Trends and scenarios in the legal protection of traditional knowledge

Abstract

Introduction This chapter discusses the currently much debated issue of traditional knowledge (TK) protection. Opinions differ widely, not only as to how TK should be protected, but even as to whether TK should be protected at all. It is commonly accepted that intellectual property rights (IPRs) in their current form are ill-suited for this category of knowledge. But does it follow that TK should be placed or left in the public domain for anybody to use as they wish? For many indigenous peoples, traditional communities and developing country governments, this seems neither fair nor reasonable. In response, they have insisted that this issue be discussed at the highest level in such forums as the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO) and the Convention on Biological Diversity (CBD) Conference of the Parties (COP), and also be addressed at the national and regional levels. Proposals have included reforms to current IP regimes in order to prevent misappropriation of TK and the development of sui generis systems that vest rights in TK holders and TK-producing communities. However, considerable conceptual and political difficulties remain, and these remaining difficulties make it hard to predict the future of TK, as a legal and diplomatic issue. The trends discussed in this chapter suggest at least three potentially overlapping scenarios for the future legal protection of TK: (1) continuing and/or increased reliance on existing means of legal protection for TK; (2) development of non-uniform, country- or region-specific means for protecting TK; and (3) development of internationally harmonized approaches to the protection of TK. While significant efforts are taking place towards the development of internationally harmonized approaches, it is not impossible to envisage a break-down of negotiations on the subject due to developed country manoeuvring, widening differences among the developing countries, or a realization among the developing countries that the economic stakes are not as high as they had been led to believe. However, a break-down at the international level would not preclude breakthroughs at the national and regional levels. Scenario planning by indigenous and local communities might be one way of teasing out the issues and challenges, as well as options, in the protection of their TK.

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