REORIENTING AYURVEDA

At the outset, even before I begin describing the details of ownership disputes over Ayurvedic knowledge, I should acknowledge that this is a topic that has come back to haunt me. My 2000 dissertation on the revival of Ayurveda in America had a short epilogue on the future of ethnomedicine in a globalizing world, which focused on emerging market trends such as Ayurvedic tourism and the sale of proprietary Ayurvedic medications worldwide.²¹

Over the last few years, that prediction proved to be only partially right, and therefore partially wrong. I was wrong on two counts. First, I had not foreseen the considerable role that would be played not by the market but by the state in the production of Ayurvedic heritage. Here, I broadly define state to mean “state practices” in James Scott's sense of the term—as the “technologies of state, knowledge practices and law” that include governance by international, national, or subnational entities but also, conversely, indigenous forms of resistance that speak back to the state in the same idiom.²⁵

Needless to say, this production of state-based Ayurvedic heritage schemes did not occur in a policy vacuum. In five short years, transformative shifts in indigenous rights movements and sustainable development strategies have managed to change the international heritage policy environment considerably. Recent UN legal instruments and national laws in an increasing number of signatory nations have helped to redefine medical and genetic heritage as cultural property owned by nation-states and local communities. The 2003 Convention to Safeguard the Intangible Cultural Heritage (CSICH) encourages the creation of inventories and databases of TMK by signatory nations.²⁷

That brings me to the second blind spot in my earlier work on Ayurveda. If I did not foresee the role of state-based systems of ownership since 2000, I completely underestimated how central Ayurveda would become to national heritage protection schemes or indeed to the global heritage discourse. These days cultural disputes waged by the Indian government center not on art, antiquities, and monuments but on ethnobotanical and TMK, whether these are legal disputes over plant and genetic resources or medicinal applications and folkloristic knowledge.²⁹

At one level, this prominence of Ayurvedic knowledge in national and global heritage schemes reflects historical shifts in postcolonial revivalist strategies among healers within India. Professionalizing Ayurvedic advocates have moved from nationalist preoccupations with therapeutic practice—and the reform of this practice through educational standards or credentialization that dominated more than half a century's struggle—to now waging global contests over knowledge itself: the pharmacopeia, texts, the source, origins, taxonomy, and epistemology.³⁰

But above all, disputes over Ayurveda enjoy such attention in the global heritage discourse because of their economic importance and their links with trade, pharmaceuticals, and development. More than other forms of heritage, TMK has enormous global reach in the commercial health arena, with its therapeutic potential for natural drug manufacture. The global market for Ayurvedic proprietary medicines alone is $150 million, expected to grow to $1 billion by 2008. This, in other words, is heritage played at extremely high stakes; holders of traditional knowledge in the biodiversity-rich South often stand much to lose, and often do lose, against powerful pharmaceutical corporations in the North. As various authors have noted, the increasing redefinition of medical heritage as information also magnifies the role of intellectual property rights (IPRs) in cultural disputes, given that the rise of the Information Age has moved the flash point debates in property from land to information.³²

This is where it becomes necessary to historicize the role of the biological commons and the 1994 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), both of which are critical in global disputes over TMK. In medicine and biotechnology the reliance on the biological commons—which includes medical, natural, and genetic resources—as a resource to be prospected for its commercial potential or as a building block for intellectual property is so routine that it goes by its own name: bioprospecting.³⁴

This increasing propertization of TMK provides precisely the larger context for a detailed examination of the three Ayurvedic heritage schemes with which the paper began.

WHOSE KNOWLEDGE? TEXTS, GARDENS, AND TAXONOMIES

My first case, the translation of the famous herbal Hortus Malabaricus, reads almost like a parable about biopiracy. The story begins in the late seventeenth century, when Hendrik Adriaan van Rheede, the Dutch commander of Malabar in the service of the Dutch East India Company (VOC) at the time, compiled and published this monumental illustrated botanical text. Begun in 1673 and taking more than a decade to complete, this 12-volume masterpiece marked a climax in late seventeenth-century botanical literature as the first definitive history and survey of tropical botany in South Asia. The exquisitely illustrated volumes included wide-ranging information on the medicinal uses of 740 plants, valuable not only because of its detailed descriptions of the flora of Malabar that drove commercial trade routes and colonial exploration, but also because of its seminal influence on the scientific development of botany, tropical medicine, and medicinal gardens in cosmopolitan centers of learning like Leiden and Padua. Van Rheede's conceptualization of Malabar as “the garden of the world” persuaded him to make a more fundamental set of associations between landscape and people, and between forests, medicine, and health, all of which were to have a decisive impact on Dutch colonial responses to deforestation. We also know that Hortus Malabaricus was the main source for Carl Linnaeus's knowledge of Asian tropical flora, which in turn critically influenced the development of species taxonomy in his Species Plantarum.³⁶

But even more interestingly, the Hortus Malabaricus held tremendous epistemological significance in its reliance on local medical knowledge. Unlike other illustrated herbals compiled at the time, Van Rheede relied almost entirely on indigenous collaborators: three Konkani Brahmin scholars, who provided textual reference, but more importantly, Ayurvedic physicians from the Ezhava or low-caste toddy tappers, who provided the empirical plant knowledge and functional taxonomies of classification (see Figure 1). As historian Richard Grove describes, the main Ezhava informant was the well-known healer, Itty Achudan, who not only shared his community's secret texts but also selected, procured, and classified the plants for inclusion in Hortus Malabaricus.³⁷

Frontispiece of Hortus Malabaricus vol. 1 (1678). Anonymous etching of the Garden of Malabar in which four kneeling indigenous Malayalee children, identified by their elongated earlobes, offer potted plants to the seated figure of Indian Botany. Courtesy of Wellcome Library, London.

Almost 350 years later, Kerala University set out to reverse this extraordinary history with its new English translation of Hortus Malabaricus in 2003. The famous text had defied translation for centuries, and attempts to bring out Dutch and English translations had all failed. Van Rheede's feat was prodigious in that he brought out the 12 finely illustrated volumes in Latin, the accepted language for scientific work in Europe at that time, but he had also employed three other scripts, the local Malayalam, Arabic and Sanskrit, while plant names also appeared in the Portuguese and Flemish languages (see Figure 2). Thus, the multilingual volumes, with their copious introductions, forewords, dedications, references, and certificates given by Van Rheede to the native physicians, all of which contained extensive social and historical information about India, had largely remained off-limits to serious scholars and analysts.

Engraving of Tenga (coconut palm) from Hortus Malabaricus vol. 1 (1678) by Bastiaan Stoopendael after a drawing by Antoni Jacobsz. Includes multi-lingual inscriptions in Latin, Malayalam, Arabic, and Sanskrit. Courtesy of Wellcome Library, London.

Until October 2003, when Kerala University unveiled the newly translated Hortus Malabaricus volumes, presenting the first set to the president of India as a landmark event.³⁸

But beyond epistemology, the Hortus Malabaricus and its English translation hold a new relevance in today's world where natural drugs are gaining fresh recognition but are plagued by biological patent laws and IPRs. Some patent experts think that translating texts like Hortus Malabaricus into English works as a double-edged sword: It may actually help rather than hinder biopirates and “would hand heritage to them on a platter” especially in the absence of universal acceptance of the Convention Biological Diversity.⁴¹

Almost on cue, the digital bioprospecting project at the Mayo Clinic College of Medicine in Rochester, Minnesota, responded to the news of Hortus Malabaricus' English translation with an announcement.⁴²

This is where we must locate the indigenous Ezhava response that arose in May 2004. Spokespersons for the oldest Ezhava association in southern Kerala, the Ezhava Social Reform Movement, a largely subnational caste-based coalition in local Indian politics, used the occasion of their centenary to flood Kerala University with letters arguing that future publication orders for the translated Hortus Malabaricus, which is now available only by special order, be restricted to those placed within state and national borders. Although a weak political group, the movement has managed nonetheless to articulate an argument in terms borrowed right out of the 1993 UN Declaration on Rights of Indigenous Peoples to land, territories, and resources:⁴³

Unlike Manilal and Kerala University, who argue that the Hortus Malabaricus relied on unacknowledged native heritage which now deserves public recognition, the Ezhavas suggest that they own the text on the grounds that their ancestors were its original authors. This is what Watkins calls a classic “cultural intra-nationalist” claim over heritage: a strategic assertion of rights over knowledge that the Ezhavas make as “cultural citizens” (based on caste) that does not disturb the territorial integrity of the nation state.⁴⁵

In the Ezhava view, the appropriate response, now that Hortus Malabaricus has been translated and is in the public domain, is what scholars have called the secrecy approach in heritage protection: an inward protective turn intended to restrict the global circulation of information. Another radical nongovernmental organization (NGO) has taken this particular cultural claim even further. They have called for the repatriation of colonial botanical texts like the original Latin Hortus Malabaricus from libraries in the Netherlands, Portugal, and the United Kingdom. This is a bizarre variation on selective Native American Graves Repatriation Act (NAGPRA) policy targeted at libraries, where the preferred strategy chosen by vulnerable groups is the policy of restricting information from archives depending on their perceived utility or sacred and ceremonial content.

Whether or not the Ezhava response grows into a social movement or even a strong political resistance remains to be seen. Meanwhile, the very fact that these heritage claims are made at all is worth noting. If anything, the larger question offered up by this case is the indeterminacy of knowing how to locate or separate local indigenous knowledge in global histories. As the ongoing Hortus Malabaricus dispute so clearly demonstrates, even if we accept that a colonial text or herbal fixes local knowledge at a particular point in space and time, it is not clear at which point they can be (or how they should be) untangled to locate them in heritage policy.

E-TANGIBLE HERITAGE: THE TRADITIONAL MEDICAL DIGITAL KNOWLEDGE DATABASE

My second case of Ayurvedic knowledge documentation is the very different example of a prior art approach to heritage protection. In 1999 the Indian government fought and won a costly legal battle to revoke a U.S. patent for the medicinal use of turmeric (Curcuma longa) to heal wounds, a therapeutic property that had been well known in India for generations. In asserting this TMK as their heritage, the plaintiff, the Center for Science and Industrial Research (CSIR) on behalf of the state, relied heavily on Ayurvedic texts in the legal brief. Soon after, as part of a four-year struggle known as the Neem Campaign in 2001, a transnational consortium of NGOs successfully revoked a similar patent on the properties of neem (Azadirachta indica) as a fungicide, that had been granted by the European Patent and Trademark Office. In the brief, well-known antiglobalization activist Vandana Shiva stated, “The neem tree is India's sacred goddess … our sacred heritage. Neem in Sanskrit is referred to as sarva roga nivarini—a term that means cure for all ailments. To take this ancient knowledge from us is blatant and exploitative biopiracy.”⁴⁶

Largely to prevent future patent appropriations of medicinal heritage, the Indian government launched an exhaustive electronic database of Ayurvedic knowledge, the Traditional Knowledge Digital Library (TKDL). This, as various interlocutors have described, is an example of defensive publishing, a form of negative protection in the law to prevent the inappropriate exploitation of traditional knowledge by the developed world, similar to the American Association for the Advancement of Science's Traditional Ecological Knowledge Prior Art Database (TEK-PAD). The creation of the TKDL is also directly inspired by the 2003 CSICH, which in Article 12 calls for the preparation of “one or more inventories of the intangible heritage present in [each nation's] territory.”⁴⁷

As Chander and Sunder describe, traditional knowledge inventories begin with the premise that one method of avoiding the unequal exploitation of a biological commons is to defeat attempts to propertize it. “Because novelty is one criterion of patentability, the demonstration of prior art (e.g., a published description of the medicinal properties of an herb) should lead to the denial of a requested patent. But in contexts where a patent request deals with information that was already known among indigenous traditional communities, international patent offices often face a practical challenge in assessing novelty.”⁴⁸

And indeed, the TKDL contains information on 36,000 formulations used in classical Ayurveda. The construction of this database in itself is a fascinating cultural history waiting to be told: Almost 300 Vaidyas, Sanskrit scholars, and analysts were employed for two years to translate verses (Slokas) and aphorisms (Sutras) from the traditional pharmacopeia and Ayurvedic compendia (Samhitas) into structured language using a classification called the Traditional Knowledge Resource Classification; a second group isolated medicinal uses of plants from these to list them in databases; and yet another group of analysts matched these entries with original sources to compare and validate their content.⁵¹

Within international and Intellectual Property circles, the TKDL is an unprecedented hit. The database set international standards for registries of traditional knowledge, which were adopted by the intergovernmental committee of WIPO in 2003. Presented in English, French, German, Spanish, and Japanese, the information was created in a format accessible by international patent offices, and its classification of bioresources has even been adopted by the International Patent Classification (IPC).⁵²

But within Ayurvedic practitioner circles, the technocratic, top-down nature of the electronic database has not escaped criticism. In the first instance, Indian library and technology experts suggest that digital media technologies are far more fragile, prone to degradation, and obsolescence than earlier thought; now they wonder if TKDL funds might have been better focused on the preservation or conservation of the texts themselves.⁵⁵

Scholars like Arun Agrawal suggest that there are fundamental epistemological contradictions at the heart of TKDL and, indeed, of indigenous knowledge database creation itself. As an example of ex situ conservation, the instrumental logic of database creation encourages a set of homogenizing processes whereby knowledge is particularized (separated as types and fixed in time), validated (abstracted from context), and generalized (catalogued, archived, and circulated)—processes that strip away all the detailed, contextual aspects that could even potentially mark it as indigenous. Much like Scott's argument about practical knowledge, Agrawal claims that this essentially scientizing process is ultimately untenable; indigenous knowledge can never be thus isolated. When implemented as state practice, indigenous knowledge databases could well be Scott's potential disaster waiting to unfold. More than anything else, they ensure that utility and value become the only operating principles in the archiving of indigenous knowledge—a self-fulfilling circular logic by which only useful or potentially valuable knowledge, however defined, become worthy of protection.

These inherent epistemological tensions within databases are, however, not the only problems that plague the TKDL. The most interesting response and counterclaim has come from the shuddha or pure Ayurvedic practitioners, a subgroup or professionalizing faction among Ayurvedic advocates in postcolonial India who were not consulted during the database creation. Since the 1940s, the politics of professionalizing Ayurveda has been divided into two streams of revivalists: the straights, or the shuddha practitioners, and the integrated practitioners, who believed it was necessary to compete with biomedicine by borrowing its institutional practices, each with their own professional associations, schools, and political lobby groups.⁵⁶

Interestingly, the shuddha practitioners within India may have an unlikely ally abroad, particularly in the United States with its semiprofessional centers of alternative healing where some of them regularly lecture and conduct workshops. Given the particular form that New Age Ayurveda has taken, with its neocolonial nostalgia for an authentic East, it is conceivable that this could eventually lead to an unorthodox heritage coalition—a transnational Ayurvedic advocacy network—that could mobilize for the first time on behalf of a medical tradition rather than a nation, community, or tribe.⁶³

CUI BONO? BIOPROSPECTING WOES

The third heritage case I describe is a bioprospecting tale gone awry. It deals with the fallout of a state-sponsored, benefit-sharing scheme during the discovery of an Ayurvedic drug that was developed with tribal medical knowledge. The scheme itself should be seen against the 1992 Convention on Biological Diversity (CBD), which took biological heritage out of the global commons and gave it back to national jurisdictions. In Articles 8, 15, and 16, the CBD sets forth a multilateral framework for the harnessing of pharmaceutical value of biodiversity; but it also ensures that some benefits of this exploitation come back to source nations and source communities in the South in the form of “equitable returns” and “benefit-sharing arrangements” between the providers and users of traditional knowledge.⁶⁴

The case I describe here begins in 1988, when the Tropical Botanical Garden and Research Institute (TBGRI), an important government research institute and the largest botanical garden in Asia, held a large ethnobotanical field study in the Agastyar forests of Southwest India.⁶⁶

Because collective ownership or community authorship is often assumed in benefit-sharing agreements, the underlying question in state-sponsored schemes of heritage compensation like this is always: Whose heritage are we compensating? And so the first set of challenges to the Kani benefit-sharing arrangement centered on how to define the community. The problems began with the formation of a trust, the Kani Samudaya Kshema Trust, to administer the benefit-sharing process with the help of other NGOs in the area. As Anil Gupta describes in his report, at first there was enormous suspicion about the trust itself (in 1998, for example, it had only 500 members), which resulted in a general refusal by Kani tribals to attend meetings organized by TBGRI. But the main problem may have been handed down by the CBD itself, which lumps together indigenous and local in its definition of community. This case powerfully demonstrates the dangers of assuming that the indigenous Kani communities, and the local political entities, are isomorphous or even share methods of governance. As Gupta and others have shown, TBGRI failed to recognize that traditional political systems among the Kanis have eroded and been replaced by those of nontribal local communities. Rather than governance by a tribal chief (Mootha Kani), India's current administrative system, referred to as the Pancayati Raj, is based on the principle of devolution of administrative powers to the local village level under the Indian Constitution. Unlike the Kani, the pancayat's forms of goverment and decision-making bodies are democratically elected.⁶⁷

The second set of challenges to the benefit-sharing scheme was even more complicated. It stemmed from the details of the licensing agreement with the drug manufacturer Arya Vaidya Pharmacy; and here the argument was over the procurement of the plant involved (arogyapacha), its sustainability in the tropical forest, and the larger issue of the forest as biological commons. Arogyapacha is a forest-friendly perennial undergrowth that grows under the natural forest canopy; and as part of the arrangement, TBGRI assured the manufacturer of a regular supply of the cultivated raw plant for seven years. But here again the scientists quickly learned that the medicinal qualities of the plant are lost unless grown within natural forest settings. In response, TBGRI organized 50 Kani families living inside the forest to cultivate the plant under the supervision of the scientists. This was also touted as a creative employment-generation program; each Kani family would manage the semiwild crop, cultivating one or two acres and earning about Rs. 30,000 (or $715) per acre, with the yield and production of leaves expected to increase in subsequent years for an anticipated 20 to 30 years. Because the Kani are essentially forest dwellers, they were assumed to be in an effective bargaining position to regulate and control its harvest. But then an unexpected player entered the conversation: the state forest department, which officially controls and regulates the forest area. Although it had contributed no material or finances to the research effort, the forest department demanded a share of the license fee and royalties on the grounds that the plant material collected is endemic to the forest. The TBGRI was forced to renegotiate the terms of the agreement to include the forest department, all of which further cut back into the profit share received by the Kanis.

The main outcome was that even though the original benefit-sharing agreement fell apart, the drug manufacture continued as planned. In other words, this state-sponsored heritage compensation scheme, which relied on tribal medical knowledge without consent from the Kanis, did not ultimately disturb the market production and circulation of this Ayurvedic drug to national and even international markets. Thus, the payments continued to be made into the Trust, but from all accounts, the Trust itself lost any legitimacy to distribute the funds to its constituents. The Kani now seem to want to choose their own future vis-à-vis their medical heritage. Eight years after the benefit-sharing agreement was signed, the manufacturing license expired in August 2006. Fueled by NGO critiques that the benefit-sharing arrangement by TBGRI essentially traded and privatized the common heritage of humanity, Kani pancayat leaders are now aware that they could have denied both access and consent to TBGRI researchers. In a fitting end to the story, Kani pancayat leaders— along with a representative group of all the tribal healers, or Plathis—have announced that they will not renew the license with Arya Vaidya Pharmacy.⁶⁸

The postscript to this story is almost apocryphal. Through the entire decade of research and organization, neither TBGRI nor any other agency of the government thought to secure an international trademark or a product patent that could be valid in international markets. In the interim, a leading U.S. food supplement manufacturer and vitamin store chain, the Great Earth Companies, Inc., managed to seize the opportunity and secure trademark rights for Jeevani (the name under which it had first been marketed in India). Great Earth Companies now uses Jeevani in its widely marketed product Jeevani Jolt 1000 without technically infringing on the IPRs of the original drug.⁶⁹

CODA: WHO OWNS AYURVEDA?

In the end, what big picture can we describe that emerges from these several smaller narratives, this mosaic, of Ayurvedic heritage disputes? How do we begin to sort through this diversity of cultural ownership practices to come up with overarching theories about Ayurvedic knowledge, let alone TMK, or intangible cultural heritage? And who really owns TMK? Is it owned by indigenous groups like the Ezhavas who have been left out of history? Is it owned by elite practitioners who claim exclusive rights of use over Ayurvedic texts? Is it owned by tribals, who provided the medical knowledge in the first place, or the Ayurvedic company that bought the license for those rights? Or is it owned by the forest as the ultimate public domain? If nothing else, these three contrasting tales of cultural ownership over the same medical tradition suggest that even the questions asked by state-based heritage protection schemes can differ widely. Thus, the Hortus Malabaricus case asks whether TMK is owned by history or if it can be rewritten—that is, whether the past itself is a scarce resource, as anthropologists have begun to formulate.⁷⁰

The larger problem is that if, even within a single medical tradition, heritage protection schemes do not always share similar definitions of what heritage is or who it is supposed to protect, where does one even begin to theorize ownership of TMK or intangible heritage? At the risk of simplifying, perhaps one beginning lies in recognizing the dialectical relationship between culture (or heritage) and the law: that in this case, even if culture needs the law to regulate and protect it, the law in turn, however well intentioned and necessary, produces culture, produces knowledge, and thus produces further claims and counterclaims of ownership over TMK. As has already been suggested, making heritage legible is a double-edged sword: it transforms cultural objects and marginalizes cultural producers, but it also creates new types, categories, and subjectivities to be managed and controlled.

This is not to say that heritage and TMK regulation is unnecessary or even Orwellian in nature. It is merely to note that there may never be universal answers to global heritage disputes. Real-life solutions to heritage crises may in fact emerge slowly, on a case-by-case basis. State practices might inspire indigenous responses and both of them might work with and against the logic of the market; but the most creative, innovative solutions often come from civil society—professionals, NGO advocacy groups, educational institutions, libraries, archives, curators—all of whom, as we know from NAGPRA legislation in the United States, are the ones building the cultural policy edifice slowly, brick by brick.

Nor am I arguing that the effects of cultural ownership over TMK are all negative. The Law of Unintended Consequences in heritage protection after all is precisely that: unintended. Some authors have suggested that even with new indigenous rights legislation in place, disempowered groups are unlikely to benefit much from new laws because powerful interests are simply better positioned to use or evade them.⁷¹

Nonetheless, even if indigenous cultural claims mimic the propertization discourse to turn heritage into a resource to be owned (the commoditization of culture that critics bemoan), they also reveal that propertization itself could, if used well, have emancipatory potential. As these disputes over Ayurvedic knowledge show, indigenous groups can use property, particularly IP, to make themselves subjects and not just objects in the law. Legal scholars have noted that these could well be the new social movements and the new cultural heritage citizens of the twenty-first century. Although it remains to be seen how ownership claims eventually play out, this property turn in cultural identity politics could ultimately be transformative. It could, in fact, lead to a real politics of redistribution, to a redistributive justice between groups that goes well beyond the sterile politics of recognition that has dominated cultural heritage disputes in the past.