Nuad Thai , OMS & Traditionnal Knowledge research
Nuad Thai
Benchmarks for training in traditionnal / complementary and alternative medicine
WHO World Health Organisation
Abstracts :
I- Acknowledgements
WHO wishes to express its sincere gratitude to the Department for Development of Thai Traditional and Alternative Medicine, Ministry of Public Health, Thailand, for their support and recommendation of Dr Anchalee Chuthaputti, Thailand, for the preparation of the original text. A particular acknowledgement of appreciation is due to Dr Chuthaputti for her collaborative work.
A special note of thanks is extended to Dr Pennapa Subcharoen, former Deputy Director-General of the Department for Development of Thai Traditional and Alternative Medicine, Ministry of Public Health, Thailand for her contributions to this document. She passed away in April 2008, just four months after attending the WHO Consultation on Manual Therapies in Milan, Italy.
WHO acknowledges its indebtedness to 244 reviewers, including experts and national authorities as well as professional and non-governmental organizations, in over 70 countries who provided comments and advice on the draft text.
Special thanks are due to the participants of the WHO Consultation on Manual Therapies (see Annex 2) who worked towards reviewing and finalizing the draft text, and to the WHO Collaborating Centre for Traditional Medicine at the State University of Milan, Italy, in particular to Professor Umberto Solimene, Director, and Professor Emilio Minelli, Deputy Director, for their support to WHO in organizing the Consultation.
I-I-Preface
Integration of traditional medicine into national health systems
Traditional medicine has strong historical and cultural roots. Particularly in developing countries, traditional healers or practitioners would often be well- known and respected in the local community. However, more recently, the increasing use of traditional medicines combined with increased international mobility means that the practice of traditional medicines therapies and treatments is, in many cases, no longer limited to the countries of origin. This can make it difficult to identify qualified practitioners of traditional medicine in some countries.
One of the four main objectives of the WHO traditional medicine strategy 2002- 2005 was to support countries to integrate traditional medicine into their own health systems. In 2003, a WHO resolution (WHA56.31) on traditional medicine urged Member States, where appropriate, to formulate and implement national policies and regulations on traditional and complementary and alternative medicine to support their proper use. Further, Member States were urged to integrate TM/CAM into their national health-care systems, depending on their relevant national situations.
Ideally, countries would blend traditional and conventional ways of providing care in ways that make the most of the best features of each system and allow each to compensate for weaknesses in the other. Therefore, the 2009 WHO resolution (WHA62.13) on traditional medicine further urged Member States to consider, where appropriate, inclusion of traditional medicine in their national health systems. How this takes place would depend on national capacities, priorities, legislation and circumstances. It would have to consider evidence of safety, efficacy and quality.
Resolution WHA62.13 also urged Member States to consider, where appropriate, establishing systems for the qualification, accreditation or licensing of practitioners of traditional medicine. It urged Member States to assist practitioners in upgrading their knowledge and skills in collaboration with relevant providers of conventional care. The present series of benchmarks for basic training for selected types of TM/CAM care is part of the implementation of the WHO resolution. It concerns forms of TM/CAM that enjoy increasing popularity (Ayurveda, naturopathy, Nuad Thai, osteopathy, traditional Chinese medicine, Tuina, and Unani medicine)
These benchmarks reflect what the community of practitioners in each of these disciplines considers to be reasonable practice in training professionals to practice the respective discipline, considering consumer protection and patient safety as core to professional practice. They provide a reference point to which actual practice can be compared and evaluated. The series of seven documents is intended to:
Dr Xiaorui Zhang Coordinator, Traditional Medicine Department for Health System Governance and Service Delivery World Health Organizatio
II- Introduction
Nuad Thai may be regarded as part of the art, science and culture of Thailand, with a history dating back over six hundred years. “Nuad Thai” literally means “therapeutic Thai massage” and it is a branch of Thai traditional medical practice that provides non-medicinal based, manual therapy treatment for certain diseases and symptoms. In Thailand, when Nuad Thai is used for therapeutic or rehabilitative purposes, it is covered by the National Health Security System.
In other countries, Nuad Thai or “Thai massage” frequently refers to a type of Nuad Thai designed for health and relaxation. Such treatments can be found in spas and wellness centres in hotels and resorts all over the world. This type of Nuad Thai for health can also be used for the relief of general body aches and pains. In many areas, Nuad Thai also serves as a more cost effective treatment option for these symptoms, as traditional medicine practitioners are frequently more accessible, and the treatment they offer much less expensive, than imported medicines. The scope of this document will, however, focus only on Nuad Thai and the practice of the Nuad Thai practitioner at the professional level.
As Nuad Thai becomes accepted in other countries around the world, particularly in countries that neighbor Thailand, schools that offer training programmes in Nuad Thai have been established. This has led to concern about the safety and standards of training in Nuad Thai.
In Thailand, attempts have been made to develop the educational standard of Nuad Thai. In 2002 the Ministry of Public Health developed the Nuad Thai (800 hours) curriculum, while the Profession Commission (Thai Traditional Medicine branch) established a Nuad Thai Professional Curriculum in December 2007.
The WHO Consultation on Manual Therapies, held in Milan, Italy, in 2004 concluded that training should be increased to a minimum of 1,000 hours. More intensive training on health sciences and clinical practice should ensure that trainees have enough basic health science knowledge and clinical experience to be able to practice independently and safely. This is in line with the Professional Curriculum of Nuad Thai approved by the Profession Commission in the Branch of Thai Traditional Medicine in December 2007. In this curriculum, a student must take not less than two years to study and gain clinical experience in Nuad Thai before being eligible to undertake the licensing examination.
The resulting document, therefore, provides benchmarks for basic training of practitioners of Nuad Thai; models of training for trainees with different backgrounds; and a review of contraindications, so as to promote safe practice of Nuad Thai and minimize the risk of accidents. Together, these can serve as a reference for national authorities in establishing systems of training, examination and licensure that support the qualified practice of Nuad Thai.
II-I. Origin and principles of Nuad Thai
Nuad Thai for health and Nuad Thai therapy
Thai traditional massage, known in the Thai language as “Nuad Thai”, is Thailand’s traditional manual therapy. Nuad Thai is defined as “examination, diagnosis and treatment with the intention to prevent disease and promote health using pressure, circular pressure, squeezing, touching, bending, stretching, application of hot compresses, steam baths, traditional medicines, or other procedures of the art of Thai massage, all of which are based on the principles of Thai traditional medicine.” (1)
Nuad Thai is divided into two main types, namely, “Nuad Thai for health” and”Nuad Thai therapy”.
The origin of Nuad Thai is unclear. Massage has long been important to family health care, thought to go back to the health-care wisdom of Thai ancestors. Historical evidence shows that Nuad Thai was well accepted by the royal court and has been widely used by the Thai people since the Ayutthaya period (1350- 1767).
Nuad Thai became a formal body of knowledge during the 19th century. The knowledge of Nuad Thai was first compiled, organized systematically, and codified during the reign of King Rama III (1824-1851). The King ordered the inscription of 60 diagrams of Nuad Thai in order to provide knowledge of Nuad Thai for self-care by the Thai people. These showed sen lines and acupressure points on the body along with the explanation of the symptoms or diseases each massage spot could heal.
During the reign of King Rama V (1868-1910), the King ordered the compilation and systematic organization of knowledge about Thai traditional medicine. The Textbook of medicine, Royal edition, published in 1906, describes Nuad Thai. From the reign of King Rama VI (1910-1925) onwards (5), however, the role of Thai traditional medicine and massage began to decline, as the role of allopathic medicine increased following its introduction in Thailand during the late 19th and early 20th centuries. In the latter part of the 20th century the first school of applied Thai traditional medicine initiated the teaching of royal massage (Nuad Rajasamnak) as the manual therapy part of the three-year curriculum of applied Thai traditional medicine (6). Its royal massage curriculum was later adopted as a form of Nuad Thai by the National Institute of Thai Traditional Medicine within the Ministry of Public Health, and thereafter by some other colleges and universities. Meanwhile, nongovernmental organizations also played a role in reviving Thai massage. They provided training courses for the public and promoted its use in primary health care, specifically in reducing the need for various pain medications (5).
The 1990s saw an increased interest in Thai traditional medicine within the Ministry of Public Health of Thailand, and the establishment of the National Institute of Thai Traditional Medicine in 1993. The Institute reviewed and systematically described the styles of Nuad Thai taught at different schools and began to create the regulations and standards for Nuad Thai and the Nuad Thai curricula for the Ministry of Public Health of Thailand.
At the turn of the millennium, increasing public and private sector demand for qualified Nuad Thai practitioners led the Thai Ministry of Public Health to issue a Ministerial Regulation on 1 February 2001, officially making Nuad Thai a branch of Thai traditional medicine. The registration and licensing of practitioners, and the conditions and regulation of practice, are in accordance with the Practice of the Art of Healing Act, B.E. 2542 (1999) (1).
Thai traditional medicine is today incorporated into the health system of Thailand and Nuad Thai and the application of luk prakob (hot herbal compresses) are covered by the National Health Security System (7). At present, Thai people have easier access than ever before to Nuad Thai, as most public health-care facilities provide Nuad Thai.
II-II. Training of Nuad Thai practitioners
Regulating the practice of Nuad Thai and preventing practice by unqualified practitioners requires a proper system of training, examination and licensing. Benchmarks for training have to take into consideration the following:
Practitioners, experts and regulators of Nuad Thai consider the typical Type I programme as the relevant benchmark. This is a 1000 hours (minimum) training programme for those who have completed at least high-school education or equivalent, but have no prior health-care training or experience. On completion of this training programme, Nuad Thai practitioners will be able to practise as primary-contact health-care practitioners, either independently or as members of health-care teams in various settings. A typical applicant will have completed at least high-school education or equivalent, with appropriate training in basic sciences.
III-I Learning outcomes of a Type I programme
The Type I programme is intended to equip trainees for professional treatment of some commonly found painful symptoms or diseases of the musculoskeletal system, and prevention of complications of certain diseases exhibiting musculoskeletal symptoms. The curriculum is typically structured to provide the trainee with:
• a basic knowledge of health sciences related to Nuad Thai, including anatomy, physiology and pharmacology, with a focus on the neuromusculoskeletal and circulatory systems;
• a basic understanding of common clinical conditions of the neuromusculoskeletal system;
• a basic knowledge of Thai traditional medicine, with a focus on Nuad Thai, sen prathan sib, the sen pressure points related to each line, and the four elements, especially wind-related disorders;
• skill and expertise in Nuad Thai techniques ;
• the ability to decide whether the patient may safely and suitably betreated with Nuad Thai, or should be referred to another health professional or health-care facility;
• the capacity to identify contraindications to Nuad Thai or the need for particular precautions ;
• communication skills to interact with patients and their relatives, fellow practitioners, other health-care professionals and the general public;
• a high standard of professional ethics and the ability to follow a code of professional conduct.
III-II Health science components
The health science components of a typical Type I Nuad Thai programme includes:
A typical Type I Nuad Thai programme also addresses:
Generally, Nuad Thai is considered a safe manual therapy; however, some patients may experience minor adverse reactions, especially those who are receiving Nuad Thai for the first time and are not accustomed to the application of pressure on the trigger points to relieve myofascial pain syndrome. Adverse reactions may also occur if too much pressure is applied. Potential adverse reactions may include soreness, bruising, mild inflammation, or subcutaneous haemorrhage. Other reported adverse effects are said to include dizziness, vertigo or early or heavier menstruation.
Moderate adverse effects are said to be more frequent if practitioners lack experience, knowledge or skill, apply too much pressure, massage the wrong spot, or work on areas that are contraindicated. These moderate adverse reactions may include weakness and/or numbness in the extremities, fainting or cardiac arrhythmia due to pressure on the large arteries of the neck, oedema, severe soreness or inflammation. Moderate adverse effects reportedly may result in a need for the patient to seek medical attention (9).
Severe adverse reactions and accidents may happen if the wrong techniques are used, especially by inexperienced practitioners, or if Nuad Thai is applied to contraindicated areas of the body or in contraindicated cases. These severe adverse effects may include injured nerves, disc herniations, compressed spinal nerves, ischaemia of the brain or the heart, tearing of blood vessels, aneurysm of blood vessels, rupture of lymphatic vessels, or tearing of the intestine. These adverse reactions require immediate medical attention and hospitalization (9).
References
Boonsinsuk P. Research report on the use of traditional Thai massage to treat the painful condition of muscle and joint (in six government hospitals). Bangkok, Revival of Thai Traditional Massage Project, Health and Development Foundation, 1995:5-32.
Chatchawan U et al. Effectiveness of traditional Thai massage versus Swedish massage among patients with back pain associated with myofascial trigger points. Journal of Bodywork and Movement Therapies, 2005, 9:298-309.
Mackawan S et al. Effects of traditional Thai massage versus joint mobilization on substance P and pain perception in patients with non-specific low back pain. Journal of Bodywork and Movement Therapies, 2007, 11:9-16.
Ministry of Public Health Notification. Curricula of Thai Traditional Medicine of the Ministry of Public Health. Issued 26 August 2002.
Practice of the Art of Healing Act, B.E. 2542. Thai Royal Gazette, Vol. 116, Part 39 a, 18 May 1999.
Profession Commission in the Branch of Thai Traditional Medicine. Curriculum of The Practice of the Art of Healing in the Branch of Thai Traditional Medicine – NUAD THAI B.E. 2550. Professional Curriculum of Nuad Thai, approved on 19 December 2007.
Thepsongwat JJ et al. Effectiveness of the royal Thai massage for relief of muscle pain. Siriraj Medical Journal, 2006, 58:702-704.
The terms used in this document are defined as follows:
Luk Prakob (Hot herbal compress) (11,12)
A herbal ball made by wrapping various kinds of crushed herbs in a piece of cloth, tightly tied with a piece of cotton rope to make a ball, with a stick on top for handling. The herbal ball compress is steamed prior to application to an inflamed area of the body. The heat and the active constituents released from the herbs is intended to relieve pain and inflammation in the affected area.
Nuad Chaloeisak (folk massage) (13,14)
A type of Thai massage which originated in the common household and developed into styles of massage that use not only hands and fingers but also elbows, arms, knees, feet or heels. The massage techniques include applying pressure, stretching and manipulation. This style of Thai massage is commonly used for health and relaxation but it can also be used for therapeutic purposes.
Nuad Rajasamnak (royal or court massage) (15)
A style of Thai massage which originated as a form of Nuad Thai used in the royal court for members of the royal family and which was revived and formalized by the school of applied Thai traditional medicine. Royal massage emphasizes the use of the hands and fingers to apply pressure on the “sen pressure points” associated with the “sen lines”. Different positions of the practitioner and positions of his/her fingers and palms, the angle of the arms, the position of hands or fingers on the patient’s body, the pressure applied and the duration of application are all parts of an appropriate royal massage technique.
Nuad Thai (16)
Examination, diagnosis, and treatment, with the intention of preventing disease and promoting health, using: pressure; circular pressure; squeezing; touching; bending; stretching; application of hot compresses; steam baths; or other procedures in the art of traditional Thai massage or the use of traditional medicines, all of which are based on the principles of Thai traditional medicine.
Nuad Thai therapy (15,17,18)
A type of therapeutic Thai massage intended to cure or relieve musculoskeletal disorders and painful symptoms in various parts of the body, e.g. myofascial pain syndrome or tension headache, and for rehabilitative purposes to prevent or relieve muscle spasm and joint stiffness, e.g. in patients with paralysis, paresis or Parkinson’s disease.
Rusi dutton (19)
A traditional Thai stretching exercise used for health promotion, disease prevention, and the rehabilitation of some minor disorders. Ruesi means “hermit” and dud ton means “body stretching exercise”.
Sen pressure point (20)
Points on the sen lines associated with specific diseases or symptoms. The application of pressure by way of Nuad Thai is intended to help relieve such diseases or symptoms.
Tard (the four elements)
These are the basic elements that are traditionally believed to be the components of the living body in Thai traditional medicine. According to Thai traditional medicine theory, there are four major elements: earth, wind, water and fire.
Thai spaya
The term “spaya” means being in a healthy environment and is derived from the Thai word “sabai”, meaning “to experience well-being, be comfortable or healthy.” This term is now used to describe a type of spa service in Thailand based on Thai traditional health care, part of which is Nuad Thai .
Annex 2: WHO Consultation on Manual Therapies, Milan, Italy, 12–14 November 2007: list of participants
Participants
Mr Peter Arhin, Director, Traditional and Alternative Medicine Directorate,
Ministry of Health, Accra, Ghana
Dr Iracema de Almeida Benevides, Consultant and Medical Advisor, National Policy of Integrative and Complementary Practices, Ministry of Health, Brasilia - DF, Brazil
Dr Anchalee Chuthaputti, Senior Pharmacist, Department for Development of Thai Traditional and Alternative Medicine, Ministry of Public Health, Nonthaburi, Thailand [Co-Rapporteur]
Dr Franco Cracolici, Federazione Italiana Scuole Tuina e Qigong, Firenze, Italy Dr Alessandro Discalzi, Directorate-General, Family and Social Solidarity,
Lombardy Region, Milan, Italy
Dr Mona M. Hejres, Education Medical Registrar, Office of Licensure and Registration, Ministry of Health, Manama, Kingdom of Bahrain
Dr Giovanni Leonardi, General Director, Human Resources and Health Professions, Ministry of Health, Rome, Italy
Professor Yutang Li, WHO Collaborating Centre for Traditional Medicine, Nanjing University of Traditional Medicine, Nanjing, Jiangsu Province, China
Professor Emilio Minelli, WHO Collaborating Centre for Traditional Medicine, Centre of Research in Bioclimatology, Biotechnologies and Natural Medicine, State University of Milan, Milan, Italy
Dr Nguyen Thi Kim Dung Director, WHO Collaborating Centre for Traditional Medicine, National Hospital of Traditional Medicine, Hanoi, Viet Nam
Dr Susanne Nordling, Chairman, Nordic Co-operation Committee for Non- conventional Medicine, Sollentuna, Sweden [Co-Chairperson]
Dr Hieng Punley, Director, National Center of Traditional Medicine, Ministry of Health, Phnom Penh, Cambodia
Dr Léon Ranaivo-Harimanana, Head of Clinical Trial Department in Centre National d’Application des Recherches Pharmaceutiques, Ambodivoanjo, Antananarivo, Madagascar
Ms Lucia Scrabbi, Planning Unit Directorate-General of Health, Lombardy Region, Milan, Italy
Professor Umberto Solimene, Director, WHO Collaborating Centre for Traditional Medicine, Centre of Research in Bioclimatology, Biotechnologies and Natural Medicine, State University of Milan, Milan, Italy
*Dr Pennapa Subcharoen, Health Supervisor, Office of the Health Inspector, General Ministry of Public Health, Nonthaburi, Thailand
Dr Chaiyanan Thayawiwat, Director, Hua Hin Hospital, Amphur Hua Hin, Prachuapkhirikhan, Thailand
Dr Sounaly Themy, Medical Doctor, Traditional Therapies, Traditional Medicine Research Centre, Ministry of Health, Vientiane, Lao People's Democratic Republic
Dr Yong-Jun Wang, Director, Orthopaedics Department, Longhua Hospital, Shanghai University of Traditional Chinese Medicine, Shanghai, China
Dr Jidong Wu, President, Association of Traditional Chinese Medicine, Hertfordshire, United Kingdom
Professor Shan Wu Moxibustion Department Guangzhou Provincial Hospital of Traditional Chinese Medicine, Guangzhou, Guangdong Province China
Professor Yunxiang Xu, Guangzhou University of Chinese Medicine, Guangzhou, China
Professor Charlie Changli Xue, Director, WHO Collaborating Centre for Traditional Medicine, Division of Chinese Medicine, School of Health Sciences, RMIT University, Bundoora, Victoria, Australia [Co-Rapporteur]
Dr Je-Pil Yoon, Director, Department of International Affairs, Association of Korean Oriental Medicine, Seoul, Republic of Korea
Dr Qi Zhang, Director-General, Department of International Cooperation, State Administration of Traditional Chinese Medicine, Beijing, China [Co-Chairperson]
Local Secretariat
Dr Maurizio Italiano, WHO Collaborating Centre for Traditional Medicine, Centre of Research in Medical Bioclimatology, Biotechnologies and Natural Medicines, State University of Milan, Milan, Italy
* It was with great sorrow that we learned of the death of Professor Subcharoen in April 2008. Her great contributions to the work of WHO, especially in the development of this document on basic training in Nuad Thai therapy, will always be remembered.
WHO Secretariat
Dr Samvel Azatyan, Technical Officer, Department of Technical Cooperation for Essential Drugs and Traditional Medicine, World Health Organization, Geneva, Switzerland
Dr Houxin Wu, Technical Officer, Traditional Medicine, Department of Technical Cooperation for Essential Drugs and Traditional Medicine, World Health Organization, Geneva, Switzerland
Dr Xiaorui Zhang, Coordinator, Traditional Medicine, Department of Technical Cooperation for Essential Drugs and Traditional Medicine, World Health Organization, Geneva, Switzerland "
TK unlimited: The emerging but incoherent
international law of traditional knowledge protection
Graham Dutfield
There is an emerging international regime complex concerning traditional knowledge (TK). Debate continues
on what form legal protection should take including how benefits from commercial use ought to be shared. This article considers how far progress is feasible. It makes three related claims. First, dominant in policy debates has
been a tendency to position “tradition” in direct and binary opposition to “modern”. We show how this is ahistorical,
reinforcing misconceptions regarding the nature of TK, and its relationship to other knowledge systems. It also tends to discourage possibilities for mutually advantageous collaborations based on respect for local norms regulating
access, control and ownership. The second claim is that many TK advocates, by misconceiving it this way, are too
expansive in terms of the knowledge that they demand the proposed international regimes should cover. This
precludes possibilities for policy coherence. The third is that the access and benefit sharing measures envisaged by the Convention on Biological Diversity tend to downplay the social and cultural value of TK for holders and their
communities themselves. This matters because of TK's significance to local people's lives, which is likely to
outweigh potential monetary value that may arise from its translation into biotechnological knowledge inputs.
© 2017 The Authors. The Journal of World Intellectual Property © 2017 John Wiley & Sons Ltd
144 | wileyonlinelibrary.com/journal/jwip J World Intellect Prop. 2017;20:144–159.
K E Y W O R D S
convention on biological diversity, intellectual property,
organizations and agreements, traditional knowledge
1 | INTRODUCTION
International negotiations concerning the design of legal instruments protecting holders of traditional knowledge
(TK) from “the scourge of biopiracy” (Mgbeoji, 2001) have focused in recent years on three forums and two
attached legal instruments. These are the United Nations World Intel
nternational negotiations concerning the design of legal instruments protecting holders of traditional knowledge
(TK) from “the scourge of biopiracy” (Mgbeoji, 2001) have focused in recent years on three forums and two
attached legal instruments. These are the United Nations World Intellectual Property Organization (WIPO), the
World Trade Organization (WTO), the Conference of the Parties to the Convention on Biological Diversity (CBD),
the latter Convention itself and its Nagoya Protocol to the CBD. Further instruments may follow.1 The
movement, which is formally led by the relevant international organizations and their membership but influenced
by various non-governmental organizations and business associations, has encountered various differences of
opinion including, for example, how intellectual property-like should a positive protection regime for traditional
knowledge be.2 There is also a serious conceptual challenge which negotiators have failed to resolve despite so
many years of debate.3 Insofar as some degree of international consensus is considered essential to deal with
misappropriation or misuse, the continued absence of workable parameters or clear definitions around
“traditional knowledge” is an obstacle to any real international-level progress. TK unlimited for many advocates
embraces all “traditional knowledge” including those vast amounts that have become completely unmoored from
any specific place, country (or even continent) they may have originally come from and which may in essence
have become mixed and hybridized. Can we achieve international protection of traditional knowledge as long as it
is construed so broadly that anything that could be traditional is traditional and equally worthy of legal protection
and benefit sharing rights? This is very important. There is a world of difference between, say, turmeric drinks
with added milk that have no local source (Biswas, 2016), and something as apparently specific in origin as the use
of an extract of the bark of the tiki uba tree as an arrow poison by the Urueu-Wau-Wau, comprising just a few
hundred people in the Amazon (Posey, Dutfield, & Plenderleith, 1995). Traditional knowledge means different
things to different people, but even if it meant the same thing to different people, is it realistic to suppose it can
form a bounded and coherent broad category of knowledge for the purpose of assigning legal rights and duties on
the basis of its use by third parties? Little attention has been paid in the literature to this question yet it is crucially
important.
Admittedly, these definitional and conceptual challenges have not gone completely unrecognized. Nor are we
strangers any more to the notion that tradition (and TK itself) can be “invented” (Hobsbawm & Ranger, 1983;
Sunder, 2006). It was precisely because “traditional knowledge had different meanings for different people in
different fora” that in 2010 the WIPO Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore was requested to prepare a technical report on “the various forms
in which traditional knowledge may be found” (WIPO, 2010).4 The document focuses largely on the practical forms
of traditional knowledge: know-how, skills, innovations, etc. Lumping together the documented “grassroots
innovations” (Gupta, 2016) often from individuals or small groups with the largely anonymous collective ones of
indigenous peoples and without excluding also the practical general knowledge of vast numbers of rural
inhabitants in one or more country is useful with some essential and correct distinctions made. It fully accepts that
traditional knowledge changes and evolves generation by generation rather than stays the same. It distinguishes
between traditional knowledge as such and traditional knowledge-based innovations and creations acknowledging
that drawing lines between them can be very difficult. The report has nothing to say about the legal implications
arising from those essential and correct distinctions. It does not really explore the implications of the mixing and
DUTFIELD | 145 remixing of knowledge so that knowledge may only be partially “traditional” or “modern” and that this could potentially be true for most so-called traditional knowledge in the world as it could be also for non-traditional knowledge. Nor does it fully consider the difficulties in assigning origin and attribution which again might be applicable to most of the world's traditional knowledge.
In 2010, the Nagoya Protocol to the Convention on Biological Diversity (CBD) was adopted. It has now
entered into force. The Protocol, whose full name is the Nagoya Protocol on Access to Genetic Resources and the
Fair and Equitable Sharing of the Benefits Arising from their Utilization, seeks to further the third objective of the
CBD: the fair and equitable benefit sharing arising from the use of genetic resources including associated
traditional knowledge (Greiber et al., 2012; UNCTAD, 2014). To date government regulations on access to genetic
resources and benefit sharing (typically abbreviated to “ABS”) and the use of legal agreements such as contracts
are deemed the appropriate and effective means by which biodiversity and the undefined “associated traditional
knowledge” may be transferred internationally to commercial actors under principles of fairness and equity
(Carrizosa et al., 2004). The latter use intellectual property law to acquire legal monopolies enabling an income
stream that can then be shared, at least in theory. The Philippines and the Andean Community of South American
nations pioneered genetic resource access and benefit sharing regulatory structures in the mid-late 1990s. Peru
has two statutory instruments on traditional knowledge protection.5 Many more countries have since followed
their example.
The purpose of this article is to investigate the TK concept. We will critically assess conventional usage of the
term, including the prevalent assumptions as to how “tradition” relates to “modern”. We will also consider its value.
Who uses TK? And who needs TK? The original contribution of this article is to apply history to the analysis rather than relying on law alone. We will relate this analysis to present-day debates on international TK protection. The discussion aims to show whether we may be misunderstanding TK. Can TK be better operationalized legally through a better targeted application of the term than the currently somewhat vague and contradictory understandings of the term allow? This is a question we seek answers to.
The article makes three related claims. First, there has been a strong and persistent tendency, impliedly at least, to
position “tradition” in direct opposition to “modern”. We argue that this is ahistorical and causes misconceptions
regarding the nature of TK, its relationship to other knowledge systems, and how far it may be subject to local norms
regulating access, control and ownership. The second claim is that many advocates, including diplomats, negotiators
and activists, whether by design or default, are too expansive in what they demand the proposed international regimes should accommodate to the detriment of legal and policy coherence. The third is that the access and benefit sharing measures envisaged by the Convention on Biological Diversity and the Nagoya Protocol tend to disregard the value of traditional knowledge for holders and their communities themselves, which is often non-economic.
This critique is timely for three main reasons: first, the implementation of the Nagoya Protocol is still in its
early stages. Second, moves are afoot at WIPO to develop one or more legal instruments on intellectual
property and genetic resources, traditional knowledge and traditional cultural expressions that would have a
complementary relationship with Nagoya Protocol-based regulations. The latest version of draft articles on
traditional knowledge that could form the basis for a legal instrument contains some very good language
which would have the effect of “pinning down” traditional knowledge in a very constructive way. They do
address many of the concerns expressed in this article. However, all of the text is up for continued negotiation
and some of the best language falls within the square brackets that mean it has a good chance of being deleted
at some stage (WIPO, 2016). Third, many developing country members of the WTO have called for the rules
on patents to be amended requiring that applicants disclose their use of genetic resources and the
contribution of the associated traditional knowledge to the inventive achievement for which they seek patent
protection, and the origin of these elements (WTO, 2004). No agreement has yet been reached, and perhaps
never will be, but it is quite possible that a WIPO instrument on intellectual property and genetic resources
will introduce this measure in some form or another just as numerous countries have included it in their
national laws.
146 | DUTFIELD
2 | THE FALSE BINARY OPPOSITION OF TRADITION AND MODERNITY
Since the 1990s, the biopiracy discourse following established post Second World War practice has tended to treat
traditional and modern6 as binary opposites. Biopiracy is (i) the theft, misappropriation of, or unfair free-riding on,
genetic resources and/or traditional knowledge through the patent system and (ii) the unauthorized and
uncompensated collection for commercial ends of genetic resources and/or traditional knowledge (Dutfield,
2014). Such unauthorized use and appropriation does happen though the chief offenders are not in fact the big drug
companies, as is commonly supposed, but much smaller firms trading in various types of natural product such as foods,food supplements, herbal remedies and seeds (Robinson 2010). These tend to have lower profit margins on their products, though a change in their business practices could certainly provide some useful if modest benefits for local communities (Robinson, 2015). The critique being made here is not with the concept of biopiracy7 but with usage of the other two terms in the sentence opening this part of the article including the relationship between them.
It is commonly supposed that tradition and modernity operate in separate spheres, except where the modern
incorporates tradition in a decontextualized fashion and then claims it as its own. Such an opposition between
tradition and modernity became a key assumption of post Second World War modernization theory whose
foundation is largely attributed to the Max Weber-influenced sociologist Talcott Parsons. Grounded in the
contemporary wisdom of the age, a number of mostly US-based social scientists supporting (non-communist) global
economic growth in the Post War era identified fundamental social and cultural differences between traditional and
modern societies and assigned to each a set of descriptive terms that were in opposition to each other. Accordingly, as they saw it, social and cultural evolution could be best understood in terms of progress that would entail the
replacement of terms applicable to traditional societies such as “community”, “patron-client relationship”, “routine”,
and “solidarity”, with their modern polar opposite counterparts: “individual”, “bureaucratic relationships”, “innovation”
and “competition” respectively. Since evidence of progress essentially entailed the latter terms applying rather than
the former ones, there was little accommodation for hybridity including its positive aspects for both societies.
Two major criticisms, at least of the cruder versions of modernization theory, aside from its ahistoricism, are its
determinism and its failure to duly accommodate the tendencies toward mixing and hybridization, and their potentially beneficial aspects also for the traditional sector. At its crudest, modernization theory saw social progress and economic development as the necessary transformation of traditional societies into modern ones. To proponents such as Rostow (1960), this progressive transformation was envisioned as a pre-destined journey in time through stages just as Marxism—with which it was competing for acceptance—saw human progress as an advance also through stages, this time from primitive communism via capitalism and socialism to global communism. “Tradition” was holding societies back and therefore needed to be countered so economies could grow and people prosper.
If the academic version of modernization theory went out of fashion decades ago, having given way to
dependency theory (now also largely discredited), some of its basic assumptions have proved to be highly resilient.
Examples include the overhyping of genetically modified plants in developing countries, as if these are self-evidently
beneficial and capable of being adopted immediately with no negative consequences, the dismissal of landraces and
local cultivars as old varieties that should be abandoned, and the blanket contempt for traditional medicine (e.g. see
Tallis, 2004). One of modernization theory's most questionable suppositions is this: that all of what is true for
modernity becomes the opposite for tradition.8 This should immediately be cause for reflection: that tradition has
tended, and to a large extent still does tend, to be used negatively as something outmoded. The word “tradition” does
not help here insofar as it implies some kind of pure condition that is not adulterated with or diluted by elements from other societies or transformed in any way endogenously. Seen in binary opposition, it follows that the more tradition you have the more modernization you need; the less tradition the better. Over the years some hard lessons werelearned. For example, in the 1960s Balinese farmers forced to plant Green Revolution modern high yielding varieties and purchase industrial chemical inputs suffered diminished productivity and crop disease and pest outbreaks.
However, according to Lansing's classic study, when they returned to their own varieties and their original
management systems and practices of irrigation, fallowing and organic disease and pest management based on a
DUTFIELD | 147
network of water temples that had been in place for centuries, high productivity and sustainability recovered
(Lansing, 2007).
The contraction of “knowledge, innovations and practices” in Article 8(j) of the Convention on Biological Diversity
to just plain “knowledge” in the Nagoya Protocol, albeit attached to genetic resources using the phrase “associated
with”, hardly helps. It tends to downplay the creativity and adaptiveness of indigenous groups of each generation, as
well as other societies with tradition based bodies of knowledge that they wish to protect but that have changed
culturally and in other ways from the groups and societies they were in the past. Companies pick up on this when their spokespeople say that traditional knowledge is old and is therefore in the public domain. The public domain is
generally a good thing (Boyle, 2008) but to suggest everything placed in it should be in it goes too far when doing so
violates people's customary rules or cultural and spiritual values. The supposed beneficiaries of traditional knowledge
protection thus find themselves between a rock and a hard place. To the business people, a moral obligation to share
benefits with people whose knowledge is in the public domain can (conveniently) only be limited at best, besides
which the problem of biopiracy, as they are likely to argue, has been grossly exaggerated and politicized. On the other
hand, some powerful mainstream developing world advocates, despite their ideological preferences toward “local
community” empowerment, find themselves resorting to the view that support for communities can only be furthered
by according more regulatory powers in relation to genetic resources and associated knowledge to governments,
hence their tendency to strongly support national access and benefit sharing regimes. This seems to embolden some
governments to step in and impliedly claim sovereign rights to traditional knowledge that is not easily attributable to
specific groups or communities.
The use, borrowing, appropriation, misappropriation, or whatever name one chooses to call the inclusion of
information, knowledge, methods and materials from one system of health or agriculture into another different and
more dominant system tends to be seen as being unidirectional. As tradition wanes and modern waxes, people assume
the latter takes bits of tradition, used in the form of informational leads or raw materials, and gives nothing back in
return. Modern appears no less modern for doing this because there is a translation and repackaging which generally
strips tradition of its origins and cultural and spiritual entanglements or else denies it entirely. Accordingly, modernity
is parasitic on tradition. An understanding of global power disparities reinforces such a perspective. It follows that
the way to respond is to create a market for knowledge transactions so that access is exchanged for monetary or
non-monetary forms to even things up. Enter the Nagoya Protocol.
Systems of knowledge tend to be hybrids because they are generally open, and they tend to have two-way
“valves”: knowledge, techniques, practices and materials go both out and in. Chinese medicine, for example, was only
called “traditional” during the Mao regime, largely for political reasons, despite containing elements of Western
biomedicine (see below). As for experiment and trying things out in a systematic way it is not just white-coated
laboratory scientists who do this; many traditional healers and farmers, who often breed modern varieties with their
own, do as well. Chinese “traditional” medicine remains highly popular as do the classical traditional Indian systems
such as Ayurveda, Siddha and Unani Tibb, not all of which originate—or are currently practiced—entirely in the
subcontinent anyway. They may have very deep historical roots, but they are hardly devoid of novelty or innovation.
Adaptability and openness are the main drivers of innovation. So might there be advantages in no longer defining
tradition as the polar opposite of modernity and instead seeing the two as actually related to each other and capable of
interacting positively? In reality they do and have done from the age of Enlightenment if not before. That might sound
counter-intuitive. But if it happens to be true then we should go with it and follow it to its logical conclusions.
As mentioned earlier, contrary to what is commonly assumed, most biopiracy incidences have nothing to do with
the pharmaceutical industry. Nonetheless, of all industries this one is considered by many to have gained more than
any other from open access to genetic material and associated knowledge from today's developing countries. To any
critics, it has been parasitic on them pretty much continuously since its emergence. At the same time, the industry's
claims to being wholly science-based imply that it has never had such an intellectual or material dependency
relationship. In fact, the history of the pharmaceutical industry exemplifies the subtleties of cross-cultural material and
intellectual exchanges over time. It also raises questions as to the efficacy of adversarial approaches which assume
148 | DUTFIELD
that there will always be exploitation unless strong international rules are put in place. Notwithstanding the massive
impacts of colonialism, the transfer of genetic material and associated traditional knowledge is not, and has never
been, an inherently zero sum game. Admittedly one can quite easily identify numerous individual cases where gains for
some have been at the expense of others, usually the weaker parties.
The modern pharmaceutical industry really took off around the 1880s when scientists began to crack the problem
of how to harness chemistry to other emerging scientific disciplines and practices to solve hitherto intractable health
problems on a regular and systematic basis. The active ingredients of pharmaceutical products over the 150 or so
years of the industry's existence have typically been single molecules, usually small ones. They work by binding to
certain proteins and causing a change in their behavior (Stockwell, 2011). Which protein was bound to and why a
therapeutic effect ensued was generally unknown, as were the reasons why some people suffered from side-effects
while others were unaffected. There is still often much that is unknown concerning mode of action and the way drugs
work differently on different people.
Scientifically speaking, where did all this start? From about 1805 to the early 1830s, numerous therapeutically
significant alkaloids were isolated from plants. Among the most important were morphine from opium (by Sertürner),
emetine from ipecacuanha (by Pierre-Joseph Pelletier and François Magendie), quinine from Cinchona cordifolia (by
Pelletier & Caventou, 1820), and codeine also from opium (by Robiquet). François Magendie's highly influential work
displays a clear understanding of the importance of obtaining a consistent formulation and producing the right dosage,
including of the fever-reducing cinchona alkaloids which of course include quinine (Greene, 2014). To Pelletier has
been attributed the notion that purity has therapeutic value. For reasons we will discuss later, this was a very novel
approach which essentially “translated” tradition into something else. But note still that all of these natural products
On the other hand, some fitted neatly into existing material medica and treatment practices because in certain
senses they were not exotic. Their use may have been compatible with humoral approaches to sickness and health, or else they were related biologically to already known plants. In some cases, as trade expanded and populations moved
on a greater scale, so did disease. A treatment used for a disease in one part of the world was perhaps presumed often to work for the same affliction, or similar symptoms, in very distant places.
In addition to material, recipes in the form of written texts also crossed seas and continents, and not in one
direction only. From Europe to China and the Islamic world between them, medical recipes were of two kinds:
formulas and prescriptions. How are these different? “The formula contains the standard way of preparing a
medication--that is, its recipe as laid down by an authoritative text. The prescription, in contrast, is a medication for an actual patient, usually contained within a practitioner's case records” (Hanson & Pomata, 2017). From the seventeenth century, Jesuits translated medical texts from Chinese into Latin and French and vice versa. In 1693, quinine provided by Jesuits was used to treat the emperor of China (Ibid.).
Medical historian Abena Osseo-Asare makes an intriguing connection between high colonialism and modern
pharmaceutical development, one that is worth closer inspection: “The rise of pharmaceutical chemistry in Europe at
the end of the nineteenth century dovetailed with the wars of imperial expansion in Africa” (Osseo-Asare, 2008). The
1880s are the decade when British and French colonial expansion had reached its highest point and new imperial
nations like Germany and Belgium had just joined the global land grab, the United States following a decade later
taking Cuba, Puerto Rico and the Philippines from the Spanish (Osseo-Asare, 2008). The Dutch and the Portuguese
were hardy inactive either. The infamous Berlin Conference which carved up Africa for division among the European
powers was concluded in 1885, the same decade as the dyestuff industry's pharmaceutical turn (Dutfield, 2009) and
the appearance of Antifebrin, Antipyrin, Pyramidon and Sulfonal, the first pharmaceutical industry products all of
which were synthetic and had nothing to do with traditional knowledge however defined. Admittedly none of these
was for a tropical disease. Nonetheless, that the industry emerged simultaneously with the Europeans’ notorious
scramble for Africa and domination of the world is certainly intriguing. Did colonialism, including the mass exchange of medicinal plants around the global through trade, scientific interest, and through people movements, often
accompanied by a general disregard for the wishes of some nations and peoples to control their circulation, stimulate
expansion of the industry at just the right time, or have some other significance that merits consideration? Or to put it more provocatively (and succinctly), was the industry's emergence and growth underpinned by mass outbreaks of
biopiracy (as many now call it)?
Running empires required plenty of manpower and, in a reverse direction to today's population movements,
substantial numbers of European peoples moved to the tropics, getting exposed to the same diseases as the native
people. Economic and political interests are of course very important in determining where government support and
private investment are directed in terms of pharmaceutical research and development. Colonialism certainly did affect which diseases should be studied, hence the interest in finding cures for tropical diseases and other ailments especially common in the colonies such as malaria, trypanosomiasis (sleeping sickness), yellow fever and plague. Numerous schools of tropical medicine were opened in Britain, Germany, other European colonial nations, and the United States (Bynum, 2006). Whether imperialism stimulated the growth of the industry, if not its initial emergence, is plausible.
The colonies were sources of plants and ethnobotanical information, and markets for products. In addition, the
colonies served effectively as scientific laboratories including for medical doctors (Tilley, 2011). Medical research
facilities were also established in the colonies, primarily of course for the benefit of the colonizers, not those being
colonized (Chakrabarti, 2012).
What is true of the past is partly true also of the present. Plants together with microorganisms remain the primary
source of a significant proportion of pharmaceuticals including new medicines. In some cases as extracts or mixtures
these were known about and used long before industrial chemists and drug companies ever got their hands on them.
To name a few drugs in the modern pharmacopoeia sourced from traditional medicine, of which admittedly not all are particularly recent, reserpine, the vinca alkaloids, and the opiates spring to mind. But there are much newer additions such as artemisinin, arsenic trioxide, and nicosan. While there is much scepticism that TK remains a source worth 150 | DUTFIELD investigating, not all companies have abandoned the search with some retaining an interest in, for example, Chinese medicines.
Apparently the industry's initial existence does indeed owe something to traditional knowledge. But was the
relationship between industrial biomedicine and traditional medicine purely parasitic? Or was it also symbiotic? A
recent historical work on plant-based medicine in colonial and post-colonial Africa convincingly asserts that “herbal
medicine and pharmaceutical chemistry have mutually supportive, simultaneous histories up to the present”
(Osseo-Asare, 2014). Indeed, the author even goes so far as to claim that biomedicine and African traditional healing
“were, in fact, actually adapted from one another”. This may go a little too far. But it is certainly more in step with the
view that the former imperial nations of Western Europe have been shaped far more by their encounters with the
people, societies and the biodiversity of their former colonies than traditional histories that tended to be Eurocentric
and positivist were able to admit to as if there was nothing much to be learned (Drayton, 2000). As historian Richard
Drayton explains the development of European science is intimately related not just to imperialism and commerce in
natural products but also to what nowadays we call traditional knowledge: “what we may call the sciences of collection and comparison--among which we may include botany, zoology, and geology--depended on Europeans becoming exposed to the planet's physical and organic diversity, and often to the scientific traditions of non-European people”
(Drayton, 2000). In turn, as he argues, “the sciences shaped the pattern of imperial expansion”. A major consequence
of this is that new economies came to arise “on the basis of the discovery of the raw materials for food, medicines,
dyes, and perfumes” (Ibid.). This sounds mostly quite bad. Europeans exploited the rest and benefited from it. As is well known too, the diseases Europeans spread were catastrophic in many places especially in the Americas.
But as we move toward the present one more clearly sees a diffusion of gains. Life-expectancy rates in most
developing countries have rapidly approved since historical times, and Western biomedicine has played a part in this
including acceptance of the germ theory of disease. Traditional medicine practitioners who are open to certain
biomedical perspectives and practices to supplement their own ones have also contributed. Most likely, competition
from biomedicine has also discredited some of the less plausible traditional treatments and led to them being
abandoned, as happened with the practice of bleeding in Europe.
Traditional medicines are of course very much in use today. Typically, they consist of processed or unprocessed
single or mixed natural products of plant, animal or mineral origin, administered orally in solid or liquid form. Whole
plants may be used, or else plant or animal parts or their products. Unlike pharmaceuticals they are not single active
chemicals obtained through industrial processes. The notion of the active principle, that is, a reduction of treatment to a specific compound having the therapeutic effect, was, and remains, alien to traditional healers whose treatments are inherently impure allowing for the possibility of synergisms between the various ingredients. Further, their usage was, and still is, justified on the basis of theories of health, sickness, well-being and efficacy, as well as cultural and spiritual values, which most modern medical practitioners and pharmaceutical scientists understandably find impossible to accept. In the West, they are subject to a very different regulatory system and tend to be sold over the counter by retailers.
Encounters between European chemistry and non-European scientific traditions have had long-term
repercussions in various different ways right up to the present. Thus, in both India and China, there is a great deal
of hybridization going on in terms of describing, formulating, making, testing, evaluating, commercializing, in the ways that therapeutic claims are justified, and also of the growing centrality of “the drug” in healthcare (Lei, 2014; Pordié & Gaudillière, 2013). Western biomedical ways are impacting on traditional medicine in other ways as the latter's patient base expands globally. As the former aims to become more personalized, traditional medicines as they entermainstream markets including over-the-counter outlets increasingly target more generalized use with standardized formulations and dosage instructions.
One must, however, distinguish between traditional remedies and traditional knowledge-derived treatments, the
latter being traditional-modern hybrids. Indeed, some modern pharmacologists are re-investigating old herbal
medicines (Adams, Berset, Kessler, & Hamburger, 2009; Everett & Gabra, 2014). It remains to be seen whether
they will come up with some treatments to benefit today's patients. The very existence of the discipline of
DUTFIELD | 151 ethnopharmacology with its own journal (Journal of Ethnopharmacology), founded in 1979, underlines the argument being made here, that biomedicine and ethnobiology can and do interact--as they should. Nowadays, there is a consensus that such cross-cultural exchanges should be subject to fair procedures of consent and benefit sharing, at least where ethnobiological knowledge and the plants used are current rather than merely historical hence the CBD, Nagoya and the recent activities at WIPO.
Much has been lost but has tradition really gained nothing from its exposure to other modes of understanding
sickness and health? Indeed, traditional knowledge in health has not gone away, nor has it remained unchanged (Hsu, 2001; Pordié & Gaudillière, 2013). A much cited figure from the World Health Organization is 80% for the proportion of the developing country population that relies on traditional medicine to meet its primary healthcare needs. As mentioned Chinese “traditional” and the classical traditional South Asian systems such as Ayurveda, Siddha and Unani Tibb remain very much in use and continue to evolve. These are well documented and the systems themselves are officially sanctioned with their own recognized training facilities and registered practitioners. As mentioned plenty of innovation has gone on despite their being “traditional”. As also mentioned, Chinese medicine was not “traditional” until it was named as such. Traditional Chinese Medicine co-evolved with western scientific medicine and has accommodated elements of modern science, for example, the germ theory of disease (Lei, 2014). This largely sums up why the word “tradition” is misleading and problematic, especially when applied broadly.
Of course, in other parts of the world traditional systems of health have in no way been mainstreamed. Isolated
indigenous peoples in places like the Amazon possess localized knowledge of flora and ecosystems enabling them to
meet many of their healthcare concerns. But it is unlikely that all of the biota they exploit or the knowledge they apply are entirely local or have ever been. Although uncontacted groups still exist in the Amazon (Lawler 2012; Wallace, 2011) most human societies do not stay rooted to one spot over centuries and over a substantial period turn their backs on the world outside their own little part of it. One interesting aspect of traditional medicine is the way that often similar treatments for similar ailments are used by ethnic groups in distant regions of the world. Thus the
apparent oddity of the rosy periwinkle being used as a treatment for diabetes in both the Philippines and in Jamaica.
Similarly, researchers have shown that species of the Fabaceae family of plants are used as antimalarials in the Upper
Negro region of the Amazon, Ghana and in coastal Kenya (Frausin et al., 2015). Is there far less isolation and
conservatism among “traditional” groups than we tend to assume, and sharing of knowledge among disparate groups
is more common than supposed? Or are these cases of different people facing similar health threats identifying similar treatments in the plant world quite independently of each other? It would be fascinating to know more, but this would take us beyond the scope of this article.
This might all seem esoteric or at least irrelevant. It is not. One of the difficulties we have is that once we identify
disparities in wealth and power we understandably see the presence of an injustice and then clamor that something be done about it. Responses may be realistic and effective but they may also take the form of poorly designed laws and regulations. This happened with many of the national and regional access and benefit sharing regimes that have mostly failed to entice commercial users of genetic resources and traditional knowledge to engage in equitable partnerships
with traditional knowledge holding groups. I do not wish to be misunderstood about this point. There is injustice. It is
done to indigenous peoples especially, but it is done to the rest of us too albeit in a less obvious or tangible way. The
causes are not the above-mentioned disparities in wealth and power alone but also these legal and regulatory
measures intended to alleviate them. Pharmaceutical scientists can and do learn from shamans and healers even if not usually directly or even consciously. Notwithstanding the view that most of the low hanging fruit has most likely beengathered already, one can still wonder how much more could be learned if healers and biomedical researchers got
together more often than they do--which is almost never. At the same time indigenous peoples need much better
access to the fruits of biomedicine. Legal monopolies and excessive pricing get in the way. Perhaps we need to deal
with both problems at the same time. Indigenous peoples, like the rest of us get cancer and all the other diseases
afflicting humans around the world. If so many health products have arisen over centuries from exchanges of
knowledge and material between different societies, even under the worst circumstances of colonial domination, then
we should be encouraging interaction not discouraging it. To the extent that intellectual property rights and the
152 | DUTFIELDassertion of bureaucratic access regulations lock up and separate knowledge and materials we are all the poorer for it.
If for once we were to look beyond the Manichean zero-sum view that see dominance and subjugation as inherent
conditions, we might see a rich potential for positive interaction between traditional medicinal knowledge and
biomedicine, just as there has famously been with artemisinin.
3 | DEFINING TRA DITIONA L KNOWLEDGE: BROADLY OR NARROWLY?
Traditional knowledge continues to be the operative term and that is the way it is. The question arises of how broad or
narrow should the regime define traditional knowledge so as to protect whatever is to be protected with as much
effectiveness as possible? Clearly breadth can be excessive. Where does traditional knowledge end if, for example,
anything done to or with turmeric (or some other product deemed to be a national heritage) by non-Indians is deemed
to be misappropriation? An excessively broad meaning will unreasonably lock up vast amounts of publicly available
knowledge which no identifiable group of people or nation could make any credible claim to, and whose circulation
can no longer realistically be controlled anyway.
The example of neem is illustrative and is relevant given that the patenting of neem products in the 1990s helped
to drive the biopiracy debate and provoked such a clamor for international action. The way that farmers in South Asia
use neem tree seeds to protect their crops, to give one example, really is public domain information and compensation
is due to nobody. It has been known about for a long time and has been well documented (Sheridan, 2005). The author
is yet to hear of a compelling argument for saying it belongs to the farmers of this generation or to the government of
India, none of whom actually came up with the idea of using neem this way. The custodianship argument, that
generations “invest” in the responsibility of caring for resources and associated knowledge for future generations and
should have rights on that basis, cannot take us very far in this particular context--though it may well do so in
numerous others. It really is too widespread for that. Accordingly, constructing a moral case for compensation from
others’ commercial use can be a difficult if not impossible challenge. Neither James Watson nor the families of Francis
Crick or Rosalind Franklin or the UK government has any right to claim benefits from those depicting DNA as a double
helix or taking advantage of this discovered fact of nature to make money. They did not have such an entitlement at
the time of the discovery and do not two generations later. It is hard to find a moral case for the government of India or of any other country to claim that any knowledge that ever came from their country that people and businesses
elsewhere found commercially useful should be compensated for even when it gets hybridized, altered or otherwise
transformed.
Indeed, a general presumption behind many of the attacks on neem-related patents in Europe and the United
States was that India was a victim on the basis that (a) neem is an Indian tree, (b) the knowledge being “stolen” is Indian, and (c) that neem-related patents are essentially theft of India's biocultural heritage. There are problems with this.
First, research suggests the species is native to a broad area, probably large another to span Afghanistan and
Myanmar. Second, the relevant “traditional knowledge” is mostly very commonly known and is most unlikely to be
bounded by the artificial frontiers of modern India. Third, the tacit assertion that all neem-related patents are biopiracy with India as victim is tantamount to the assertion of reach-through claims over all global neem-related innovations.
This is hard to justify legally, morally or on policy grounds. India, as with all countries, is not biologically or intellectually self-sufficient.
A narrower meaning, on the other hand, might exclude much of what many countries would like to have
protected. Even so, this would get us far closer to a workable approach. What if one confined the legal regime to
the knowledge, innovations and practices of “indigenous peoples” as defined internationally under the
International Labour Organization Convention 169 Concerning Indigenous and Tribal Peoples in Independent
Countries? This approach could be justified in at least two ways. First, these are often culturally, albeit far from
always, quite distinct groups of people and are more likely to have a sense of identity as a people or nation.
Consequently for such people an item of traditional knowledge may be more attributable unequivocally to such
DUTFIELD | 153people. In some parts of the world, their knowledge and “traditionality” are relatively unadulterated by mainstream knowledge systems and technologies. Second, they may have functioning customary norms governing access and use of certain knowledge and resources they possess (Tobin, 2014, 2015). This is very important: what is deemed to be public domain in the intellectual property sense should not automatically be considered to be freely open for others to appropriate because rights and duties over knowledge even after its circulation may be a matter for customary law. Why should we not take into account their own laws? In principle we must, though how this might
be done requires further consideration.
There is a real dilemma here, though. By adopting this approach much of what some countries regard as being
traditional knowledge would be excluded from protection, perhaps unfairly. Just because they may not be the
originators of some valuable knowledge it does not necessarily follow that communities have no rights over it or
deserve no compensation. We would still need to discuss this, but it is difficult to see how any international instrument could really deal with this and achieve practical results. Also, we would still need to have a conversation about the innovations of this generation including those of individuals in communities that, in the words of the CBD, embody traditional lifestyles broadly construed? As for indigenous peoples their levels of acculturation vary widely. Should we ignore this or does it raise difficulties we would have to face up to? What about those who no longer live in such communities, and not necessarily by choice? Should their knowledge, innovations and practices be protected? After all these years important questions remain.
Another reasonable and very basic concern that the approach suggested here cannot fully satisfy is that even with
“indigenous peoples” so defined, attributing knowledge to one group and one group alone can still be controversial. To name one example, the use and knowledge of hoodia as a thirst and appetite suppressant is almost universally
attributed to the San people of Southern Africa (see Wynberg et al. 2009). However, recent research suggests the
situation is not entirely clear. While the San may well be the original discoverers, many of them did not consume it,
while various non-San and mixed populations have used it in recent centuries, and some of them cultivated the plant
too (Osseo-Asare, 2014).
Yet another dilemma arises, which this author does not yet know how best to resolve. On the one hand, as
explained above, an international legal regime for traditional knowledge that focuses on culturally distinct indigenous
communities appears to be the most realistic approach. However, for such people biopiracy is simply not the biggest
problem that they face. Land rights and other economic, social and cultural rights may be far more important. Is there a point to seeking to protect their knowledge when their absence of legal title may be causing them much more harm?
There is a point to parallel campaigns to promote the various rights that are crucial to their welfare. However, progress on land rights is probably an essential condition for a knowledge protection regime, or regime complex linking together two or more agreements, to work. In this sense the more holistic approach offered by the 2007 United Nations Declaration on the Rights of Indigenous Peoples is more appropriate (Asia Pacific Forum of National HumanRights Institutions and the Office of the United Nations Commissioner for Human Rights, 2013). Politically, confining the application of the regime in this way is a lot less interesting for governments who may lose interest in negotiating a legal instrument because other than a few indigenous groups who would benefit, the national economy perhaps does not stand to gain in any substantial sense.
4 | WHAT ABOUT LOCAL VALUE ?
As mentioned above, current approaches focus on the exchange values of genetic resources and traditional
knowledge. There is a wealth of literature demonstrating that for indigenous peoples knowledge has local value,
whether commercial, practical but non-economic, cultural or spiritual, which is far more important in peoples’
everyday lives than the faint possibility of cash injections or other payments in kind arising from commercially
successful bioprospecting expeditions (e.g. see Posey, 1999). Furthermore, empirical studies strongly suggest that
those engaged in economic development need to understand local knowledge, innovations, practices and norms well
154 | DUTFIELDin order to achieve effective policy interventions to genuinely improve the lives of local people (e.g. Lansing, 2007;
Warren, Slikkerveer, & Brokensha, 1995).
By treating traditional knowledge as a unified, bounded counter-modern stock of useful knowledge for outsiders,
as implied in the Nagoya Protocol and many national and regional ABS laws, it inevitably gets reduced to an array of
raw inputs for life science corporations, which is then regulated accordingly. In doing so, we devalue TK, essentially
reducing it to a random compilation of leads, hints, hopes, errors, deceptions and cul de sacs from which the useful
needs to be separated from the supposedly useless. The rhetoric might suggest it is something more worthy and
significant than that but close inspection of how traditional knowledge gets inputted into commercially oriented
scientific research reveals that TK has those diverse and generally rather limited qualities in that particular context.
Anyway, the persisting hopes that TK has genuine value in that setting leads regulators and policymakers to focus their
attention on the instrumental value of TK to others, and away from the holders themselves within their own
communities and among others with which they socialize and otherwise interact. This has negative practical
implications, and the approaches being considered internationally in their current form will not help, especially as
these aforementioned leads, hints and hopes will not in most cases be reducible to traceable and enforceable single
legal claims justified by having made a tangible contribution to a commercial product.9 Meanwhile, the land and other
rights of indigenous groups within the borders of countries whose representatives in Geneva clamor for international
protection of traditional knowledge continue often to be denied.
5 | CONCLUSION
Indiscriminate or coercive modernization can be highly destructive. Similarly, the mixing of knowledge systems, which
can and certainly have been beneficial to all sides, can lead to the harmful erosion of the economically or politically
weaker people's system. So one must be cautious in promoting the idea that all parties in exchanges can learn and
benefit from each other just as if they have always done so in the past. An international instrument that promotes
exchange but pays no heed to power imbalances is worse than not having an instrument at all. But at a very minimum we need to know what it is that should be protected and how that protection should be designed to the advantage in the first instance of weaker parties. After so many years progress has moved at a glacial pace. There is absolutely no
consensus even about “genetic resources and traditional knowledge associated with genetic resources that occur in
transboundary situations or for which it is not possible to grant or obtain prior informed consent”, which the Nagoya
Protocol identifies as unfinished business. The challenge of transboundariness is thus acknowledged as it is by a
number of countries at WIPO (e.g. Government of India, 2013) including in the draft articles. However, it probably
applies to most traditional knowledge and genetic resources especially when defined in the broad sense that this
article has been criticizing. Endemicity in biology and culture is less and less common, or at least is much harder to
demonstrate. Borders are political constructs. Many ethnic groups straddle one or more borders, mass population
movements and diasporas have been common in human history and are certainly present today. Species do not have
national citizenship (and neither does knowledge about them including that which can be reduced to digital code on a
computer). Article 10 of Nagoya merely suggests the possibility of a global multilateral benefit-sharing mechanism to
deal with these.10 Developing such a mechanism is likely to take several more years.
Oguamanam raises some salient matters after noting that “during modernism's golden years, significant
intellectual capital was invested in demarcating science from so-called pseudo sciences and other pretenders thereto”.
He adds that “there has yet to be an acceptable consensus among historians, philosophers and sociologists as to how to erect functional boundaries across knowledge systems, especially between sciences and various categories of
epistemic traditions conveniently depicted as Indigenous knowledge” (Oguamanam, 2015). Debates go on as to what is and is not science but the scientific method as conventionally understood is undeniably powerful and has delivered us gravity, thermodynamics, relativity, quantum mechanics, evolution through natural selection, the structure of DNA, effective treatments for cancer, and of course nuclear weapons. One does not have to accept the extreme possibilities what he says to grasp the essential point that where tradition ends and science starts is far less clear cut a matter than many suppose, and that both have and continue to borrow from each other often in beneficial ways. If a global access and benefit sharing regime and/or a treaty on traditional knowledge protection can assist such healthy cross-fertilization in fair and equitable ways all well and good.
This article has identified basic conceptual problems that currently make such a noble goal hard to achieve. The
first thing we need to do is to limit ambitions to what really can be achieved. Next we need to open the TK black box
and make some tough decisions on what a legal regime should and should not cover. WIPO's heavily bracketed draft
articles discussed earlier demonstrate how difficult this is to achieve, but it is really indispensable. No decision on the
scope of the regime will please everybody. Only a narrow definition, perhaps one that would apply only to knowledge
within culturally distinct groups can possibly help to deliver a workable regime.
A recent development, which some consider promising in this regard, is the so-called “tiered approach” to scope
of protection. This was introduced into the WIPO negotiations on TK protection in 2014. The most recent edition of
the aforementioned draft articles offers the possibility to apply different legal, administrative and policy measures to
secure traditional knowledge holders’ moral and material interests according to whether the knowledge is secret,
narrowly diffused or widely diffused. However, there is still no agreement about who the “beneficiaries” are (or are
not), which makes it possible for governments and others to make inappropriate claims. In addition, it remains to be
seen whether this tripartite differentiation of traditional knowledge “types” is sufficiently nuanced to ensure the
beneficiaries are the right ones and the benefits to be gained are of the right kind and in the right quantity.
Ultimately, it is highly unlikely that anything other than piecemeal locally driven and controlled solutions can
provide much satisfaction for those keen for justice to be seen to be done. Indigenous peoples should be allowed to
enjoy the full value of their knowledge to themselves first. Once that is achieved, they will no doubt be in a better
position to exploit its exchange value with scientific institutions and commercial partners. The latter will need to be
patient. If there is commercial value here they will just have to wait and deal with the greater legal uncertainty of an
absence of international rules and of harmony in national regulatory regimes.
This leads to a final point. Policymakers debating the Nagoya Protocol and seeking ways to implement it must at least
face up to the futility of confining the norms of exchange to intellectual property rights, contracts, top-down government
regulations and nothing more than those. Those are the laws of the powerful. Instead, the rules and principles of the
weaker party should apply in the first instance. The weaker party is not the corporation, nor is it the government but the indigenous peoples. That is a matter of fairness but it is also the only practical basis for mutually advantageous
relationships. The patent system is here to stay, as are inappropriate heavy-handed access and benefit sharing rules
which might just deliver very occasional windfalls not all of which will filter down to the local level anyway. Given this, to address power imbalances it seems necessary to strengthen the role of customary law as a third source of regulatory norms that facilitates rather than stops two-way exchange but in ways that are culturally compatible with indigenous peoples’ values and that further their interests (Coombe, 2001). Either that, or to develop “hybrid approaches that interweave elements of western law and local, traditional rules for the circulation of knowledge” (Brown, 2005). These laws are local or national but they are not universal in their scope. What is universal though is that customary norms are
far more ubiquitous than people assume. One should avoid romanticism. Not everything about custom should be
defended, especially where it is cruel or maladaptive. But to disregard those local laws concerning the management of natural resources and the rights and responsibilities surrounding biological material and “associated” knowledge which have stood the test of time is no longer morally acceptable; nor is it wise if we really seek to pursue practical solutions.
6 | ABOUT THE AUTHORS
Graham Dutfield is Professor of International Governance at the School of Law, University of Leeds. He is founding
programme director of the LLM in Intellectual Property Law at the University of Leeds. He is author of the books Global
Intellectual Property Law (with Uma Suthersanen), and Intellectual Property Rights and the Life Science Industries.
DUTFIELDEND NOTES
1 Three other elements of the regime complex on traditional knowledge are the FAO International Treaty on Plant Genetic Resources for Food and Agriculture, 2001, the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, 2003, and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005. However, their importance is relatively marginal in the present context and will not be covered in this article.
2 The United States government has tended to argue for TK protection, if there should indeed be any, on the basis of minor tweaks to existing forms of intellectual property. This is unacceptable to the indigenous peoples’ organizations observing the WIPO negotiations who are demanding a sui generis system founded on very different principles.
3 WIPO's Intergovernmental Committee has met over 30 times since 2001. The first meeting of the Conference of the Parties to the CBD took place in 1994.
4 For a useful survey of WIPO's work on traditional knowledge over the last few decades, see Bannerman (2015).
5 Law 27811 Establishing the Regime for the Protection of the Collective Knowledge of Indigenous Peoples Relating to
Biological Resources, 10 August 2002; Law 28216 on Protection of Access to Peruvian Biological Diversity and to the
Collective Knowledge of the Indigenous Peoples, 1 May 2004.
6 Or similar (in usage if not meaning) words like western or scientific.
7 This is not to suggest that this word is immune to criticism either, but that we do not consider it on this occasion.
8 For an excellent early critique highlighting the fallacies and harms caused by the use of tradition and modern as if they are binary opposites, see Gusfield (1967).
9 Albeit expressed rather differently, a similar argument is made by Angerer (2011). Related to this difficulty is the issue of potentially extensive distance in material and cognitive terms between biological material and associated TK, the invention claimed in a patent, and a final product. Should benefit sharing obligations be calibrated so as to be in proportion to distance according to some kind of measurement? Accordingly, all other things being equal, the shorter the distance the greater would be the benefits. Similarly: Harrison (2015); also see Tvedt, Eijsink, Steen, Strand, and Rosendal (2016).
10 In full: “Parties shall consider the need for and modalities of a global multilateral benefit sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed
consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally”.
ORCID
Graham Dutfield http://orcid.org/0000-0002-4725-6826
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Benchmarks for training in traditionnal / complementary and alternative medicine
WHO World Health Organisation
Abstracts :
I- Acknowledgements
WHO wishes to express its sincere gratitude to the Department for Development of Thai Traditional and Alternative Medicine, Ministry of Public Health, Thailand, for their support and recommendation of Dr Anchalee Chuthaputti, Thailand, for the preparation of the original text. A particular acknowledgement of appreciation is due to Dr Chuthaputti for her collaborative work.
A special note of thanks is extended to Dr Pennapa Subcharoen, former Deputy Director-General of the Department for Development of Thai Traditional and Alternative Medicine, Ministry of Public Health, Thailand for her contributions to this document. She passed away in April 2008, just four months after attending the WHO Consultation on Manual Therapies in Milan, Italy.
WHO acknowledges its indebtedness to 244 reviewers, including experts and national authorities as well as professional and non-governmental organizations, in over 70 countries who provided comments and advice on the draft text.
Special thanks are due to the participants of the WHO Consultation on Manual Therapies (see Annex 2) who worked towards reviewing and finalizing the draft text, and to the WHO Collaborating Centre for Traditional Medicine at the State University of Milan, Italy, in particular to Professor Umberto Solimene, Director, and Professor Emilio Minelli, Deputy Director, for their support to WHO in organizing the Consultation.
I-I-Preface
Integration of traditional medicine into national health systems
Traditional medicine has strong historical and cultural roots. Particularly in developing countries, traditional healers or practitioners would often be well- known and respected in the local community. However, more recently, the increasing use of traditional medicines combined with increased international mobility means that the practice of traditional medicines therapies and treatments is, in many cases, no longer limited to the countries of origin. This can make it difficult to identify qualified practitioners of traditional medicine in some countries.
One of the four main objectives of the WHO traditional medicine strategy 2002- 2005 was to support countries to integrate traditional medicine into their own health systems. In 2003, a WHO resolution (WHA56.31) on traditional medicine urged Member States, where appropriate, to formulate and implement national policies and regulations on traditional and complementary and alternative medicine to support their proper use. Further, Member States were urged to integrate TM/CAM into their national health-care systems, depending on their relevant national situations.
Ideally, countries would blend traditional and conventional ways of providing care in ways that make the most of the best features of each system and allow each to compensate for weaknesses in the other. Therefore, the 2009 WHO resolution (WHA62.13) on traditional medicine further urged Member States to consider, where appropriate, inclusion of traditional medicine in their national health systems. How this takes place would depend on national capacities, priorities, legislation and circumstances. It would have to consider evidence of safety, efficacy and quality.
Resolution WHA62.13 also urged Member States to consider, where appropriate, establishing systems for the qualification, accreditation or licensing of practitioners of traditional medicine. It urged Member States to assist practitioners in upgrading their knowledge and skills in collaboration with relevant providers of conventional care. The present series of benchmarks for basic training for selected types of TM/CAM care is part of the implementation of the WHO resolution. It concerns forms of TM/CAM that enjoy increasing popularity (Ayurveda, naturopathy, Nuad Thai, osteopathy, traditional Chinese medicine, Tuina, and Unani medicine)
These benchmarks reflect what the community of practitioners in each of these disciplines considers to be reasonable practice in training professionals to practice the respective discipline, considering consumer protection and patient safety as core to professional practice. They provide a reference point to which actual practice can be compared and evaluated. The series of seven documents is intended to:
- support countries to establish systems for the qualification, accreditation or licensing of practitioners of traditional medicine;
- assist practitioners in upgrading their knowledge and skills in collaboration with providers of conventional care;
- allow better communication between providers of conventional and traditional care as well as other health professionals, medical students and relevant researchers through appropriate training programmes;
- support integration of traditional medicine into the national health system.
The documents describe models of training for trainees with different backgrounds. They list contraindications identified by the community of practitioners, so as to promote safe practice and minimize the risk of accidents.
- The most elaborated material to establish benchmarks comes from the countries where the various forms of traditional medicine under consideration originated. These countries have established formal education or national requirements for licensure or qualified practice. Any relevant benchmarks must refer to these national standards and requirements.
- The first stage of drafting of this series of documents was delegated to the national authorities in the countries of origin of each of the respective forms of traditional, complementary or alternative medicine discussed. These drafts were then, in a second stage, distributed to more than 300 reviewers in more than 140 countries. These reviewers included experts and national health authorities,
Dr Xiaorui Zhang Coordinator, Traditional Medicine Department for Health System Governance and Service Delivery World Health Organizatio
II- Introduction
Nuad Thai may be regarded as part of the art, science and culture of Thailand, with a history dating back over six hundred years. “Nuad Thai” literally means “therapeutic Thai massage” and it is a branch of Thai traditional medical practice that provides non-medicinal based, manual therapy treatment for certain diseases and symptoms. In Thailand, when Nuad Thai is used for therapeutic or rehabilitative purposes, it is covered by the National Health Security System.
In other countries, Nuad Thai or “Thai massage” frequently refers to a type of Nuad Thai designed for health and relaxation. Such treatments can be found in spas and wellness centres in hotels and resorts all over the world. This type of Nuad Thai for health can also be used for the relief of general body aches and pains. In many areas, Nuad Thai also serves as a more cost effective treatment option for these symptoms, as traditional medicine practitioners are frequently more accessible, and the treatment they offer much less expensive, than imported medicines. The scope of this document will, however, focus only on Nuad Thai and the practice of the Nuad Thai practitioner at the professional level.
As Nuad Thai becomes accepted in other countries around the world, particularly in countries that neighbor Thailand, schools that offer training programmes in Nuad Thai have been established. This has led to concern about the safety and standards of training in Nuad Thai.
In Thailand, attempts have been made to develop the educational standard of Nuad Thai. In 2002 the Ministry of Public Health developed the Nuad Thai (800 hours) curriculum, while the Profession Commission (Thai Traditional Medicine branch) established a Nuad Thai Professional Curriculum in December 2007.
The WHO Consultation on Manual Therapies, held in Milan, Italy, in 2004 concluded that training should be increased to a minimum of 1,000 hours. More intensive training on health sciences and clinical practice should ensure that trainees have enough basic health science knowledge and clinical experience to be able to practice independently and safely. This is in line with the Professional Curriculum of Nuad Thai approved by the Profession Commission in the Branch of Thai Traditional Medicine in December 2007. In this curriculum, a student must take not less than two years to study and gain clinical experience in Nuad Thai before being eligible to undertake the licensing examination.
The resulting document, therefore, provides benchmarks for basic training of practitioners of Nuad Thai; models of training for trainees with different backgrounds; and a review of contraindications, so as to promote safe practice of Nuad Thai and minimize the risk of accidents. Together, these can serve as a reference for national authorities in establishing systems of training, examination and licensure that support the qualified practice of Nuad Thai.
II-I. Origin and principles of Nuad Thai
Nuad Thai for health and Nuad Thai therapy
Thai traditional massage, known in the Thai language as “Nuad Thai”, is Thailand’s traditional manual therapy. Nuad Thai is defined as “examination, diagnosis and treatment with the intention to prevent disease and promote health using pressure, circular pressure, squeezing, touching, bending, stretching, application of hot compresses, steam baths, traditional medicines, or other procedures of the art of Thai massage, all of which are based on the principles of Thai traditional medicine.” (1)
Nuad Thai is divided into two main types, namely, “Nuad Thai for health” and”Nuad Thai therapy”.
- “Nuad Thai for health” is usually applied all over the body to help relax muscle tension. Although Nuad Thai for health can help relieve general body aches and pains, it is intended for relaxation and health promotion rather than for therapeutic purposes. The use of Nuad Thai for health is not considered to be the practice of a healing art. (2,3,4)
- “Nuad Thai therapy” is intended to (i) cure or relieve musculoskeletal disorders and painful symptoms in various parts of the body, e.g. myofascial pain syndrome or tension headache, and (ii) prevent or relieve muscle spasm and joint stiffness, e.g. in patients with paralysis, paresis or Parkinson’s disease. This therapy is symptom-oriented Nuad Thai that concentrates on massaging the affected body part and related areas of the body for therapeutic purposes.
This document deals only with “Nuad Thai therapy”, and does not address “Nuad Thai for health”. As part of Thai traditional medicine, Nuad Thai follows the basic principle that the human body is composed of the four elements (tard), i.e. earth, water, wind and fire. When the four elements of the body are in equilibrium, the person will be healthy. In contrast, if an imbalance in these elements occurs, i.e. if there is deficit, excess, or a malfunction in any of the four elements, the person will become ill. The wind element represents movement and the flow of energy. The wind and its energy are believed to flow along the “sen”, or lines. According to the inscription of massage diagrams at Wat Pho (the Temple of the Reclining Buddha in Thailand) and original traditional textbooks of Nuad Thai, the human body is composed of 72 000 sen lines, of which there are ten principal sen lines called “sen sib” or “sen prathan sib”. Both Nuad Thai for health and Nuad Thai therapy are based on the principle of sen sib. According to the principles of Thai traditional medicine and sen sib, if the flow of energy or wind along sen lines is obstructed or becomes stagnant, diseases and symptoms will result. There are several diseases and symptoms that are related to the sen lines. Nuad Thai on sen lines, and on acupressure points on the sen lines, will relieve the obstruction and promote the flow of energy and wind along the sen lines, and is therefore believed to help relieve various diseases and symptoms (5,8).
The origin of Nuad Thai is unclear. Massage has long been important to family health care, thought to go back to the health-care wisdom of Thai ancestors. Historical evidence shows that Nuad Thai was well accepted by the royal court and has been widely used by the Thai people since the Ayutthaya period (1350- 1767).
Nuad Thai became a formal body of knowledge during the 19th century. The knowledge of Nuad Thai was first compiled, organized systematically, and codified during the reign of King Rama III (1824-1851). The King ordered the inscription of 60 diagrams of Nuad Thai in order to provide knowledge of Nuad Thai for self-care by the Thai people. These showed sen lines and acupressure points on the body along with the explanation of the symptoms or diseases each massage spot could heal.
During the reign of King Rama V (1868-1910), the King ordered the compilation and systematic organization of knowledge about Thai traditional medicine. The Textbook of medicine, Royal edition, published in 1906, describes Nuad Thai. From the reign of King Rama VI (1910-1925) onwards (5), however, the role of Thai traditional medicine and massage began to decline, as the role of allopathic medicine increased following its introduction in Thailand during the late 19th and early 20th centuries. In the latter part of the 20th century the first school of applied Thai traditional medicine initiated the teaching of royal massage (Nuad Rajasamnak) as the manual therapy part of the three-year curriculum of applied Thai traditional medicine (6). Its royal massage curriculum was later adopted as a form of Nuad Thai by the National Institute of Thai Traditional Medicine within the Ministry of Public Health, and thereafter by some other colleges and universities. Meanwhile, nongovernmental organizations also played a role in reviving Thai massage. They provided training courses for the public and promoted its use in primary health care, specifically in reducing the need for various pain medications (5).
The 1990s saw an increased interest in Thai traditional medicine within the Ministry of Public Health of Thailand, and the establishment of the National Institute of Thai Traditional Medicine in 1993. The Institute reviewed and systematically described the styles of Nuad Thai taught at different schools and began to create the regulations and standards for Nuad Thai and the Nuad Thai curricula for the Ministry of Public Health of Thailand.
At the turn of the millennium, increasing public and private sector demand for qualified Nuad Thai practitioners led the Thai Ministry of Public Health to issue a Ministerial Regulation on 1 February 2001, officially making Nuad Thai a branch of Thai traditional medicine. The registration and licensing of practitioners, and the conditions and regulation of practice, are in accordance with the Practice of the Art of Healing Act, B.E. 2542 (1999) (1).
Thai traditional medicine is today incorporated into the health system of Thailand and Nuad Thai and the application of luk prakob (hot herbal compresses) are covered by the National Health Security System (7). At present, Thai people have easier access than ever before to Nuad Thai, as most public health-care facilities provide Nuad Thai.
II-II. Training of Nuad Thai practitioners
Regulating the practice of Nuad Thai and preventing practice by unqualified practitioners requires a proper system of training, examination and licensing. Benchmarks for training have to take into consideration the following:
- content of the training;
- method of the training;
- to whom the training is to be provided and by whom;
- the roles and responsibilities of the future practitioner;
- the level of education required in order to undertake training.
Nuad Thai experts distinguish three types of Tuina training in function of prior training and clinical experience of trainees.
Type I training programmes are aimed at those who have completed high-school education or equivalent, but have no prior medical or other health-care training or experience. These trainees are required to study the full Nuad Thai programme. This is typically a full-time or equivalent training of a minimum of 1000 hours.
Type II training programmes are aimed at those with medical or other health-care training who wish to become recognized Nuad Thai practitioners. These programmes can be shorter if trainees have already covered some of the components in their earlier health-care training and experience. A typical programme will last approximately 800 hours.
Type III training programmes are limited programmes providing upgrading and qualification for existing Nuad Thai practitioners who have had previous training and work experience in Nuad Thai, but who have not yet received formal full Nuad Thai training.
Upon completion of the programmes, all students must meet the minimum competency requirements for Nuad Thai practitioners .
Practitioners, experts and regulators of Nuad Thai consider the typical Type I programme as the relevant benchmark. This is a 1000 hours (minimum) training programme for those who have completed at least high-school education or equivalent, but have no prior health-care training or experience. On completion of this training programme, Nuad Thai practitioners will be able to practise as primary-contact health-care practitioners, either independently or as members of health-care teams in various settings. A typical applicant will have completed at least high-school education or equivalent, with appropriate training in basic sciences.
III-I Learning outcomes of a Type I programme
The Type I programme is intended to equip trainees for professional treatment of some commonly found painful symptoms or diseases of the musculoskeletal system, and prevention of complications of certain diseases exhibiting musculoskeletal symptoms. The curriculum is typically structured to provide the trainee with:
• a basic knowledge of health sciences related to Nuad Thai, including anatomy, physiology and pharmacology, with a focus on the neuromusculoskeletal and circulatory systems;
• a basic understanding of common clinical conditions of the neuromusculoskeletal system;
• a basic knowledge of Thai traditional medicine, with a focus on Nuad Thai, sen prathan sib, the sen pressure points related to each line, and the four elements, especially wind-related disorders;
• skill and expertise in Nuad Thai techniques ;
• the ability to decide whether the patient may safely and suitably betreated with Nuad Thai, or should be referred to another health professional or health-care facility;
• the capacity to identify contraindications to Nuad Thai or the need for particular precautions ;
• communication skills to interact with patients and their relatives, fellow practitioners, other health-care professionals and the general public;
• a high standard of professional ethics and the ability to follow a code of professional conduct.
III-II Health science components
The health science components of a typical Type I Nuad Thai programme includes:
- basic anatomy;
- basic physiology;
- basic herboristery;
- basic clinical sciences;
- basic musculoskeletal disorders;
- basic examination and assessment of the musculoskeletal system;
- evaluation of painful symptoms
- theories of Thai traditional medicine;
- history of Thai traditional medicine and the four elements;
- theory of causes of disease as related to seasons, age, time, place,
symptoms and behaviour; - basic Thai traditional pharmacy, specifically commonly used herbal
medicines for bone, tendon and muscle disorders, herbal baths, and
herbal compresses; - basic Thai traditional medicine diagnosis and treatment composed of
preliminary diagnosis, characteristics of the four elements, and herbal medicines suitable for each element, disease and symptom. - III-IV- Nuad Thai philosophy
- history, body of knowledge and application of Nuad Thai;
- health benefits, values and various styles of Nuad Thai, and its use in the
health-care system; - the ten principal sen lines and their structure, energy flow and
characteristics as well as their relationship to disease, the sen pressure points for treating various ailments, the types of sen pressure points on sen lines, the use of the beginning points of sen sib for Nuad Thai; - principles, procedures, potential benefits, contraindications and methods of basic Nuad Thai for application on the back, outer and inner leg, shoulder and head;
- application of Nuad Thai in the treatment of various symptoms and diseases;
- examination and diagnosis of energy lines and wind-related disorders based on the sen sib theory;
- causes of symptoms and diseases and Nuad Thai for the treatment of various conditions;
- Nuad Thai for rehabilitation of various disabilities in different age groups and for the restoration of various functions;
- Nuad Thai for the feet including the use of reflexive points on the foot to treat diseases and their affect on the function of various organs;
- Nuad Thai techniques for health promotion and enhancement of physical fitness of athletes and treatment of patients suffering from sports injuries;
- Nuad Thai for antenatal, postnatal and child care, including disorders of mother and child before and after delivery as well as use of Nuad Thai for maternal care III-VThai traditional medicine component
- The Thai traditional medicine component of a typical Type I Nuad Thai programme includes:
- use of oils for the treatment of inflammation, muscle sprains and tendinitis, procedures and benefits of aromatherapy, and the extraction of essential oils from herbs;
- meaning, concept and classification of Thai spaya and the role of Nuad Thai in Thai spaya;
- philosophy, concepts and practice of basic meditation; procedures, benefits and precautions of ruesi dutton (Thai traditional stretching exercises).
A typical Type I Nuad Thai programme also addresses:
- professional regulations;
- national health system;
- clinical record-keeping;
- practice management;
- activities to promote teamwork;
- principles of communication;
- cultural sensitivity;
- professional ethics;
- art of service.
- In a typical Type I Nuad Thai programme each student practices Nuad Thai under supervision at field sites in at least 100 cases of specific symptoms and diseases. These cases include all of the following symptoms/conditions:
- patients with pain in the head area;
- patients with pain or sprains in the neck;
- patients with pain, stiffness or numbness in the shoulder or scapula;
- patients with pain or sprains in the arm, elbow, wrist or hand;
- patients with pain, sprains or numbness in the back, waist, sides of the
torso or abdomen; - patients with pain, stiffness or sprains in the hip joint, hip area or lower
back; - patients with pain, sprains, stiffness or numbness in the knee;
- patients with pain, sprains, stiffness or numbness in the leg, ankle or feet;
- paralysed or paretic patients;
- women before and after childbirth.
IV. Safety issues - Nuad Thai experts and practitioners consider it important, in order to increase safety and decrease the risk of adverse effects that might occur in patients after Nuad Thai, that all practitioners, including other traditional medicine practitioners, medical doctors and other health-care professionals, should examine and screen patients for any contraindications before treating them or referring them for Nuad Thai (9).
- V-I Precautions and contraindications
Nuad Thai practitioners consider that Nuad Thai is contraindicated if the patient has any of the following conditions (9): - sharp pain, numbness, tingling, or weakness along the arms or the legs which might indicate acute herniated disc;
- fever over 38.5°C;
- hypertension with systolic blood pressure above 160 mmHg and/or
diastolic blood pressure above 100 mmHg combined with syncope,
tachycardia, headache, nausea or vomiting; - recent (less than 1 month) surgery;
- severe osteoporosis;
- communicable diseases, especially airborne types, e.g. influenza,
tuberculosis.
Massage in the hypogastric region is contraindicated for pregnant women with morning sickness, watery or bloody vaginal discharge or severe oedema of the extremities, or if the movement of the baby decreases for more than 24 hours. Nuad Thai is also contraindicated in areas of the body that have the following problems:- fresh wounds, open wounds or recent injury;
- vascular problems, e.g. varicoses, thrombosis, ulceration, atherosclerotic
plaque, aneurysm; - serious joint or bone problems, e.g. broken bone, dislocation, severe
osteoporosis, multiple myeloma, ankylosing spondylitis, rheumatoid
arthritis with joint deformity or deviation; - skin diseases or dermal infections, e.g. cellulitis, chronic wounds, herpes
simplex, herpes zoster, tinea; - deep vein thrombosis (10);
- burns;
- inflammation;
- cancer.
- • patients with vascular disease, e.g. aneurysm, vasculitis, atherosclerosis;
- hypertensive patients with systolic blood pressure over 160 mmHg and/or diastolic blood pressure over 100 mmHg not combined with syncope, tachycardia, headache, nausea or vomiting;
- patients with osteoporosis;
- patients with abnormal blood clotting or excessive bleeding who are
taking thrombolytic agents; - joint dislocation;
- areas of the body where metal pins, steel plates, screws or prosthetic
points have been inserted; - areas where wounds are not completely healed;
- broken skin;
- skin grafts.
Generally, Nuad Thai is considered a safe manual therapy; however, some patients may experience minor adverse reactions, especially those who are receiving Nuad Thai for the first time and are not accustomed to the application of pressure on the trigger points to relieve myofascial pain syndrome. Adverse reactions may also occur if too much pressure is applied. Potential adverse reactions may include soreness, bruising, mild inflammation, or subcutaneous haemorrhage. Other reported adverse effects are said to include dizziness, vertigo or early or heavier menstruation.
Moderate adverse effects are said to be more frequent if practitioners lack experience, knowledge or skill, apply too much pressure, massage the wrong spot, or work on areas that are contraindicated. These moderate adverse reactions may include weakness and/or numbness in the extremities, fainting or cardiac arrhythmia due to pressure on the large arteries of the neck, oedema, severe soreness or inflammation. Moderate adverse effects reportedly may result in a need for the patient to seek medical attention (9).
Severe adverse reactions and accidents may happen if the wrong techniques are used, especially by inexperienced practitioners, or if Nuad Thai is applied to contraindicated areas of the body or in contraindicated cases. These severe adverse effects may include injured nerves, disc herniations, compressed spinal nerves, ischaemia of the brain or the heart, tearing of blood vessels, aneurysm of blood vessels, rupture of lymphatic vessels, or tearing of the intestine. These adverse reactions require immediate medical attention and hospitalization (9).
References
- Ministry of Public Health Notification B.E. 2544. Addition of Thai Massage as a Branch of Practice of Thai Traditional Medicine. Issued 1 February 2001. In: Thai Royal Gazette. Vol. 118, Part 25d, 27 March 2001.
- Benjamongkolwaree P. Massage for whole body relaxation. In: Nuad Thai for Health. Bangkok, Moh Chao Ban Publishing, Volume 1, 2nd ed., 2002.
- References
15
Benchmarks for training in Nuad Thai - Leewanun C. Massage for health. In: Apiwatanaporn N, Teerawan S, Iamsupasit S, eds. Information for operators of spa for health business. 3rd ed. Bangkok, Department of Health Service Support, Ministry of Public Health, 2008:87-102.
- Foundation for the Revival and Promotion of Thai Traditional Medicine, A yurvej School. T extbook of Thai T raditional Manual Therapy (Nuad Rajasamnak). Bangkok, Piganesh Printing Center, 2005.
- Ministry of Public Health Notification B.E. 2544. Addition of Thai Massage as a Branch of Practice of Thai Traditional Medicine. Issued 1 February 2001. In: Thai Royal Gazette. Vol. 118, Part 25d, 27 March 2001.
- Marble Inscriptions of Herbal Remedies at Wat Phra Chetupon Wimon Manklaram (Wat Pho), Phra NaKhon (Bangkok), Inscribed under the Royal Command of King Rama III in B.E. 2375 (AD1832), The Complete Edition.
- Tantipidok Y, ed. Textbook of Nuad Thai, Volume 1. Bangkok, Health & Development Foundation, 2007.
- Subcharoen P, ed. Move your body, make you healthy with Thai traditional exercise (15 Basic postures of ruesi dud ton). Bangkok, War Veterans Administration Printing, 3rd ed., 2003.
- King Rama, the Fifth Medical Classic. Volume 2. Bangkok, The Fine Arts Department, 1999:74-123.
Boonsinsuk P. Research report on the use of traditional Thai massage to treat the painful condition of muscle and joint (in six government hospitals). Bangkok, Revival of Thai Traditional Massage Project, Health and Development Foundation, 1995:5-32.
Chatchawan U et al. Effectiveness of traditional Thai massage versus Swedish massage among patients with back pain associated with myofascial trigger points. Journal of Bodywork and Movement Therapies, 2005, 9:298-309.
Mackawan S et al. Effects of traditional Thai massage versus joint mobilization on substance P and pain perception in patients with non-specific low back pain. Journal of Bodywork and Movement Therapies, 2007, 11:9-16.
Ministry of Public Health Notification. Curricula of Thai Traditional Medicine of the Ministry of Public Health. Issued 26 August 2002.
Practice of the Art of Healing Act, B.E. 2542. Thai Royal Gazette, Vol. 116, Part 39 a, 18 May 1999.
Profession Commission in the Branch of Thai Traditional Medicine. Curriculum of The Practice of the Art of Healing in the Branch of Thai Traditional Medicine – NUAD THAI B.E. 2550. Professional Curriculum of Nuad Thai, approved on 19 December 2007.
Thepsongwat JJ et al. Effectiveness of the royal Thai massage for relief of muscle pain. Siriraj Medical Journal, 2006, 58:702-704.
- Revival of Nuad Thai Project. Handbook of Nuad Thai. Bangkok, Ruan Kaew Printing, 1994.
- Institute of Thai Traditional Medicine. Thai Traditional Medicine Curricula of the Ministry of Public Health. Bangkok, Beyond Publishing, 1st ed. 2008:129- 144.
- Tantipidok Y, ed. Textbook of Nuad Thai, Volume I. Bangkok, Health & Development Foundation. 3rd ed., 2007.
- Society of Ayurveda Doctors of Applied Thai Traditional Medicine. Two decades of Ayurved. Bangkok, Chamchuree Product, 1999.
- Notification of the National Health Security Committee. Thai Traditional Medicine Services. Issued 21 June 2002.
- Dewises K, ed. Handbook of Thai massage training. Bangkok, V eteran Administration Printing, 1999.
- Leewanun C. Massage for health. In: Apiwatanaporn N, Teerawan S, Iamsupasit S, eds. Information for operators of spa for health business. 3rd ed., Bangkok, Department of Health Service Support, Ministry of Public Health. 2008:87-102.
- Chierakul N, Jakarapanichakul D, Phanchaipetch T. An unexpected complication of traditional Thai massage. Siriraj Hospital Gazette, 2003, 55:167-170.
- The Royal Institute. The Royal Institute Dictionary B.E. 2542. Bangkok, Nanmee Books Publication, 1999:1024.
- Sittitanyakit K., Termwiset P, eds. Manual on the Use of Thai Traditional Medicine for the Health Care of People. Bangkok, War Veterans Administration Printing, 2004:144-6.
- Ministry of Public Health Notification. Thai traditional medicine curricula of the Ministry of Public Health. Issued on 26 August 2002.
The terms used in this document are defined as follows:
Luk Prakob (Hot herbal compress) (11,12)
A herbal ball made by wrapping various kinds of crushed herbs in a piece of cloth, tightly tied with a piece of cotton rope to make a ball, with a stick on top for handling. The herbal ball compress is steamed prior to application to an inflamed area of the body. The heat and the active constituents released from the herbs is intended to relieve pain and inflammation in the affected area.
Nuad Chaloeisak (folk massage) (13,14)
A type of Thai massage which originated in the common household and developed into styles of massage that use not only hands and fingers but also elbows, arms, knees, feet or heels. The massage techniques include applying pressure, stretching and manipulation. This style of Thai massage is commonly used for health and relaxation but it can also be used for therapeutic purposes.
Nuad Rajasamnak (royal or court massage) (15)
A style of Thai massage which originated as a form of Nuad Thai used in the royal court for members of the royal family and which was revived and formalized by the school of applied Thai traditional medicine. Royal massage emphasizes the use of the hands and fingers to apply pressure on the “sen pressure points” associated with the “sen lines”. Different positions of the practitioner and positions of his/her fingers and palms, the angle of the arms, the position of hands or fingers on the patient’s body, the pressure applied and the duration of application are all parts of an appropriate royal massage technique.
Nuad Thai (16)
Examination, diagnosis, and treatment, with the intention of preventing disease and promoting health, using: pressure; circular pressure; squeezing; touching; bending; stretching; application of hot compresses; steam baths; or other procedures in the art of traditional Thai massage or the use of traditional medicines, all of which are based on the principles of Thai traditional medicine.
Nuad Thai therapy (15,17,18)
A type of therapeutic Thai massage intended to cure or relieve musculoskeletal disorders and painful symptoms in various parts of the body, e.g. myofascial pain syndrome or tension headache, and for rehabilitative purposes to prevent or relieve muscle spasm and joint stiffness, e.g. in patients with paralysis, paresis or Parkinson’s disease.
Rusi dutton (19)
A traditional Thai stretching exercise used for health promotion, disease prevention, and the rehabilitation of some minor disorders. Ruesi means “hermit” and dud ton means “body stretching exercise”.
Sen pressure point (20)
Points on the sen lines associated with specific diseases or symptoms. The application of pressure by way of Nuad Thai is intended to help relieve such diseases or symptoms.
Tard (the four elements)
These are the basic elements that are traditionally believed to be the components of the living body in Thai traditional medicine. According to Thai traditional medicine theory, there are four major elements: earth, wind, water and fire.
Thai spaya
The term “spaya” means being in a healthy environment and is derived from the Thai word “sabai”, meaning “to experience well-being, be comfortable or healthy.” This term is now used to describe a type of spa service in Thailand based on Thai traditional health care, part of which is Nuad Thai .
Annex 2: WHO Consultation on Manual Therapies, Milan, Italy, 12–14 November 2007: list of participants
Participants
Mr Peter Arhin, Director, Traditional and Alternative Medicine Directorate,
Ministry of Health, Accra, Ghana
Dr Iracema de Almeida Benevides, Consultant and Medical Advisor, National Policy of Integrative and Complementary Practices, Ministry of Health, Brasilia - DF, Brazil
Dr Anchalee Chuthaputti, Senior Pharmacist, Department for Development of Thai Traditional and Alternative Medicine, Ministry of Public Health, Nonthaburi, Thailand [Co-Rapporteur]
Dr Franco Cracolici, Federazione Italiana Scuole Tuina e Qigong, Firenze, Italy Dr Alessandro Discalzi, Directorate-General, Family and Social Solidarity,
Lombardy Region, Milan, Italy
Dr Mona M. Hejres, Education Medical Registrar, Office of Licensure and Registration, Ministry of Health, Manama, Kingdom of Bahrain
Dr Giovanni Leonardi, General Director, Human Resources and Health Professions, Ministry of Health, Rome, Italy
Professor Yutang Li, WHO Collaborating Centre for Traditional Medicine, Nanjing University of Traditional Medicine, Nanjing, Jiangsu Province, China
Professor Emilio Minelli, WHO Collaborating Centre for Traditional Medicine, Centre of Research in Bioclimatology, Biotechnologies and Natural Medicine, State University of Milan, Milan, Italy
Dr Nguyen Thi Kim Dung Director, WHO Collaborating Centre for Traditional Medicine, National Hospital of Traditional Medicine, Hanoi, Viet Nam
Dr Susanne Nordling, Chairman, Nordic Co-operation Committee for Non- conventional Medicine, Sollentuna, Sweden [Co-Chairperson]
Dr Hieng Punley, Director, National Center of Traditional Medicine, Ministry of Health, Phnom Penh, Cambodia
Dr Léon Ranaivo-Harimanana, Head of Clinical Trial Department in Centre National d’Application des Recherches Pharmaceutiques, Ambodivoanjo, Antananarivo, Madagascar
Ms Lucia Scrabbi, Planning Unit Directorate-General of Health, Lombardy Region, Milan, Italy
Professor Umberto Solimene, Director, WHO Collaborating Centre for Traditional Medicine, Centre of Research in Bioclimatology, Biotechnologies and Natural Medicine, State University of Milan, Milan, Italy
*Dr Pennapa Subcharoen, Health Supervisor, Office of the Health Inspector, General Ministry of Public Health, Nonthaburi, Thailand
Dr Chaiyanan Thayawiwat, Director, Hua Hin Hospital, Amphur Hua Hin, Prachuapkhirikhan, Thailand
Dr Sounaly Themy, Medical Doctor, Traditional Therapies, Traditional Medicine Research Centre, Ministry of Health, Vientiane, Lao People's Democratic Republic
Dr Yong-Jun Wang, Director, Orthopaedics Department, Longhua Hospital, Shanghai University of Traditional Chinese Medicine, Shanghai, China
Dr Jidong Wu, President, Association of Traditional Chinese Medicine, Hertfordshire, United Kingdom
Professor Shan Wu Moxibustion Department Guangzhou Provincial Hospital of Traditional Chinese Medicine, Guangzhou, Guangdong Province China
Professor Yunxiang Xu, Guangzhou University of Chinese Medicine, Guangzhou, China
Professor Charlie Changli Xue, Director, WHO Collaborating Centre for Traditional Medicine, Division of Chinese Medicine, School of Health Sciences, RMIT University, Bundoora, Victoria, Australia [Co-Rapporteur]
Dr Je-Pil Yoon, Director, Department of International Affairs, Association of Korean Oriental Medicine, Seoul, Republic of Korea
Dr Qi Zhang, Director-General, Department of International Cooperation, State Administration of Traditional Chinese Medicine, Beijing, China [Co-Chairperson]
Local Secretariat
Dr Maurizio Italiano, WHO Collaborating Centre for Traditional Medicine, Centre of Research in Medical Bioclimatology, Biotechnologies and Natural Medicines, State University of Milan, Milan, Italy
* It was with great sorrow that we learned of the death of Professor Subcharoen in April 2008. Her great contributions to the work of WHO, especially in the development of this document on basic training in Nuad Thai therapy, will always be remembered.
WHO Secretariat
Dr Samvel Azatyan, Technical Officer, Department of Technical Cooperation for Essential Drugs and Traditional Medicine, World Health Organization, Geneva, Switzerland
Dr Houxin Wu, Technical Officer, Traditional Medicine, Department of Technical Cooperation for Essential Drugs and Traditional Medicine, World Health Organization, Geneva, Switzerland
Dr Xiaorui Zhang, Coordinator, Traditional Medicine, Department of Technical Cooperation for Essential Drugs and Traditional Medicine, World Health Organization, Geneva, Switzerland "
TK unlimited: The emerging but incoherent
international law of traditional knowledge protection
Graham Dutfield
There is an emerging international regime complex concerning traditional knowledge (TK). Debate continues
on what form legal protection should take including how benefits from commercial use ought to be shared. This article considers how far progress is feasible. It makes three related claims. First, dominant in policy debates has
been a tendency to position “tradition” in direct and binary opposition to “modern”. We show how this is ahistorical,
reinforcing misconceptions regarding the nature of TK, and its relationship to other knowledge systems. It also tends to discourage possibilities for mutually advantageous collaborations based on respect for local norms regulating
access, control and ownership. The second claim is that many TK advocates, by misconceiving it this way, are too
expansive in terms of the knowledge that they demand the proposed international regimes should cover. This
precludes possibilities for policy coherence. The third is that the access and benefit sharing measures envisaged by the Convention on Biological Diversity tend to downplay the social and cultural value of TK for holders and their
communities themselves. This matters because of TK's significance to local people's lives, which is likely to
outweigh potential monetary value that may arise from its translation into biotechnological knowledge inputs.
© 2017 The Authors. The Journal of World Intellectual Property © 2017 John Wiley & Sons Ltd
144 | wileyonlinelibrary.com/journal/jwip J World Intellect Prop. 2017;20:144–159.
K E Y W O R D S
convention on biological diversity, intellectual property,
organizations and agreements, traditional knowledge
1 | INTRODUCTION
International negotiations concerning the design of legal instruments protecting holders of traditional knowledge
(TK) from “the scourge of biopiracy” (Mgbeoji, 2001) have focused in recent years on three forums and two
attached legal instruments. These are the United Nations World Intel
nternational negotiations concerning the design of legal instruments protecting holders of traditional knowledge
(TK) from “the scourge of biopiracy” (Mgbeoji, 2001) have focused in recent years on three forums and two
attached legal instruments. These are the United Nations World Intellectual Property Organization (WIPO), the
World Trade Organization (WTO), the Conference of the Parties to the Convention on Biological Diversity (CBD),
the latter Convention itself and its Nagoya Protocol to the CBD. Further instruments may follow.1 The
movement, which is formally led by the relevant international organizations and their membership but influenced
by various non-governmental organizations and business associations, has encountered various differences of
opinion including, for example, how intellectual property-like should a positive protection regime for traditional
knowledge be.2 There is also a serious conceptual challenge which negotiators have failed to resolve despite so
many years of debate.3 Insofar as some degree of international consensus is considered essential to deal with
misappropriation or misuse, the continued absence of workable parameters or clear definitions around
“traditional knowledge” is an obstacle to any real international-level progress. TK unlimited for many advocates
embraces all “traditional knowledge” including those vast amounts that have become completely unmoored from
any specific place, country (or even continent) they may have originally come from and which may in essence
have become mixed and hybridized. Can we achieve international protection of traditional knowledge as long as it
is construed so broadly that anything that could be traditional is traditional and equally worthy of legal protection
and benefit sharing rights? This is very important. There is a world of difference between, say, turmeric drinks
with added milk that have no local source (Biswas, 2016), and something as apparently specific in origin as the use
of an extract of the bark of the tiki uba tree as an arrow poison by the Urueu-Wau-Wau, comprising just a few
hundred people in the Amazon (Posey, Dutfield, & Plenderleith, 1995). Traditional knowledge means different
things to different people, but even if it meant the same thing to different people, is it realistic to suppose it can
form a bounded and coherent broad category of knowledge for the purpose of assigning legal rights and duties on
the basis of its use by third parties? Little attention has been paid in the literature to this question yet it is crucially
important.
Admittedly, these definitional and conceptual challenges have not gone completely unrecognized. Nor are we
strangers any more to the notion that tradition (and TK itself) can be “invented” (Hobsbawm & Ranger, 1983;
Sunder, 2006). It was precisely because “traditional knowledge had different meanings for different people in
different fora” that in 2010 the WIPO Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore was requested to prepare a technical report on “the various forms
in which traditional knowledge may be found” (WIPO, 2010).4 The document focuses largely on the practical forms
of traditional knowledge: know-how, skills, innovations, etc. Lumping together the documented “grassroots
innovations” (Gupta, 2016) often from individuals or small groups with the largely anonymous collective ones of
indigenous peoples and without excluding also the practical general knowledge of vast numbers of rural
inhabitants in one or more country is useful with some essential and correct distinctions made. It fully accepts that
traditional knowledge changes and evolves generation by generation rather than stays the same. It distinguishes
between traditional knowledge as such and traditional knowledge-based innovations and creations acknowledging
that drawing lines between them can be very difficult. The report has nothing to say about the legal implications
arising from those essential and correct distinctions. It does not really explore the implications of the mixing and
DUTFIELD | 145 remixing of knowledge so that knowledge may only be partially “traditional” or “modern” and that this could potentially be true for most so-called traditional knowledge in the world as it could be also for non-traditional knowledge. Nor does it fully consider the difficulties in assigning origin and attribution which again might be applicable to most of the world's traditional knowledge.
In 2010, the Nagoya Protocol to the Convention on Biological Diversity (CBD) was adopted. It has now
entered into force. The Protocol, whose full name is the Nagoya Protocol on Access to Genetic Resources and the
Fair and Equitable Sharing of the Benefits Arising from their Utilization, seeks to further the third objective of the
CBD: the fair and equitable benefit sharing arising from the use of genetic resources including associated
traditional knowledge (Greiber et al., 2012; UNCTAD, 2014). To date government regulations on access to genetic
resources and benefit sharing (typically abbreviated to “ABS”) and the use of legal agreements such as contracts
are deemed the appropriate and effective means by which biodiversity and the undefined “associated traditional
knowledge” may be transferred internationally to commercial actors under principles of fairness and equity
(Carrizosa et al., 2004). The latter use intellectual property law to acquire legal monopolies enabling an income
stream that can then be shared, at least in theory. The Philippines and the Andean Community of South American
nations pioneered genetic resource access and benefit sharing regulatory structures in the mid-late 1990s. Peru
has two statutory instruments on traditional knowledge protection.5 Many more countries have since followed
their example.
The purpose of this article is to investigate the TK concept. We will critically assess conventional usage of the
term, including the prevalent assumptions as to how “tradition” relates to “modern”. We will also consider its value.
Who uses TK? And who needs TK? The original contribution of this article is to apply history to the analysis rather than relying on law alone. We will relate this analysis to present-day debates on international TK protection. The discussion aims to show whether we may be misunderstanding TK. Can TK be better operationalized legally through a better targeted application of the term than the currently somewhat vague and contradictory understandings of the term allow? This is a question we seek answers to.
The article makes three related claims. First, there has been a strong and persistent tendency, impliedly at least, to
position “tradition” in direct opposition to “modern”. We argue that this is ahistorical and causes misconceptions
regarding the nature of TK, its relationship to other knowledge systems, and how far it may be subject to local norms
regulating access, control and ownership. The second claim is that many advocates, including diplomats, negotiators
and activists, whether by design or default, are too expansive in what they demand the proposed international regimes should accommodate to the detriment of legal and policy coherence. The third is that the access and benefit sharing measures envisaged by the Convention on Biological Diversity and the Nagoya Protocol tend to disregard the value of traditional knowledge for holders and their communities themselves, which is often non-economic.
This critique is timely for three main reasons: first, the implementation of the Nagoya Protocol is still in its
early stages. Second, moves are afoot at WIPO to develop one or more legal instruments on intellectual
property and genetic resources, traditional knowledge and traditional cultural expressions that would have a
complementary relationship with Nagoya Protocol-based regulations. The latest version of draft articles on
traditional knowledge that could form the basis for a legal instrument contains some very good language
which would have the effect of “pinning down” traditional knowledge in a very constructive way. They do
address many of the concerns expressed in this article. However, all of the text is up for continued negotiation
and some of the best language falls within the square brackets that mean it has a good chance of being deleted
at some stage (WIPO, 2016). Third, many developing country members of the WTO have called for the rules
on patents to be amended requiring that applicants disclose their use of genetic resources and the
contribution of the associated traditional knowledge to the inventive achievement for which they seek patent
protection, and the origin of these elements (WTO, 2004). No agreement has yet been reached, and perhaps
never will be, but it is quite possible that a WIPO instrument on intellectual property and genetic resources
will introduce this measure in some form or another just as numerous countries have included it in their
national laws.
146 | DUTFIELD
2 | THE FALSE BINARY OPPOSITION OF TRADITION AND MODERNITY
Since the 1990s, the biopiracy discourse following established post Second World War practice has tended to treat
traditional and modern6 as binary opposites. Biopiracy is (i) the theft, misappropriation of, or unfair free-riding on,
genetic resources and/or traditional knowledge through the patent system and (ii) the unauthorized and
uncompensated collection for commercial ends of genetic resources and/or traditional knowledge (Dutfield,
2014). Such unauthorized use and appropriation does happen though the chief offenders are not in fact the big drug
companies, as is commonly supposed, but much smaller firms trading in various types of natural product such as foods,food supplements, herbal remedies and seeds (Robinson 2010). These tend to have lower profit margins on their products, though a change in their business practices could certainly provide some useful if modest benefits for local communities (Robinson, 2015). The critique being made here is not with the concept of biopiracy7 but with usage of the other two terms in the sentence opening this part of the article including the relationship between them.
It is commonly supposed that tradition and modernity operate in separate spheres, except where the modern
incorporates tradition in a decontextualized fashion and then claims it as its own. Such an opposition between
tradition and modernity became a key assumption of post Second World War modernization theory whose
foundation is largely attributed to the Max Weber-influenced sociologist Talcott Parsons. Grounded in the
contemporary wisdom of the age, a number of mostly US-based social scientists supporting (non-communist) global
economic growth in the Post War era identified fundamental social and cultural differences between traditional and
modern societies and assigned to each a set of descriptive terms that were in opposition to each other. Accordingly, as they saw it, social and cultural evolution could be best understood in terms of progress that would entail the
replacement of terms applicable to traditional societies such as “community”, “patron-client relationship”, “routine”,
and “solidarity”, with their modern polar opposite counterparts: “individual”, “bureaucratic relationships”, “innovation”
and “competition” respectively. Since evidence of progress essentially entailed the latter terms applying rather than
the former ones, there was little accommodation for hybridity including its positive aspects for both societies.
Two major criticisms, at least of the cruder versions of modernization theory, aside from its ahistoricism, are its
determinism and its failure to duly accommodate the tendencies toward mixing and hybridization, and their potentially beneficial aspects also for the traditional sector. At its crudest, modernization theory saw social progress and economic development as the necessary transformation of traditional societies into modern ones. To proponents such as Rostow (1960), this progressive transformation was envisioned as a pre-destined journey in time through stages just as Marxism—with which it was competing for acceptance—saw human progress as an advance also through stages, this time from primitive communism via capitalism and socialism to global communism. “Tradition” was holding societies back and therefore needed to be countered so economies could grow and people prosper.
If the academic version of modernization theory went out of fashion decades ago, having given way to
dependency theory (now also largely discredited), some of its basic assumptions have proved to be highly resilient.
Examples include the overhyping of genetically modified plants in developing countries, as if these are self-evidently
beneficial and capable of being adopted immediately with no negative consequences, the dismissal of landraces and
local cultivars as old varieties that should be abandoned, and the blanket contempt for traditional medicine (e.g. see
Tallis, 2004). One of modernization theory's most questionable suppositions is this: that all of what is true for
modernity becomes the opposite for tradition.8 This should immediately be cause for reflection: that tradition has
tended, and to a large extent still does tend, to be used negatively as something outmoded. The word “tradition” does
not help here insofar as it implies some kind of pure condition that is not adulterated with or diluted by elements from other societies or transformed in any way endogenously. Seen in binary opposition, it follows that the more tradition you have the more modernization you need; the less tradition the better. Over the years some hard lessons werelearned. For example, in the 1960s Balinese farmers forced to plant Green Revolution modern high yielding varieties and purchase industrial chemical inputs suffered diminished productivity and crop disease and pest outbreaks.
However, according to Lansing's classic study, when they returned to their own varieties and their original
management systems and practices of irrigation, fallowing and organic disease and pest management based on a
DUTFIELD | 147
network of water temples that had been in place for centuries, high productivity and sustainability recovered
(Lansing, 2007).
The contraction of “knowledge, innovations and practices” in Article 8(j) of the Convention on Biological Diversity
to just plain “knowledge” in the Nagoya Protocol, albeit attached to genetic resources using the phrase “associated
with”, hardly helps. It tends to downplay the creativity and adaptiveness of indigenous groups of each generation, as
well as other societies with tradition based bodies of knowledge that they wish to protect but that have changed
culturally and in other ways from the groups and societies they were in the past. Companies pick up on this when their spokespeople say that traditional knowledge is old and is therefore in the public domain. The public domain is
generally a good thing (Boyle, 2008) but to suggest everything placed in it should be in it goes too far when doing so
violates people's customary rules or cultural and spiritual values. The supposed beneficiaries of traditional knowledge
protection thus find themselves between a rock and a hard place. To the business people, a moral obligation to share
benefits with people whose knowledge is in the public domain can (conveniently) only be limited at best, besides
which the problem of biopiracy, as they are likely to argue, has been grossly exaggerated and politicized. On the other
hand, some powerful mainstream developing world advocates, despite their ideological preferences toward “local
community” empowerment, find themselves resorting to the view that support for communities can only be furthered
by according more regulatory powers in relation to genetic resources and associated knowledge to governments,
hence their tendency to strongly support national access and benefit sharing regimes. This seems to embolden some
governments to step in and impliedly claim sovereign rights to traditional knowledge that is not easily attributable to
specific groups or communities.
The use, borrowing, appropriation, misappropriation, or whatever name one chooses to call the inclusion of
information, knowledge, methods and materials from one system of health or agriculture into another different and
more dominant system tends to be seen as being unidirectional. As tradition wanes and modern waxes, people assume
the latter takes bits of tradition, used in the form of informational leads or raw materials, and gives nothing back in
return. Modern appears no less modern for doing this because there is a translation and repackaging which generally
strips tradition of its origins and cultural and spiritual entanglements or else denies it entirely. Accordingly, modernity
is parasitic on tradition. An understanding of global power disparities reinforces such a perspective. It follows that
the way to respond is to create a market for knowledge transactions so that access is exchanged for monetary or
non-monetary forms to even things up. Enter the Nagoya Protocol.
Systems of knowledge tend to be hybrids because they are generally open, and they tend to have two-way
“valves”: knowledge, techniques, practices and materials go both out and in. Chinese medicine, for example, was only
called “traditional” during the Mao regime, largely for political reasons, despite containing elements of Western
biomedicine (see below). As for experiment and trying things out in a systematic way it is not just white-coated
laboratory scientists who do this; many traditional healers and farmers, who often breed modern varieties with their
own, do as well. Chinese “traditional” medicine remains highly popular as do the classical traditional Indian systems
such as Ayurveda, Siddha and Unani Tibb, not all of which originate—or are currently practiced—entirely in the
subcontinent anyway. They may have very deep historical roots, but they are hardly devoid of novelty or innovation.
Adaptability and openness are the main drivers of innovation. So might there be advantages in no longer defining
tradition as the polar opposite of modernity and instead seeing the two as actually related to each other and capable of
interacting positively? In reality they do and have done from the age of Enlightenment if not before. That might sound
counter-intuitive. But if it happens to be true then we should go with it and follow it to its logical conclusions.
As mentioned earlier, contrary to what is commonly assumed, most biopiracy incidences have nothing to do with
the pharmaceutical industry. Nonetheless, of all industries this one is considered by many to have gained more than
any other from open access to genetic material and associated knowledge from today's developing countries. To any
critics, it has been parasitic on them pretty much continuously since its emergence. At the same time, the industry's
claims to being wholly science-based imply that it has never had such an intellectual or material dependency
relationship. In fact, the history of the pharmaceutical industry exemplifies the subtleties of cross-cultural material and
intellectual exchanges over time. It also raises questions as to the efficacy of adversarial approaches which assume
148 | DUTFIELD
that there will always be exploitation unless strong international rules are put in place. Notwithstanding the massive
impacts of colonialism, the transfer of genetic material and associated traditional knowledge is not, and has never
been, an inherently zero sum game. Admittedly one can quite easily identify numerous individual cases where gains for
some have been at the expense of others, usually the weaker parties.
The modern pharmaceutical industry really took off around the 1880s when scientists began to crack the problem
of how to harness chemistry to other emerging scientific disciplines and practices to solve hitherto intractable health
problems on a regular and systematic basis. The active ingredients of pharmaceutical products over the 150 or so
years of the industry's existence have typically been single molecules, usually small ones. They work by binding to
certain proteins and causing a change in their behavior (Stockwell, 2011). Which protein was bound to and why a
therapeutic effect ensued was generally unknown, as were the reasons why some people suffered from side-effects
while others were unaffected. There is still often much that is unknown concerning mode of action and the way drugs
work differently on different people.
Scientifically speaking, where did all this start? From about 1805 to the early 1830s, numerous therapeutically
significant alkaloids were isolated from plants. Among the most important were morphine from opium (by Sertürner),
emetine from ipecacuanha (by Pierre-Joseph Pelletier and François Magendie), quinine from Cinchona cordifolia (by
Pelletier & Caventou, 1820), and codeine also from opium (by Robiquet). François Magendie's highly influential work
displays a clear understanding of the importance of obtaining a consistent formulation and producing the right dosage,
including of the fever-reducing cinchona alkaloids which of course include quinine (Greene, 2014). To Pelletier has
been attributed the notion that purity has therapeutic value. For reasons we will discuss later, this was a very novel
approach which essentially “translated” tradition into something else. But note still that all of these natural products
On the other hand, some fitted neatly into existing material medica and treatment practices because in certain
senses they were not exotic. Their use may have been compatible with humoral approaches to sickness and health, or else they were related biologically to already known plants. In some cases, as trade expanded and populations moved
on a greater scale, so did disease. A treatment used for a disease in one part of the world was perhaps presumed often to work for the same affliction, or similar symptoms, in very distant places.
In addition to material, recipes in the form of written texts also crossed seas and continents, and not in one
direction only. From Europe to China and the Islamic world between them, medical recipes were of two kinds:
formulas and prescriptions. How are these different? “The formula contains the standard way of preparing a
medication--that is, its recipe as laid down by an authoritative text. The prescription, in contrast, is a medication for an actual patient, usually contained within a practitioner's case records” (Hanson & Pomata, 2017). From the seventeenth century, Jesuits translated medical texts from Chinese into Latin and French and vice versa. In 1693, quinine provided by Jesuits was used to treat the emperor of China (Ibid.).
Medical historian Abena Osseo-Asare makes an intriguing connection between high colonialism and modern
pharmaceutical development, one that is worth closer inspection: “The rise of pharmaceutical chemistry in Europe at
the end of the nineteenth century dovetailed with the wars of imperial expansion in Africa” (Osseo-Asare, 2008). The
1880s are the decade when British and French colonial expansion had reached its highest point and new imperial
nations like Germany and Belgium had just joined the global land grab, the United States following a decade later
taking Cuba, Puerto Rico and the Philippines from the Spanish (Osseo-Asare, 2008). The Dutch and the Portuguese
were hardy inactive either. The infamous Berlin Conference which carved up Africa for division among the European
powers was concluded in 1885, the same decade as the dyestuff industry's pharmaceutical turn (Dutfield, 2009) and
the appearance of Antifebrin, Antipyrin, Pyramidon and Sulfonal, the first pharmaceutical industry products all of
which were synthetic and had nothing to do with traditional knowledge however defined. Admittedly none of these
was for a tropical disease. Nonetheless, that the industry emerged simultaneously with the Europeans’ notorious
scramble for Africa and domination of the world is certainly intriguing. Did colonialism, including the mass exchange of medicinal plants around the global through trade, scientific interest, and through people movements, often
accompanied by a general disregard for the wishes of some nations and peoples to control their circulation, stimulate
expansion of the industry at just the right time, or have some other significance that merits consideration? Or to put it more provocatively (and succinctly), was the industry's emergence and growth underpinned by mass outbreaks of
biopiracy (as many now call it)?
Running empires required plenty of manpower and, in a reverse direction to today's population movements,
substantial numbers of European peoples moved to the tropics, getting exposed to the same diseases as the native
people. Economic and political interests are of course very important in determining where government support and
private investment are directed in terms of pharmaceutical research and development. Colonialism certainly did affect which diseases should be studied, hence the interest in finding cures for tropical diseases and other ailments especially common in the colonies such as malaria, trypanosomiasis (sleeping sickness), yellow fever and plague. Numerous schools of tropical medicine were opened in Britain, Germany, other European colonial nations, and the United States (Bynum, 2006). Whether imperialism stimulated the growth of the industry, if not its initial emergence, is plausible.
The colonies were sources of plants and ethnobotanical information, and markets for products. In addition, the
colonies served effectively as scientific laboratories including for medical doctors (Tilley, 2011). Medical research
facilities were also established in the colonies, primarily of course for the benefit of the colonizers, not those being
colonized (Chakrabarti, 2012).
What is true of the past is partly true also of the present. Plants together with microorganisms remain the primary
source of a significant proportion of pharmaceuticals including new medicines. In some cases as extracts or mixtures
these were known about and used long before industrial chemists and drug companies ever got their hands on them.
To name a few drugs in the modern pharmacopoeia sourced from traditional medicine, of which admittedly not all are particularly recent, reserpine, the vinca alkaloids, and the opiates spring to mind. But there are much newer additions such as artemisinin, arsenic trioxide, and nicosan. While there is much scepticism that TK remains a source worth 150 | DUTFIELD investigating, not all companies have abandoned the search with some retaining an interest in, for example, Chinese medicines.
Apparently the industry's initial existence does indeed owe something to traditional knowledge. But was the
relationship between industrial biomedicine and traditional medicine purely parasitic? Or was it also symbiotic? A
recent historical work on plant-based medicine in colonial and post-colonial Africa convincingly asserts that “herbal
medicine and pharmaceutical chemistry have mutually supportive, simultaneous histories up to the present”
(Osseo-Asare, 2014). Indeed, the author even goes so far as to claim that biomedicine and African traditional healing
“were, in fact, actually adapted from one another”. This may go a little too far. But it is certainly more in step with the
view that the former imperial nations of Western Europe have been shaped far more by their encounters with the
people, societies and the biodiversity of their former colonies than traditional histories that tended to be Eurocentric
and positivist were able to admit to as if there was nothing much to be learned (Drayton, 2000). As historian Richard
Drayton explains the development of European science is intimately related not just to imperialism and commerce in
natural products but also to what nowadays we call traditional knowledge: “what we may call the sciences of collection and comparison--among which we may include botany, zoology, and geology--depended on Europeans becoming exposed to the planet's physical and organic diversity, and often to the scientific traditions of non-European people”
(Drayton, 2000). In turn, as he argues, “the sciences shaped the pattern of imperial expansion”. A major consequence
of this is that new economies came to arise “on the basis of the discovery of the raw materials for food, medicines,
dyes, and perfumes” (Ibid.). This sounds mostly quite bad. Europeans exploited the rest and benefited from it. As is well known too, the diseases Europeans spread were catastrophic in many places especially in the Americas.
But as we move toward the present one more clearly sees a diffusion of gains. Life-expectancy rates in most
developing countries have rapidly approved since historical times, and Western biomedicine has played a part in this
including acceptance of the germ theory of disease. Traditional medicine practitioners who are open to certain
biomedical perspectives and practices to supplement their own ones have also contributed. Most likely, competition
from biomedicine has also discredited some of the less plausible traditional treatments and led to them being
abandoned, as happened with the practice of bleeding in Europe.
Traditional medicines are of course very much in use today. Typically, they consist of processed or unprocessed
single or mixed natural products of plant, animal or mineral origin, administered orally in solid or liquid form. Whole
plants may be used, or else plant or animal parts or their products. Unlike pharmaceuticals they are not single active
chemicals obtained through industrial processes. The notion of the active principle, that is, a reduction of treatment to a specific compound having the therapeutic effect, was, and remains, alien to traditional healers whose treatments are inherently impure allowing for the possibility of synergisms between the various ingredients. Further, their usage was, and still is, justified on the basis of theories of health, sickness, well-being and efficacy, as well as cultural and spiritual values, which most modern medical practitioners and pharmaceutical scientists understandably find impossible to accept. In the West, they are subject to a very different regulatory system and tend to be sold over the counter by retailers.
Encounters between European chemistry and non-European scientific traditions have had long-term
repercussions in various different ways right up to the present. Thus, in both India and China, there is a great deal
of hybridization going on in terms of describing, formulating, making, testing, evaluating, commercializing, in the ways that therapeutic claims are justified, and also of the growing centrality of “the drug” in healthcare (Lei, 2014; Pordié & Gaudillière, 2013). Western biomedical ways are impacting on traditional medicine in other ways as the latter's patient base expands globally. As the former aims to become more personalized, traditional medicines as they entermainstream markets including over-the-counter outlets increasingly target more generalized use with standardized formulations and dosage instructions.
One must, however, distinguish between traditional remedies and traditional knowledge-derived treatments, the
latter being traditional-modern hybrids. Indeed, some modern pharmacologists are re-investigating old herbal
medicines (Adams, Berset, Kessler, & Hamburger, 2009; Everett & Gabra, 2014). It remains to be seen whether
they will come up with some treatments to benefit today's patients. The very existence of the discipline of
DUTFIELD | 151 ethnopharmacology with its own journal (Journal of Ethnopharmacology), founded in 1979, underlines the argument being made here, that biomedicine and ethnobiology can and do interact--as they should. Nowadays, there is a consensus that such cross-cultural exchanges should be subject to fair procedures of consent and benefit sharing, at least where ethnobiological knowledge and the plants used are current rather than merely historical hence the CBD, Nagoya and the recent activities at WIPO.
Much has been lost but has tradition really gained nothing from its exposure to other modes of understanding
sickness and health? Indeed, traditional knowledge in health has not gone away, nor has it remained unchanged (Hsu, 2001; Pordié & Gaudillière, 2013). A much cited figure from the World Health Organization is 80% for the proportion of the developing country population that relies on traditional medicine to meet its primary healthcare needs. As mentioned Chinese “traditional” and the classical traditional South Asian systems such as Ayurveda, Siddha and Unani Tibb remain very much in use and continue to evolve. These are well documented and the systems themselves are officially sanctioned with their own recognized training facilities and registered practitioners. As mentioned plenty of innovation has gone on despite their being “traditional”. As also mentioned, Chinese medicine was not “traditional” until it was named as such. Traditional Chinese Medicine co-evolved with western scientific medicine and has accommodated elements of modern science, for example, the germ theory of disease (Lei, 2014). This largely sums up why the word “tradition” is misleading and problematic, especially when applied broadly.
Of course, in other parts of the world traditional systems of health have in no way been mainstreamed. Isolated
indigenous peoples in places like the Amazon possess localized knowledge of flora and ecosystems enabling them to
meet many of their healthcare concerns. But it is unlikely that all of the biota they exploit or the knowledge they apply are entirely local or have ever been. Although uncontacted groups still exist in the Amazon (Lawler 2012; Wallace, 2011) most human societies do not stay rooted to one spot over centuries and over a substantial period turn their backs on the world outside their own little part of it. One interesting aspect of traditional medicine is the way that often similar treatments for similar ailments are used by ethnic groups in distant regions of the world. Thus the
apparent oddity of the rosy periwinkle being used as a treatment for diabetes in both the Philippines and in Jamaica.
Similarly, researchers have shown that species of the Fabaceae family of plants are used as antimalarials in the Upper
Negro region of the Amazon, Ghana and in coastal Kenya (Frausin et al., 2015). Is there far less isolation and
conservatism among “traditional” groups than we tend to assume, and sharing of knowledge among disparate groups
is more common than supposed? Or are these cases of different people facing similar health threats identifying similar treatments in the plant world quite independently of each other? It would be fascinating to know more, but this would take us beyond the scope of this article.
This might all seem esoteric or at least irrelevant. It is not. One of the difficulties we have is that once we identify
disparities in wealth and power we understandably see the presence of an injustice and then clamor that something be done about it. Responses may be realistic and effective but they may also take the form of poorly designed laws and regulations. This happened with many of the national and regional access and benefit sharing regimes that have mostly failed to entice commercial users of genetic resources and traditional knowledge to engage in equitable partnerships
with traditional knowledge holding groups. I do not wish to be misunderstood about this point. There is injustice. It is
done to indigenous peoples especially, but it is done to the rest of us too albeit in a less obvious or tangible way. The
causes are not the above-mentioned disparities in wealth and power alone but also these legal and regulatory
measures intended to alleviate them. Pharmaceutical scientists can and do learn from shamans and healers even if not usually directly or even consciously. Notwithstanding the view that most of the low hanging fruit has most likely beengathered already, one can still wonder how much more could be learned if healers and biomedical researchers got
together more often than they do--which is almost never. At the same time indigenous peoples need much better
access to the fruits of biomedicine. Legal monopolies and excessive pricing get in the way. Perhaps we need to deal
with both problems at the same time. Indigenous peoples, like the rest of us get cancer and all the other diseases
afflicting humans around the world. If so many health products have arisen over centuries from exchanges of
knowledge and material between different societies, even under the worst circumstances of colonial domination, then
we should be encouraging interaction not discouraging it. To the extent that intellectual property rights and the
152 | DUTFIELDassertion of bureaucratic access regulations lock up and separate knowledge and materials we are all the poorer for it.
If for once we were to look beyond the Manichean zero-sum view that see dominance and subjugation as inherent
conditions, we might see a rich potential for positive interaction between traditional medicinal knowledge and
biomedicine, just as there has famously been with artemisinin.
3 | DEFINING TRA DITIONA L KNOWLEDGE: BROADLY OR NARROWLY?
Traditional knowledge continues to be the operative term and that is the way it is. The question arises of how broad or
narrow should the regime define traditional knowledge so as to protect whatever is to be protected with as much
effectiveness as possible? Clearly breadth can be excessive. Where does traditional knowledge end if, for example,
anything done to or with turmeric (or some other product deemed to be a national heritage) by non-Indians is deemed
to be misappropriation? An excessively broad meaning will unreasonably lock up vast amounts of publicly available
knowledge which no identifiable group of people or nation could make any credible claim to, and whose circulation
can no longer realistically be controlled anyway.
The example of neem is illustrative and is relevant given that the patenting of neem products in the 1990s helped
to drive the biopiracy debate and provoked such a clamor for international action. The way that farmers in South Asia
use neem tree seeds to protect their crops, to give one example, really is public domain information and compensation
is due to nobody. It has been known about for a long time and has been well documented (Sheridan, 2005). The author
is yet to hear of a compelling argument for saying it belongs to the farmers of this generation or to the government of
India, none of whom actually came up with the idea of using neem this way. The custodianship argument, that
generations “invest” in the responsibility of caring for resources and associated knowledge for future generations and
should have rights on that basis, cannot take us very far in this particular context--though it may well do so in
numerous others. It really is too widespread for that. Accordingly, constructing a moral case for compensation from
others’ commercial use can be a difficult if not impossible challenge. Neither James Watson nor the families of Francis
Crick or Rosalind Franklin or the UK government has any right to claim benefits from those depicting DNA as a double
helix or taking advantage of this discovered fact of nature to make money. They did not have such an entitlement at
the time of the discovery and do not two generations later. It is hard to find a moral case for the government of India or of any other country to claim that any knowledge that ever came from their country that people and businesses
elsewhere found commercially useful should be compensated for even when it gets hybridized, altered or otherwise
transformed.
Indeed, a general presumption behind many of the attacks on neem-related patents in Europe and the United
States was that India was a victim on the basis that (a) neem is an Indian tree, (b) the knowledge being “stolen” is Indian, and (c) that neem-related patents are essentially theft of India's biocultural heritage. There are problems with this.
First, research suggests the species is native to a broad area, probably large another to span Afghanistan and
Myanmar. Second, the relevant “traditional knowledge” is mostly very commonly known and is most unlikely to be
bounded by the artificial frontiers of modern India. Third, the tacit assertion that all neem-related patents are biopiracy with India as victim is tantamount to the assertion of reach-through claims over all global neem-related innovations.
This is hard to justify legally, morally or on policy grounds. India, as with all countries, is not biologically or intellectually self-sufficient.
A narrower meaning, on the other hand, might exclude much of what many countries would like to have
protected. Even so, this would get us far closer to a workable approach. What if one confined the legal regime to
the knowledge, innovations and practices of “indigenous peoples” as defined internationally under the
International Labour Organization Convention 169 Concerning Indigenous and Tribal Peoples in Independent
Countries? This approach could be justified in at least two ways. First, these are often culturally, albeit far from
always, quite distinct groups of people and are more likely to have a sense of identity as a people or nation.
Consequently for such people an item of traditional knowledge may be more attributable unequivocally to such
DUTFIELD | 153people. In some parts of the world, their knowledge and “traditionality” are relatively unadulterated by mainstream knowledge systems and technologies. Second, they may have functioning customary norms governing access and use of certain knowledge and resources they possess (Tobin, 2014, 2015). This is very important: what is deemed to be public domain in the intellectual property sense should not automatically be considered to be freely open for others to appropriate because rights and duties over knowledge even after its circulation may be a matter for customary law. Why should we not take into account their own laws? In principle we must, though how this might
be done requires further consideration.
There is a real dilemma here, though. By adopting this approach much of what some countries regard as being
traditional knowledge would be excluded from protection, perhaps unfairly. Just because they may not be the
originators of some valuable knowledge it does not necessarily follow that communities have no rights over it or
deserve no compensation. We would still need to discuss this, but it is difficult to see how any international instrument could really deal with this and achieve practical results. Also, we would still need to have a conversation about the innovations of this generation including those of individuals in communities that, in the words of the CBD, embody traditional lifestyles broadly construed? As for indigenous peoples their levels of acculturation vary widely. Should we ignore this or does it raise difficulties we would have to face up to? What about those who no longer live in such communities, and not necessarily by choice? Should their knowledge, innovations and practices be protected? After all these years important questions remain.
Another reasonable and very basic concern that the approach suggested here cannot fully satisfy is that even with
“indigenous peoples” so defined, attributing knowledge to one group and one group alone can still be controversial. To name one example, the use and knowledge of hoodia as a thirst and appetite suppressant is almost universally
attributed to the San people of Southern Africa (see Wynberg et al. 2009). However, recent research suggests the
situation is not entirely clear. While the San may well be the original discoverers, many of them did not consume it,
while various non-San and mixed populations have used it in recent centuries, and some of them cultivated the plant
too (Osseo-Asare, 2014).
Yet another dilemma arises, which this author does not yet know how best to resolve. On the one hand, as
explained above, an international legal regime for traditional knowledge that focuses on culturally distinct indigenous
communities appears to be the most realistic approach. However, for such people biopiracy is simply not the biggest
problem that they face. Land rights and other economic, social and cultural rights may be far more important. Is there a point to seeking to protect their knowledge when their absence of legal title may be causing them much more harm?
There is a point to parallel campaigns to promote the various rights that are crucial to their welfare. However, progress on land rights is probably an essential condition for a knowledge protection regime, or regime complex linking together two or more agreements, to work. In this sense the more holistic approach offered by the 2007 United Nations Declaration on the Rights of Indigenous Peoples is more appropriate (Asia Pacific Forum of National HumanRights Institutions and the Office of the United Nations Commissioner for Human Rights, 2013). Politically, confining the application of the regime in this way is a lot less interesting for governments who may lose interest in negotiating a legal instrument because other than a few indigenous groups who would benefit, the national economy perhaps does not stand to gain in any substantial sense.
4 | WHAT ABOUT LOCAL VALUE ?
As mentioned above, current approaches focus on the exchange values of genetic resources and traditional
knowledge. There is a wealth of literature demonstrating that for indigenous peoples knowledge has local value,
whether commercial, practical but non-economic, cultural or spiritual, which is far more important in peoples’
everyday lives than the faint possibility of cash injections or other payments in kind arising from commercially
successful bioprospecting expeditions (e.g. see Posey, 1999). Furthermore, empirical studies strongly suggest that
those engaged in economic development need to understand local knowledge, innovations, practices and norms well
154 | DUTFIELDin order to achieve effective policy interventions to genuinely improve the lives of local people (e.g. Lansing, 2007;
Warren, Slikkerveer, & Brokensha, 1995).
By treating traditional knowledge as a unified, bounded counter-modern stock of useful knowledge for outsiders,
as implied in the Nagoya Protocol and many national and regional ABS laws, it inevitably gets reduced to an array of
raw inputs for life science corporations, which is then regulated accordingly. In doing so, we devalue TK, essentially
reducing it to a random compilation of leads, hints, hopes, errors, deceptions and cul de sacs from which the useful
needs to be separated from the supposedly useless. The rhetoric might suggest it is something more worthy and
significant than that but close inspection of how traditional knowledge gets inputted into commercially oriented
scientific research reveals that TK has those diverse and generally rather limited qualities in that particular context.
Anyway, the persisting hopes that TK has genuine value in that setting leads regulators and policymakers to focus their
attention on the instrumental value of TK to others, and away from the holders themselves within their own
communities and among others with which they socialize and otherwise interact. This has negative practical
implications, and the approaches being considered internationally in their current form will not help, especially as
these aforementioned leads, hints and hopes will not in most cases be reducible to traceable and enforceable single
legal claims justified by having made a tangible contribution to a commercial product.9 Meanwhile, the land and other
rights of indigenous groups within the borders of countries whose representatives in Geneva clamor for international
protection of traditional knowledge continue often to be denied.
5 | CONCLUSION
Indiscriminate or coercive modernization can be highly destructive. Similarly, the mixing of knowledge systems, which
can and certainly have been beneficial to all sides, can lead to the harmful erosion of the economically or politically
weaker people's system. So one must be cautious in promoting the idea that all parties in exchanges can learn and
benefit from each other just as if they have always done so in the past. An international instrument that promotes
exchange but pays no heed to power imbalances is worse than not having an instrument at all. But at a very minimum we need to know what it is that should be protected and how that protection should be designed to the advantage in the first instance of weaker parties. After so many years progress has moved at a glacial pace. There is absolutely no
consensus even about “genetic resources and traditional knowledge associated with genetic resources that occur in
transboundary situations or for which it is not possible to grant or obtain prior informed consent”, which the Nagoya
Protocol identifies as unfinished business. The challenge of transboundariness is thus acknowledged as it is by a
number of countries at WIPO (e.g. Government of India, 2013) including in the draft articles. However, it probably
applies to most traditional knowledge and genetic resources especially when defined in the broad sense that this
article has been criticizing. Endemicity in biology and culture is less and less common, or at least is much harder to
demonstrate. Borders are political constructs. Many ethnic groups straddle one or more borders, mass population
movements and diasporas have been common in human history and are certainly present today. Species do not have
national citizenship (and neither does knowledge about them including that which can be reduced to digital code on a
computer). Article 10 of Nagoya merely suggests the possibility of a global multilateral benefit-sharing mechanism to
deal with these.10 Developing such a mechanism is likely to take several more years.
Oguamanam raises some salient matters after noting that “during modernism's golden years, significant
intellectual capital was invested in demarcating science from so-called pseudo sciences and other pretenders thereto”.
He adds that “there has yet to be an acceptable consensus among historians, philosophers and sociologists as to how to erect functional boundaries across knowledge systems, especially between sciences and various categories of
epistemic traditions conveniently depicted as Indigenous knowledge” (Oguamanam, 2015). Debates go on as to what is and is not science but the scientific method as conventionally understood is undeniably powerful and has delivered us gravity, thermodynamics, relativity, quantum mechanics, evolution through natural selection, the structure of DNA, effective treatments for cancer, and of course nuclear weapons. One does not have to accept the extreme possibilities what he says to grasp the essential point that where tradition ends and science starts is far less clear cut a matter than many suppose, and that both have and continue to borrow from each other often in beneficial ways. If a global access and benefit sharing regime and/or a treaty on traditional knowledge protection can assist such healthy cross-fertilization in fair and equitable ways all well and good.
This article has identified basic conceptual problems that currently make such a noble goal hard to achieve. The
first thing we need to do is to limit ambitions to what really can be achieved. Next we need to open the TK black box
and make some tough decisions on what a legal regime should and should not cover. WIPO's heavily bracketed draft
articles discussed earlier demonstrate how difficult this is to achieve, but it is really indispensable. No decision on the
scope of the regime will please everybody. Only a narrow definition, perhaps one that would apply only to knowledge
within culturally distinct groups can possibly help to deliver a workable regime.
A recent development, which some consider promising in this regard, is the so-called “tiered approach” to scope
of protection. This was introduced into the WIPO negotiations on TK protection in 2014. The most recent edition of
the aforementioned draft articles offers the possibility to apply different legal, administrative and policy measures to
secure traditional knowledge holders’ moral and material interests according to whether the knowledge is secret,
narrowly diffused or widely diffused. However, there is still no agreement about who the “beneficiaries” are (or are
not), which makes it possible for governments and others to make inappropriate claims. In addition, it remains to be
seen whether this tripartite differentiation of traditional knowledge “types” is sufficiently nuanced to ensure the
beneficiaries are the right ones and the benefits to be gained are of the right kind and in the right quantity.
Ultimately, it is highly unlikely that anything other than piecemeal locally driven and controlled solutions can
provide much satisfaction for those keen for justice to be seen to be done. Indigenous peoples should be allowed to
enjoy the full value of their knowledge to themselves first. Once that is achieved, they will no doubt be in a better
position to exploit its exchange value with scientific institutions and commercial partners. The latter will need to be
patient. If there is commercial value here they will just have to wait and deal with the greater legal uncertainty of an
absence of international rules and of harmony in national regulatory regimes.
This leads to a final point. Policymakers debating the Nagoya Protocol and seeking ways to implement it must at least
face up to the futility of confining the norms of exchange to intellectual property rights, contracts, top-down government
regulations and nothing more than those. Those are the laws of the powerful. Instead, the rules and principles of the
weaker party should apply in the first instance. The weaker party is not the corporation, nor is it the government but the indigenous peoples. That is a matter of fairness but it is also the only practical basis for mutually advantageous
relationships. The patent system is here to stay, as are inappropriate heavy-handed access and benefit sharing rules
which might just deliver very occasional windfalls not all of which will filter down to the local level anyway. Given this, to address power imbalances it seems necessary to strengthen the role of customary law as a third source of regulatory norms that facilitates rather than stops two-way exchange but in ways that are culturally compatible with indigenous peoples’ values and that further their interests (Coombe, 2001). Either that, or to develop “hybrid approaches that interweave elements of western law and local, traditional rules for the circulation of knowledge” (Brown, 2005). These laws are local or national but they are not universal in their scope. What is universal though is that customary norms are
far more ubiquitous than people assume. One should avoid romanticism. Not everything about custom should be
defended, especially where it is cruel or maladaptive. But to disregard those local laws concerning the management of natural resources and the rights and responsibilities surrounding biological material and “associated” knowledge which have stood the test of time is no longer morally acceptable; nor is it wise if we really seek to pursue practical solutions.
6 | ABOUT THE AUTHORS
Graham Dutfield is Professor of International Governance at the School of Law, University of Leeds. He is founding
programme director of the LLM in Intellectual Property Law at the University of Leeds. He is author of the books Global
Intellectual Property Law (with Uma Suthersanen), and Intellectual Property Rights and the Life Science Industries.
DUTFIELDEND NOTES
1 Three other elements of the regime complex on traditional knowledge are the FAO International Treaty on Plant Genetic Resources for Food and Agriculture, 2001, the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, 2003, and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005. However, their importance is relatively marginal in the present context and will not be covered in this article.
2 The United States government has tended to argue for TK protection, if there should indeed be any, on the basis of minor tweaks to existing forms of intellectual property. This is unacceptable to the indigenous peoples’ organizations observing the WIPO negotiations who are demanding a sui generis system founded on very different principles.
3 WIPO's Intergovernmental Committee has met over 30 times since 2001. The first meeting of the Conference of the Parties to the CBD took place in 1994.
4 For a useful survey of WIPO's work on traditional knowledge over the last few decades, see Bannerman (2015).
5 Law 27811 Establishing the Regime for the Protection of the Collective Knowledge of Indigenous Peoples Relating to
Biological Resources, 10 August 2002; Law 28216 on Protection of Access to Peruvian Biological Diversity and to the
Collective Knowledge of the Indigenous Peoples, 1 May 2004.
6 Or similar (in usage if not meaning) words like western or scientific.
7 This is not to suggest that this word is immune to criticism either, but that we do not consider it on this occasion.
8 For an excellent early critique highlighting the fallacies and harms caused by the use of tradition and modern as if they are binary opposites, see Gusfield (1967).
9 Albeit expressed rather differently, a similar argument is made by Angerer (2011). Related to this difficulty is the issue of potentially extensive distance in material and cognitive terms between biological material and associated TK, the invention claimed in a patent, and a final product. Should benefit sharing obligations be calibrated so as to be in proportion to distance according to some kind of measurement? Accordingly, all other things being equal, the shorter the distance the greater would be the benefits. Similarly: Harrison (2015); also see Tvedt, Eijsink, Steen, Strand, and Rosendal (2016).
10 In full: “Parties shall consider the need for and modalities of a global multilateral benefit sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed
consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally”.
ORCID
Graham Dutfield http://orcid.org/0000-0002-4725-6826
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