The first thing I read by Stephen R. Munzer was an article that he had done with Kal Raustiala, The Uneasy Case for Intellectual Property Rights in Traditional Knowledge, 27 Cardozo Arts & Ent. L.J. 37 (2009). There had been plenty of arguments made against providing protection for traditional knowledge (TK) and traditional cultural expressions, but that article provided a clear and challenging analysis for WHY providing protection was such a challenging theoretical problem, not just in the Global North but also in the Global South. In the most fascinating way, Munzer does this again in this article, once again providing a new and challenging reframing of the problem of resolving disputes relating to indigenous and traditional knowledge.
In reading this article Munzer does two things here that I especially appreciate. The first is that he brings the issue of disputes between indigenous communities and their member/citizens and disputes between one indigenous community and another up to the same level of analysis and concern as that of indigenous communities and non-member/non-citizens. I believe that due to the focus on current negotiations at the World Intellectual Property Organization (WIPO) on new instruments for protection of traditional knowledge and traditional cultural expressions the tendency has been to focus on misappropriation across borders by non-members/non-citizens, perhaps missing other avenues for enforcement.
Secondly, he re-emphasizes that the difference between indigenous and traditional knowledge (IK/TK) really matters because the nature of the disputes and how these disputes are resolved within nation states fundamentally differs between the two. In particular, the difference in political status affects the applicable law, the nature and scope of types of claims (control rights vs Income rights); standing as well as other civil procedural issues.
The details matter, however, and Munzer’s framework does much more. He provides a framework for doing strong comparative work on the ways that different national systems resolve IK/TK and traditional cultural expressions (TCE) disputes. This is crucial in helping us do explanatory work for why some systems provide better dispute resolution than others that goes beyond the more obvious political economy and legislative explanations. Munzer’s categories suggest that there are characteristics inherent in the nature of the disputes and the nature of the parties that may provide greater and more useful answers and lead to better explanations for outcomes in such disputes. I provide a basic outline of his framework below (P. 35):
| Preliminary Distinction | Control Rights (Autonomy Interest) | Income Rights (Distribution of Surplus) | ||
| Category 1: The nature of the TK at issue | Indigenous Knowledge | Traditional Cultural Expressions | ||
| Category 2: Dynamics between named participants | Indigenous Community vs. Non-Indigenous Third Party | Indigenous Community vs. One of its Members | Indigenous Community vs. Indigenous Community | Pleadings and Joinder: Impleader, Interpleader, etc. |
| Category 3: Indigenous Claimants | “On-Stage” (named in Cat. 1) | “Off-Stage” (not named in Cat. 1) | ||
| Category 4: Normative Systems within which Disputes are Settled |
His first component distinguishes between income rights and control rights, noting that many claims that can be categorized as control rights might more easily find purchase within municipal court systems in the Global North, compared to income rights. In particular, this may enable claims not specifically reliant on the existence of intellectual property-like protections.
His second component makes the very valuable distinction between IK/TK and TCE, noting that claims over TCEs, especially income right claims may find more purchase in statutory or common law courts in national systems.
The third component specifies the types of dynamics between individuals/entities who are involved in IK/TK disputes: Indigenous Community vs. Non-Indigenous Third Party; Indigenous Community vs. One of its Members; Indigenous Community vs. Indigenous Community; and the procedural relationships of joinder and pleading. His examination of this category does such a good job of pointing out how many IK/TCE disputes involve members of the indigenous community. There’s a great example, drawn from Miranda Forsyth’s work, of the dispute over the rights to make certain tattoos in Samoa between the traditional two-family group that had the right, and other citizens who claimed a right to do so and to innovate around tradition.
Munzer’s fourth component is named (on stage) vs. unnamed (off stage) interest holders/claimants. It combines with the third to highlight the ways that named participants can sometimes represent and other times act against the interests of unnamed or off-stage participants. Munzer’s insight in this component is that traditional principles of civil procedure related to joinder, pleading and applicable law can resolve some of these disputes even in statutory and common law courts. He notes that such disputes rarely stay within the traditional customary law of the group but usually involve appeals to national courts outside the jurisdiction of the indigenous group.
His final grouping addresses the normative frameworks in which disputes are addressed. This is going over territory covered in other places, but Munzer points out that litigation strategies play a large role in how these are combined in each jurisdiction. The successful resolution of disputed is in part defined by how normative frameworks in the other categories in the framework.
Overall in treating the normative framework for indigenous/traditional knowledge protection as only one of the determinative factors in the framework, Munzer does us a great service as comparative legal scholars. We have sought to find a complete explanation for differential outcomes in levels of protection in statute or treaty but the combination of normative frameworks in each country has not always provided that. Placing it in its proper context helps us see why there may be successful claims brought forward even in the absence of strong normative frameworks such as legislation. This lesson is crucial for the field.
For myself, I take some comfort from Munzer’s work that there is real utility in further exploring private law approaches to enforcing rights and claims to indigenous/traditional knowledge, and as with his earlier work, I suspect that this article will be a constant future touchstone and reference.
I am grateful for Professor Shabalala’s excellent condensation and appraisal of my article. He appreciates the difficulties of coming up with a useful framework. He sees, better than I did, the subtleties of placing the discussion in relation to the Global North and the Global South. Had I been asked to write a synopsis of the article, I doubt that I could have matched his distillation.