The alternative is a protected public domain which limits IPR and fractures biopolitical notions of governance through an “ethics of contingency”

Protective Public Domain Responding to the emphasis on an open public domain, critical intellectual property scholarship also offers an alternative conception of a protective public domain. 46 Such scholarship is aligned with the theorizing of an open public domain. It similarly advocates the expansion of the public domain by limiting intellectual property (IP) rights, enlarging fair use, and requiring compulsory licensing.47 In contrast, however, scholarship promoting a protective public domain insists upon exceptions for indigenous individuals and groups who have been traditionally excluded from asserting authorial rights over their knowledge, resources, and culture. It is therefore critical of the expansion of a public domain based upon values of sharing and openness, which can produce harm to indigenous peoples. Theorizing of a protective public domain takes into account histories of colonialism and imperialism, while seeking to expand notions of authorship beyond its individualism to fully consider indigenous forms of collective knowledge production and creativity.48 It stresses the need to consider how, given social hierarchies, information within the public domain is not equally accessible and open to all, thus the need for some elements of protection.49 In contrast to an open public domain, a protective public domain challenges articulations of indigenous peoples’ knowledge as raw material and recognizes the inventiveness and dynamism of indigenous traditional knowledge.50 It is also a flexible concept of the public domain. Conceptions of a protective public domain require flexibility in order to provide an adequate balance of protection and access to different forms of indigenous traditional knowledge (e.g., artworks versus medicines) in a variety of geopolitical contexts.51 Coombe thus suggests an “ethics of contingency” recognizing that protection might mean different things to different marginalized groups.52 A protective public domain therefore recognizes inequalities and works to protect indigenous peoples’ knowledge from being exploited as raw material.

In contrast to an open public domain model, conceptions of a protective public domain challenge neoliberal, biopolitical modes of governing by placing value upon indigenous peoples’ forms of knowledge and creativity. Normative conditions and discursive framings of free trade and privatization are contested by shifting some control over to indigenous communities. Scholarship in this area argues that free and open sharing of indigenous peoples’ knowledge can be responsible for continuing a legacy of colonial exploitation of their traditional resources.53 Giving indigenous peoples some control over their own knowledge practices is one way to counter this history.54 By granting indigenous communities more control through a protective public domain, neoliberal values of freedom become disrupted.

Alternative legal protections are suggested, such as contractual arrangements allowing groups to decide for themselves when, where, how, and to whom they want to grant access to their knowledge.55 For example, models for benefit-sharing contracts are proposed, which would require scientists to give indigenous communities money and resources in exchange for access to and possible ownership over indigenous resources. Prior informed consent agreements are also advocated to allow communities to dictate the terms of granting such access to potentially patentable resources. Indigenous peoples’ knowledge becomes privatized in new ways through these contractual arrangements, yet the primary goal of privatization becomes one of protection, rather than profitability per se.

By shifting some control to indigenous communities, a protective public domain produces fissures within neoliberal, biopolitical modes of governing by interjecting an alternative ethic of production. Even when such contractual arrangements bring profits to indigenous communities, these “strategies of indigenous incorporation”56 serve to challenge Western scientific and capitalist logics. For example, benefit-sharing agreements designed around a protective public domain model theoretically engender a space whereby scientists are expected to negotiate and consult with indigenous communities and to recognize the importance of indigenous epistemologies of science, which run counter to Western philosophies of science undergirding new bioeconomies.