Protecting indigenous intellectual property has a system that started during the age of industrialization in the west. It later developed to help with the perceived needs that technologically advanced societies had. Recently, local communities, indigenous peoples, and governments in countries that are developing have asked for equal protection for their traditional knowledge systems.

Traditional Knowledge and Intellectual Property – Background Brief

WIPO members formed the Intergovernmental Committee on Intellectual Property and Genetic Resources in the year 2000. Later in 2009, an international legal instrument was developed. This was to give more effective protection to genetic resources, traditional cultural expressions, and traditional knowledge. This instrument ranged from someone's recommendation to WIPO members to an official treaty that bound countries that ratified it. It's not called traditional knowledge due to its antiquity, but instead because it's a living body of knowledge. This is sustained, developed, and passed on to each generation in a community. Many times it forms part of its spiritual or cultural identity.

Traditional knowledge does not get protected by the intellectual property system. This normally provides protection for a short time to original works and inventions by companies or individuals. Recognizing what's considered a traditional form of innovation and creativity, when it comes to intellectual property that can be protected, is a historic change in international law. Local and indigenous communities, as well as the government, would be able to have their opinion on how traditional knowledge should be used.

If recognized, it would be possible to protect indigenous art, music, and traditional remedies against embezzlement. Communities would also be able to benefit and control their commercial exploitation. Even with negotiations initiated and propelled by the WIPO in developing countries, these discussions are not divided evenly along the "North-South" lines.

Traditional Knowledge

When the traditional knowledge framework is innovated by community members, they will likely need to use the patent system to make sure their innovations are protected. However, there is some traditional knowledge, such as knowledge that is oral, informal, and has ancient roots, that isn't protected by the intellectual property systems. This has caused some countries to come up with their own sui generis systems to keep traditional knowledge protected. Many initiatives are also underway to have traditional knowledge documented. The motive is to disseminate or preserve this knowledge in many cases.

There are some concerns that if traditional knowledge is made available to the public through documentation, it can then be accessed on the internet. This may lead to misappropriation and be used in ways that weren't intended or anticipated by traditional knowledge holders. However, documentation also helps to protect traditional knowledge. This is because it provides a secret or confidential record of traditional knowledge that's normally reserved only for the community it's relevant to. Some formal registries and documentation help to support sui generis protection systems. Other traditional knowledge databases will help provide defensive protection in the current IP system.

These show how important it is to ensure that traditional knowledge documentation gets linked to an intellectual property strategy. It should also not take place in a legal or policy vacuum. Those in WIPO talks may state that using traditional knowledge should be subject to informed, free, and prior consent, especially when it comes to secret and sacred materials. Others may worry that giving exclusive control over these traditional cultures could be hard to implement, diminish the public domain, and stifle innovation.

Genetic Resources

Genetic resources aren't intellectual property, as they're not a creation of the human mind. For this reason, they can't be protected as intellectual property. However, any inventions that are developed or based on genetic resources can be protected and may be patentable by the plant breeders' rights. The work of WIPO complements the policy and legal framework that the Convention on Biological Diversity defined. In the defensive protection of genetic resources, patents are prevented from being granted when they're related to genetic resources that don't fulfill the requirements of inventiveness and novelty.

Another strand that's more controversial regards the potential disqualification of applications for patents that don't comply with the CBD when it comes to:

  • Mutually agreed upon terms. 
  • Disclosure of origin. 
  • Prior informed consent.
  • Equitable benefit-sharing.

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