Minnesota Intellectual Property Review
Knowledge has been the most coveted possession of mankind since the industrial revolution. The industrial boom after the World Wars has highlighted the importance of the so-called intellectual knowledge. Recently, the importance of knowledge that has been in the public domain (and, therefore, accessible) has come into question. The pattern of evolution of society, has been marked by a process by which the societies in developed countries have moved towards a more technological orientation. Consequentially, some traditional knowledge, including traditional practices, has been left behind and newer practices that are better, or at least considered better, are being used. Knowledge that is no longer part of the so-called developed societies, but retained by traditional societies has, of late, gained attention because of its value, materially and otherwise. There is, however, a difference between the knowledge vested in indigenous peoples and the corporate interests in using that knowledge. This leads to a gap between source materials and end producers, which can be described as the "gap between producers and users." Treatises assert that it is only the corporate interests that are finally rewarded. This increasingly threatens the viability of knowledge systems of indigenous peoples and local communities.
This paper addresses the issues involved in attempting to protect, as intellectual property, the traditional knowledge prevailing within traditional societies. It outlines the debate on the issues and explores the possible ambit of property rights vested in the traditional knowledge. Finally, this paper, examines the slow but steady increase in the pace of the property holders to claim their rights. It is critical of the lack of appreciation, of the knowledge and the holders of such knowledge by the developed countries. In doing so, this paper highlights that in order for traditional knowledge to be protected effectively either within the prevailing intellectual property regime or by a separate regime, the bargaining power of developing countries must be strengthened. The paper argues that efforts to respect, protect, and understand traditional knowledge will increase the need for intellectual property systems in developing countries, where such systems are currently weak. On the other hand, this article also suggests that forcing the prevailing Western intellectual property rights upon developing countries without respecting the rights in traditional knowledge may have counterproductive results.
Part I details the lifestyle of the people targeted by this paper. Part II describes the various intellectual property systems and the difficulties involved in trying to fit traditional knowledge within one of the prevailing systems or any combination of the prevailing intellectual property systems. This part also explores the prospect of protection through a sui generis mechanism. The object is to focus on the theoretical as well as the practical difficulties in attempting to protect traditional knowledge. Part III details the various international agreements regarding intellectual property in order to highlight the international activities of indigenous people. The slow recognition of the intellectual property rights in the traditional knowledge is traced and evaluated critically. This part concludes that none of the efforts have produced satisfactory results. Part IV examines the responses of courts in various jurisdictions to traditional knowledge issues in order to highlight the difficulty in recognizing and protecting such property rights. It argues that prevailing intellectual property regime is incapable of fitting the emerging issues within its mold. It also argues that there are inherent biases in protecting traditional knowledge. Part V highlights the efforts made by individual countries toward protecting traditional knowledge.
Protection of Traditional Knowledge,
Minn. Intell. Prop. Rev.
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