The Puzzle of Traditional Knowledge

By Fisher, William | Duke Law Journal, April 2018 | Go to article overview

The Puzzle of Traditional Knowledge


Fisher, William, Duke Law Journal


Abstract

Drawing on three case studies, this Essay contends that the proper role of law in managing uses of traditional knowledge is highly contextual. In some settings, distributive justice, cultural diversity, and group identity formation would be promoted by according indigenous groups more power to control or to benefit from uses of knowledge developed and sustained by their members, while in other settings, respect for individual autonomy and the promotion of semiotic democracy counsel against providing the groups that power. The Essay then outlines two alternative legal frameworks, either of which could accommodate this complex combination of competing values. The first would incorporate in a multilateral treaty a set of provisions that, by increasing the risk that unauthorized use of traditional knowledge would result in forfeiture of intellectual property rights, would put pressure on private firms to accede to reasonable requests made by the governments of developing countries and by representatives of indigenous groups. The second would augment and harness public discourse concerning the morality of particular uses of traditional knowledge by creating a disclosure obligation, disconnected from intellectual property law, analogous to the labelling requirements commonly imposed on the producers of food, clothing, and drugs.

Introduction

I. Representative Controversies

     A. Quassia Amara
     B. Wandjina Spirit Images
     C. Tibetan Rugs

II. The Law

III. The Principal Justifications

     A. Labor
     B. Corrective Justice
     C. Utilitarianism

IV. Cultural Theory

V. Solutions

     A. Delegation
     B. Mandatory Disclosure--Modified

Conclusion

INTRODUCTION

To what extent, if any, should the law enable indigenous groups to control or benefit from uses of knowledge those groups have developed? This Essay offers two alternative answers to that notoriously difficult question.

Part I describes three recent controversies in which the question has arisen. These controversies illustrate the diversity of interests and values implicated by struggles over traditional knowledge and identify circumstances that have resulted in satisfactory resolution of those struggles and thus may provide seeds for legal reform.

Part II sketches the laws currently in force throughout the world that determine the relative rights of the parties to such disputes.

Part III summarizes and evaluates the principal arguments that scholars and activists have offered for enhanced legal protection of the kinds of knowledge at issue in such cases. It concludes that, even taking as given the normative premises on which those arguments are founded, none withstands scrutiny.

Part IV contends that a cultural theory of intellectual property could provide the foundation for a more promising defense of enhanced legal protection. Specifically, it argues that, under some circumstances, using the legal system to discourage unauthorized uses of traditional knowledge would help cultivate a more just and attractive culture.

Part V draws on the cultural theory to suggest two legal regimes, either of which might be used to manage struggles over traditional knowledge in ways that accommodated the complex competing considerations at stake.

I. REPRESENTATIVE CONTROVERSIES

For the purposes of this Essay, traditional knowledge is defined as understanding or skill developed and preserved by the members of an indigenous group concerning either actual or potential socially beneficial uses of natural resources (such as plants, animals, or components thereof) or cultural practices (such as rituals, narratives, poems, images, designs, clothing, fabrics, music, or dances). (1) More expansive definitions of traditional knowledge can be readily imagined, but they would encompass territory outside the zone of plausible legal intervention and thus can be ignored for the purposes of this Essay. …

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