By Alison Wong
Intellectual property protection fosters creativity by rewarding innovators. Since inventions and works based on original ideas ultimately benefit the public, an owner of a patent or copyright is granted temporary, exclusive rights to produce, manufacture, distribute, and sell the invention or work. In turn, the rights owner typically reaps economic benefits. Our current system of intellectual property protection is thus based on individual ownership of rights. But does this system function equally well when the rights to knowledge or information are held by members of a community rather than by identifiable individuals?
According to the World Intellectual Property Organization (WIPO), traditional knowledge is a “living body of knowledge” that often forms part of a community’s cultural or spiritual identity. It is collectively developed, sustained, and passed from generation to generation within the community. In a general sense, traditional knowledge refers to the “content of the knowledge itself” and encompasses traditional cultural expressions and their associated signs and symbols. More narrowly, traditional knowledge also refers to knowledge that results from “intellectual activity in a traditional context” and includes “know-how, practices, skills, and innovations.” Similarly, while there is no universally accepted definition of traditional knowledge, the Government of Canada considers indigenous traditional knowledge to be the “know-how, skills, innovations, and practices developed by indigenous peoples related to biodiversity, agriculture, health, and craftsmanship.”
However, because it is collectively owned, traditional knowledge is difficult to protect using current intellectual property strategies. WIPO notes that indigenous people, local governments, and local communities are currently seeking intellectual property protections that can be classified under two key categories. Positive protection involves granting rights to communities that would enable them to promote and control the use of their traditional knowledge, thereby protecting it against commercial exploitation. Defensive protection aims to stop people who are not members of indigenous communities from acquiring intellectual property rights over traditional knowledge. For example, the United States Patent and Trademark Office ultimately revoked a patent that had been awarded to researchers at the University of Mississippi Medical Centre for the use of turmeric to treat wounds. The properties of turmeric were well-known throughout communities in India and had been documented in ancient Sanskrit texts.
WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore is currently undertaking negotiations with the goal of finalizing an agreement on an international legal instrument that would ensure the protection of traditional knowledge. The Committee recently concluded its 41st Session and recommended that WIPO’s 2021 General Assembly recognize the importance of the participation of indigenous peoples and local communities in the work of the Committee. It will be interesting to follow further developments in this area.
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