Asking the TK Question as a Reality Check: Echoes from the Cradle Principles

Traditional Knowledge (TK) has become a key consideration in discussions on intellectual property. In May 2024 the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge was adopted, requiring patent applicants to disclose the source or origin of the genetic resources and/or the associated traditional knowledge in patent applications. A provision allowing countries to request disclosure of TK in Designs was also included in the Design Law Treaty. But is the prevailing approach to TK sensitive to the real needs of people in Africa and the Global South? In this theoretical intervention Professor Oguamanam challenges the TK paradigm and urges that we ask a deeper question about the function TK plays in the hierachy of knowledge governance. Oguamanam urges that we build on the Cradle Principles to protect the fundamental human rights of knowledge producers and users through equitable dispersal of benefits and to “combat unidirectional informational resource extraction and misappropriation that aggravates inequities and injustice.”

The following talk was first presented at the Conference on Copyright and the Public Interest: Africa and the Global South in Cape Town.

The video of the presentation below can be watched here.

---

Asking the TK Question as a Reality Check: Echoes from the Cradle Principles*

by Chidi Oguamanam**

TK is inherently and all round borderless.

TK’s defiance of epistemic borders is its reality before the current melding of all kinds of boundaries – disciplinary, conceptual and a lot more. The idea of TK is itself a colonial conceit. The qualification of other peoples’ knowledge as cynically traditional presupposes the existence of an authentic or a default knowledge system.

The renewed escalation of interest and consciousness around TK globally and on our continent has never been more exciting as it is equally troubling.  TK is Africa’s significant factor endowment, a strong even if less celebrated, less articulated, and less harnessed continent’s competitive edge.  Its subsistence and survival in the digital age is now a stuff for our collective challenge.

I propose that while there has been a remarkable shift around TK on the teleological realm, we run the risk of undercutting TK’s optimal and enduring potential for our continent. We need to first invest in theorizing TK and in tackling the conceptual morass that saddles it. For the privilege of this intervention, I intend to sow some provocative seeds around TK.

First, do we ignore the epistemic conceit and the erroneous assumptions over the taxonomy of “traditional knowledge?” May be yes, because of the inherent risk of chasing a red herring.  Second, do we engage the biggest elephant in the room, which is the scope of TK? The last question unravels a very important opportunity. It requires a full consciousness at all times of TK’s defiance of conventional borders.

There has been consistent attempt to trifurcate TK into TK, properly so called, Traditional Cultural Expressions and Genetic Resources. This trifurcation project is a signifier of colonial influences on our epistemic autonomy. In Africa, and some non-Western civilizations our knowledge systems which, for emphasis, includes our languages, are the windows to our worldview. That worldview is fundamentally holistic, serving as a glue to our identity and much more.  

The trifurcation approach is deeply problematic. It has the danger to condition our thinking and our approach to TK in ways that serve the pragmatic purpose of fitting TK within established disciplinary boundaries and knowledge governance frameworks. Trifurcation is not only an exercise that happens at WIPO or the CBD or other places where TK is on trial before Western establishments.

TK has been subjugated to the characteristic inclination of western knowledge systems (the western science) to dissect ideas into their minimalist compartments and to erect artificial and often highly politicized disciplinary boundaries. And in the paradigm of pitting the west with the rest, TK is often profiled within these molecular epistemic models. The consequence of this tendency is the disembodiment of TK from its custodians and its ultimate disempowerment as a knowledge system on its own merit and integrity.

Here are a few examples, when TK is framed around Genetic Resources, we are forced to pigeonhole and defend it in the court and laboratory of the life sciences. This explains why we focus on TK in agriculture, in seeds; in health, in medicines, in pharmacology; ecology, botany, forestry, horticulture and environmental sciences, etc.  To further perpetuate the conceit in each of these fields or disciplines, TK is further devalued with the “ethno-prefix”, as a knowledge system that has little prospects for scaling. We know the opposite is true.

Similarly, when TK is framed in the expressive repertoire, we locate it within the established canons of the humanities, the liberal arts and aspects of the social sciences. In this compartment we focus on TK in entertainment, music, storytelling, poetry, (folk songs, folklore); arts and crafts, cuisine, gastronomy, and other miscellaneous renditions that fit within western canons and disciplinary borders.

From the prism of the TWAIL, we see a highly dedicated international legal, political and institutional order (with its municipal minions) invested in deepening the balkanization project in contrast to TK’s holistic essence. These powerful institutions have carved out TK in bite sizes reflecting their politically positioned structures with nuanced jurisdictional contestation over aspects and parts of TK in the guise of latter-day TK protectionism. In these institutions, the interests of TK holders are often subjugated to the institutions’ primary loyalty in the defence of their political and economic mandates.  

In trying to understand the fraught conceptual challenge around TK and its strategic weakening, the biggest evidence is the superimposition of alien knowledge governance framework over TK. The superstructure of knowledge governance is western intellectual property. It was designed without regard to TK and its producers. The international order has never given any serious attention to an alternative knowledge governance model outside the western intellectual property system. TK and its holders are summoned to the court of intellectual property to plead their validity. Objection to this approach is symbolized by the marginal appeals to sui generis form of protection. The sui generis pathway is consistent with the colonial confinement of other knowledge forms to the periphery.

Intellectual Property Rights are catalogued into diverse complex and technical regimes, commanding unique legal principles and criteria for rights allocation through, for example, patents, copyrights, trademarks, etc. But categories of intellectual property rights are not closed. As new IP regimes continue to be created, existing ones are renegotiated based on the political influence of innovation stakeholders. For example, in the last few years, there has been a serious traction for the idea of copyright in AI-generated works. But centuries of efforts have yet to take TK seriously in the contestation over knowledge governance. 

 In the era of data, datafication, digitization, machine learning, automation and AI, TK’s ubiquity and holistic outlook is vindicated. Digitization reduces all elements of knowledge, including TK to datasets. These datasets and the methods of their collection, translation, transcription, design and deployment are now the next existential frontier for TK and its holders’ struggle for equity and information justice. This conference has touched on that complex dynamic which many have spoken about already from Johannesburg and now Cape Town.

A year ago, a coalition of like-minded scholars, thinkers, practitioners and various stakeholders hermitically went to the Cradle of Humankind. There, in the order of pretend hermits, they agonized on how to navigate the rapid surge of technological tide and its potential for good alongside the real and present danger of undermining Africa and the global South’s interests, especially in TK. The result was the 2024 Cradle Principles, published (March 12, 2024) with solicitations for comments shortly after the conclave of pretend hermits.  

In a nutshell, the Cradle Principles on Knowledge Governance recognizes the need for equity in the use of digital research tools in the pursuit of information justice to avoid a repeat of colonial injustice in the digital space through digital colonialism and exclusionary tendencies. The principles were proposed to avoid wrongful uses of TK and community held knowledge and information. It also highlights the role of knowledge governance systems to protect the fundamental human rights of knowledge producers and users through equitable dispersal of benefits and collaborate and sustainable forms of innovation. In the digital age, the Cradle Principles emphasizes the need to “combat unidirectional informational resource extraction and misappropriation that aggravates inequities and injustice”.     

A year in this technological age is like a decade in the old order. Since the Cradle Principles, ChatGPT has taken the world by storm; recently Chinese “DeepSeek” has sent those who thought they were in the commanding heights of the AI rat race scampering back to the drawing board. The game is on, the race is open; Africa must pursue and strive to recover. Principles are what they are – guideposts that attempt to salvage and sustain enduring values amidst disruptive circumstances, in this case, technological circumstances.

A few thoughts and strategies to build further on the Cradle Principles, especially regarding the dilemma which these technological surges pose for TK and our continent’s interest therein.

First, we must invest as a matter of inclusive disciplinary endeavor in theorization around TK on a more urgent scale than the present teleological interest on the subject.

Second, we must reconsider with intentionality a shift from our pattern of consumption of technology to taking our roles as co-creators of knowledge seriously (Wikimedia Foundation). Our participation in the data verse especially through the agency of our continent’s youth bulge must be designed as an exercise in the curating of a partnership for all round collaborative innovation. Even if we cannot match the hard tech infrastructure, we can effectively negotiate what we contribute to its optimal operationalization.   

In this shift, we meld the troubled binary of producers and users of data. The miners and the mined in the data verse can forge a mutual equality of interest, flipping and switching roles in access, in benefit sharing with self-preserving commitment to developing the ethical rubrics for sustainable and equitable knowledge production and governance.

Third, recognizing the fundamental holistic orientation of TK, we must, as we do in feminist studies, ask the woman question. Here, we must continue to ask the TK question and resist being mesmerized by the shallow disciplinary rabbit holes that have underserved and devalued TK.

Fourth, our cultural heritage institutions must be empowered to effectively reinvent their role in the increasingly complex dynamic of digital creativity. They must re-invent to reflect the transformation in the value chain of traditional intermediaries and the advent of new ones that defy the reach of conventional regulatory tools.

Finally, the business model that over empowered intermediaries in the creative enterprise is no longer fit for purpose in the digital era. The same is true to a large degree by implication of the conventional intellectual property system that services that model. I suggest that if the miner and the mined have equal stakes on how we use information for good; then it is about time we deconstructed and designed the role of all other stakeholders in between. This is indeed the hidden lesson in the South African struggle for a decent copyright law.

*©Oguamanam 2025

**Chidi Oguamanam, PhD (FAAS), Research Chair in Sustainable Bio-Innovation, Indigenous Knowledge Systems and Global Knowledge Governance, University of Ottawa. coguaman@uottawa.ca