Traditional Knowledge & Intellectual Property: A TRIPS-Compatible Approach

Abstract

Should intellectual property provide a means for strengthening the range of incentives that local communities need for conserving and developing genetic resources and traditional knowledge (TK)? If so, how and at what cost? To be able to suggest answers, a number of issues must be resolved. They are the focus of the Article. First, one must build, and then cross, a cultural bridge to explain current forms of intellectual property to holders of traditional knowledge, including definitional efforts to determine the nature and depth of the overlap(s). This achieves a dual objective: it allows intellectual property circles to understand and then work towards improving the intellectual property system to better respond to the needs of TK holders; it also allows traditional knowledge holders to reap available benefits from extant forms of protection, including collective and certification marks and, where possible, patent and copyright protection. Tort and contract law may also offer some useful remedies. Second, one needs to re examine in depth the current forms of intellectual property. This is an indispensable first step before any new or sui generis form of protection is enshrined into a new international instrument. Then, if current intellectual property norms are found to be inappropriate, one may indeed need to consider new international norms, including a sui generis right and norms related to environmental protection. The Article also offers avenues to explore how to better protect traditional knowledge holders within the parameters of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, bearing in mind that traditional knowledge and biodiversity are specifically mentioned in the Doha Ministerial Declaration.