Doctor Faustus, Ethnobiologist:
The Morality of Ethnobiology
E. N. Anderson
Dept. of Anthropology and
Center for Conservation Biology
University of California, Riverside, CA 92521-0418
Recent debates over bioprospecting, biopiracy, and indigenous intellectual property rights have raised some basic ethical issues that lie well outside the ordinary province of anthropology and biology. This paper focuses on the wider issues, some of which are rather intractable. Possibilities for amelioration are suggested, but the paper is concerned primarily with basic questions about the morality of extracting information that is extremely useful but could be expropriated or abused.
“Faustus is gone. Regard his hellish fall,
Whose fiendful fortune may exhort the wise
Only to wonder at unlawful things,
Whose deepness doth entice such forward wits
To practice more than heavenly power permits.”
–final chorus of Doctor Faustus by Christopher Marlowe
Doctor Faustus sold his soul in exchange for worldly power. He won that power through knowledge of magical arts. His story appeared at the dawn of modern science, and he has been seen not only as the archetypal magician but as the archetypal scientist. Scientists are in the business of learning more than they should. Their knowledge is dangerous. Christopher Marlowe makes Faust a genuine villain.
Goethe, child of the Enlightenment, was kinder, and more aware of the ambiguities of the world; Goethe’s Faust (Goethe/ Jarrell 2000) is a sympathetic figure, conflicted and tragic. Even Goethe’s Mephistopheles is more sad than evil. Yet the evil of science was not allayed. Shortly after Goethe’s play appeared, Mary Shelley created Frankenstein and his monster, providing us with a new archetype of the dangers and evils of the quest for knowledge.
Is science good or evil? Is the quest for truth an intrinsically deadly enterprise, creating new problems and shaking faith in old institutions? This question is now being asked even in the humble, ordinary setting of ethnobiology. Far from creating monsters or using magic arts to gain worldly power, ethnobiologists merely bring traditional knowledge to light. Yet, even this enterprise has its risks. They are grave enough to cause serious and well-intentioned men and women to call for a halt to all such research.
At the International Congress of Ethnobiology, held in Athens, Georgia, in 2000, most of the intellectual activity focused on a debate over the ways of protecting indigenous peoples and their rights to their heritage of traditional knowledge. In this world of biopiracy (Shiva 1997) and of giant corporations eager to expropriate knowledge and patent it, the whole enterprise of recording traditional knowledge can be suspect. At the very least, all delegates recognized and agreed that current practices in patenting, copyrighting, and protecting indigenous knowledge are inadequate to protect indigenous people and their rights.
Everyone now realizes that ethnobiology—and anthropology in general—provides a great deal of information that is extremely useful to humanity as a whole. The problem is that certain firms want to seize onto traditional knowledge and monopolize it. Thus, what should (ideally) be the common heritage of humanity becomes the private property of those who did not work for it, create it, or maintain it. This is biopiracy.
The debate went well beyond ordinary ethical questions of how to obtain informed consent or how to avoid directly damaging one’s subjects. In fact, the very existence of ethnobiology—and, by implication, anthropology—was called into question. Rudolph Ryser of the Center for World Indigenous Studies (CWIS) called for a “moratorium” on all ethnobiological research among indigenous peoples, until the question of protecting indigenous people’s rights to their knowledge can be substantially resolved (Ryser 2000). In response to questioning, Ryser said that this resolution would not come soon; it might well never come. Pat Mooney of the Rural Advancement Foundation International (RAFI) called for “criminalization” of all bioprospecting, since, in the absence of adequate legal institutions, all bioprospecting was “biopiracy” (Mooney 2000).
It is important to point out that these are not isolated voices. Ryser is one of the people most responsible for the very term “indigenous” in its modern sense. Mooney and RAFI have a distinguished and creditable record of fighting for rural people, and especially for their rights to their traditional plant varieties and other genetic materials—prime targets for biopiracy (Shiva 1997; see also Aoki 2008; Hayden 2003; Muchit and Thompson 2007; Svarstad and Dhillion 2000; Savage 2000).
Most of what follows reports conversation and interaction at the meeting, and thus can only be cited to presentations or even mere “personal communication.” However, I vouch for its accuracy. In view of the extreme importance of the questions raised, I humbly submit that these conversations deserve wider attention. It will be recalled that they were held in a public forum.
The immediate precipitating event was the controversy swirling around the International Cooperative Biodiversity Group (ICBG), an initiative to record traditional medicinal knowledge. Drs. Brent Berlin and Elois Ann Berlin of the University of Georgia’s Department of Anthropology are working with the Maya of highland Chiapas on a major ICBG project. At the conference they reported extensively on it and on their highly innovative and successful attempts to get informed consent from communities (Berlin and Berlin 2000). ICBG is working with, and partially supported by, an international pharmaceutical company.
A small group of local Maya healers, known as COMPITCH, early became disaffected with this project. (Their reasons are unclear to me and irrelevant to this paper). Their case came to the attention of Mexican intellectuals and eventually of RAFI, which saw the case as one of incipient biopiracy. Clearly, in spite of the heroic efforts of the Berlins to obtain informed consent from all parties, RAFI could argue that the Berlins did not have the consent of all the Maya–however small COMPITCH may have been. (COMPITCH did not have an indigenous spokesperson at the conference; they were represented by Hispanic Mexicans.)
Moreover, Mexican intellectuals such as Alejandro Nadal had long been raising red flags about multinational firms’ bioprospecting on Mexican soil. I personally am aware of such projects, including some that appear to have extracted no consent, informed or otherwise, from the communities involved. RAFI is not inventing the general problem.
In debate, positions hardened considerably. It had been hoped that all parties could agree. Instead, those opposed to bioprospecting took the hard line represented above. I was able to question Mooney and Ryser directly, and extract from both of them (independently) flat statements to the effect that all ethnobiological research was, at best, suspect, and all bioprospecting should be stopped, at least for the indefinite future. My understanding was that this is the official position of RAFI and of CWIC. The whole story was later told by Cori Hayden in When Nature Goes Public (2003), along with some other misadventures of well-meaning ethnobotanists in Mexico.
The stated rationale for this was that any knowledge that seemed useful to the world might be expropriated and patented by the giant multinational pharmaceutical and/or agribusiness firms. The danger of such expropriation is real. Individuals and firms have attempted to patent neem oil (from Azadirachta indica) and turmeric (Curcuma longa) and their traditional uses in Indian medicine. Though the people of India have been using neem oil for centuries, it took 10 years for a lawsuit brought by Vandana Shiva and associated groups (and supported by the Indian government) to get the patent rejected. An American firm patented certain germlines of rice as “basmati,” though they were not actually basmatis by traditional standards. The firm even tried to, but could not, patent the very name “basmati”—traditionally applied to a group of long-grain, highly aromatic rice varieties of northwestern India and neighboring Pakistan. The Americans wanted to reserve the name for a hybrid rice that is not basmati and does not have its characteristics. (For some details of this sorry story, see Crucible II Group 2000:23. “Basmati” is a loose term, properly restricted to about 18 Punjabi varieties that share certain characteristics, but loosely used for dozens more; it was thus available for specifying on a rice that did not have the good qualities of the basic 18; many true basmati varieties, and other rare aromatic varieties, are acutely endangered; see Singh et al. 2000.) Many other such cases can be found (Shiva 1997). All the medicinals so expropriated have been common-knowledge items, rather than recent discoveries by ethnobiologists. Food plants, on the other hand, have contributed many recent genes, found by plant explorers in traditional gardens and fields but then seized by multinational agribusiness corporations.
Of course, patents cover only new developments—medical products isolated from the traditional product, for example. And they have a lifespan—the product enters public domain after a long period. But the attempt to patent such things as the word “basmati” show that blatant violation of the basic principles of patenting is not outside the feasible set at this time.
Even national laws are inadequate to protect such goods. The multinational firms in question are so huge and powerful, and so well supplied with armies of lawyers, that they can influence even the American government. Thus, the agribusiness firm of Archer Daniels Midland has had its way in American politics, thanks to its enormous “campaign contributions” to politicians of both major parties (Eichenwald 2000). The government of a small Third World nation can hardly be expected to withstand such pressure in every case. Still less can a small indigenous community.
RAFI has done yeoman service in fighting against patenting traditional seeds, genomic material, and medicinal preparations. I personally agree with their assessment that such patenting, especially of human genomic material, is criminal and should be prosecuted as such. It is clearly illegal under most patent and international copyright laws. Slick lawyers, however, can always find loopholes or dodges to get around the letter of the law and so defy its spirit.
Mooney, Ryser, and others thus see all ethnobiological research as dangerous. Any acquisition of knowledge can make available material that can be expropriated.
Some groups, such as the Crucible II Group (2000), have argued that flagrant biopiracy is not really posible under current laws, or at least not practical. The whole problem is reduced to minor and manageable levels. Indeed, if traditional people could simply keep using their traditional products, expropriation of rights over some new drugs developed from those products might not matter. But the nature of patenting is such that those who do not share in the patent have no rights to use the material without payment or permission. Nominally, this applies only to new applications of or preparations of the traditional product. However, multinational firms are not always ethical in the degree to which they press this case; they can legally sue any user of even quite traditional preparations. They would probably not be able to win such a suit in a fair court, but the chance of a fair trial in a case pitting a multinational corporation against an impoverished local farmer in a Third World nation may easily be imagined. Theoretically, the entire community of neem users could lose all rights to employ drugs developed from their own traditional medicinal tree. Since the tree is traditionally used throughout the Indian subcontinent and much of the Near East and Southeast Asia, this would affect well over a billion people.
Obviously, the problem is real, and will not go away. Patent rights could be clarified and new legislation introduced (see below), but if the multinationals can really tramp on the law with impunity, this will be of limited help.
This raises both tactical and general issues of considerable ethical importance. Do we cease from an activity that could potentially produce harm, in spite of all the benefits it provides, or do we indulge in cost-benefit calculation, and take risks for the greater good? This is a question that has been argued, without resolution, by ethical philosophers throughout history.
There is thus substantial reason to give up all ethnobiological research, since it could lead to harm. Indeed, the same logic could apply–and no doubt is being applied–to all biological and anthropological research.
At this point, we are back with Marlowe and Shelley, attacking the knowledge quest in its entirety. Mooney, Ryser and others, like the traditionally virtuous church-goers that tried to save Faust from himself, argue for a world based on morality rather than the troubled and uncertain search for truth.
Several counter-arguments were raised at the International Congress of Ethnobiologists. Most were raised in questions and debates on the floor; others emerged in conversation later. These arguments were countered by individuals from RAFI and CWIS.
I will attempt to summarize these debates below. Since, in the nature of things, I cannot quote or attribute these arguments, I will simply state them as I see them, to the best of my ability. I also add my own arguments, so this is a personal view more than a summary of debate. Harking back to my high-school debating days, I will provide argument, riposte, and rejoinder. In general, the arguments and ripostes are summarized from debate at the Congress; the rejoinders are “all my own work.”
1. Currently, nothing worth patenting has emerged from ethnobiological research. The substances that have become biopiratized are all common knowledge, and have been, in most cases, for centuries. No explorer or scientist was needed to bring turmeric and neem to world attention. No medicines of importance have emerged from ethnobiological research. Some important seeds and other plant and animal genetic material have been discovered recently, but largely by economic botanists and company representatives of a more traditional sort, not using the full armamentarium of ethnobiological methodology.
Riposte: Any day, ethnobiologists could find important drugs. In fact, that was the whole goal of the ICBG. It did not get drug-company sponsorship for nothing.
Rejoinder: The slight risk of finding something worth stealing has to be set against the enormous value and importance of ethnobiological research in general.
2. Traditional knowledge is dying out. It is imperative to salvage it while we can, if only so that the people themselves will have it if they want it, again, in future.
Riposte: When I asked Ryser about this directly, he answered that the indigenous people will not die out, and will retain what they want and generate more as they need it.
Rejoinder: It is sufficient to point to the countless episodes of Native American people in the United States seeking out old ethnographies in order to revive their ceremonies, language, and ways. I have been involved in a few such cases. Luisa Maffi, at the conference, made the point that a large percentage of the world’s languages are dying out. (Another large percentage, alas, is already defunct.) She is the founder and leader of Terralingua, a small NGO dedicated to saving these languages by recording them and encouraging the speakers to preserve them. It is simply not true that indigenous people are keeping their knowledge, or even the most useful subset of it. They are the sufferers when knowledge is lost, and they are the ones who want to revive it when they realize what they have lost.
Even if knowledge does not die out, it changes constantly. Much traditional knowledge was probably lost in each generation even before the impingement of the modern world.
3. Ethnobiology produces knowledge useful to the entire world. Some of this is potentially patentable, but the vast majority of it is not. It would not be worth the hassle. Yet it is valuable far beyond the groups that use it. Assuming we have their informed consent, we have a moral duty to get this knowledge out where it can be used. The cost-benefit accounting is clear: a slight and uncertain danger is outweighed by a huge and certain benefit.
Riposte: Any harm is evil. The slightest risk of a slight harm matters more than shutting down the enterprise. Cost-benefit accounting in this case is inappropriate, since it comes perilously close to making indigenous people into mere means for an end—an assumed “greater good.”
Rejoinder: This is a moral call. A utilitarian would go with the cost-benefit accounting. An extreme Kantian would go with the rejoinder’s extreme construction of the precautionary principle. See below.
4. Informed consent is possible and adequate.
Riposte: Only if the information is genuinely full—including a complete account of the underhanded dealings of the giant corporations. It is nearly impossible to put this in language that, say, a small rainforest tribe can understand. Moreover, one has to get the informed consent of all members of the group in question—all the 300,000 or so Highland Maya, for instance. (I may be misunderstanding this—it seems truly extreme—but it is the very clear message I got from Mooney and COMPITCH.) Since this is obviously impossible, if only because of the impossibility of defining a “Highland Maya” with enough precision, ethnobiology must be shut down.
Rejoinder: This is, again, a moral call, involving a contrast of a more flexible or utilitarian position with an extreme Kantian one. The latter runs far beyond anything recognized as “informed consent” in any other sphere of activity. Demanding such high standards of “informed consent” in medical patients would end all medical care!
5. “Indigenous” is a poorly defined, ad hoc, and more than slightly patronizing—even racist—concept.
Riposte: Then let’s call it “traditional,” “local,” anything you please. The point is that there are small, politically weak and oppressed groups that own extremely precious and valuable knowledge, and they are getting this knowledge alienated and commoditized.
Rejoinder: True. But where does one draw the line? Is knowledge to be made public only if it is discovered by or the property of elite white males? Isn’t this devaluing the indigenous people, by suggesting their knowledge is not important enough to be brought to world attention? And what about children of indigenous people? They are being denied their heritage. What about children who are half or less indigenous by parentage? Do they have rights?
6. Knowledge is usually not “owned” in the modern sense by traditional peoples. Some groups, e.g. Northwest Coast First Nations, do have quite European-style knowledge ownership systems. Most leave it in public domain, to be learned and drawn on as necessary.
Riposte: All the more reason to leave it to them until we can deal with the legal issues of securing it and protecting it in contemporary global society. There is, moreover, a vast literature on this issue, coming to no conclusions, but with a clear tendency toward a consensus in holding that indigenous peoples have rights to their knowledge and should keep it to themselves if it could be expropriated. (Citations are beyond the range of this paper, but see publications of RAFI, and, again, Shiva 1997.)
Rejoinder: Again, one can only agree. But, meanwhile, the place for it is still public domain—so that everyone can learn it and draw on it as necessary.
7. It is patronizing to tell indigenous people they can’t talk to strangers, can’t know enough to decide and consent, and can’t even pass on their own knowledge (even to their own children—apparently). Silencing them at the whim of elite white males is not the way to win them appreciation and respect in the contemporary world.
Riposte: It is patronizing to assume ethnobiologists know best or have some sort of higher right.
Rejoinder: No one is claiming that. Ethnobiologists merely claim that they should be able to get knowledge out into the wide arena when indigenous people want this or agree to it.
8. Indigenous knowledge is often shared by many groups—each with a different understanding or data pool. At other times, it is esoteric, known only to a small subgroup of the indigenous nation in question. Either way, how does one draw the boundaries of the “consent” universe?
Riposte: Again, all the more reason not to study. All ambiguity can be resolved, morally, only by abstention from research until the ambiguity is removed.
Rejoinder: Once again, this would end all research forever, since such ambiguity is part of the human condition and simply cannot be defined away.
9. If a plant that cures AIDS quickly and cheaply is found among the Maya, would it really be the most moral choice to leave it with them, unknown to the world?
Riposte: Yes. This is another form of the classic “Hans and the medicine” story we all remember from Philosophy 1. Hans’ wife is dying; the local drug store has the medicine to save her, but Hans has no money. Should he steal the medicine? To most of us, that is a no-brainer. On the other hand, the riposter recalls how Professor Doe in Philosophy 1 could always vary it enough to make us wake up: What if she’s only seriously ill? What if she’s not in danger of death, but is terribly pain-wracked? What if she’s going to die anyway and the medicine would only delay the end a few weeks? Only cleaving to an absolute standard can be justified.
Rejoinder: This seems close to logic-chopping. The case of the AIDS drug would hardly be equivocal. Estimates of those destined to die of AIDS in the near future run into hundreds of millions.
10. Collaborative work between investigators and local people is now fairly common (besides the Berlins’ work, one may cite Turner et al. 2000, and many other exemplary cases).
Riposte: In no case were all members of the group consulted or involved.
Rejoinder: Surely, involving all individuals of a group is an unrealistic goal. One does not seek the permission of all English-speakers to reproduce a copyrighted item—only of the copyright holder, who must be the author or legal heir or executor.
11. Corporations have to invest a great deal to make a product saleable. They deserve recompense. Only the residual share can be “stolen” from the indigenous community—and it is not really stolen, since use of the product remains possible to them.
Riposte: Stealing is stealing, and is morally wrong.
Rejoinder: This does not quite cover the issue; traditional knowledge is not stealable in the way a new song or invention is.
It will be clear, reading the above points, that most of them end up in a single moral confound. Admittedly, I have drastically oversimplified many long and complex arguments, and I must plead guilty of having done this in a way calculated to make that single moral confound stand out!
The moral confound is: Do we follow the utilitarian calculus, benefiting humanity but potentially endangering some indigenous people, or do we employ a Kantian calculus, in which humans can never be treated as subjects and must always be protected? In the latter case, we must avoid the possibility of harm (and, incidentally, of using people as mere means) by observing the Precautionary Principle to the limit.
The harm done is small. The indigenous communities continue to be able to use the plant product—just not its commercial applications in purified or altered form. Surely no court would force Punjabi farmers to stop calling their rice “ basmati.” The benefits to society from making traditional knowledge available are exceedingly great. The Precautionary Principle cannot always be applied to the limit, or we would never do anything at all; even getting out of bed in the morning involves the possibility of harm. The oldest statement of the Precautionary Principle is Hippocrates’ famous “First, do no harm”; but every doctor knows that the possibility of harm is always there. For example, any new patient could be the first exemplar of a fatal reaction to a drug previously believed totally safe. Thus, the University of California’s human subjects protection code (a typical one) provides for some risk to human subjects, as long as it is vastly outweighed by expected benefits. I am currently participating in a UC study of Alzheimer’s disease (I assure you I am a control!); a slight danger of accidents or the like, on my part, is offset by the value of the expected knowledge to be gained. The Precautionary Principle is best interpreted thus. It should recommend against doing things for which there is good scientific evidence of riskiness, and it should be invoked only when there is a cost-effective way to remove the risk (Cranor 2001). Neither condition holds in the present case.
Moreover, and conversely, Chris Hannibal-Paci has pointed out (email of Dec. 19, 2000, quoted by his kind permission) that the Precautionary Principle can also be applied as a justification for saving ethnobiological knowledge. Any herb locally known to be healing could be the one that will solve the problem of AIDS, or breast cancer, or malaria. Any local food crop may be the one that saves a nation from famine some day. Letting the knowledge die is certain to be costly, even though we do not know which plants may be critical in future.
Preston Hardison (2004, 2007) has emphasized the nonrival (nonexcludable) nature of information, and the difficulty of controlling either it or genes or plants. Even capturing intellectual property rights for indigenous communities would not get them much, or get it for long. By implication, a free-for-all would be preferable. On the other hand, community rights to major payoffs must be protected (see also Green 2004; Hunn 2002).
At this point I must speak in my own voice. It is a conflicted voice. I am deeply loyal to my trade, because I think it is benefiting humanity. On the other hand, I am the person chiefly responsible for the original phraseology now incorporated into the American Anthropological Association’s code of ethics, to the effect that the first responsibility of anthropologists is to the people with whom they work (see the Code of Ethics as given in Anthropology Newsletter, Sept. 1998, p. 19; the wording of point #1 began with my contributions to a code of ethics for a local association; Gilbert et al. 1988). I, or we, explicitly included the point (in the final Anthropology Newsletter phrasing) that “[t]hese obligations can supersede the goal of seeking new knowledge.” The present controversy forces me to sharpen up, even to redefine, some concepts.
Many of the following issues are raised and addressed in a recent collection of papers edited by Roy Ellen, Peter Parkes, and Alan Bicker: Indigenous Environmental Knowledge and Its Transformations: Critical Anthropologkical Perspectives (2000). As the subtitle implies, several highly critical approaches are raised by the various papers in this volume. They range from the mild, but still serious, critiques elaborated below to what I can only interpret as broad-scale attacks on the whole cause of environmentalism and indigenous rights. Leaving aside the latter, the former include several concerns I had already raised in my own mind.
1. Who are “the people”? The difficulties with concepts such as “indigenous” need no elaboration here. “Indigenous” is now a political, and politicized, term that has lost its dictionary meaning and become a political football. Essentializing “indigenous peoples” as if they represented a uniform category is clearly not possible /1/.
However, the problem is not just with indigenous peoples but with all local communities, and, indeed, all people everywhere. All have knowledge that could be abused if widely published; all have rights of privacy.
However, there are wider questions, largely about defining the pool of people to ask for permissions.
As a Mayanist, working in the town of Chunhuhub, “my people” are sometimes those of Chunhuhub, sometimes the Yucatec Maya, sometimes all Maya, sometimes all Mexicans, and very often all humanity. In and around Chunhuhub, there are also many traditional healers who have their own idiosyncratic knowledge. (At least, in those cases, there is minimal ambiguity as to who really owns that knowledge.) I work with the Yucatec Maya of Quintana Roo.
Some of the knowledge I study is restricted to, but almost universally shared by, Yucatec everywhere. This is true especially of linguistic information. Other knowledge is shared among most Quintana Roo Yucatec and many in neighboring Yucatan, but not by other Yucatec. Still other knowledge is restricted to Chunhuhub and its area. Some knowledge is idiosyncratic—possessed only by one or two healers. Perhaps most difficult is the question of knowledge shared by Yucatec and Hispanic-Mexicans of central Quintana Roo, but not by Yucatec or Hispanics of other areas. How does one bound such groups? It is notoriously difficult to define and bound groups like the Yucatec (see Hervik 1999 for an excellent discussion of this). Even if it were possible to ask all the 500,000-odd Yucatec for consent to publish information, one would never be able to tell who was included and who was excluded. Bringing Hispano-Mexicans into the equation would make it inconceivable. There is simply no way to bound a traditional knowledge pool. What can we do with knowledge that the Yucatec share with virtually every culture on earth, such as the use of mint for stomach medicine and aloe vera for burns? Do we have to get the informed consent of the entire human race before publishing this?
My practice has been to ask individuals, and to ask the communities in persona of their elected governments. Local governments are actually quite democratic in this area; elections are reasonably fair. This may be more the exception than the rule, worldwide; I do not know what I would do in a community with an unrepresentative government. I also do not know what to do if other communities protest against my knowledge quest. This I think to be both unlikely and unreasonable, because the Yucatec know that each community has its own distinctive knowledge pool and permission system. But if it should occur, I would plead that I am preserving Chunhuhub knowledge, not speaking for all Yucatec.
To take another example known to me: When one deals with knowledge found among the Kwakwaka’wakw of British Columbia, one is sometimes dealing with knowledge restricted to a numaym (descent group), sometimes with knowledge restricted to a tribe (such as the Kwagyul or “Kwakiutl” who gave their name—through a mistake—to the whole language group), and sometimes with knowledge shared by all Kwakwaka’wakw or even all Northwest Coast Native people. In this case there actually are traditional ownership rules for knowledge, so we can be sure these levels matter, and we can discover which levels matter for which bits of knowledge. What can we do in areas where rules and groups are not so well defined?
The only coherent position is to get the permission of individuals and communities with whom one works, and not worry about the whole universe of theoretical knowledge-owners; and to respect local knowledge ownership.
This may lead to situations like that reported by one of my students (who will wish anonymity here) among the Yavapai of Arizona. The Yavapai are in imminent danger of losing all their traditional culture, and are fighting to save it—to teach the language to the young and to pass on the cultural traditions. They have recorded their traditional ethnobotanical knowledge with the help of a professional ethnobotanist. They have published it. But they have restricted distribution of the publication to tribal members and a few selected archiving venues. This seems a valuable temporary expedient, that would allow recording of sensitive knowledge for posterity without leaving it exposed to biopirates.
2. How does one balance obligations to different levels? It is normal, in ethics, to consider a loyalty to all humanity higher than a loyalty to one group. In this case, there has to be special consideration of one’s research group, but somewhere a regard for all humanity has to enter in. Should Hans the Anthropologist “steal” that AIDS drug, if he has the (traditional) “drug store’s” consent?
3. What obligations override seeking new knowledge? When we wrote that line, I was thinking of the old question, raised by Boas, of spying. We were thinking also of respecting people’s rights of privacy and of maintaining esoteric knowledge in its secrecy. I (at least) was not thinking of a world in which all knowledge-seeking would be suspect.
4. Collecting data without the consent of the people in question is immoral. But what is “consent”? It has to be informed; we know that. People need to be informed of how their knowledge will be used. It is normally enough to say one is writing books to make the knowledge available to anyone interested, including the people supplying the information. (It should be obvious, by now, that anthropologists have a moral duty to make their findings available, in some form, to the people who provided said data. The form should ideally be readily accessible, but indigenous people too now use libraries and go on-line, so fairly technical literature is not inaccessible to them.) However, when data could potentially be used by pharmaceutical companies or the like, there is an obvious need to specify this in consent forms. This is a separate issue.
5. What are the interests of other actors—NGO’s, political groups, governmental agencies? How do they appropriate, transform, and often misrepresent or abuse traditional knowledge? (See Ellen et al. 2000 for this; it is the main theme of the book.)
6. When we put together the ethics code, we were thinking of unquestioned harm—of things no one could think were other than harmful. We never thought in terms of a Precautionary Principle carried to such lengths.
Obviously, none of this will placate RAFI. Mr. Mooney maintained at some length that there could be no such thing as informed consent in such cases, because such small local communities could not possibly know the extent of the damage the giant multinational firms could do to them. Indeed, no one, indigenous or not, knows how bad things can get. This brings us back to the Faustian argument: Since knowledge can always be misused, and we do not know how bad the misuse can get, we should not presume to study or to learn.
Presumably, few of us have the holy dread of worldly knowledge that animated the originators of the Faust myth. Indeed, few of us even remember that world-view at all; the full force of Goethe’s irony is lost on us, when he satirizes the old and genuine terror at Faust’s data quest. Quite the reverse; “information” is now seen as a sort of unquestioned good. The Internet, or at least its hucksters, seem to want to convince us that maximizing access to information is the whole purpose of modern life, having replaced maximizing access to money.
Most of us would probably agree with Eugene Hunn , who, in a private communication to me (17 Nov. 2000), notes “the positive value to indigenous communities of their TEK used in teaching others to understand, appreciate, and respect them and their intellectual accomplishments. This requires freely shairing much of the detail….”
Yet the Faust tale is very much alive for Mooney, Ryser, and many others. For them, the risks entailed in gaining knowledge make the whole search a moral evil.
Legally, traditional knowledge is in the public domain. Morally, its status is more ambiguous. Some societies (like those of the Northwest Coast) have genuine traditional systems of knowledge ownership, with institutions corresponding to copyright and patent. Most have some demarcation between esoteric knowledge—reserved to initiates or religious officiants—and other knowledge. Anthropologists have sometimes revealed such knowledge, to the annoyance or worse of their subjects; but, sometimes, the descendents of those subjects have had to turn to anthropological monographs to retrieve the knowledge. Some groups (ancient and contemporary) have recorded such knowledge for posterity, but not made it accessible to nonmembers. Others have seen esoteric knowledge as esoteric only for noninitiates of their own groups; they allow it to be published for outsiders’ view.
However, the vast majority of the knowledge obtained by ethnobiologists is in public domain by anyone’s standards. It is knowledge that is freely available to all members of the social group, including immigrants from different cultural traditions. Yucatec Maya are glad and proud to share this sort of knowledge with immigrants, and complain only when the immigrants hurt themselves and others by failing to heed advice.
There is a real risk that a few members of an indigenous group, or—more perniciously—a group of outsiders posing as indigenes or “friends” of indigenes—could biopiratize information themselves. Incidents of real or pretended indigenes charging outrageous fees for knowledge have come to light recently. Perhaps more common are situations in which a small disaffected group can veto a project approved by the rest of a traditional community. Again, there is an issue of indigenous rights here; are indigenous people to be allowed to decide their own fortunes, or must they be subjected to standards that do not hold for others?
It seems to me that this knowledge should be publishable by anyone, anywhere, and that it should be absolutely immune to patenting. Clearly, we should work to stop firms from patenting such things. But, in the meantime, publishing it merely adds some distribution—and, more importantly, permanence—to an wide, unbounded, and accessible knowledge pool.
This, however, raises the question of how to compensate traditional experts. Important issues have been raised by Chris Hannibal-Paci (email of Dec. 19, 2000, cited with his kind permission). He notes that experts in contemporary academic culture are compensated at a fairly high rate, in both money and prestige. Few indeed are the traditional experts who have such good fortune. This, of course, raises the question of whom should be compensated—an individual expert? The whole community? The appropriate type and level of compensation must also be set locally. Many communities (most Native American groups in the United States, for instance) now have set “informant fees” and other mechanisms in place, but sometimes these are inadequate.
One may also make the point that a research professor is compensated for finding new knowledge and for teaching it—not for knowing. Knowledge generated by the research process is either made freely available or is (less often but all too commonly for my personal taste) patented by the professor’s employer. The professor sees the benefit only in so far as his or her employer sees fit to increase salary.
In this case, the best moral option seems (at least to Dr. Hannibal-Paci and myself) to be as much co-work and co-publication as possible with traditional experts, if possible through or with local communities (cf. Turner et al. 2000). Problems of conflict between individuals and communities may arise, and will have to be dealt with, but these lie outside my purview here.
The immediate cure for the patent problem, I believe, will have to come from existing practice in both folklore recording and plant patenting. Here the problem was encountered long ago, and solved.
In folklore, the problem arose in the “folk music revival” of the early 1960s. Pseudo-folk-singers would often copyright traditional folksongs. This led to protests by actual folk singers, who had been singing the songs all their lives, and now found that they theoretically would have to pay for the privilege. On the other hand, if the songs remained strictly in public domain, those same traditional singers could not profit from their own distinctive renditions! Soon it was agreed, and enshrined in law, that traditional material was in public domain, but any “arrangement” of it could be copyrighted. This is why one sees, in small print, the parenthetical phrase “(arr. Hurt)” on John Hurt’s folk blues records. It is now usually not actually printed on the record—but the law holds. It actually solved the problem to reasonable satisfaction.
Plant patenting operates similarly. No one can patent a plant unless it is a new variety actually developed by the patenter. Plants merely found in the wild cannot be thus patented. (Related are other IPR mechanisms, including legally protected trade secrets and plant breeders’ rights, the latter apparently being like plant patents but weaker.)
Use of these two principles, together, would eliminate biopiracy. Traditional drugs like neem, and traditional words like “basmati,” could not be patented or copyrighted. Only genuinely new processes could be.
The question would then reduce to one of enforcement. At present this is a problem, but even the greatest multinational firms could not stand against a coalition of major governments with such rules on their books. Both legal recourse and public shaming could be invoked. The immediate problem has been caused by the extremely rapid consolidation of power in the hands of a few firms coupled with the slow, lame, and often corrupted response of governments.
In the meantime, until this is decided, what are we to do? The swashbuckling days of early ethnography are over, and return to them is not an option. However, that said, are we to stop the entire anthropological and ethnobiological enterprise, or carry on with considerable caution? Since it is extremely unlikely that any of these questions will ever be resolved to the satisfaction of RAFI or CWIS, should we give up all recording of traditional knowledge, and simply let it die out?
At this point, it may be useful to inquire into the ethics of the matter a little more deeply (cf. Anderson 1996; Hunn 2000).
As I have noted, RAFI, CWIS and others are maintaining an extreme form of the Precautionary Principle. Ethical philosophers find this principle invaluable in dealing with such things as pollution (Cranor 1993, 2001; Shrader-Frechette 1991). However, it is recognized that it can be pushed too far. All food production involves environmental damage of some kind. (Apologies to believers in the Noble Savage whose humble cultivation was in harmony with nature, but this myth is long exploded.) So does all tool production; knapping flint produces many sharp spalls, and silicosis-causing dust. In fact, all human activity entails some risk. One must, therefore, at some point recognize the need for cost-benefit accounting. This may be culturally conditioned (Douglas and Wildavsky 1983–though they exaggerate the point) but it can be more soberly reckoned in terms of lives lost vs. lives saved, as when one practices triage or defensive warfare.
The accumulation of knowledge has brought us nuclear and biological weapons, assault rifles on every streetcorner, water pollution by over a million known chemicals, and fast food. Yet, at the same time, it has also dropped the infant mortality rate by two orders of magnitude (in countries with good health care systems), dropped the maternal mortality rate by more than three orders of magnitude, and made 2000 perhaps the first year in all human history without major famines or food shortages.
The knowledge, of course, is neutral; science can kill or cure. What matters is who uses it, and how—whether it is used for responsible purposes or to drive an agenda of hate.
There are many other moral issues here besides the Precautionary Principle. I have not identified all of them. However, two stand out, at this point. One is the basic argument from the utilitarian position—a pragmatic, flexible ethic that balances help against harm. The other is the basic Kantian position: reasoning back to something that can serve as an absolute moral standard, and then reasoning forward to deduce applied morality from that standard.
The utilitarian calculus is based on Bentham’s concept of “the greatest good for the greatest number” over the greatest time (Sidgwick 1902:244), provided that “everybody to count for one, and nobody for more than one” (quoted in Sidgwick 1907:417; a rather Kantian qualification!). Good is calculated, other things being equal, in terms of benefits and harms. One should help and not hurt.
By this standard, there is absolutely no question that traditional knowledge should be recorded, preserved, and made available to the widest possible audience. The cost/benefit accounting is overwhelming. Imagine a world in which wheat, or maize, or rice had been allowed to die out unknown. Overall, any harms to traditional people would be far less than the benefits to them or their descendents—let alone the benefits to the human species.
However, the utilitarian calculus also rules out patenting traditional and public-domain items—at least by any application I can imagine on short notice. The damage to traditional (and other) people denied their heritage would be greater than the benefits from doing it. For instance, patenting neem, an almost universally available medicinal, would deprive literally billions of people of current benefits.
The utilitarian calculus thus cuts in favor of recording traditional knowledge, but only if one can make every effort to prevent patenting the knowledge and the genetic resources themselves.
Kantian basic morality is founded on Kant’s restatement of the Golden Rule: “Act so that your actions could be a basis for universal law.” (This is as cited by Sidgwick 1902:273; I have modernized the translation.) He deduced from this a second basic principle: a charge to treat people as ends, never as means. The Kantian Golden Rule would make uncovering and publishing knowledge a clear good. I unhesitatingly make any knowledge I have available to my students. Thousands of people in a dozen countries have unhesitatingly made knowledge available to me.
However, the Kantian razor also cuts against patenting traditional knowledge. No one, not even a drug company CEO, would want all traditional knowledge patented. One could not use any English-language words without paying the dictionary companies. One could not eat rice without paying all the billions of Asians who are the heirs of its developers.
The conclusion is the same as under the utilitarian calculus: We should make every effort to record traditional knowledge, but also make every effort to prevent its sequestration.
Considering people as ends raises some serious problems. Anthropologists have a long history of using the people they study as means to selfish goals /2/. Sometimes the only purpose of field work is to get a degree and a secure job. In such cases, the anthropologist is clearly “using” the people (American folk speech beautifully expresses Kantian morals). However, one could argue, and I do argue, that even the higher goal of advancing our understanding of humanity is exploitative in Kant’s sense, if that is the only goal of research. Indeed, even the goal of understanding the oppression and exploitation of the people one studies is merely exploitative unless one is prepared to use that understanding to help said people.
Anthropologists may also, with the best will in the world, get dangerously overinvolved in politics. A good scholar may make a poor politician. Our skills are not in the manipulation and character-reading that politics requires. Several of the papers in Ellen et al. (2000) seem to have wandered over the line into political side-taking, and they seem to me to suffer for it. One can be a advocate, even an impassioned one, without becoming totally involved in immediate political fights. (One of the papers in the Ellen volume appears very closely involved with the personal politics of the author’s former field assistant [Parkes 2000]).
Thus, I do not follow some postmodern anthropologists into strident “advocacy,” but my differences with them are mainly tactical. As a 1960s radical, I learned the hard way that stridency hurts everybody, and that obvious bias, even of a commendable sort, discredits everybody. We serve our friends only by witnessing to the truth, because truth is the last best “weapon of the weak” (to use the phrase made famous by Scott 1985).
Using people as means becomes doubly immoral when one extracts knowledge from people in a way that leaves them open to exploitation and oppression, or other harms.
This provides the moral grounding for RAFI’s position, and it is a genuine concern. The utilitarian calculus risks reducing some people to mere means, in order to serve others. The utilitarian clause that “each counts for one” prevents this up to a point, but seems inadequate in the present case.
We have thus run to an impasse. The preponderance of arguments suggests that we should make every effort to prevent patenting traditional property, and that we should get informed consent from individuals directly supplying information and from communities in which we work, but that we should get the knowledge recorded and made available to a wide audience, including, at the least, the people with whom we are working.
At this point, we may consider another issue (dear to both Kantians and utilitarians): the value of free and open publication, as basic goods in themselves. It would be hard to deny that these were and are essential to all scientific progress. Secrets are lost to all. The unpublished finding does not exist. This is what lies behind the much-hated but absolutely necessary scientific rule of “publish or perish.”
This introduces a wider freedom of speech issue. To tell indigenous people that they cannot talk to strangers without the permission of RAFI and other paternalistic, white-male-dominated organizations raises very serious questions about indigenous rights, and human rights in general. Freedom of speech and freedom of conscience are affected. Indigenous people may want to, and choose to, benefit the world by disseminating knowledge. No one’s rights are served by imposing gag rules from outside.
A final concern in this immediate group is the problem of appreciating indigenous cultures. We are all too well aware that the vast majority of contemporary people pride themselves on being “civilized” and look down with scorn on “primitive savages.” Racism and cultural prejudice appear to have been decisive in the recent United States elections. Indigenous people in countless ways. Some of these relate directly to indigenous ecological knowledge. Conservation biologists and many other environmentalists, for example, often assume that “primitive” people thoughtlessly trash and waste their environments (see e.g. Redman 1999; Terborgh 2000), and dismiss ethnobiologists’ findings to the contrary as mere politically-correct romanticising. The policy implications are that indigenous people should be deprived of their lands—in favor either of more “enlightened” settlers or of biotic reserves. Terborgh, for example, despairs of reserves left to the mercies of indigenous peoples, whom he sees as nothing but wastrels. I know John Terborgh, and respect both his science and his personal integrity; he is not an evil racist or colonialist. He is simply unaware of the truths about indigenous peoples that we ethnobiologists have been far too diffident about publishing. If we are unable to continue research on indigenous knowledge, we will simply be giving the field over to the advocates of dispossession.
More generally, though, and potentially far more important, we should remember that the worldviews, cosmologies, and knowledge systems of indigenous and local peoples are among the greatest achievements of the human spirit, and deserve attention along with the works of Shakespeare, Tolstoi, and—since we speak of them—Marlowe and Goethe. Depriving the world of indigenous and local cosmovision would be a loss comparable (at least) to the destruction of all the creations and achievements of Europe or China /3/.
The confrontation over appropriation of indigenous plants is a classic confrontation between utilitarian and Kantian views. I personally cannot decide between utilitarianism and Kantianism. I agree that the greatest good for the greatest number is a very important general goal. I also agree that fairness and individual rights are vitally important. The current debate pitches my two sides against each other. Many ethnobiologists find themselves in a similarly schizophrenic position.
The attitude of plant-hunters from ancient times until the 1990s was robustly utilitarian. Plants and plant knowledge that could benefit the world were to be introduced to the world, as quickly, cheaply, and easily as possible. The relatively small (or nonexistent) benefits that could accrue to the original stakeholders from maintaining individual property rights were trivial compared to the benefits to humanity that would accrue from wide distribution. This was the morality that guided plant explorers and ethnobotanists until the last decade.
The current attitude has shifted sharply in a Kantian direction. Writers such as Pat Mooney and Joseph Vogel (1994, 2000) maintain a strictly Kantian position: the harm to indigenous people from appropriating their resources is absolutely immoral, however slight; the benefit to the world at large, however great, must be foregone if it has even the remote potential of harming an indigenous stakeholder. Benefits, even cures for AIDS and cancer, can be lived without. Unfairness, in contrast, cannot be tolerated. Taken to extremes, this has even led to the preposterous position that even the early-day plant explorers were “biopirates”—as if the morality were clear even before modern copyright and patent law existed. Since perfection is impossible in this world, some forthrightly advocate the cessation of all ethnobiological research (Pat Mooney and Rudolph Ryser, personal communication in response to direct questions by myself and others at the International Society of Ethnobiology meeting in Athens, GA, 2000).
The positions can accommodate to each other only up to a point. Vogel, for instance, adds a utilitarian note: Once property rights are secured, indigenous people will be far more forthcoming with their knowledge and diligent about preserving it, since it would pay them to do so. This, of course, is the logic behind copyrights and patents. However, in the last analysis, the positions collide. Grave scientific meetings have degenerated into shouting matches, and even come close to physical fights, between partisans.
Joseph Vogel (1994, 2000) has combined Kantian and utilitarian positions into strong defense of extending copyright and patent laws, as well as international conventions on intellectual property, to cover indigenous community knowledge. He is also aware that indigenous people can be tricked into competition with each other, leading to quick sale for small sums. This, of course, has routinely happened in the case of land rights; the classic story of the “Indian” selling his newly-won land rights for a bottle of whiskey is not entirely imaginary. Vogel therefore argues for a cartel. The indigenous and traditional peoples and communities of the world should get together, set rules and policies, and hold out in solidarity for the best deal.
I agree with Vogel on principle, and am extremely impressed with his work and thinking. However, I am aware that all this takes place in a real world where morality, benefits, and harms are not always clear. Vogel’s cartel, for instance, sounds wonderful on paper. Unfortunately, a lifetime of research on development, including such matters as coffee producer cartels and international fisheries agreements, has convinced me that a cartel of the sort Vogel envisions is simply not possible. If we wait for that millennarian event before we publish, the knowledge will all be lost, and the human race with it.
In fact, I fear I am skeptical about the possibility of any satisfactory solution to the whole problem. There are too many vested interests. The interests of the international drug and biotechnology companies are all too obvious, and are the interests most considered by governments as of this writing. Opposed to these are the interests of many indigenous groups, who have made their desires known. Yet another problem is presented by the vested interest of paternalistic “defenders” of indigenous peoples. Such defenders claim to have the interests of their charges at heart, but seem largely concerned to maintain their own positions, and often seem particularly opposed to anything that might actually make their charges better off. Missionaries, government bureaucrats and development workers, and “indigenous rights” organizations seem particularly prone to such thinking. Even the best-intentioned paternalistic agent feels he or she “must” maintain his or her own position, and so seeks first and foremost to prevent his charges from getting any power of their own, especially economic power.
When one is uncertain about facts and outcomes in a case of this sort, it is important—at least to utilitarians—to pay special attention to possible consequences of different courses of action and different possible results. In the present case, Vogel is hopeful that his planned cartel will come into existence soon. Indeed, the most biodiverse nations have already formed a loose association to capture the rents of their biodiversity. Perhaps indigenous groups will soon follow. Unfortunately, at this writing, it seems much more probable that indigenous people will not be able to protect even minimal rights, let alone form a cartel. There are several reasons for this. First, the indigenous minorities of the world are a very disparate lot. Second, many, including the Yucatec, are dispersed and poorly bounded as groups. Third, many face outright hostility from their governments, who will surely do everything possible to prevent a cartel and to capture for themselves the rents that should by rights go to the indigenous communities.
This is taking place in a world where indigenous knowledge is rapidly vanishing. Most such knowledge is held by older people who are not passing it on. Anything not saved soon will probably be lost forever.
One wonders whether even Vogel or Mooney would actually refrain from publishing a certain cure for AIDS, malaria, or cancer if they found it in some isolated village. I would not. I am too utilitarian. I can live with Kantian morality only because I have a relatively easy time in Mayaland; the Maya have excellent remedies, but none known to me that would revolutionize modern medicine. Otherwise, I would not hide a cure that would save millions of lives, at least not if the only counter-argument was that the people who control it today might get some compensation, very far in the future, if I abstained. One recalls that current moral standards would have prevented the spread of bread wheat, potatoes, maize, rice, and all the other crops on which the world depends. Each would have remained in its own tiny area of origin, since there was, in those days, no way to guarantee intellectual property rights worldwide. Carried to extremes, the Kantian position becomes nightmarish.
Moreover, the chances of finding a valuable new cure among people like the Maya are low. Most of the bioprospecting has been done. Many minor medicines could be developed, and probably will be. However, there is almost no chance that a really valuable remedy will be found. If publication of what we do have is delayed indefinitely, the chances are that the Maya—and most indigenous people—will be prevented from getting what benefits they could out of their knowledge, without ever having anything to show for it.
As of this writing, drug firms and biotechnology firms have been scared away from bioprospecting among indigenous cultures, and have gone back to the labs to do their development work. This is a worst-possible-case scenario in action. The firms, and humanity, lose the best chances for real breakthroughs. The indigenous people lose all chance of cashing in on their knowledge, and therefore all economic incentive to preserve it. The ethnobotanists lose their chance to publish, and thus to archive some of the greatest triumphs of the human spirit.
So, in the end, if a traditional group has an antimalarial drug that has worked for them but that could be made better through laboratory research, everyone now suffers; the indigenous people lose the chance to get the drug improved and returned to them. Clearly, we need to solve the problem of intellectual property rights over indigenous knowledge as rapidly as possible.
Much of the rhetoric in favor of the Kantian position points to the huge profits of the drug and biotechnology companies, and labels these “unfair.” The drug companies correctly point out that the profits from a successful drug must cover not only the research that went into that one drug, but the research on the 5,000 to 10,000 failures that were examined in the search. Only about one in 10,000 drugs tested becomes commercially viable. The rest not only fail; they often do enough unexpected harm to lead to lawsuits. This raises still higher the cost of drug development. The outrageous profits that drug companies make on their few hits suddenly shrink into reasonable ranges when these facts are considered. Admittedly, the companies do very well indeed, and the indigenous people do not, and the fairness issue is very real. However, it is not as extreme as the Kantians often maintain.
The drug companies can also argue that they have to do a great deal of actual work in isolating, testing, and marketing the active compounds in medicial plants. The traditional communities in question, however, have usually done the work in past centuries. At present, most indigenous peoples are merely the bearers of traditional knowledge. All they have to do is share it, which involves no cost or effort on their part. The drug companies, in contrast, have to invest huge amounts of money and effort in developing it for world use.
There is also the enormous issue of medical counterfeiting, often involving dangerously mismade imitations or spinoffs of patented legitimate drugs. Counterfeit drugs are now a worldwide problem endangering large numbers of people (Johns 2008).
Another problem exists when drug companies make artificial derivatives or analogs of botanicals. Paul Cox and collaborators discovered prostratin, a drug with potential applications in treating AIDS and similar viral diseases, in a traditional Samoan botanical cure (the wood of the tree Homalanthus natans). They negotiated an arrangement with Samoa to return 20% of any profits to the nation. They now plead with drug firms trying to develop synthetic analogs to consider profit-sharing with Samoa (Cox et al. 2008). It is doubtful if the drug companies will be moved.
Finally, if one is being Utopian, one could certainly come up with something better than the quintessentially capitalist solution of extending cartels, firms, and patent and copyright law. I am not an inveterate foe of capitalism, and I fear the extension of this body of law is indeed the best we can do. Still, I am somewhat disturbed by the rush to extend the blessings of full-scale late industrial capitalism to the world’s small societies. It is hard to defend Kantian inflexible idealism when it is in the service of modern neoliberal projects! Many writers today are opposed to the rampant rush to copyright and patent everything; they see it—I believe correctly—as a major problem for the free exchange of valuable information, and as an abuse of a once-good body of law. Scientific knowledge, once released to public domain as a moral duty, is now increasingly patented by universities and others; this has major costs and creates major problems for society. Admittedly, one should “fight fire with fire,” but perhaps one should think before burning one’s house down.
Another real-world problem is determining who are the real owners of knowledge. Some knowledge is clearly owned by communities and other groups; the Northwest Coast Native peoples, for instance, have clear traditional rules about ownership of songs, dances, and stories, just as they do for land and property. This is not true for the Maya. In so far as they have a proprietary concept anent indigenous knowledge, it applies to individual and esoteric knowledge, like Don Marcos’ knowledge of special medicines and rituals.
Also, the Maya use plant medicines from many other cultures. Some are known worldwide, such as mint, rue, and aloe vera. Some are known throughout the tropics, such as the use of guava bark and leaves for diarrhea. Some are known throughout Maya and immediately neighboring lands, such as the nutritional benefits of chaya. Some are probably local to Quintana Roo and immediate environments, like the uses of the local species tankasche’. Some may be special knowledge of Chunhuhub, though I do not know of any. (Chunhuhub, having been settled recently from other villages, really has no special knowledge of its own.) Some are remedies found or developed by one curer, such as Don José’s heroic diabetes remedy involving an armadillo cooked with 40 limes. It would seem that the only knowledge that can be specified on a particular stakeholder is knowledge held by one individual or one tightly defined community. The problems of defining “the Yucatec Maya” are notorious (Hervik 1999); no one can do it satisfactorily. Nor are there any remedies known to all the Yucatec and none of the other inhabitants of south Mexico. Acculturation, intermarriage, and culture-brokering have seen to that. It will be difficult to define the Yucatec as a corporate entity for purposes of property rights, and, if they ever do become an incorporated tribe (like the Indians of the United States), they will still have no monopolies. Such classic Maya cures as elemuy and wako are known to others in south Mexico, and there is no proof that the Maya discovered them rather than learning about them from neighboring groups.
Moreover, it is difficult to imagine the disparate elements of the Yucatec cultural world getting together to agree on a clear, consistent policy for managing rights.
All this takes place in a world in which traditional knowledge is dying out very rapidly. While the Yucatec are preserving their heritage with special care, the encylopedic knowledge of the older jmeenoob is frequently not being reproduced. Don José’s son is learning, but that is unusual. Don Marcos’ son learned some, but is not well suited to the task, and it is now almost certain that most of Don Marcos’ incredible knowledge will die with him—except in so far as it is preserved herein. Don Pedro of Pich has passed on a little of his knowledge to his children (and a great deal to Dr. Betty Faust; Faust 1998), but he faces a much worse reality than anyone in Chunhuhub or Presidente Juarez. His community is no longer Maya-speaking; he is the last fluent speaker. Even the simplest plant lore is dying out fast. After him the town will be a Hispano-Mexican “mestizo” town with virtually no trace of a Maya heritage. At least, in Quintana Roo, the language and the widely known plant uses are in no danger of loss.
Some of the most extremely paternalistic indigenous-rights advocates have reacted to such truths by saying that the knowledge might just as well be lost. I cannot accept this. For one thing, the position is blatantly racist, or at least anti-indigenous. The same people react with horror at the thought of losing the libraries, museums, and archives of Europe. The achievements of white men are a major world heritage and deserve to be preserved. Shakespeare and Monet are worth saving!
To a non-racist, indigenous knowledge is equally part of the common heritage of the human species. These local traditions, these knowledge pools, are among the greatest achievements of the human spirit. They must be preserved, or all our humanity is damaged. “Each man’s death diminisheth mee,” wrote John Donne, and the same is true of cultures.
Yet, by the same token, since this knowledge is so valuable and important as a human achievement, it deserves the fullest protection from piracy as well as from decay, and its bearers deserve to earn the most they can for creating and preserving it.
Another real-world complication is the role of the nation-state in its 21st-century form. The problems caused by multinational corporations are all too well known. They have been interested in traditional ecological knowledge, but they are profit-driven, and so have every incentive to get the knowledge as cheaply as possible, monopolize it as thoroughly as possible, and sell it as expensively as possible. The results are well chronicled by Vandana Shiva (1997) and need no further elaboration here. The various dubious practices of transnational quasi-governments like the World Bank and IMF are also well described by Vogel and others (see also Hancock 1991).
Less attention has been paid to states as oppressors of traditional people and abusers of their knowledge base. Yet, nation-state governments can be as opaque, secretive, elitist, and committed to narrow agendas as any international agency.
Vogel is only one among many who believe that specifying intellectual property rights will solve the problems by providing a way in which enlightened economic self-interest will make people save knowledge and compensate well for it. But states claim rights of ownership over genetic material under the Convention on Biodiversity (CBD). Often, they claim rights to their citizens’ knowledge, too, though the CBD holds that the people who actually have the knowledge—the communities that created and preserve it—should be the designated owners.
The United States has refused to sign the CBD. Admittedly, this is for low motives: protection of US biotechnology firms (see Vogel 2000). But the United States has taken an arguably higher moral ground in holding that the genetic resources (at least) are common heritage of humankind, and should not be the property of the nation-state.
The dubious role of the nation-state as guardian or as economic agent is foregrounded here. Nation-states, and, indeed, the whole of the political process, are concerned with power over people—not with wealth. Their first and most important charge is to maintain security. This must necessarily override economic concerns. The United States has currently seen fit to guarantee major economic trauma to provide a very small marginal increase in security from terrorism. In general, states spend most of their money on security. They pay police, they make laws, they encourage security, and they make war—ideally defensive, often aggressive. They have to keep their own people loyal, which involves ideological control (B. Anderson 1991; Scott 1998) as well as police presence. The record of states in regard to traditional knowledge is basically a negative one. They see such local knowledge as opposed to their state-building project, or at best as irrelevant to it. It is thus displaced by formal education, even if it is not actively stigmatized and attacked (B. Anderson 1991; Scott 1998). We should remember that Native American knowledge—especially, but not only, that seen as “religion”—was combatted in the United States and Canada through much of history. This was true even though the knowledge was often known to be useful, and in fact was often being borrowed at the grassroots level by Euro-American settlers. Vogel sees hope in the high returns to traditional knowledge that future technological advances will bring. Indeed, making traditional cultures and knowledge more valuable and visible could not do anything but help. Still, I do not see even high and immediate returns as fully offsetting the desires of the state for control through homogenization (see Scott 1998).
Nation-state elites may be concerned with wealth, but, if so, it is often wealth for themselves alone, not for the nation. The nation may benefit when the elites can “do well by doing good,” but, frequently, we see situations like those in Indonesia, where enormous income streams from forests are being knowingly and deliberately sacrificed for short-term income from relatively small payoffs by illegal logging firms who are destroying the forest for all time. (See also Archer 1999.) In fact, nation-state elites often sacrifice economic benefits simply to keep their people in line. Sometimes this is done for selfish economic reasons; the elites sacrifice something now in order to achieve control necessary to shear their human sheep later. Often, however, the behavior of controlling elites is wildly countereconomic, and is done solely from a need for control or domination that has turned pathological. Hitler’s extermination of the Jews and Mao’s Great Cultural Revolution come to mind. If such things were rare, they could be dismissed, but in fact they are fairly typical of the way governments everywhere deal with small indigenous minorities. The United States in the 19th century followed consistently oppressive, and often downright genocidal, policies toward its Native population. A substantial percentage of the world’s nation-states wage regular and violent war on their own people; “death by government” was one of the commonest ways of dying throughout the 20th century (Rummel 1994, 1998). Hitler’s Germany, Stalin’s Russia, Mao’s China, Ethiopia under the Dergue, Guatemala in the 1970s and 1980s, and almost a hundred other cases assembled by Rummel prove that governments, in general, are much more prone to kill their people than to enrich them or to defend their intellectual property rights.
Even in Mexico, one of the more peaceful and progressive Third World countries, the government’s war on the Maya has gone on for centuries, flaring up most recently in Chiapas the 1990s. Less flagrantly oppressive, but far more damaging to Mexico’s economy, were the sorry mixes of incompetence, corruption, and above all anti-indigenous sentiment that cost Mexico its vanilla industry and its potential monopoly of the birth control pill market. The finest vanilla was produced by the Totonac and Huastec Indians of Veracruz; siding with ranchers and others against these people, Mexico undercut and ruined the industry, eliminating the world’s only source of highest-quality vanilla (Krotz 1990). The birth control pill was developed from wild yams (Dioscorea mexicana) used by indigenous peoples to control fertility. Again, Mexico was too uncaring of indigenous knowledge to see the potential of this drug, and traded away its rights for a song. The Mexican government has recently been zealous in the defense of “indigenous intellectual property rights.” This should make one immediately suspicious. The Mexican ruling elite has not shown itself to be a champion of indigenous cultures, and when it suddenly appears to change its mind, one should perhaps take a long second look. It is a most interesting coincidence that the government has discovered this concern just in time to stop the Maya, for the indefinite future, from winning any profits and fame from their ethnobotanical knowledge.
Even those nation-state elites that genuinely care about and value their indigenous peoples are not always either interested in or competent to manage their indigenous communities’ economic welfare. With the best of intentions, they modernize, develop, dam, plow, deforest. With the best of intentions, they provide schooling—in the “national language,” of course, and with not a word about local plants and animals. (In fairness, Quintana Roo has bilingual schooling, with some attention paid to Maya knowledge; but Quintana Roo is truly exceptional.) The problem in such cases is simple accountability; the bureaucratic planners are rewarded for such things, but are not penalized when they fail.
One must always remember two things about governments: First, whether for good or for ill, they are involved in maintaining security first and last; economic development is not their primary goal. Second, the game of politics is generally a zero-sum game. There is only one top position; only a few second-level positions; and so on down. Relative power within a hierarchy is a position good. The supply cannot be expanded. Governments can be sincerely interested in economic development, but, in the last analysis, they are interested in maintaining and expanding their power, and their elites are interested in maintaining their positions.
In so far as this is true, a priority for ethnobiologists and other interested parties must be to shore up, support, archive, and do all they can to preserve traditional knowledge. It cannot be left to the mercies of the market or the state.
Perhaps future CBD’s should reconsider the enormous power that international treaties and conventions give to state elites.
The basic moral situation seems clear:
First, and most importantly, we must save all possible cultural information, for the benefit of humanity. It is the human heritage and the triumph of the human spirit. Letting cultural wisdom die diminishes us all.
Second, at present, publishing any and all information renders small groups vulnerable to exploitation. They do not actually lose in the present time by sharing their knowledge, but they lose the possibility of cashing in on it later. They have the right to choose to publish or not, but outsiders should perhaps be denied that right.
Third, and on the other hand, if knowledge crucial to the survival of millions of people is being lost, we should perhaps remember that the interests of humanity logically take precedence over the interests of small groups. This is, after all, the logic with which we confront the multinational drug firms.
The history of science implies, to me at least, that free publication is the prime need for advancement and real progress. Starting with the inventors of “rapid discovery science” (Collins 1998) in the 16th and 17th centuries, scientists came to see wide, unrestricted, and open dissemination of their findings as highly desirable, and eventually as downright necessary. This is the perception behind the “publish or perish” policy of university personnel committees.
Andrews et al. (2006) provide an extremely serious and devastating critique of current patenting mania (especially the patenting of natural processes, laws, and genes). They see the future of science itself hanging in the balance. The problem has been the complicity of patent offices and officers with giant corporations, whose wish is to monopolize all they can. Whether or not the future of international science is at stake, the future of folk sciences most certainly is (a point not made by Andrews et al.). Patenting gone mad will devastate indigenous knowledges.
At least, there is a clear goal to strive for: a Nash equilibrium in which humanity, the indigenous communities, and the drug and biotechnology firms are all as well off as they can be. Any progress toward this goal is probably to be desired. In the best of all possible worlds, humanity would pay well for new products, and the firms and indigenous communities would divide up the profits according to the amount each contributed to the final product. In practice, this is difficult to assess, especially in a world of slick copyright and patent lawyers. No doubt, some sort of world court or agency would have to evolve to keep score—even if Vogel’s cartel does come into being.
Conceptually, the problem has been solved reasonably well in some arenas. In folk music, for example, folk songs are defined as being in public domain, but an individual musician can copyright his or her original arrangement of a song. Plant patents are similar: A plant cannot be patented, but a newly developed variety of it can be patented by the developer. Unfortunately, recent court decisions about genes have moved away from this desirable equilibrium. Companies have been allowed to patent genes that have been out there in the world for millions of years. This is a mockery of justice, common law, and common sense, but it has become the norm.
At present, I do not see any satisfactory solution. There are many good reasons to wait before publishing valuable new information. However, there is a desperate need to archive such information where it can be found when and if the intellectual property rights issue is resolved.
Above all, the world must move as rapidly as possible to solve the problem of how to establish intellectual property rights for indigenous knowledge. Problems of bounding the “owner” community and defining the rights are well covered by Vogel (1994, 2000). There seems no escape, in the foreseeable future, from building on existing copyright and patent law. The advantages of a worldwide association or “cartel” of indigenous peoples are great, and this is an avenue that might well be pursued. Any advance in the right direction is better than the current situation.
In the last analysis, all ethics can be reduced to the requirements of interpersonal behavior. At a minimum, ethics regulates the “warre” of each against all that so disturbed Thomas Hobbes (1950 ). Ideally, however, ethics should go far beyond that. An ethical stance should be derived from our recognition that other people—and, indeed, all other beings–are not just a threat. They define us, they give meaning to our lives, they provide our opportunities for fulfillment (Levinas 1969). We prosper as humans in so far as we love and appreciate others. We suffer to the extent that we see others only in terms of threat.
With the best will in the world, groups such as RAFI and CWIS live and move in a purely Hobbesian universe. They see protection and defense as the only possible strategy for people, or at least for indigenous people. They see the knowledge itself as holding a temporary value to the indigenous people themselves; it is to be lost undocumented, and we should not be concerned. (Both Mr. Mooney and Mr. Ryser told me this point blank in answer to direct questioning, and I have had confirmation from other sources that this is indeed a general position.) They do not see a wider value in this knowledge, except the limited practical value that biopirates can wring from it.
Those of us who live in a Levinasian universe have higher hopes. We see a world in which the value of human knowledge and wisdom is so transcendent that we must make every effort not only to protect it but also to bring it to the widest possible arena.
In this vision, all but the most secret and esoteric knowledge, and other knowledge whose very value lies in its remaining confidential, is seen as preeminently the property of all humanity. The ideal is to get it out where “the greatest number of people, over the greatest time” can profit from it and enjoy it. This cuts against both RAFI and their biopiratic enemies. RAFI and the biopirates seem to share a defensive, Hobbesian view of the world. Perhaps, in these dark days, they are right. I will continue to bet on a more hopeful vision until I see more evidence against it.
In the end, the balance of ethical considerations seems to be strongly in favor of continuing the ethnobiological enterprise. Against the vanishingly small chance that ethnobiologists will uncover data that could be patented, one must set the benefits to indigenous people of having their knowledge documented; the potential benefits to humanity of getting the knowledge out where it can be used; and the further benefits to humanity that accrue from greater understanding and appreciation of human beings and the environments they create. The utilitarian calculus is clear. In this case I side with the utilitarians.
This being said, ethnobiologists must take all pains to procure informed consent from individuals and communities studied, and must work to resolve the problem of biopiracy and to preserve the rights of indigenous people over their knowledge and resources.
My life has been dedicated to getting indigenous and traditional knowledge out to the world, because I know this knowledge to be extremely valuable and a precious heritage of humanity. It is valuable not only for itself, but because it makes us value tradition in general, and above all because it makes us value the communities that are the bearers of tradition. I fear—and I believe–that the results of Mooney’s and Ryser’s policies will be yet more peripheralization of indigenous peoples. Silenced and unvalued, they will sink into obscurity and neglect, rapidly losing their knowledge and identity.
I still believe that traditional knowledge should be open to all humanity. Privacy, cofidentiality, and proprietary rights must be respected, but the goal of our enterprise and of my life is to help the world by bringing every possible bit of useful knowledge to bear on the desperate problems that beset us humans today. In particular, traditional knowledge includes the solutions to the problems of sustainability and land management that are now the most desperate concerns in the world.
Clearly, this enterprise, and thus all our lives and welfares, are at stake. We must not only resolve the problems, but commit ourselves again to making knowledge serve the world.
In the meantime, I feel as Doctor Faustus felt toward the end. I may not be carried off by devils, but seeing my life’s goal and meaning depreciated and potentially destroyed brings me to Faustus’ last speech:
Now hast thou but one bare hour to live,
And then thou must be damned perpetually (Marlowe 1963 :409).”
/1/ The ideology of much indigenous-advocacy discourse is communitarian rather than individualist. In fact, it tends to lie toward the extreme of the communitarian position. This introduces major ethical questions that must lie outside the bounds of the present paper. Interference with the human rights of individuals within indigenous groups is a very real concern. For instance, individual freedom of speech is clearly curtailed by insistance that all members, or all leaders, of a local community must agree before an individual can reveal locally-public knowledge to outsiders.
This presents major problems when politics becomes involved. Group representation, accountability, manipulation of information and of group membership, and other typical problems of politics enter the scene (see excellent discussions in Ellen et al. 2000).
RAFI, CWIS, and similar groups, in spite of some efforts to the contrary, essentialize “indigenous” peoples, “indigenous cultures,” “community,” and other such “imagined communities,” and privilege them over actual individuals (on the general issues involved, see, yet again, Ellen et al. 2000). It appears that the individual, whether she be a western ethnobiologist or a member of an indigenous group, is charged and directed to follow the group in all things, and to eschew all individual action.
The tendency in western philosophy, from Aristotle to Rawls, has been toward individualism. Rawls’ morality, for instance, is based on an isolated, rational individual, contemplating the world from a position outside all society (Rawls 1971). The communitarian counter-challenge has been posed largely by religious apologues (from ancient times down to Charles Taylor and Alasdair MacIntyre ). It thus tends toward a very heavy-handed privileging of Authority and Custom. It is this which has been opposed by independent moralists, from Socrates through Kant and Mill to Rawls.
Unfortunately, communitarian thinking in connection with indigenous peoples seems to partake of the schoolyard-bully mentality (“he acts different—let’s beat him up”) that one senses in writers like MacIntyre, and that one recognizes more plainly in the Spanish Inquisition and the Nazi movement.
A possible alternative, perhaps more common in Asian thought than in Western, is an individual-in-society approach, in which society actually helps foster individuality and individual conscience (see Anderson, Wong and Thomas 2000). Such a system would cultivate a dialogue between individuals who might wish to make knowledge available for the good of humanity, and communities that would have to acknowledge this concern and acquiesce to individual freedom of conscience in the matter, but would be expected to supply cautions and guidance.
/2/ There are times when one simply has to use people as means, as even Kant would admit—for instance, when one uses soldiers to defend one’s country against invasion by massive force. Perhaps the above-mentioned hypothetical community with the AIDS drug would fall in that category; surely any decent human would be tempted to steal the AIDS drug if the tribe actually refused to share it.
/3/ A side benefit of ethnobiological and anthropological research is that ethnobiologists and anthropologists are often active advocates of indigenous peoples, and whistle-blowers in cases of dispossession or damage (Johnston 1997). Attacks on anthropology, intended to make anthropologists behave more responsibly, have often had the effect of getting anthropologists banned from particular reserves, communities, or nations, with the paradoxical result that only the destroyers and dispossessors could get to the people in question—and no one was there to alert the world (see Salzano and Hurtado 2003).
Another side-benefit is that anthropology can find nonwestern intellectual property rights regimes that provide better alternatives to the strict, extreme patenting and copyrighting currently in fashion in the United States and elsewhere. Northwest Coast peoples maintain rights over songs, ceremonies, and other intellectual creations; ownership usually resides with descent group, sometimes with wider linguistic groups or with individuals. The Blackfeet also have a complex traditional intellectual-property-rights regime, allowing for sharing, loaning, and borrowing (Noble 2007).
I am deeply grateful to Carl Cranor, Chris Hannibal-Paci, Preston Hardison, and Eugene Hunn for valuable and helpful comments on these matters.
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