IP and Traditional Knowledge

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The Uneasy Case for Intellectual Property Rights in Traditional Knowledge by Stephen Munzer, Kal Raustiala:

Should tra­di­tional knowledge—the under­stand­ing or skill pos­sessed by indige­nous peo­ples per­tain­ing to their cul­ture and folk­lore and their use of native plants for med­i­c­i­nal purposes—receive pro­tec­tion as intel­lec­tual prop­erty? This Article exam­ines nine major argu­ments from the moral, polit­i­cal and legal phi­los­o­phy of prop­erty for intel­lec­tual prop­erty rights and con­tends that, as applied to tra­di­tional knowl­edge (TK), they jus­tify at most a mod­est pack­age of rights under domes­tic and inter­na­tional law. The argu­ments involve desert based on labor; first­ness; stew­ard­ship; sta­bil­ity; moral right of the com­mu­nity; incen­tives to inno­vate; incen­tives to com­mer­cial­ize; unjust enrich­ment, mis­ap­pro­pri­a­tion and resti­tu­tion; and infringe­ment and dilu­tion. These argu­ments do, how­ever, sup­port “defen­sive” pro­tec­tion for TK: that is, halt­ing the use of TK by non­indige­nous actors in obtain­ing patents and copy­rights. These argu­ments also sup­port the dis­sem­i­na­tion of TK on the inter­net and via other dig­i­tal media and the selec­tive use of trade­marks. The force of these con­clu­sions resides in the impor­tance of a vibrant pub­lic domain, and the absence of any plau­si­ble lim­it­ing prin­ci­ple that would allow more robust rights in TK for indige­nous groups with­out per­mit­ting equally robust rights for non­indige­nous groups.

I dis­cov­ered this use­ful and inter­est­ing dis­cus­sion of the rela­tion­ship between intel­lec­tual prop­erty and tra­di­tional knowl­edge thanks to a pointer from Lawrence Solum at the Legal Theory Blog. As he notes there, this has often been a quite con­fus­ing area of the law, and this arti­cle does a good job of going through the issues in an under­stand­able and use­ful way. Recommended reading.

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