Resolving Disputes from Intellectual Property in Traditional Knowledge

Abstract

Dispute is an integral part of human existence. There is bound to be a disagreement in every human relationship. Whenever there is human interaction, dispute is inevitable.The different means of dispute resolution include litigation, arbitration, mediation, and negotiation. While litigation requires resolving disputes in a court of law, arbitration, mediation, and negotiation are seen as alternative dispute resolution mechanisms. The role of alternative dispute resolution cannot be underestimated in resolving disputes arising from the exploitation of traditional knowledge (TK) as intellectual property.Different scholars have given different opinions and definitions of traditional knowledge: however, all these sum up to the point that traditional knowledge is a set of skills, experiences, and information passed down from generations past to the present.The relevance of traditional knowledge is to preserve and maintain core values on certain practices not limited to lifestyle, culture, and literature. On the other hand, dispute resolution entails the settlement of conflict between parties. Depending on the dispute resolution mechanism chosen by parties, there may be an outcome that includes, a win-win situation, a win-lose situation, or more. Where dispute that arose from TK exploitation is efficiently resolved and handled, the relationship and values of parties are safeguarded and conserved.

Introduction

Disputes are part of human existence. For every human activity, there is a likelihood of disputes and the ability to settle such disputes amicably determines the peace of the society. Traditional knowledge as an intellectual property (IP) will inevitably bring about disputes one way or the other. There will be a need to resolve infringement claims that may arise where a particular community or group claims ownership of traditional knowledge. The various means of resolving such disputes may include negotiation, mediation, arbitration, or litigation. While all the methods may not be applicable for all times, one or more may be relevant for the resolutions of disputes that may arise from a traditional knowledge claim. It is important that parties know what best serves them at every point in time.

What is Traditional Knowledge?

According to the World Intellectual Property Organisation (WIPO) “Traditional knowledge (TK) is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.” Traditional knowledge basically are knowledge handed down to a particular group or community from generation to generation. TK comprises of “information on the use of biological and other materials for medical treatment and agriculture, production processes, designs, literature, music, rituals, and other techniques and arts”. TK may include “information of different kinds and functions, developed in ancestral times but subject to contemporary improvement and adaptation. It is expressed in various documented and non documented forms and may possess commercial value depending on its potential or actual use.” Where groups or communities lay claims over traditional knowledge, there is the certainty of disputes upon its exploitation by any person or individual and such disputes must necessarily be resolved one way or the other.

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Means of Dispute Resolution

Dispute resolution is the process of settling differences and conflicts between two parties. “Dispute resolution is the process of resolving a dispute or a conflict by meeting at least some of each side’s needs and addressing their interests.” It is the process by which peace, or an agreement is arrived at in a question or a difference in opinion between two persons. There are different ways in which disputes which arise between parties in a traditional knowledge claim may be resolved. This means may includeLitigation, Arbitration, Mediation, or negotiation. Arbitration, Mediation, and Negotiation are referred to as Alternative Dispute Resolution (ADR). They are seen as a good alternative to litigation of claims. At any point in time, one or more of these methods may be applicable in the settlement of a single dispute.In other situations, a single method may be applicable; while at other times, one method may be a condition precedent to the application of the other method of dispute resolution. In respect ofTK, ADR especially Arbitration and Mediation are very vital in resolving dispute. ADR is valuable to TK because it addresses grievances between parties in such a way that recognises “different cultural value systems of the parties,” and “address direct needs and foster new relationship between the parties.” More still, it encourages a single neutral process dealing with several jurisdictions.13 At best, ADR provides cultural remedies, incorporation of different procedures including that of customary law, handles both legal and non-legal issues related to a dispute.

Litigation The process of resolution of disputes through the courts of law is known as litigation.15 Litigation is governed by laws made by the legislature or by the rules of the court in which the matter is before.16 Whether it amounts to a civil wrong or a crime, litigation may be used. For instance, where copyright is ascribed to traditional knowledge, the Copyright Act17 of Nigeria makes copyright infringement an offense liable to prosecution in court by the NigerianCopyright Commission (NCC). NCC through its officers investigates complaints and where a reasonable case of infringement is made initiates a prosecution at the Federal High Court.18 The Federal High Court is the Court charged with the jurisdiction to prosecute copyright civil claims and criminal prosecutions inNigeria.19 Such jurisdiction over copyright claims arising from the US CopyrightAct is granted to the Federal Courts in the United States.20 Section 1338 of Title 28 of the United States Code confers upon the federal district courts exclusive jurisdiction over claims of copyright infringement.21 In litigation, rights and wrongs are decided and a party wins or loses. Unlike in ADR, litigation mostly address legal issues which is not the bulk of TK, TK also deals with complex cultural and historical issues which are best settled outside of litigation

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Arbitration Arbitration is principally a method of adjudication of disputes by the agreement and arrangement of parties. Unlike litigation, the process of arbitration is principally controlled by the agreement of parties and parties bear the cost of the arbitration and fees of the Arbitrators. “Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.” The basic feature of arbitration includes: arbitration can only be initiated pursuant to the agreement of parties; the arbitration process is confidential; the arbitral panel are appointed by the parties or in line with the agreement of the parties; the panel must be neutral; and the arbitral award is final and not subject to an appeal, save for an action in court to impeach the award on grounds of any irregularity in the arbitration procedure. Its close similarity with litigation is that right and wrong are decided. And a party may win or lose. Arbitration is recognised by local communities who submit their disputes to the local chiefs or similar locally constituted authority for determination.This is known as customary law arbitration. It may serve the local communities well as it is cost effective, and the panel is usually constituted by persons who are respected and believed to be vast in the local customs. Customary arbitration might fall short of a method of resolution of TK dispute which involves persons who are not members of that local community. Such a party may feel shortchanged, thereby refusing to submit to customary arbitration. Nevertheless, an award which is internationally recognised and not based on customary arbitration can been forced through the Convention on the Recognition and Enforcement of Award of Foreign Arbitral Awards (The New York Convention).

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Mediation Mediation is a method of dispute resolution where a neutral third party assists the parties to come to an agreement. “In a mediation procedure, a neutral intermediary, the Mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. Any settlement is recorded in an enforceable contract.” A successful mediation ends with terms of settlement entered into between the parties where the agreement for compromise is spelled out. Most intellectual property disputes end with a mediation. Such Terms of Settlement may be filed in court or an arbitral tribunal as a consent judgment to determine the dispute

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Negotiation When parties discuss amongst themselves to come to a settlement of a dispute, negotiation is said to have occurred. “A negotiation is a strategic discussion that resolves an issue in a way that both parties find acceptable. In a negotiation, each party tries to persuade the other to agree with his or her point of view. By negotiating, all involved parties try to avoid arguing but agree to reach some form of compromise.” Negotiation does not need the assistance of a third party, unlike mediation. The hallmark of negotiation is the discussion amongst the parties to settle the dispute between them in an amicable manner.Negotiation may be the best form of dispute resolution where the parties are able to reach a settlement. This is because, amongst other benefits, it preserves the relationship of the parties and saves the cost involved in other types of dispute resolution.

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The WIPO Arbitration and Mediation Center The WIPO Arbitration and Mediation Center was established in 199427 for the settlement of IP disputes by means of Mediation and Arbitration in line with its rules.The WIPO Arbitration and Mediation Centre is recognised for its expertise in resolving cross-border dispute through Arbitration and Mediation between private parties and much efforts have been made by the Centre for the growth of ADR in matters relating to Intellectual Property and TK. Disputes arising from TK claims may be brought before the Center for an amicable settlement. However, like every other arbitration, there are fees and cost implication and also the payments of Arbitrators which is normally determined in reference to the amount in dispute. This Arbitration cost will be a shortcoming of the WIPO Arbitration and Mediation Center for the settlement of traditional knowledge disputes. These disputes usually involve members of the local community, including peasant farmers, craftsmen, etc., who may be grappling with their limited funds, knowledge, and understanding of the system. TK is a peculiar kind of IP. Unlike other kinds of IP which are fully commercial and in the nature of an investment, TK is communal property. While some communities might have the means to pursue their claims, some are largely made up of peasants that may not have the means to pursue their claims. A specialised and distinct dispute resolution department may be designated for the settlement of traditional knowledge disputes. The department will among other things have rules which will provide for abetter cost-effective means of resolution of traditional knowledge disputes to meet the needs of the indigent communities, try incorporating inter-cultural differences and customary law protocols and ensure the participation of a reputable local chief or other constituted authority as a member of arbitral panel(s).

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Conclusion

In resolving a dispute, parties may explore one or all the basic types of dispute resolution. All may be explored where the dispute arises, and parties first attempt to settle it themselves by way of negotiation. Where negotiation fails, parties might invite a mediator who attempts to help them come to a settlement. If the mediation is successful, the Terms of Settlement will be signed by the parties. The terms of settlement may be filed in court and be delivered by the Court as a consent judgment.Where the Mediator cannot help parties arrive at a settlement, the parties may agree to submit the dispute to arbitration. If a party is unsatisfied with the arbitration process it may approach the court to impeach the award. Although the court does not sit on appeal on the content of the award, it sits to determine the proprietary of the process that led to the award and may make an order setting aside the award. The foregoing circumstance creates a long process of dispute resolution which is against the essence of the introduction of ADR in dispute resolution.

Any of the discussed means of dispute resolution might be explored if circumstances permit. However, negotiation and mediation, or a hybrid of both, are highly recommended for the purposes of the resolution of TK disputes as it preserves the relationship of the parties and save cost. In addition, ADR in the light of TK promotes the understanding of “inter-related social, cultural and political dimension of claims” for third parties like universities, research institutes and more.3