in the
United States, and sometimes songs, melodies and rhythms from indigenous groups are a big hit
in Europe. To illustrate, indigenous music from francophone west Africa sometimes does well in
France.
But it makes no sense, in the case of TK, to concentrate entirely on market value over
subjective value to an indigenous people. Appealing to the latter is a way of conceptualizing
what is lost when cultures are decimated. Decimation might suggest that placing that loss in a
6
Ibid., pp. 61-62.
An illustration is the low market value of the Hoodia plant and its derivatives used by some
peoples in southern Africa. Stephen R. Munzer and Phyllis Chen Simon, “Territory, Plants, and
Land-Use Rights among the San of Southern Africa: A Case Study in Regional Biodiversity,
Traditional Knowledge, and Intellectual Property,” William & Mary Bill of Rights Journal, 17
(2009): 831-94.
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legally recognized category, such as intellectual property. One attractive feature of relying on
corrective justice arguments to address cultural destruction is evident: A culture can have
subjective value over and above its specific manifestations such as texts, rituals and medicinal
knowledge. Cultures are organic entities. It is worth investigating whether culture, if writ large
in TK-like terms, enables us to see cultures themselves as forms of IP. Should the investigation
pan out, that might help us to categorize, in both moral and legal ways, the harms that result
when cultures are wrecked by colonialism and other human forces.
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In any event, I think my earlier argument can be improved by mapping a particular
understanding of fairness onto corrective justice. I begin by warding off a potential unsound
criticism. Next, I set aside a notion of fairness that rests on moral free riding. Only then do I use
Garrett Cullity’s understanding of fairness to improve the argument in question.
III.
GENERAL RIGHTS AND SPECIAL RIGHTS
My claim that that “corrective justice can in principle ground a baseline entitlement such
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as IP rights in TK” without explaining what “baseline entitlement” means was not the best way
of putting the matter. In particular, this claim might seem open to the criticism that because all
baseline entitlements are general rights, the argument in question is flawed from the start because
rights that issue from corrective justice have to be special rights. After all, arguments of
corrective justice are remedial in nature, for they rest on a schema like this: because A wronged
B, to remedy this wrong A must restore to B that which B was deprived of by A's wrong in order
to make B whole. If IP rights are general rights, and if arguments of corrective justice support
8
I owe this suggestion to Michael Cholbi. See also James W. Nickel, “Ethnocide and
Indigenous Peoples,” Journal of Social Philosophy, (1994) (25th Anniversary Special Issue): 8498.
9
Munzer, “Corrective Justice,” note 4 above, p. 63.
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only special rights, the criticism concludes, then corrective justice arguments cannot justify any
IP rights, in traditional knowledge or in patents, copyrights or trademarks, at all.
To understand this criticism, recall how H.L.A. Hart distinguishes between general and
special rights.
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General rights, he says, “are thought of as rights against . . . everyone.”
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The
right of all persons “capable of choice” to be free “in the absence of those special conditions
which constitute a special right to limit another’s freedom” is a prime example of a general
right.
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General rights are good against everyone. Special rights “arise out of special
transactions . . . or out of some special relationship.”
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Special rights are good against particular
persons or classes of persons. Because most property rights, including most IP rights, are good
against everyone, some might conclude that IP rights are usually general rights of authors and
inventors. If that is correct, then they might conclude also that the burden is against recognizing
any general non-standard IP rights in favor of indigenous peoples.
Hart’s distinction is sound
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but warrant exists for expanding the class of special rights.
Such rights “arise out of special transactions between individuals or out of some special
10
H.L.A. Hart, “Are There Any Natural Rights?,” Philosophical Review, 64 (1955): 175-91
(cited as Hart, “Natural Rights”). Hart declined to reprint the article in a 1983 collection “since
its main argument seems to me to be mistaken” – namely, the argument that if there are any
moral rights at all, there must be at least one natural right, viz. the equal right of all persons to be
free. H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press,
1983), p. 17. In a 1988 interview, Hart reiterated this judgment. “Hart Interviewed: H.L.A. Hart
in Conversation with David Sugarman,” Journal of Law and Society, 32 (2005): 267-93, at p.
278. For information on Hart’s retraction, I thank Margaret Gilbert and Amanda L. Trefethen.
Nevertheless, Hart continued to regard his distinction between general and special rights as
useful exposition.
11
Hart, “Natural Rights,” note 10 above, p. 183 (footnote omitted).
12
Ibid., p. 188.
13
Ibid., p. 183.
14
I do not, however, accept Hart’s claim that general rights are possessed only by persons
“capable of choice.” Ibid., p. 188. The right not to be tortured is a general right that applies to
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relationship in which they stand to each other.”
15
Hart nowhere claims that his examples of the
relevant transactions and relationships – promises, consent and authorizations, mutual
restrictions, and the relationship between parent and child – are exhaustive. I suggest an
additional category of special rights: one in which A voluntarily and intentionally inflicts harm
on B that A knows, or should know, causes significant harm to B even if A derives a benefit
which outweighs the harm to B. The substitution-instances for both “A” and “B” include
individual persons, sets of persons at a particular time, and transtemporal groups of persons. For
transtemporal groups, there must be some ties of interest, lineage, race, class, status or culture for
those in the A-group and different such ties for those in the B-group. A leading contrasting
example of transtemporal groups involves white colonizers as members of the A-group and nonwhite indigenous peoples as members of the B-group.
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To see how special rights of this sort can make use of the six-step skeletal argument of
Section II, let us apply that argument to the Mbuti. (1) The Mbuti and their members suffered
manifold harms from Belgian colonialism. Violence, starvation, forced relocation, and
interference with their TK are among these harms. (2) Next, it is sometimes possible to identify
the wrongdoers, such as King Leopold II, some Belgian corporations and industrialists, and some
all persons, even those, such as infants and advanced Alzheimer’s patients, who lack the capacity
to choose.
15
Ibid., p. 183.
16
I do not agree with William N. Nelson, “Special Rights, General Rights and Social Justice,”
Philosophy & Public Affairs, 3 (1974): 410-30, at p. 411, that principles of social justice are
always or even commonly “better thought of as principles specifying the content of a kind of
special right” rather than “general rights” in Hart’s sense. Yet the special right I identify in this
paragraph of the text is a matter of social justice. Even if the federal government establishes a
general right to health care, the Indian Health Service might continue with its own programs and
rationale, and perhaps the Service depends on corrective justice and accords special rights to
Native Americans and Alaska Natives. U.S. Dep’t of Health & Human Services, Indian Health
Service, Frequently Asked Questions, available at
http://www.ihs.gov/GeneralWeb/HelpCenter/CustomerServices/FAQ/ (last accessed March 11,
2013).
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ordinary Belgians who knowingly profited from the exploitation of the Mbuti and did nothing to
protest this exploitation or reduce its gravity. (3) It almost goes without saying that the infliction
of these harms was unjustifiable. (4) Furthermore, those harmed are to some extent identifiable,
for Belgian colonialism in what is now the DRC is, in historical terms, fairly recent. Even if we
cannot name those harmed in the late nineteenth and early twentieth centuries, we can
nevertheless pick out the Mbuti from other Abatwa ethnic groups and trace their forced
migration to the Ituri forest. The Mbuti are a unitary or collective group across time. Although
the identity-conditions for transtemporal groups are scarcely beyond debate, in the case of
indigenous groups it makes sense to concentrate on two features: lineage and cultural
continuity.
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Because these features are present in the Mbuti, we can identify the Mbuti today as
an indigenous group that has suffered and continues to suffer multiple harms, and individual
members of the Mbuti today can typically be picked out by name. (5) No excuse seems available
such that the wrongdoers and their successors, past and present, lack a moral duty to rectify the
moral wrongs inflicted on the Mbuti and their members and, so far as possible, undo the harm
caused. (6) Manifold ways of performing that duty are available. They range from recognizing
Mbuti IP rights in their TK as well as monetary compensation, health care, education, and
sensible resettlement programs that return the Mbuti to their places of origin in what is now the
DRC. It will require fact-sensitive judgment to decide which of these possible moral remedies
makes the most sense.
IV.
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THE IRRELEVANCE OF MORAL FREE RIDING
Stephen R. Munzer and Kal Raustiala, “The Uneasy Case for Intellectual Property Rights in
Traditional Knowledge,” Cardozo Arts & Entertainment Law Journal, 27 (2009): 37-97, at p. 64.
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“Free riding” is, as Cullity suggests, “a term of art” whose meaning, or meanings, must
be explained in terms of the economic literature on public goods.
18
He introduces another term
of art, “moral free riding,” to capture cases in which the free rider’s “failure to pay for nonrival
goods” under certain conditions that make “her conduct unfair.”
19
His paradigmatic illustration
is the conduct of a fare-evader in a system of public transport. If a large percentage of people
were to avoid paying the fare, then the public good of public transport would be under-produced.
But traditional knowledge is not a public good in the sense in which public transport is a
public good. Even if western, or westernized, nations and peoples have made use of TK without
paying for it, generally TK has been and is now produced by indigenous peoples despite lack of
payment and despite little in the way of legal protection for TK. The TK case is therefore quite
different from the fare-evader case on which Cullity’s concept of moral free riding rests.
I am not saying that TK has zero market value, or that it provides hardly any public
benefit, or that it is in no sense a public good, or that indigenous peoples would fail to produce
more of if they were paid to do so, or that the past and current behavior of westerners is beyond
reproach. I say only that TK is not a public good in the same sense as public transit such that
rampant non-payment will result in the under-production of TK.
V.
FAIRNESS PROJECTED ONTO CORRECTIVE JUSTICE
In a later article Cullity provides an account of one sort of unfairness:
Not X-ing is unfair when:
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19
(i)
something ought, all things considered, to be done;
(ii)
doing it as it ought to be done requires a form of impartiality;
Garrett Cullity, “Moral Free Riding,” Philosophy & Public Affairs, 24 (1995): 3-34, at p. 3.
Ibid., p. 7.
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(iii)
X-ing is the appropriate form for that impartiality to take; and
(iv)
the failure of appropriate impartiality can contribute to a non-instrumental
explanation of the failure to do what ought to be done.
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One can project the opposite of this sort of unfairness onto corrective justice. A
difference exists between non-indigenous and indigenous peoples. Some non-indigenous
peoples – especially those from Portugal, Spain, Great Britain, France, and Holland – were
among the first western nations to set up colonial regimes from the late fifteenth century
onwards. Later, as the Industrial Revolution occurred in the seventeenth and eighteenth
centuries, these countries began to develop systems of intellectual property to protect the kinds
of innovations that interested them. By 1830 Belgium had become an independent nation and
followed suit on IP. These IP systems protected patents, copyrights and trademarks by legal
enforcement mechanisms, such as actions for damages and injunctions.
In contrast, indigenous peoples bore the brunt of western colonialism. Often nonindigenous peoples killed, raped and injured native peoples, and took their land as well as
mineral resources. Even at the earliest colonial stages, indigenous peoples had TK in the form of
art, artifacts, music, stories, and knowledge of the uses of plants and animals. With few
exceptions, indigenous peoples had little in the way of legal enforcement mechanisms to prevent
others from borrowing their TK. It was mainly in the second half of the twentieth century that
indigenous peoples, sometimes with the aid of national governments, developed legal or quasilegal rules for protecting their TK.
With this background, it is possible to use Cullity’s argument-schema to support
indigenous IP rights in TK. Preserving equal status between non-indigenous and indigenous
20
Garrett Cullity, “Public Goods and Fairness,” Australasian Journal of Philosophy, 86 (2008):
1-21, at p. 5.
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peoples ought, all things considered, to be done. Doing it as it ought to be done requires a form
of impartiality between these two sets of peoples. This impartiality requires that non-indigenous
and indigenous peoples to allow each other to construct, among other things, IP laws in
accordance with their respective cultures and values. Moreover, impartiality demands that a
society made up chiefly of non-indigenous peoples should not privilege its IP laws over those of
indigenous peoples (and help from the countries in which they reside), or vice versa. This form
of impartiality is the appropriate form of impartiality to take. If that is correct, then failing to
take this form of impartiality will result in non-indigenous and indigenous peoples being treated
as if they lacked equal status. Therefore, it is unfair for non-indigenous peoples in western, or
westernized, countries to insist on applying their own IP laws – and no others – developed for
industrialized societies to indigenous peoples, or vice versa.
The foregoing argument contrasts one sort of unfairness (partiality) and one sort of
fairness (impartiality). One can project impartiality onto different kinds of justice, including
distributive as well as corrective justice. Here it will suffice to see the results of projecting it
onto corrective justice in the context of the IP rights of indigenous peoples in regard to their TK.
This argument has two developmental limits. First, so long as a people remains
indigenous, it can develop rules for protecting its TK. Permissible rules could allow members of
a particular indigenous group to use their TK, hide it, keep it a secret, sell it, or license it. It is a
tricky question whether the legal power to enforce these rules is confined to a tribal area, extends
throughout a country sympathetic to the indigenous group, or extends to the entire globe.
Second, suppose that a people ceases to remain indigenous. If it becomes industrialized
and is absorbed into the larger society of a nation state, it may have to forfeit some of the special
rights and rules of enforcement with respect to its TK. Above all, if an indigenous people comes
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to adopt and rely on the benefits of western IP and innovation – such as sanitation, modern
agriculture, patented medicines, and health care – then it cannot hide behind protections for its
TK to keep the privileges of their former indigenous status and yet refuse to accept the IP
protections and innovations of industrialized peoples and western societies.
To make the transition to legal remedies, let us assume that the Ibuti remain indigenous.
Sections I through III and Section V provide an extended moral argument as to why the Ibuti
should receive compensation in some form the Belgian monarchy, Belgian corporations and
industrialists, and ordinary Belgians who knew of and benefited from the exploitation of the Ibuti
and who did nothing to protest or alleviate that exploitation. The treatment of the Ibuti has not
been impartial. It also has unjustly enriched the wrongdoers and their descendants. Some
distinguished scholars play down the separation of rights from remedies, and certainly are
opposed to judges moving from moral grievances to legal remedies.
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However, if moral
grievances and the unjust enrichment of oppressors, as in the case of chattel slavery, are serious
enough, then that serves as a basis on which to argue for legal remedies. Civil rights legislation
pursuant to the Thirteenth Amendment to the U.S. Constitution made at least a start on legal
remedies for slavery. Legislatures are better than courts for crafting remedial regimes for harms
inflicted on indigenous peoples such as the Mbuti.
Most of the moral wrongs associated with colonial exploitation of indigenous peoples are
not as grievous as the moral wrongs associated with slavery, though some of them come close.
Colonial displacement of the Mbuti has led to forced resettlement, compromised health, loss of
knowledge of plant-based medicinal remedies, the destabilization of traditional cultural
21
E.g., Peter Birks, An Introduction to the Law of Restitution (Oxford: Oxford University Press,
1989) (rev. ed.); Peter Birks, “Rights, Wrongs, and Remedies,” Oxford Journal of Legal Studies,
20 (2000): 1-37.
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expressions such as music and stories, and cultural disruption. Belgian exploitation has created
many Mbuti moral grievances. It has also unjustly enriched many Belgians now and in the past,
and for that a legal remedy is in order.
VI.
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CONCLUSION
To sum up: Taking the Mbuti people of the DRC as my example, I have described the
calamitous effects on them of Belgian colonialism. From this description, I proceeded in stages
to lay the moral foundations for recognizing that the Mbuti have moral grievances against their
colonizers, and that certain Belgian individuals, corporations, and institutions have been unjustly
enriched by this exploitation. I concluded that these moral grievances and injustices can justify a
legal remedy to rectify the wrongs done. At least one possible remedy is to provide legal
protection for the intellectual property of the Mbuti in their TK.
22
23
See generally Kit Barker, “Rescuing Remedialism in Unjust Enrichment Law: Why Remedies
Are Right,” 57 (1998): 301-27.
23
I am indebted to Wendy Gordon and Douglas Wolfe for help with this paper.