Commons in Latin America

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The issue of Commons has two dimensions: the collective creation of knowledge; and the appropriation of this knowledge, either individually or collectively. This article explores the cultural and current trends in the understanding of the ‘Commons’ in Latin America and the Caribbean

The issue of “Commons” in Latin America is relatively new, but also has a familiarity of thousands of years.  There is no doubt that collective knowledge has an undisputable place in our everyday lives. It is in the process of redefinition of the Commons that we start asking ourselves difficult questions about how this knowledge is created, and how it should be appropriated. This is why the Commons discussion involves not only high level debates about intellectual property law, but it concerns the ancient teachings that even lead us to prepare a cure from roots and herbs to calm our sleepless nights.

First of all, there is not a word in Spanish (and as far as we know, in Portuguese) that is equivalent to Commons.  The translation of the word itself is a discussion in the Spanish-speaking world. 1Cultural common goods have been widely studied and regarded as a key to the development of all cultures. It is on top of these goods that both continuity and innovation are built.  However, the dimensions of how they get created and “who” they belong to, had not been addressed as part of the discussion. It is from the arrival of “information society” that the goods that always belonged to the collective should be re-named and re-defined, risking to disappear or being taken as any type of property.

Before the Internet and all telecommuni-cation tools came to use, we were already sharing. We were already giving away our singing, dancing, writing, cooking and crafting.  This is why our culture has always shaped itself.

The two dimensions
In our opinion, the issue of Commons has two dimensions: one is the dimension of the collective creation of knowledge, and the other dimension is the appropriation of this knowledge, either individually or collectively.

On the first dimension, about the collective creation of knowledge, we face the challenge to understand the very complex processes of the formation of culture.

The dormilona (Sleepy) is a very curious plant that is found in many household gardens in Mexico in Central America.  This plant has many medicinal uses. As hard as we have tried to remember, we can’t recall when or where we learned that taking a tisane made from the root of Dormilona would help you beat insomnia and recover sleep. This little piece of information, containing a couple of simple instructions, was passed from hand to hand and from mouth to mouth, possibly through anecdotes and myths, recipe changes and lots of trial and error.  None can attribute themselves the authorship of the Dormilona tizane (at last none has dared yet): this is collective knowledge that changes every day and never ends building. Someone must be building over it right now through chemical analysis and botanical experiments.

The same chaotic process has led us to have what we have today: Cuban salsa dancing, Mexican recipes using cocoa, Guatemalan fabric design and weaving, Nicaraguan islands painting style, the Colombian way to prepare coffee, Bolivian wind instruments, Brazilian Capoeira, Argentinean meat cutting… it is all the result of hundreds, if not thousands of years of endless, constant and above all, creative learning processes that cannot be claimed as individual creations.

The second dimension refers to appropriation (and not exactly property) of the Commons. This might be the dimension that is being explored more thoroughly by the legal initiatives and the civil society alternatives that have come up around the subject.  It tries to answer the question of ownership of who is entitled to benefit from the commons and how.  This dimension deals with all the legal authority that exists over the commons in the national and international law, and other community and civil society strategies that aim to “protect” the commons while preserving their status through rules of ownership and appropriation.

In this case, the Dormilona tizane is probably contemplated as traditional knowledge, and it would be included under the protection of treaties and laws that prevent its appropriation, for example, as exclusive knowledge of a company to produce and distribute. But how about the songs, the stories, the medicines that are created today?  What about the knowledge that we create collectively but cannot consider “traditional” or “indigenous”?  How do we protect today’s creative work so it can be shared and made part of the ever-growing wealth of our local and global cultures?

A high level discussion with very practical consequences
As in many of the new fields arising today with the Information Society, the rules that apply to the commons, both in the Creation perspective and the Appropriation dimension, are neither clear nor defined, and they must be discussed in an environment of constant challenge by the political and economic realities of our region.

Most legal systems in Latin America understand author’s rights as moral rights. This has implications about how this discussion differs, for example, from the North American discussion on Copyright law.  One of the most important implications in my view is that moral rights were always discussed in Human Rights frameworks, as cultural rights, whereas Copyright is being discussed in commercial frameworks.  There is a negotiation of what exactly the author’s rights refer to, and by discussing this issue outside of the cultural rights realm is isolating this issue as a mere discrepancy that stands on the way of free trade and less commercial barriers.

At this point in time, the inconsistencies and differences of analysis become more important in the context of many Latin American countries signing Free Trade Agreements with the United States, Canada and the European Union.

For example, the Free Trade Agreement between the United States and Central America includes important changes and dispositions about Intellectual Property Law, that could eventually overwrite the local systems and even future advances in legislation. This is not only a concern of the Commons movement.  Agricultural producers, public health workers, culture practitioners, educators; they are all getting involved because the consequences of the Trade Agreements have managed to put a more understandable face to an abstract problem, the way we built our local cultures is being displaced by a commercial negotiation.

How two dimensions merge
One of our thoughts on this issue, though not very well formulated yet, is that in some cultural and social spaces of Latin America, the concept of collective creation is not separated from the collective appropriation. Creation and appropriation become the same process, in which people give something to the product of the collective process each time that they get in touch with it, and they become instant “owners”.  Commercial and legal mediations rarely work, because they are not a practice rooted in a deep tradition.

Even if someone attempted to patent the Dormilona tizane, a commercial mediation (paying for it) or legal mediation  (having to obtain a license to produce it commercially) would require a major conceptual change about the object of collective knowledge.

This change cannot be made just because there’s a law, even if the law imposes sanctions. Hundreds or thousands of years of cultural practice are not going to change from the establishment of a legal framework of reference by the content of a free trade agreement.

However, this contradiction of concepts is showing again its consequences: music that was created collectively and used to belong to everybody is now being licensed under strict conditions.

File sharing is being discouraged as ‘unlawful’ behaviour, even though it is not so in many countries. Copyright of texts and educational materials that use a local educational tradition is being enforced more and more, creating an access gap between those who can afford it and those who cannot. The richness found in biodiversity and traditional use of plants is being explored, catalogued and appropriated by corporations. Agricultural methods that created high quality crops are all of the sudden, intellectual property of a few. These are just a few examples of what is at stake in this discussion.

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