A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law
Oseitutu, J. Janewa, Marquette Intellectual Property Law Review
ABSTRACT INTRODUCTION I. THE TRADITIONAL KNOWLEDGE QUESTION A. The Backlash against TRIPS B. What Is Traditional Knowledge? C. The Existing Legal Framework, Biopiracy and Traditional Knowledge D. Creating New Categories of Intellectual Property E. Reaching Agreement on an International Legal Instrument to Protect Traditional Knowledge II. JUSTIFYING INTANGIBLE PROPERTY RIGHTS A. Classic Approaches to Intellectual Property Law B. An Instrumentalist Approach 1. The International Treaties Support a Balanced Approach III. A TRADITIONAL KNOWLEDGE RIGHT A. The Objectives of Traditional Knowledge Protection 1. Commonality between the Policy Objectives of Intellectual Property and Traditional Knowledge a. Exclusion b. Economic Rationale c. Innovation 2. Equity-Oriented Goals as a Major Distinction a. Protecting Cultural Heritage b. Promoting Value and Respect B. Traditional Knowledge Challenges 1. The Public Domain as a Eurocentric Concept 2. Perpetual Protection 3. Identifying the Traditional or Indigenous Traditional Knowledge Producing Community C. Other Intergenerational Knowledge Goods 1. Cultural Exchange 2. Vinegar and Silver as Examples IV. ADDRESSING THE PROBLEM A. The Need for a Balanced System 1. Beyond the North-South Framework 2. A Question of Justice B. Intellectual Property Related Solutions that Don't Require an Expansion of the Existing Regime 1. Accounting for Diverse Circumstances 2. Mediation 3. Capacity Building 4. Education 5. National Measures CONCLUSION
Some communities possess useful knowledge and traditions that have been passed down from one generation to another. These traditional practices and artworks, or the medicinal knowledge may be highly valued by the community, and possibly by others. However, intellectual property law does not necessarily protect knowledge relating to the medicinal uses of plants, reproductions of communal works, traditional cultural practices, or spiritual rituals. This is because much of this knowledge is not new or cannot be identified as having been created by a particular individual. (1)
Far from protecting this knowledge, intellectual property law may, in some instances, have facilitated the taking and commercialization of this traditional knowledge by individuals or entities that are external to the traditional knowledge-generating community. The result is often an inequitable situation in which the knowledge is used, including for commercial purposes, without attribution or compensation to the knowledge-generating community. This use or taking without consent or compensation has been characterized as "bio-piracy" or "misappropriation." (2) The taking and use (or misuse) of the cultural works, genetic resources and knowledge of traditional and indigenous peoples, has led to a call to protect traditional knowledge and traditional cultural expressions. (3) This includes the possibility of legislation to create a sui generis traditional knowledge right.
Focusing on the issue of equity, (4) this article uses an instrumentalist approach to query whether a new intangible property right that is based on an intellectual property model is likely to meet some of the distributive justice goals of traditional knowledge holders and developing countries. Part of the subtext of the traditional knowledge narrative is about the effects of the history of colonialism. With respect to the intersection between traditional knowledge and intellectual property law, it becomes a discussion about equity, fairness, and what is perceived to be a Eurocentric international intellectual property system that favors Western methods of knowledge creation. …