Indigenous people often know a lot about the healing properties or other useful characteristics of their indigenous plants. This knowledge usually has been passed on within the indigenous community from generation to generation and is therefore regarded as traditional knowledge. This traditional knowledge is of great value for the pharmaceutical industry. Accordingly, it has been explored, used as the basis for subsequently patented in-ventions, and sometimes misappropriated by pharmaceutical companies from the “developed” world.
This essay seeks to provide an overview of the problems and issues that arise where traditional knowl-edge meets the “Western” intellectual property regime. The questions that are sought to be answered are: Why should traditional knowledge be protected as intellectual property and how could this be done? Many approaches have been made, both on an international and a national level. Several of these solutions will be presented and discussed in this essay. It will be seen that already existing intellectual property rights are not suitable for the protection of traditional knowledge. Compared with this, the implementation of safeguards within patent applica-tion proceedings seems to be more appropriate and effective. However, this approach turns out to be not com-prehensive enough. Therefore, this essay recommends the protection of traditional knowledge by an intellectual property right sui generis, specially designed for that purpose. This solution is favourable because it is the most complete one, is able to address all issues in an appropriate way, and can strike a balance between the involved conflicting interests.
Table of Contents
I INTRODUCTION
II DEFINITION OF TRADITIONAL INDIGENOUS KNOWLEDGE
III THE SCOPE OF MISAPPROPRIATION OF TRADITIONAL INDIGENOUS KNOWLEDGE
IV THE NEED TO PROTECT INDIGENOUS KNOWLEDGE, CONFLICTING INTERESTS, AND THE OBJECTIVES OF PROTECTION
A Why Should Traditional Knowledge Be Protected?
B The Conflicting Interests
C Objectives of Protection
V INTERNATIONAL BACKGROUND
A The Voice of the Indigenous Peoples Themselves
B The Convention on Biological Diversity
C The TRIPs Agreement
D The WIPO’s Efforts in terms of Traditional Knowledge Protection
VI CONSIDERATION OF POTENTIAL MEANS OF PROTECTION
A Protection by Already Existing Means of Intellectual Property Protection
1 Protection by Patent
2 Protection as Undisclosed Information
B Implementation of Safeguards within Patent Application Proceedings
1 Protection by Morality Clauses
2 The New Zealand Model – Maori Advisory Committee
3 The Indian Model
4 Amendment of Article 29 TRIPs Agreement
5 General Considerations on the Implementation of Safeguards within Patent Application Proceedings
C Protection by Intellectual Property Right Sui Generis
1 Contents of the IP Right Sui Generis on Traditional Knowledge
2 Holders of this IP Right Sui Generis
3 Duration of Protection
4 Registration
VII CONCLUSION
Research Objectives and Topics
This paper examines the challenges of protecting traditional indigenous knowledge within the current Western-centric intellectual property regime. It investigates why such knowledge requires specific legal protection, evaluates the limitations of existing frameworks like patents and trade secret laws, and explores the viability of a sui generis intellectual property right to better balance the conflicting interests of indigenous communities, the pharmaceutical industry, and the public.
- Analysis of the value of traditional knowledge and the necessity of its protection.
- Evaluation of international frameworks such as the CBD and the TRIPs Agreement.
- Assessment of existing protection methods including patent safeguards and morality clauses.
- Critical review of the New Zealand and Indian models for protecting indigenous interests.
- Proposal for an intellectual property right sui generis tailored to indigenous needs.
Excerpt from the Book
II DEFINITION OF TRADITIONAL INDIGENOUS KNOWLEDGE
The definitions of traditional or indigenous knowledge vary, depending on the particular context in which they occur. So defines the Convention on Biological Diversity (CBD) traditional knowledge as “knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity”. The World Intellectual Property Organization understands traditional knowledge as “tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.” This broad understanding (including traditional folklore) reflects the WIPO’s aim of elaborating solutions for all IP-related problems connected with traditional knowledge in a broad sense.
For the purposes of this paper a narrower definition is more appropriate, since the focus is on the exploitation of traditional knowledge by pharmaceutical companies or other research organisations who take this knowledge as a basis for their later patented invention. Therefore, here traditional knowledge shall be understood as tradition-based knowledge in a scientific, technical, medicinal, pharmaceutical or agricultural sense. Thereat the term “tradition-based” refers to every knowledge which has been generally transmitted from generation to generation within an indigenous group and, secondly, is connected to a particular people or its territory. Accordingly, the terms “indigenous knowledge” and “traditional knowledge” are used synonymously. Typically, traditional knowledge is passed on by word of mouth and is not put down in writing.
Summary of Chapters
I INTRODUCTION: Sets the stage by presenting the scenario of pharmaceutical misappropriation of indigenous knowledge and highlights the inadequacy of current intellectual property laws to address this issue.
II DEFINITION OF TRADITIONAL INDIGENOUS KNOWLEDGE: Explores various international and context-specific definitions of traditional knowledge, establishing a working definition focused on its use in scientific and commercial research.
III THE SCOPE OF MISAPPROPRIATION OF TRADITIONAL INDIGENOUS KNOWLEDGE: Distinguishes between different scenarios of misappropriation, focusing on cases where traditional knowledge acts as a basis for subsequently patented inventions.
IV THE NEED TO PROTECT INDIGENOUS KNOWLEDGE, CONFLICTING INTERESTS, AND THE OBJECTIVES OF PROTECTION: Analyzes the moral and practical motivations for protecting traditional knowledge while balancing the competing interests of communities, companies, and the public.
V INTERNATIONAL BACKGROUND: Provides an overview of international perspectives and efforts, including the CBD, the TRIPs Agreement, and the WIPO’s ongoing work on traditional knowledge.
VI CONSIDERATION OF POTENTIAL MEANS OF PROTECTION: Critically evaluates existing legal tools, such as patents and trade secrets, and reviews national models like the Maori Advisory Committee and the Indian Biodiversity Act before proposing a sui generis system.
VII CONCLUSION: Summarizes the findings, arguing that a sui generis intellectual property right is the most effective solution for respecting indigenous cultural identity and achieving equitable benefit-sharing.
Keywords
Traditional Knowledge, Indigenous Peoples, Intellectual Property, Patent Law, Sui Generis, Misappropriation, Benefit-Sharing, Prior Informed Consent, Pharmaceutical Industry, Biodiversity, Cultural Values, TRIPs Agreement, WIPO, Indigenous Rights, Conservation.
Frequently Asked Questions
What is the core problem addressed in this research paper?
The paper addresses the systemic failure of the current Western intellectual property framework to adequately protect traditional knowledge from unauthorized exploitation and misappropriation by pharmaceutical and research entities.
What are the primary thematic areas covered?
The study covers the definition of traditional knowledge, international legal frameworks, existing patent-based safeguard mechanisms, and the theoretical foundation for a new sui generis protection regime.
What is the central research question?
The research seeks to determine why traditional knowledge should be protected as intellectual property and what legal mechanism would most effectively accomplish this while balancing diverse global interests.
Which scientific or legal methodologies are applied?
The author employs a legal analysis method, comparing international treaties, national legislation, and case studies (such as Hoodia and Turmeric) to assess the effectiveness of various protection strategies.
What does the main body of the paper discuss?
The main body critically assesses the limitations of patents and undisclosed information protections, explores the efficacy of morality clauses, and examines specific national models in New Zealand and India.
Which keywords characterize this work?
Key terms include traditional knowledge, indigenous rights, intellectual property, sui generis, benefit-sharing, and biodiversity conservation.
Why are morality clauses considered ineffective for this purpose?
Morality clauses are viewed as overly vague and limited by a very high threshold of "abhorrence," making them unsuitable for addressing the nuanced ethical and commercial issues regarding traditional knowledge usage.
How does the proposed sui generis right differ from standard patent rights?
Unlike patents, which provide a limited-term monopoly and require disclosure, the proposed sui generis right is designed to be potentially endless and non-monopolistic, focusing instead on benefit-sharing and cultural respect.
- Quote paper
- Julia Honds (Author), 2006, The protection of traditional indigenous knowledge by intellectual property law, Munich, GRIN Verlag, https://www.grin.com/document/80623
