Marquette Intellectual Property Law Review

Volume 15 Issue 1 Article 3

Winter 2011

Emerging Scholars Series: A Sui Generis Regime for Traditional

Knowledge: The Cultural Divide in Intellectual Property Law
J. Janewa OseiTutu
University of Pittsburgh School of Law

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J. Janewa OseiTutu, Emerging Scholars Series: A Sui Generis Regime for Traditional Knowledge:
The Cultural Divide in Intellectual Property Law, 15 Marq. Intellectual Property L. Rev. 147 (2011).
Available at: https://scholarship.law.marquette.edu/iplr/vol15/iss1/3

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It
has been accepted for inclusion in Marquette Intellectual Property Law Review by an authorized editor of
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EMERGING SCHOLARS SERIES*
 A SUI GENERIS REGIME FOR
TRADITIONAL KNOWLEDGE: THE
CULTURAL DIVIDE IN INTELLECTUAL
PROPERTY LAW
J. JANEWA OSEITUTU**

ABSTRACT .................................................................................................... 149

INTRODUCTION ........................................................................................... 150
I. THE TRADITIONAL KNOWLEDGE QUESTION ..................................... 158
A. The Backlash against TRIPS ...................................................... 158
B. What Is Traditional Knowledge? ................................................ 161
C. The Existing Legal Framework, Biopiracy and Traditional
Knowledge .................................................................................. 164
D. Creating New Categories of Intellectual Property .................... 169
E. Reaching Agreement on an International Legal Instrument
to Protect Traditional Knowledge ............................................ 171 II.
JUSTIFYING INTANGIBLE PROPERTY RIGHTS .................................... 174 A.
Classic Approaches to Intellectual Property Law ..................... 174 B. An
Instrumentalist Approach ..................................................... 175 1. The
International Treaties Support a Balanced
Approach .............................................................................. 177
III. A TRADITIONAL KNOWLEDGE RIGHT .............................................. 180

* The Marquette Intellectual Property Law Review Emerging Scholars Series highlights
the work of the junior scholars who are poised to become the leading intellectual property
thinkers of the next generation.
** B.A. (University of Toronto), J.D. (Queen’s University), LL.M. (McGill University);
Visiting Assistant Professor of Law, University of Pittsburgh School of Law. E mail:
[email protected]. I would like to thank Marina Angel, Olufunmilayo B. Arewa,
Anahita Ariya-Far, Robert A. Bohrer, Irene Calboli, Margaret Chon, Ellen Goodman, Charles C.
Jalloh, Kaisa McCandless, Chidi Oguamanam, Lisa P. Ramsey, Geoffrey Scott, Peter K. Yu, the
participants of the Drake 2010 Intellectual Property Scholars Roundtable, and the participants of the
Temple University Beasley School of Law Update for Feminist Law Professors for their valuable
feedback and suggestions for the paper. Ms. Elizabeth Youngkin and Ms. Patrice Collins provided
able research assistance. The views expressed herein do not represent the views of any organization
with which I am, or have been, associated. All opinions, errors and omissions are my own.
148 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

A. The Objectives of Traditional Knowledge Protection .............. 180 1.

Commonality between the Policy Objectives of
Intellectual Property and Traditional Knowledge ........... 181 a.
Exclusion .......................................................................... 181 b.
Economic Rationale ........................................................ 181 c.
Innovation ......................................................................... 184
2. Equity-Oriented Goals as a Major Distinction .................. 185 a.
Protecting Cultural Heritage ........................................... 187 b.
 Promoting Value and Respect ........................................ 188
B. Traditional Knowledge Challenges ............................................ 190
1. The Public Domain as a Eurocentric Concept ................... 190 2.
Perpetual Protection ............................................................. 192 3.
Identifying the Traditional or Indigenous Traditional
Knowledge Producing Community ................................... 193 C. Other
Intergenerational Knowledge Goods ............................... 198 1. Cultural
Exchange ................................................................. 198 2. Vinegar and Silver
as Examples .......................................... 199 IV. ADDRESSING THE PROBLEM
.............................................................. 202 A. The Need for a Balanced
System ................................................ 202 1. Beyond the North-South
Framework ................................. 204 2. A Question of Justice
............................................................ 206
B. Intellectual Property Related Solutions that Don’t Require an Expansion of
the Existing Regime ...................................... 209 1. Accounting for Diverse
Circumstances .............................. 209 2. Mediation
............................................................................... 211 3. Capacity Building
.................................................................. 212 4. Education
............................................................................... 212 5. National Measures
................................................................ 213 CONCLUSION
................................................................................................ 213
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 149

ABSTRACT
Traditional knowledge can be protected, to some extent, under various
intellectual property laws. However, for the most part, there is no effective
international legal protection for this subject matter. This has led to proposals
for a sui generis regime to protect traditional knowledge. The precise contours
of the right are yet to be determined, but a sui generis right could include
perpetual protection. It could also result in protection for historical communal
works and for knowledge that may be useful but that is not inventive
according to the standards of intellectual property law. Developing countries
have been more supportive of an international traditional knowledge right than
developed countries. At the same time, developing countries have been critical
of the impact of intellectual property rights on social issues such as access to
medicines and access to educational materials. In light of developing country
concerns about the negative effects of strong global intellectual property
rights, this paper uses a development-focused, instrumentalist approach to
assess the implications of a sui generis traditional knowledge right. It
concludes that some of the measures sought may not achieve the desired
outcome. Although intellectual property can play a role in protecting
traditional knowledge, a sui generis intellectual property style right may
hinder the equity-oriented goals of some traditional knowledge communities.
150 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

INTRODUCTION
Some communities possess useful knowledge and traditions that have
been passed down from one generation to another. These traditional practices
and artworks, or the medicinal knowledge may be highly valued by the
community, and possibly by others. However, intellectual property law does
not necessarily protect knowledge relating to the medicinal uses of plants,
reproductions of communal works, traditional cultural practices, or spiritual
rituals. This is because much of this knowledge is not new or cannot be
identified as having been created by a particular individual.1
Far from protecting this knowledge, intellectual property law may, in some
instances, have facilitated the taking and commercialization of this traditional
knowledge by individuals or entities that are external to the traditional
knowledge-generating community. The result is often an inequitable situation
in which the knowledge is used, including for commercial purposes, without
attribution or compensation to the knowledge-generating community. This use
or taking without consent or compensation has been characterized as
“bio-piracy” or “misappropriation.”2 The taking and use (or misuse) of the
cultural works, genetic resources and knowledge of traditional and indigenous
peoples, has led to a call to protect traditional knowledge and traditional
cultural expressions.3 This includes the possibility of

1. The various forms of traditional knowledge may implicate different kinds of intellectual
property. For example, patent law relates to medicinal traditional knowledge, whereas artistic and
cultural practices relate to copyright law, and indentifying symbols may pertain to trademarks and
geographical indications. Copyright Act of 1976, 17 U.S.C. § 102(a) (2006) (provides that copyright
subsists “in original works of authorship fixed in any tangible medium of expression.”). Patent Act of
1952, 35 U.S.C. § 101 (2006) (this general patentability provision states that only one who “invents
or discovers” an invention that is “new and useful” may obtain a patent).
2. See, e.g., Srividhya Ragavan, Protection of Traditional Knowledge, 2 MINN. INTELL. PROP.
REV. 1 (2001); Lorna Dwyer, Biopiracy, Trade and Sustainable Development, 19 COLO. J. INT’L
ENVTL. L. & POL’Y 219 (2008).
3. In the World Intellectual Property Organization (WIPO) context, traditional cultural
expressions can be considered a subset of traditional knowledge. Traditional knowledge and
traditional cultural expressions are often seen as part of a single “integrated heritage.” However, due
to the specific legal and policy questions raised by traditional cultural expressions in the intellectual
property context, WIPO has separate, but parallel, work programs for traditional knowledge and
traditional cultural expressions. See Traditional Cultural Expressions (Folklore), WIPO,
http://www.wipo.int/tk/en/folklore/ (last visited Sept. 22, 2010). This paper considers intellectual
property as a broad category, despite the many distinctions between patent law, copyright law, and
trademark law. The focus of this work is on the underlying similarities that inform intellectual
property law and policy. As such, reference to traditional knowledge will be used as a broad category
that may include traditional cultural expressions. Such grouping is not inconsistent with the concept
of traditional knowledge and traditional cultural expressions, and some early documents from
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 151

legislation to create a sui generis traditional knowledge right. Focusing on the

issue of equity,4 this article uses an instrumentalist approach to query whether
a new intangible property right that is based on an intellectual property model
is likely to meet some of the distributive justice goals of traditional knowledge
holders and developing countries. Part of the subtext of the traditional
knowledge narrative is about the effects of the history of colonialism. With
respect to the intersection between traditional knowledge and intellectual
property law, it becomes a discussion about equity, fairness, and what is
perceived to be a Eurocentric international intellectual property system that
favors Western methods of knowledge creation.5
One of the substantial critiques of international intellectual property law
and the World Trade Organization (“WTO”) Agreement on Trade Related
Intellectual Property Rights (“TRIPS”)6 has been its impact on access to
affordable knowledge goods. I suggest that it is useful, therefore, to assess the
potential distributive justice effects of a new intangible property right before it
is created. With the goal of access to affordable knowledge goods in mind, I
explore whether a sui generis traditional knowledge right, which may include
perpetual protection, advances this goal. I start from the premise that
knowledge is a public good and that access to knowledge goods is in the
public interest. Intellectual property protected goods should therefore be
affordable

the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Tradition
Knowledge and Folklore (IGC) have even defined traditional cultural expressions as a subset of
traditional knowledge. See WIPO IGC, MATTERS CONCERNING INTELLECTUAL PROPERTY AND
GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND
FOLKLORE —AN OVERVIEW ¶ 30, WIPO Doc. WIPO/GRTKF/IC/1/3 (2001). 4. I use the term
“equity” in the ordinary sense of the word, meaning that which is fair and just, or appropriate in the
circumstances. See Concise Oxford Dictionary (10th ed. 1999). Naturally, what is considered “fair”
may depend on one’s perspective.
5. The traditional knowledge dialogue has also been described as a discussion about “value.”
See Olufunmilayo B. Arewa, Piracy, Biopiracy and Borrowing: Culture, Cultural Heritage and the
Globalization of Intellectual Property 56 (Case Res. Paper Series in Legal Stud., Working Paper No.
04–19, 2006) available at http://ssrn.com/abstract=56921 (“This same combination of derogation
and appropriation or borrowing without compensation from local knowledge have been important
motivating forces behind contemporary efforts to protect local knowledge. The development of
rationales from protecting local knowledge has in turn entailed constructing arguments to justify the
worthiness of such knowledge for intellectual property protection. This is essentially a discourse
about value.”); Rosemary J. Coombe, The Properties of Culture and the Politics of Possessing
Identity: Native Claims in the Cultural Appropriation Controversy, in AFTER IDENTITY 254-255 (Dan
Danielson and Karen Engle eds.,1995) (arguing that Natives need to tell Native stories and that the
law is based on European culture, which is no longer acceptable in a post-colonial era).
6. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994,
Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33
I.L.M. 1197 (1994) [hereinafter TRIPS Agreement].
152 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

and accessible. Moreover, access to affordable knowledge goods is a laudable

and worthwhile development goal, and one which the various forms of
intellectual property should support.7
The goal of access to affordable knowledge goods is relevant to the
traditional knowledge discussion because developing countries are the primary
advocates of traditional knowledge at the World Intellectual Property
Organization (“WIPO”). Furthermore, their concerns about the TRIPS can be
described as largely related to the effect of intellectual property rights on
access to affordable knowledge goods.8 Patents and copyright, in particular,
have been criticized on this basis.9 It is not a stretch to state, as a general
proposition, that intellectual property generating countries have benefitted
from TRIPS far more than developing countries.10 Further, the
misappropriation allegations made by developing countries and indigenous
peoples appear to be valid and well-documented.11 There are clearly some
problems with the

7. See Mary W.S. Wong, Toward an Alternative Normative Framework for Copyright: From
Private Property to Human Rights, 26 CARDOZO ARTS & ENT. L.J. 775, 830–32 (2009); Margaret
Chon, Intellectual Property and the Development Divide, 27 CARDOZO L. REV. 2821, 2885, 2891
(2006).
8. See, e.g., WIPO, AFRICAN GROUP SUBMISSION ON DOCUMENT WIPO/GRTKF/IC/13/9,
WIPO Doc. WIPO/GRTKF/14/9 (2009). This can include, among others, educational or artistic
works that are subject to copyright or pharmaceutical products that are subject to patent protection.
9. Joseph Straus, The Impact of the New World Order on Economic Development: The Role of
Intellectual Property Rights System, 6 J. MARSHALL REV. INTELL. PROP. L. 1 (2006) (“[I]n 1994,
TRIPs was at the center of multifaceted criticism, for both developing and developed countries.”);
see Keith E. Maskus & Jerome H. Reichman, The Globalization of Private Knowledge Goods and
the Privatization of Global Public Goods, 7 J. INT’L ECON. L. 279, 286 (2004) (“[S]erious questions
arise as to the sustainability of the attempt in TRIPS to resolve the international externality aspects of
protecting new knowledge goods. An additional criticism leveled at the emerging IPR system is that
the agenda for increasing protection has been articulated and pushed by rich-country governments
effectively representing the commercial interests of a limited set of industries that distribute
knowledge goods.”); Sisule F. Musungu & Graham Dutfield, Multilateral Agreements and a
TRIPS-plus World: The World Intellectual Property Organisation (WIPO) 3 (2003), available at
http:// www.geneva.quno.info/pdf/WIPO(A4)final0304.pdf (noting that the appropriateness of the
standards contained in the TRIPS Agreement for developing countries has been seriously questioned,
and that the TRIPS standards may be too high for these countries); see James Boyle, A Manifesto on
WIPO and the Future of Intellectual Property, 2004 DUKE L. & TECH. REV. 0009 (2004) (critiquing
TRIPS).
10. Marie Byström & Peter Einarsson, TRIPS: Consequences for Developing Countries
Implications for Swedish Development Cooperation 48–49 (2001) (consultancy report to the Swedish
International Development Cooperation Agency (SIDA)).
11. See, e.g., Srividhya Ragavan, Protection of Traditional Knowledge, 2 MINN. INTELL. PROP. REV.
1, 10–12, 47–50 (2001) (explaining documented cases, included the well-known controversy over the
patenting of “neem,” long used in Indian villages as a traditional medicine, and outlining some of the
jurisprudence involving Australian Aboriginal artists); Lorna Dwyer, Biopiracy, Trade and
Sustainable Development, 19 COLO. J. INT’L ENVTL. L. &
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 153

current intellectual property structure.

The traditional knowledge dialogue has advanced to a stage where there is
growing recognition of the need to value and acknowledge the contributions of
indigenous and local communities.12 There is an attempt to maximize the
benefits of traditional knowledge for these communities while minimizing the
harmful effects of misappropriation.13 As part of this effort, there have been
various studies on the protection of traditional knowledge, and there is a
wealth of valuable scholarship on the relationship between traditional
knowledge and intellectual property.14 Numerous scholars have concluded that
traditional

POL’Y 219, 226–31 (2008) (explaining the controversy over the Rosy Periwinkle, the Neem tree, the
Enola Bean and others).
12. See, e.g., Daniel Gervais, The Internationalization of Intellectual Property: New
Challenges from the Very Old and the Very New, 12 FORDHAM INTELL. PROP. MEDIA & ENT. L.J.
929 (Spring 2002); Graham Dutfield, TRIPS Related Aspects of Traditional Knowledge, 33 CASE W.
RES. J. INT’L L. 233, 248-61 (Spring 2001); Srividhya Ragavan, Protection of Traditional
Knowledge, 2 MINN. INTELL. PROP. REV. 1 (2001); See generally MICHAEL F. BROWN, WHO OWNS
NATIVE CULTURE (2003)
 13. See WIPO IGC, THE PROTECTION OF HUMAN KNOWLEDGE: REVISED OBJECTIVES AND
PRINCIPLES, WIPO Doc. WIPO/GRTKF/IC/16/5 (2010) (Providing provisions against
misappropriation and enhancing benefit sharing. See Art. 1 and Art. 2 for rules for provisions against
misappropriation and unfair competition. See Art. 6 on benefit sharing, Art. 9 on duration of
protection, and Art. 13 for enforcement of traditional knowledge protection).
14. See, e.g., Srividhya Ragavan, Protection of Traditional Knowledge, 2 MINN. INTELL. PROP.
REV. 1, 10–14, 47–52 (2001); Lorna Dwyer, Biopiracy, Trade, and Sustainable Development, 19
COLO. J. INT’L ENVTL. L. & POL’Y 219 (2008); Graham Dutfield, TRIPS Related Aspects of
Traditional Knowledge, 33 Case W. RES. J. INT’L L. 233 (Spring 2001); Christine H. Farley,
Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer? 30 CONN. L. REV. 1
(1997); Paul Kuruk, Goading a Reluctant Dinosaur: Mutual Recognition Agreements as a Policy
Response to the Misappropriation of Foreign Traditional Knowledge in the United States, 34 PEPP. L.
REV. 629 (2007); Stephen R. Munzer & Kal Raustiala, The Uneasy Case for Intellectual Property
Rights in Traditional Knowledge, 27 CARD. ARTS & ENT. L.J. 37 (2009); David Castle & E. Richard
Gold, Traditional Knowledge and Benefit Sharing: From Compensation to Transaction, in
ACCESSING AND SHARING THE BENEFITS OF THE GENOMICS REVOLUTION 65 (Peter W.B. Phillips &
Chika B. Onwuekwe eds., 2007); Olufunmilayo B. Arewa, TRIPS and Traditional Knowledge: Local
Communities, Local Knowledge, and Global Intellectual Property Frameworks, 10 MARQ. INTELL.
PROP. L.
REV. 155 (2006); CHIDI OGUAMANAM, INTERNATIONAL LAW AND INDIGENOUS KNOWLEDGE:
INTELLECTUAL PROPERTY, PLANT BIODIVERSITY, AND TRADITIONAL MEDICINE 52–57 (2006); Chidi
Oguamanam, Localizing Intellectual Property in the Globalization Epoch: The Integration of
Indigenous Knowledge, 11 IND. J. GLOBAL LEGAL STUD. 135 (2004); Chidi Oguamanam, Local
Knowledge as Trapped Knowledge: Intellectual Property, Culture, Power and Politics, 11 J. WORLD
INTELL. PROP. 29 (2008); Paul Kuruk, The Role of Customary Law Under Sui Generis Frameworks
of Intellectual Property Rights in Traditional and Indigenous Knowledge, 17 IND. INT’L & COMP. L.
REV. 67 (2007); Peter K. Yu, World Trade, Intellectual Property and the Global Élites: An
Introduction, 10 CARDOZO J. INT’L & COMP. L. 1 (2002).
154 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

knowledge can be only partially protected under the existing system.15 Others
have queried whether it should be treated as property at all.16 The question that
remains is how best to address the concerns of traditional knowledge
generating communities. Yet, the traditional knowledge right that some
developing countries and traditional knowledge proponents support is based
on an intellectual property model, and therefore, has the potential to produce
problems not unlike those which have resulted under the current system. An
international sui generis intellectual property right for traditional knowledge
may hinder access to affordable knowledge goods, including for indigenous
and local communities.
Drawing on the notion of intellectual property ‘from below,’17 this paper
aims to contribute to the discussion by evaluating the utility of an intellectual
property model for the protection of traditional knowledge. This assessment is
done in light of some of the stated goals of traditional knowledge protection,18
and with a view to the potential impact of proprietary traditional knowledge
on affordable knowledge goods.19 The creation of a new property right may
serve as both an offensive and defensive measure. This article cautions that a
legally binding instrument that creates an exclusive proprietary traditional
knowledge right may not ultimately benefit indigenous and local communities.
While it is not entirely clear what an international legal instrument

15. See Daniel J. Gervais, The Internationalization of Intellectual Property: New Challenges
from the Very Old and the Very New, 12 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 929 (Spring
2002); Graham Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W. RES. J.
INT’L L. 233, 248–61 (Spring 2001); Srividhya Ragavan, Protection of Traditional Knowledge, 2
MINN. INTELL. PROP. REV. 1 (2001); Christine H. Farley, Protecting Folklore of Indigenous Peoples:
Is Intellectual Property the Answer? 30 CONN. L. REV. 1 (1997) (discussing litigation over the use of
Navajo cultural works in Australia); Paul Kuruk, Goading a Reluctant Dinosaur: Mutual
Recognition Agreements as a Policy Response to the Misappropriation of Foreign Traditional
Knowledge in the United States, 34 PEPP. L. REV. 629 (2007).
16. Stephen R. Munzer & Kal Raustiala, The Uneasy Case for Intellectual Property Rights in
Traditional Knowledge, 27 CARD. ARTS & ENT. L.J. 37 (2009). 17. I draw on the intellectual
property ‘from below’ approach as outlined by Professor Margaret Chon. The concept of viewing
international law ‘from below’ can be attributed to Balakrishnan Rajagopal’s seminal work,
INTERNATIONAL LAW FROM BELOW: DEVELOPMENT, SOCIAL MOVEMENTS AND THIRD WORLD
RESISTANCE (2003). 18. See WIPO IGC, THE PROTECTION OF TRADITIONAL KNOWLEDGE: REVISED
OBJECTIVES AND PRINCIPLES, WIPO Doc. WIPO/GRTKF/IC/16/5 (2010). 19. There is a variety of
perspectives from which one can evaluate traditional knowledge, including an economic,
anthropological or human rights lenses. Although I touch on these issues in this article, I do not
purport to provide an economic analysis of the propriety of protecting traditional knowledge, nor do
I pursue a detailed analysis of the issue of traditional knowledge through the lens of human rights
law.
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 155

to protect traditional knowledge might look like, a sui generis regime to

protect such knowledge has been proposed.20 This is because this subject
matter does not easily fit within the existing categories of intellectual property.
A sui generis regime could result in a new intangible property right that will
exclude anyone other than the rights holders from making use of this
intergenerational knowledge without consent. Possible characteristics of a
traditional knowledge right include perpetual protection, protection of
historical communal cultural works, and protection of knowledge that may be
useful but that is not be inventive or creative according to the standards of
intellectual property law.21
In my view, there are two main difficulties of traditional knowledge that
render the benefits of a sui generis intellectual property style traditional
knowledge right questionable. First, the absence of clear consensus about the
meaning of the indigenous or local person creates serious difficulties in
defining the scope of application of the right. I acknowledge, however, that
there may be various legitimate reasons for this lack of consensus, including
historical and political reasons, which go beyond the scope of the discussion
in this paper. Second, the proposed traditional knowledge right does not
rectify the inequities caused by the excesses of the current system. It seeks to
address the problems by expanding the intellectual property system rather than
attempting to correct the existing flaws by contracting the regime.22
For the purposes of this paper, I approach the issue of traditional
knowledge from an intellectual property perspective, rather than focusing on
the broader issue of indigenous rights. Further, since there is no widely
accepted precise definition of tradition knowledge, in evaluating the potential
consequences of a sui generis intellectual property style traditional knowledge
right on accessible and affordable knowledge goods, I temporarily disregard
the ethnic limitations that are

20. EMMANUEL HASSAN ET AL., INTELLECTUAL PROPERTY AND DEVELOPING COUNTRIES: A

REVIEW OF THE LITERATURE 44–45 (2010); WIPO IGC, PROPOSAL PRESENTED BY THE AFRICAN
GROUP TO THE FIRST MEETING OF THE INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL
PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE 6, WIPO Doc.
WIPO/GRTKF/IC/1/10, (2001) (suggesting the need to develop a sui generis system for genetic
resources and community rights).
21. See WIPO IGC, THE PROTECTION OF TRADITIONAL KNOWLEDGE: REVISED OBJECTIVES
AND PRINCIPLES 27–30, 45, WIPO Doc. GRTKF/IC/16/5 (2010); Patent Act of 1952, 35 U.S.C. §§
100–104 (2006) (the requirements for patentability); Copyright Act of 1976, 17 U.S.C. §§ 101–122
(2006) (the scope and subject matter for copyright protection).
22. One could argue that creating a new right is one way to correct the existing flaws. However,
as I discuss later, this may bring its own set of problems.
156 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

inherent in the definition and treat all intergenerational knowledge as having

equal value. In other words, in assessing the implications for cost and access, I
assume that all communities potentially generate knowledge that could fit
within the parameters of traditional knowledge.
I take this approach in order to assess the protection of the knowledge
itself rather than the knowledge as it is understood when linked to the power
dynamics that have resulted from the history of colonialism. This is not to
suggest that the colonial history is irrelevant to the current power structure.
The impact of colonialism on intellectual property law has already been
discussed and well analyzed elsewhere.23 Admittedly, cultural values may
shape the way in which a

23. See David Castle & E. Richard Gold, Traditional Knowledge and Benefit Sharing: From
Compensation to Transaction, in ACCESSING AND SHARING THE BENEFITS OF THE GENOMICS
REVOLUTION 65, 68 (Peter W.B. Phillips & Chika B. Onwuekwe eds., 2007); Ruth L. Gana , The
Myth of Development, The Progress of Rights: Human Rights to Intellectual Property and
Development, 18 LAW & POL’Y 315, 329 (1996) (observing that developing countries were not
signatories to the early international intellectual property treaties but the treaty provisions were often
extended to them through the colonial administration); Olufunmilayo B. Arewa, TRIPS and
Traditional Knowledge: Local Communities, Local Knowledge, and Global Intellectual Property
Frameworks, 10 MARQ. INTELL. PROP. L. REV. 155, 160–163 (2006) (arguing that colonialism
created a unequal power dynamic between countries and that such power discrepancies influenced
intellectual property law); CHIDI OGUAMANAM, INTERNATIONAL LAW AND INDIGENOUS
KNOWLEDGE: INTELLECTUAL PROPERTY, PLANT BIODIVERSITY, AND TRADITIONAL MEDICINE 57
(2006) (arguing that the political, legal, and economic structures in most post colonial societies
reflect colonial values and are therefore complicit in the Western industrial model. Hence, these
states and their ecological policies fail to encourage indigenous knowledge or truly reflect indigenous
aspirations); Chidi Oguamanam, Localizing Intellectual Property in the Globalization Epoch: The
Integration of Indigenous Knowledge, 11 IND. J. GLOBAL LEGAL STUD. 135, 154 (2004) (explaining
that intellectual property laws are a result of colonialism); Chidi Oguamanam, Local Knowledge as
Trapped Knowledge, Intellectual Property, Culture, Power and Politics, 11 J. WORLD INTELL. PROP.
29, 32 (2008) (describing TRIPS as “the historical legacy of colonial disdain, exclusion, derogation
and appropriation as a policy framework for dealing with local knowledge”); Paul Kuruk, The Role of
Customary Knowledge Under Sui Generis Frameworks of Intellectual Property Rights in Traditional
and Indigenous Knowledge, 17 IND. INT’L & COMP. L. REV. 67, 86–92 (2007) (discussing the effect
of colonialization on laws in Africa, the United States, and New Zealand); Peter K. Yu, World Trade,
Intellectual Property And the Global Élites: An Introduction, 10 CARDOZO J. INT’L & COMP. L. 1,
3-4 (2002) (“Against a background of colonial and semi-colonial history, less developed countries
begin to develop resentment toward developed countries and multinational corporations. Eventually,
this resentment might spill over to the international intellectual property system and other
trade-related areas, thus creating a legitimacy crisis within the international trading system.”);
Rosemary J. Coombe, Cultural and Intellectual Properties: Occupying the Colonial Imagination,
16.1 POLAR 8 (1993); Chantal Thomas, Critical Race Theory and Postcolonial Development
Theory: Observations on Methodology, 45 VILL. L. REV. 1195, 1198–99 (2000) (“The external
postcolonial development critique of the international order asserts that it, though informed by
seemingly egalitarian liberal ideals, perpetuated the ‘underdevelopment’—that is, the
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 157

society treats property. Some may therefore consider it impossible, even

hypothetically, to isolate the knowledge from the knowledge generating
communities.24 However, by separating the issue of the protection of certain
kinds of knowledge from the questions of power and equality, one can
evaluate the protection of the knowledge based on the characteristics of the
knowledge itself rather than on the characteristics of the people who generate
that knowledge. Thus, one may consider, for example, the implications of
protecting knowledge or works that are based on the collective intellectual
efforts of several generations of an identifiable community, indigenous or
otherwise. Further, since the boundaries of traditional knowledge are yet to be
clearly defined, this approach can serve as a useful starting point from which
to assess the potential benefits and harms of a sui generis traditional
knowledge right. There may not be such a fundamental difference between
some of the knowledge generated by non indigenous communities and that
which is generated by indigenous or local communities.25 If this is so, then a
traditional knowledge right could encompass a wide range of material from
several different cultural groups.
The traditional knowledge narrative suggests that intellectual property law
is under inclusive because it fails to protect much of the knowledge and
creations of traditional knowledge generating communities. However,
intellectual property may be a poor tool for addressing traditional knowledge
concerns, except to the extent that intellectual property law encroaches on
indigenous and local communities. In my view, a significant portion of the
problem is due to the overreach of intellectual property law. By this I mean
that the various forms of intellectual property have been used to assert rights
in ways that tend to disregard competing interests, which should be given
greater value. While I question the utility of a sui generis right, I acknowledge
that there may be a role for defensive uses of intellectual property.26
Nonetheless, I suggest, with a view to respecting traditional

entrenched economic inequality relative to the North—of Southern countries, by failing to correct
economic disadvantages bequeathed to the South by colonialism.”). 24. Dorothy E. Roberts, Why
Culture Matters to Law: the Difference Politics Makes in CULTURAL PLURALISM, IDENTITY
POLITICS, AND THE LAW, AUSTIN SARAT & THOMAS R. KEARNS, EDS. 83 (1999) (Observing that
Culture matters to law and that apparently neutral legal principles that purport to disregard culture
effectively privilege the existing dominant cultural norms.)
25. In other words, various communities may generate (and may have generated greater
quantities before industrialization) ecological knowledge, community artwork, songs, or culturally
specific textiles, for example.
26. See infra Section V, Part B (“Intellectual Property Related Solutions that Don’t
158 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

knowledge while encouraging access to affordable knowledge goods, that it

would be preferable to curtail rather than expand the global intellectual
property regime.27
 Part II of this paper contextualizes the debate by providing some
background about TRIPS, the allegations of bio-piracy and the international
discussions on traditional knowledge. The third part of the paper outlines the
analytical framework, which aims to take into account the perspective of
developing countries as well as the benefit to the public in having access to
affordable knowledge goods. Part IV of the paper discusses some of the
rationales for intellectual property and compares them to the goals of
traditional knowledge. The paper identifies some of the challenges of utilizing
an intellectual property model to create a sui generis regime for the protection
of this intergenerational knowledge. As part of that discussion, I draw
parallels between the misappropriation concerns expressed by traditional or
indigenous communities and those expressed by individuals from other
communities regarding control over genetic resources. Finally, I offer some
preliminary suggestions about how reframing the debate may assist in
advancing the dialogue.

I. THE TRADITIONAL KNOWLEDGE QUESTION

A. The Backlash against TRIPS

The TRIPS Agreement was a major development in international
intellectual property law because it established minimum enforceable
standards. However, the increased global protection for intellectual property
rights has generated some negative reaction, particularly in respect of
developing country issues.28 For instance, the international

Require an Expansion of the Existing Regime”); see Daniel Wuger, Prevention of Misappropriation
of Intangible Cultural Heritage Through Intellectual Property Laws in POOR PEOPLE’S
KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY IN DEVELOPING COUNTRIES 183, 197 (J.
Michael Finger and Philip Schuler eds, 2004). I thank Margaret Chon for underscoring the value of
defensive uses of intellectual property.
27. I speak of a global intellectual property regime rather than the TRIPS Agreement, supra
note 6, specifically. First, while TRIPS is significant because it incorporates the Berne Convention,
infra note 94, and the Paris Convention, infra note 116, by reference and sets minimum enforceable
standards, it is only one of several intellectual property treaties. Secondly, the work on traditional
knowledge is taking place beyond the context of TRIPS. It is therefore helpful to consider the
international intellectual property system, to the extent one exists, as more than just TRIPS.
28. See James Boyle, A Manifesto on WIPO and the Future of Intellectual Property, 2004
DUKE L. & TECH. REV. 0009, 2 (2004) (criticizing the WIPO for increasing intellectual property
rights to the detriment of developing countries); Laurence R. Helfer, Towards a
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 159

intellectual property regime has been characterized as reflecting Western

values.29 In addition, TRIPS has been criticized for its detrimental impact on
various issues. These range from the relationship between patents and access
to medicines, and copyright and access to educational materials, to allegations
of patent-related bio-piracy and the misappropriation of cultural heritage.30
One of the salient concerns about the TRIPS has been its effect on access
to affordable knowledge goods. Patents and copyright, in particular, have been
criticized on this basis. From a distributive justice lens, this appears to be a
fair critique. Arguably, intellectual property generating countries have
benefited from TRIPS far more than developing countries.31 This is because
information-exporting countries

Human Rights Framework for Intellectual Property, 40 U.C. DAVIS L. REV. 971, 973–974 (2007)
(describing the work of the WTO and WIPO being “brought . . . to a virtual standstill” by resistance
to the global expansion of IP rights); Open Society Institute, Geneva Declaration on the Future of
the World Intellectual Property Organization 2 (2004), available at
http://www.cptech.org/ip/wipo/genevadeclaration.html (stating that a uniform approach that
“embraces the highest levels of intellectual property protection for everyone leads to unjust and
burdensome outcomes for countries that are struggling to meet the most basic needs of their
citizens”).
29. Adebambo Adewopo, The Global Intellectual Property System and Sub-Saharan Africa: A
Prognostic Reflection, 33 U. TOL. L. REV. 749, 749–50 (2002); Olufunmilayo B. Arewa, TRIPS and
Traditional Knowledge: Local Communities, Local Knowledge, and Global Intellectual Property
Frameworks, 10 MARQ. INTELL. PROP. L. REV. 155, 160–63 (2006) (positing that the global
intellectual property regime reflects cultural hierarchies, with most developing country cultures
considered less advanced, and their values therefore not reflected in the IP treaties); Krishna Ravi
Srinivas, Intellectual Property Rights and Traditional Knowledge: The Case of Yoga, 47 ECON. &
POL. WKLY. 2866–2871 (2007), available at http://ssrn.com/abstract=1005298. Developing countries
were initially allowed a grace period to implement their TRIPS obligations, which has now passed.
See TRIPS Agreement, supra note 6, at art. 66 However, a further exception has been made for least
developed countries with ressect to the protection of pharmaceutical products. This exception was
created under para 7 of the Doha Declaration on TRIPS and Public Health, which states: “We also
agree that the least-developed country members will not be obliged, with respect to pharmaceutical
products, to implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce
rights provided for under these Sections until 1 January 2016, without prejudice to the right of
least-developed country members to seek other extensions of the transition periods as provided for in
Article 66.1 of the TRIPS Agreement. We instruct the Council for TRIPS to take the necessary action
to give effect to this pursuant to Article 66.1 of the TRIPS Agreement.”
30. See Frederick M. Abbott, TRIPS in Seattle: The Not-So-Surprising Failure and the Future
of the TRIPS Agenda, 18 BERKELEY J. INT’L L. 165, 171 (2000) (noting the patent related health
concerns of developing country members); Lawrence R. Helfer, Towards a Human Rights
Framework for Intellectual Property, 40 U.C. DAVIS L. REV. 971, 986–88 (2007); Charles R.
McManis, Intellectual Property, Genetic Resources and Traditional Knowledge Protection: Thinking
Globally, Acting Locally, 11 CARDOZO J. INT’L & COMP. L. 547, 548–49 (2003) (discussing the
North-South division and the negative reaction of farmers in India to the TRIPS Agreement).
31. EMMANUEL HASSAN, OHID YAQUB & STEPHANIE DIEPEVEEN, INTELLECTUAL
160 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

tend to favor a globalized protectionist model in order to maximize their

economic gains.32 Unfortunately, under this kind of protectionist model,
intellectual property may extend into other social spheres and cultural objects
may be subject to appropriation and commercialized for use on global
markets.33 In sum, a protectionist model benefits industrialized rather than
industrializing countries.34
An international intellectual property model can be described as
protectionist if it tends towards longer periods of protection rather than shorter
terms of protection, creates more property rights rather than less, imposes
uniform substantive minimum standards of protection on all countries, and
removes from States the discretion to adjust the substantive standards to suit
their level of economic development.35 This is not unlike the situation that has
resulted under TRIPS and led to debates about the misappropriation of
traditional knowledge. In response, various international organizations,
including the WTO, have been engaged in discussions about the relationship
between traditional knowledge and intellectual property. Thus, for example,
the 2001 WTO Doha Ministerial Declaration directs the Council for TRIPS36
to explore the relationship between TRIPS, the Convention on Biological
Diversity and the protection of traditional knowledge and folklore.37

PROPERTY AND DEVELOPING COUNTRIES: A REVIEW OF THE LITERATURE 48 (2010). 32. PETER
DRAHOS, A PHILOSOPHY OF INTELLECTUAL PROPERTY 190–191 (1996). 33. Id.
34. Consider, for example, the comments of the United States Trade Representative
Ambassador Ron Kirk about the importance of intellectual property rights for American industries.
Ambassador Kirk’s written speech characterizes innovation and creativity as “the engines of the
American economy” and outlines an agenda which is aimed at adequately protecting American
intellectual property rights in foreign nations. His speech describes intellectual property piracy as a
“job killer” and an “export killer.” See Ambassador Ron Kirk, Protecting Tomorrow: IP and Green
Technology (April 26, 2010), available at
http://www.ustr.gov/about-us/press-office/speeches/transcripts/2010/april/remarks
ambassador-ron-kirk-world-intellectual (last visited October 15, 2010); see also U.S. GOV’T
ACCOUNTABILITY OFFICE, INTELLECTUAL PROPERTY: OBSERVATIONS ON EFFORTS TO QUANTIFY
THE ECONOMIC EFFECTS OF COUNTERFEIT AND PIRATED GOODS 4 (2010) (underlining the
importance of intellectual property to the United States Economy); see Nam D. Pham, The Impact of
Innovation and the Role of Intellectual Property Rights on U.S. Productivity, Competitiveness, Jobs,
Wages, and Export 52 (2010), available at http://www.memopage.com/bourse/script
news/includes/openwysiwyg2/uploaded_docs/15567_gipc_execstudy.pdf (this research paper, which
was prepared for the United States Chamber of Commerce, concludes that intellectual property
industries are key to sustaining American economic growth and that they are more competitive than
non-intellectual property industries
35. PETER DRAHOS, A PHILOSOPHY OF INTELLECTUAL PROPERTY 189 (1996). 36. See
TRIPS Agreement, supra note 6.
37. Convention on Biological Diversity (with annexes), concluded at Rio de Janeiro on June 5,
1992, [hereinafter CBD] 1760 UNTS 79; 31 ILM 818 (1992); WTO, Ministerial
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 161

However, the primary international forum for negotiating an international

instrument to protect traditional knowledge is the WIPO.38 The WIPO
Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore (“IGC”) was established by the WIPO
General Assembly in October 2000 to study the relationship between
intellectual property and these related subjects.39 The WIPO IGC is mandated
to undertake text-based negotiations with the objective of drafting an
international legal instrument to “ensure the effective protection” of genetic
resources, traditional knowledge and traditional cultural expressions
(collectively referred to as traditional knowledge for the purposes of this
paper).40

B. What Is Traditional Knowledge?

But what is traditional knowledge? More than ten years following its
establishment, the WIPO IGC struggles to reach a clear definition of
traditional knowledge. The definition is complicated because indigenous
peoples, communities and nations may be holders of

Declaration of 14 November 2001, ¶ 19, WTO Doc. WT/MIN(01)/DEC/1, [hereinafter Doha

Declaration]. For example, the TRIPS Council is working on proposals to address the issue of
disclosure of the origin of the genetic materials used in respect of gene related patents. See
Background and the Current Situation, WTO
http://www.wto.org/english/tratop_e/TRIPS_e/art27_3b_background_e.htm (last visited Sept. 10,
2010).
38. I will therefore direct much of my attention in this piece to the work that has been going on
at WIPO and the documents that have been produced as a result of those efforts. 39. WIPO,
MATTERS CONCERNING INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL
KNOWLEDGE AND FOLKLORE, WIPO Doc. WO/GA/26/6 (2000).
40. Traditional knowledge and traditional cultural expressions are often seen as part of a single
“integrated heritage.” However, due to the specific legal and policy questions raised by traditional
cultural expressions in the intellectual property context, WIPO has separate, but parallel work
programs for traditional knowledge and traditional cultural expressions. See Traditional Cultural
Expressions (Folklore), WIPO, http://www.wipo.int/tk/en/folklore/ (last visited Sept. 22, 2010). This
paper considers intellectual property as a broad category despite the many distinctions between
patent law, copyright law and trademark law. The focus of this work is on the underlying similarities
that inform intellectual property law and policy. As such, reference to traditional knowledge will be
used as a broad category that may include traditional cultural expressions. Such grouping is not
inconsistent with the concept of traditional knowledge and traditional cultural expressions, and some
early WIPO IGC documents have even defined traditional cultural expressions as a subset of
traditional knowledge. See WIPO, INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL
PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE ¶ 30, WIPO
Doc. WIPO/GRTKF/IC/1/3 (2001). The text of such agreement is to be submitted to the WIPO
General Assembly by 2011. For the recent IGC mandate, see WIPO IGC, MATTERS CONCERNING
THE INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES,
TRADITIONAL KNOWLEDGE AND FOLKLORE, WIPO Doc. WO/GA/38/9 (2009).
162 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

traditional knowledge, but not all traditional knowledge holders are

necessarily indigenous.41 Further, since traditional knowledge holders are
incredibly diverse, it has been suggested that it may not be possible to have a
single definition of the term.42 Thus, despite the attempt to define traditional
knowledge in relation to indigenous peoples, the category of persons included
as traditional knowledge holders is potentially broader than indigenous
peoples and nations. Moreover, traditional knowledge may be difficult to
distinguish from other types of knowledge.43
There are various descriptions of traditional knowledge in the literature.44
The WIPO Secretariat chose a working definition that reflected the general
approach used in other international fora.45 Traditional knowledge is loosely
defined by WIPO as including: “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.”46

41. WIPO, INTELLECTUAL PROPERTY NEEDS AND EXPECTATIONS OF TRADITIONAL

KNOWLEDGE HOLDERS: WIPO REPORT ON FACT-FINDING MISSIONS ON INTELLECTUAL PROPERTY
AND TRADITIONAL KNOWLEDGE (1998–1999), 26 (2001), available at
http://www.wipo.int/tk/en/tk/ffm/report/index/html.
42. Graham Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W. RES. J.
INT’L L. 233, 240 (Spring 2001).
43. WIPO IGC, MATTERS CONCERNING INTELLECTUAL PROPERTY AND GENETIC RESOURCES,
TRADITIONAL KNOWLEDGE AND FOLKLORE ¶ 63–70, WIPO Doc. GRTKF/IC/1/3 (2001); see
Graham Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W. RES. J. INT’L L.
233, 241–42 (Spring 2001).
44. See, e.g. Daniel Gervais, Traditional Knowledge & Intellectual Property: A TRIPS
Compatible Approach, 2005 MICH. ST. L. REV. 137, 140–41 (Spring 2005) (“Characteristically,
traditional knowledge is thus knowledge that: is traditional only to the extent that its creation and use
are part of the cultural traditions of a community–’traditional,’ therefore, does not necessarily mean
that the knowledge is ancient or static; is representative of the cultural values of a people and thus is
generally held collectively; is not limited to any specific field of technology or the arts; is ‘owned’ by
a community . . . .”); Angela R. Riley, “Straight Stealing”: Towards an Indigenous System of
Cultural Property Protection, 80 WASH. L. REV. 69, 77 (2005) (“indigenous peoples’ claims to
cultural property include not only places and objects (and all other physical materials of a particular
culture), but also traditions or histories that are connected to the group’s cultural life, including
songs, rituals, ceremonies, dance, traditional knowledge, art, customs, and spiritual beliefs.”).
45. WIPO, INTELLECTUAL PROPERTY NEEDS AND EXPECTATIONS OF TRADITIONAL
KNOWLEDGE HOLDERS: WIPO REPORT ON FACT-FINDING MISSIONS ON INTELLECTUAL PROPERTY
AND TRADITIONAL KNOWLEDGE (1998–1999), 25 (2001), available at
http://www.wipo.int/tk/en/tk/ffm/report/index/html.
46. WIPO IGC, TRADITIONAL KNOWLEDGE—OPERATIONAL TERMS AND DEFINITIONS 11,
WIPO Doc. WIPO/GRTKF/IC/13/9 (2002). For the purpose of its 2008 Gap Analysis, WIPO
described TK as “referring in general to the content or substance of
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 163

The term “tradition-based” refers to “knowledge systems, creations,

innovations and cultural expressions” which have been transmitted from one
generation to the next.47 In addition, the knowledge system is generally
perceived as pertaining to a particular people or territory. Finally, it is
described as knowledge that is not necessarily old or static but rather that
evolves in response to a changing environment.48
As discussed, the variety of subject matter that can be described as
traditional knowledge includes: traditional medicinal practices, such as Indian
Ayurvedic medicine, traditional farming practices, knowledge relating to the
uses of certain biological or chemical resources, and traditional dances, songs,
or rituals.49 Thus, traditional knowledge, broadly speaking, includes cultural
works as well as intergenerational knowledge about the properties of certain
plants, such as the appetite suppressing qualities of the Hoodia Cactus.
Broadly speaking, traditional knowledge can be described as the result of
intellectual activity, which is handed down through the generations, and which
pertains to particular cultural groups.
As I will elaborate on below, this broad definition of traditional knowledge
is one of its frailties.

knowledge resulting from intellectual activity in a traditional context, and includes the knowhow,
skills, innovations, practices and learning that form part of traditional knowledge systems, and
knowledge embodying traditional lifestyles of indigenous and local communities, or contained in
codified knowledge systems passed between generations. It is not limited to any specific technical
field, and may include agricultural, environmental and medicinal knowledge, and knowledge
associated with genetic resources. This general description of TK is based on the work of the
Committee itself.” See WIPO IGC, THE PROTECTION OF TRADITIONAL KNOWLEDGE: DRAFT GAP
ANALYSIS: REVISION 4, WIPO Doc. WIPO/GRTKF/IC/13/5/(b) Rev. (2008); WIPO IGC, MATTERS
CONCERNING INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE
AND FOLKLORE 11, WIPO Doc. WIPO/GRTKF/IC/1/3 (2001).
47. WIPO IGC, TRADITIONAL KNOWLEDGE—OPERATIONAL TERMS AND DEFINITIONS 11,
WIPO Doc. WIPO/GRTKF/IC/13/9 (May 20, 2002)
48. WIPO IGC, TRADITIONAL KNOWLEDGE—OPERATIONAL TERMS AND DEFINITIONS 11,
WIPO Doc. WIPO/GRTKF/IC/13/9 (May 20, 2002); GRAHAM DUTFIELD & UMA SUTHERSANEN,
GLOBAL INTELLECTUAL PROPERTY LAW 7 (2008).
 49. Emmanuel Hassan, Ohid Yaqub & Stephanie Diepeveen, INTELLECTUAL PROPERTY AND
DEVELOPING COUNTRIES: A REVIEW OF THE LITERATURE 39–40 (2010) (traditional knowledge may
include: literary, artistic or scientific works, agricultural technologies and techniques, religious or
spiritual practices, dance or medical treatments); Bio-piracy of Traditional Knowledge, Traditional
Knowledge Digital Library, www.tkdl.res.in/tkdl/langdefault/common/Biopiracy.asp?GL=3DEng
(last visited Sept. 8, 2010). Some aspects of Yoga and Ayurvedic medicine may be protectable as IP.
For example, some Yoga poses have been copyrighted, and certain Ayurvedic products may be
protected under trademark law. See, e.g., BIKRAM’S BEGINNING YOGA CLASS / BIKRAM CHOUDHURY
WITH BONNIE JONES REYNOLDS, Registration No. TX0005259325 (2000) (Copyright Registration).
164 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

C. The Existing Legal Framework, Biopiracy and Traditional Knowledge

In this section of the paper, I will discuss the relationship between
traditional knowledge and intellectual property, and provide some examples of
biopiracy and misappropriation.
Some traditional knowledge can be protected as intellectual property,
while some cannot.50 The international dialogue relates to the types of
traditional knowledge that are not subject to any internationally recognized
legal right. Since the most controversial stories of misappropriation relate to
patent and copyright, I focus on these two kinds of intellectual property in
relation to traditional knowledge.
Traditional knowledge will not be protected by intellectual property law if
it is already in the public domain, or if it cannot otherwise meet the criteria for
intellectual property protection. It may not be possible to meet the criteria for
patent protection, for example, if the claimed invention is not new, useful and
non-obvious.51 If the information has not been kept secret, it cannot be
protected under the law of trade secret and confidential information.52 If the
work is not an “original” work within the meaning of copyright law, it will not
be copyrightable, and if it is not a mark used in the course of trade it will not
be

50. See Peter K. Yu, Cultural Relics, Intellectual Property, and Intangible Heritage, 81 TEMP.
L. REV. 433, 484–85 (Summer 2008) (noting the different types of legal protection that is available
for the two types of traditional knowledge); Daniel Gervais, Traditional Knowledge & Intellectual
Property: A TRIPS-Compatible Approach, 2005 MICH. ST. L. REV
137, 149–60 (Spring 2005) (analyzing traditional knowledge using existing intellectual property
framework and showing the difficulty of protecting some types of traditional knowledge); Kal
Raustiala, Density and Conflict in International Intellectual Property Law, 40 U.C. DAVIS L. REV.
1021, 1033 (2007) (“[R]efined products based on traditional knowledge and genetic resources are
protected via international IP law, while the underlying traditional knowledge and resources are
not.”); STEPHEN A. HANSEN & JUSTIN W. VANFLEET,
AMERICAN ASSOCIATION FOR THE ADVANCEMENT OF SCIENCE, TRADITIONAL KNOWLEDGE AND
INTELLECTUAL PROPERTY: A HANDBOOK ON ISSUES AND OPTIONS FOR TRADITIONAL KNOWLEDGE
HOLDERS IN PROTECTING THEIR INTELLECTUAL PROPERTY AND MAINTAINING BIOLOGICAL
DIVERSITY 4–5 (2005).
51. Patent Act of 1952, 35 U.S.C. § 101 (2006); 35 U.S.C. § 102 (novelty is destroyed if: the
invention was “known or used by others in the [United States]” prior to the applicant’s date of
invention, the invention was “described in a printed publication” by anyone anywhere in the world
prior to the applicant’s date of invention, the invention was described by another in an issued patent
or published patent application prior to the applicant’s date of invention, the invention was put into
public use or placed on sale for more than 1 year prior to the patent application date, or the applicant
did not in fact discover or invent the subject matter he or she seeks to patent); TRIPS Agreement,
supra note 6, at art. 27.1 (provision governing patentable subject matter).
52. Uniform Trade Secrets Act, 14 U.L.A. 437 (1990) (this uniform code has been adopted in
45 US states as of 2007); TRIPS Agreement, supra note 6, at art. 39 (provision governing protectable
subject matter of trade secrets).
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 165

protectable under trademark law.53

Yoga is an example of subject matter that has been described as traditional
knowledge and which is partially protected through intellectual property law.
Although it has become popular throughout the world, yoga is a traditional
practice that originated in India several generations ago.54 While yoga per se is
not protectable, yoga poses have been copyrighted in the United States,
leading to debates about whether yoga is in the public domain.55 Other
well-known examples of traditional knowledge include the medicinal uses of
spices such as turmeric and plants like the hoodia cactus, or neem.56
The patenting of turmeric is an example of alleged misappropriation.
Although the traditional knowledge about the uses of turmeric is not
protectable, two Indian expatriates based in the United States obtained an
American patent on the use of turmeric in wound healing.57 Turmeric is a spice
used in Indian cooking. It has also been used in traditional medicinal practices
to heal wounds and rashes. The Council of Scientific and Industrial Research
(“CSIR”) in India challenged the validity of the patent, arguing that the use of
turmeric was not novel

53. Copyright Act, 17 U.S.C. §102 (originality requirement); Trademark Act of 1946, 15
U.S.C. §§ 1051-1055; TRIPS Agreement, supra note 6, at art. 15 (provision governing protectable
subject matter of trademarks).
54. See Patent Exploitation, The TIMES OF INDIA (May 22, 2007, 12:13 AM),
http://timesofindia.indiatimes.com/Patent_Exploitation/articleshow/2065331.cms (explaining that the
yoga industry is estimated to be worth approximately $3 billion dollars in the United States and $8
billion dollars worldwide); ELIZABETH DE MICHELIS, A HISTORY OF MODERN YOGA: PATANJALI
AND WESTERN ESOTERICISM 2 (2004) (Stating generally that the origins of modern yoga that is
prevalent today began over 150 years ago).
55. See generally Krishna Ravi Srinivas, Intellectual Property Rights and Traditional
Knowledge: The Case of Yoga, 47 ECON. & POL. WKLY. 2866–2871 (2007), available at
http://ssrn.com/abstract=1005298; BIKRAM’S BEGINNING YOGA CLASS / BIKRAM CHOUDHURY WITH
BONNIE JONES REYNOLDS, Registration No. TX0005259325 (2000) (Copyright Registration).
56. Commission on Intellectual Property Rights (United Kingdom), Integrating Intellectual
Property Rights and Development Policy 76 (2002) (explaining that extracts from the neem tree have
long been used in India to fight off fungal infections, as well as for various other purposes. In 1994,
the European Patent Office granted a patent to an American company and the U.S. Department of
Agriculture for a method of controlling fungus on plants using extracts of neem oil. A coalition of
Indian farmers and non-governmental organizations alleged that the patent was based on centuries of
Indian traditional knowledge and successfully argued that it should not be patentable); Lee
Gillespie-White & Eric Garduño, Treading an Independent Course for Protecting Traditional
Knowledge, International Intellectual Property Institute (2002) (discussing the hoodia cactus). See
U.S. Patent No. 6,126,950 (filed April 10, 1998); U.S. Patent No. 5,368,856 (filed Aug. 2, 1993);
U.S. Patent No. 5,356,628 (filed Dec. 2, 1993); U.S. Patent No. 5,298,251 (filed July 21, 1993);
Shubha Ghosh, Globalization, Patents, and Traditional Knowledge, 17 COLUM. J. ASIAN L. 73,
76–77 (2003) (discussing the neem case).
57. U.S. Patent No. 5,401,504 (filed Dec. 28, 1993).
166 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

because it had been used medicinally in India for thousands of years. The
CSIR supported its claim with a printed publication from an Indian medical
association and was successful in having the patent revoked.58 However, if the
traditional medicinal knowledge had not been documented, the patent may not
have been invalidated.59
An example of alleged biopiracy is that of the hoodia cactus plant. The
knowledge held by the San people of southern Africa about the use of the
hoodia cactus as an appetite suppressant is not protectable.60 Yet an invention
based on this knowledge was protected through patent law and licensed to
Pfizer. Several generations of the San people of

58. U.S. Patent No. 5,401,504 (filed Dec. 28, 1993) (all claims cancelled as of April 21, 1998
in Reexamination Certificate (3500th)); Bio-piracy of Traditional Knowledge, Traditional Knowledge
Digital Library, http://www.tkdl.res.in/tkdl/langdefault/common/Biopiracy.asp?GL=Eng (last visited
Sept. 8, 2010); Commission on Intellectual Property Rights (United Kingdom), Integrating
Intellectual Property Rights and Development Policy 76 (2002); Alyson Slack, Turmeric, 15 TED
CASE STUDIES 700 (2004), available at http://www1.american.edu/ted/turmeric.htm; Graham
Dutfield, TRIPS Related Aspects of Traditional Knowledge, 33 CASE W. RES. J. INT’L L. 233,
247–48 (Spring 2001); Shubha Ghosh, Traditional Knowledge, Patents, and the New Mercantilism
(Part II), 85 J. PAT. & TRADEMARK OFF. SOC’Y 885, 898–902 (2003) (describing the turmeric
controversy surrounding the cancellation of Dr. Shiva’s turmeric patent); Olufunmilayo B. Arewa,
TRIPS and Traditional Knowledge: Local Communities, Local Knowledge, and Global Intellectual
Property Frameworks, 10 MARQ. INTELL. PROP. L. REV. 155, 172 (2006) (describing the
cancellation of all claims in U.S. Patent No. 5,401,504); Shubha Ghosh, Globalization, Patents, and
Traditional Knowledge, 17 COLUM. J. ASIAN L. 73, 93-97 (2003) (describing the cancellation of all
claims in U.S. Patent No. 5,401,504 (filed Dec. 28, 1993) and mentioning turmeric patent claims that
have not been cancelled such as U.S. Patent No. 6,048,533 (filed Sept. 1, 1998) and U.S. Patent No.
5,897,865 (filed June 30, 1997)); Maggie Kohls, Blackbeard or Albert Schweitzer: Reconciling
Biopiracy, 6 CHI. KENT J. INTELL. PROP. 108, 120-21, 131 (2007) (describing the cancellation of all
claims in U.S. Patent No. 5,401,504 (filed Dec. 28, 1993) and stating that the turmeric case created a
negative perception of United States patent examination procedures).
59. See Patent Act of 1952, 35 U.S.C. § 102 (2006) (Novelty is destroyed if prior art is found
describing the invention seeking patent protection. Prior art can be an invention that was “known or
used by others in [the United States]” prior to the applicant’s date of invention. In addition, it can be
an invention “described in a printed publication” by anyone anywhere in the world prior to the
applicant’s date of invention, or described by another in an issued patent or published patent
application prior to the applicant’s date of invention. In this instance, the government of India was
able to challenge the novelty of the patent because the traditional knowledge had been documented
in a printed publication. However, this is not always the case); Margo A. Bagley, Patently
Unconstitutional: The Geographical Limitation on Prior Art in Small World, 87 MINN. L. REV. 679,
680-683 (discussing the neem controversy and how the geographic limitation in 35 U.S.C. § 102
creates problems regarding the use of inventions from developing countries).
60. See Commission on Intellectual Property Rights (United Kingdom), Integrating Intellectual
Property Rights and Development Policy 77–78 (2002); Olufunmilayo B. Arewa, Piracy, Biopiracy,
and Borrowing: Culture, Cultural Heritage and the Globalization of Intellectual Property 15–16
(Case Res. Paper Series in Legal Stud., Working Paper No. 04-19, 2006), available at
http://ssrn.com/abstract=596921.
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 167

southern Africa have used this plant to stave off hunger. An extract from the
plant was patented for its hunger-fighting properties, and a license was granted
to the pharmaceutical giant, Pfizer. Unlike the turmeric case, the patent on the
plant extract was not invalidated.61 The pharmaceutical giant could profit if its
Hoodia-based weight loss drug is successful, while the San remain in
poverty.62
 Unfortunately, even if it has some social or economic value, medicinal
knowledge about the uses of turmeric or hoodia cannot be protected under the
current regime.63 First, the knowledge has been around for generations. It
would, therefore, fail to meet the test of novelty under patent law.64 Secondly,
the knowledge is not attributable to a particular individual or entity. In other
words, there is no identifiable creator, but possibly a collective of creators. It
has been suggested that the communal nature of traditional knowledge is not
an obstacle to protection because it is possible to have collective ownership of
an intellectual property right.65 However, while group work can be

61. U.S. Patent No. 7,166,611 (filed June 22, 2004) (this patent is cross referenced to U.S. Pat.
No. 6,376,657, granted Apr. 23, 2002, which is a U.S. National Phase of PCT/GB98/01100, filed
Apr. 15, 1998).
62. See Rachel Wynberg, Rhetoric, Realism and Benefit-Sharing: Use of Traditional
Knowledge of Hoodia Species in the Development of an Appetite Suppressant, 7 J. WORLD INTELL.
PROP. 851, 865 (2004) (from the Benefit Sharing Agreement between the CSIR and the San, only
between 0.03 percent and 1.2 percent of net sales of the product is given to the San because the San
royalty only constitutes royalties received by CSIRfor the product); Rachel Wynberg, Sharing the
Crumbs with the San, BioWatch South Africa (March 2003), available at
http://www.biowatch.org.za/main.asp? include=docs/clippings/csir-san.htm (potential commercial
profitability of the drug was estimated to be between $1 billion and $8 billion USD a year); see also
Rachel Wynberg, Doris Schroeder & Roger Chennells, Green Diamonds of the South: An Overview
of the San-Hoodia Case, in INDIGENOUS PEOPLES, CONSENT AND BENEFIT SHARING: LESSONS
FROM THE SAN-HOODIA CASE 89–124 (Rachel Wynberg, Doris Schroeder & Roger Chennells eds.
2009); Rachel Wynberg et al., Policies for Sharing Benefits from Hoodia, in Indigenous Peoples,
CONSENT AND BENEFIT SHARING: LESSONS FROM THE SAN-HOODIA CASE 127-41 (Rachel Wynberg,
Doris Schroeder & Roger Chennells eds., 2009).
63. See Margo A. Bagley, Patently Unconstitutional: The Geographical Limitation on Prior
Art in a Small World, 87 MINN. L. REV. 679, 680–683 (2003) (discussing the neem controversy and
how the geographic limitation in the Patent Act of 1952, 35 U.S.C. § 102 creates problems with
respect to the use and patenting of inventions that originate in developing countries). 35 U.S.C. § 102
allows for the patenting of an invention unless it was known or used by others in the United States, or
patented or described in a printed publication in the United States or another country before it was
invented by the patent applicant. So, if an invention was known or used by others in a foreign country
but not patented or described in any printed publication, 35 U.S.C. §102 does not prohibit it from
being patented in the United States.
64. See Patent Act of 1952, 35 U.S.C. § 102 (2006) (This provision requires that the invention
be new. Therefore, if there is documentation that the invention was already within the public domain
prior to filing the patent application, a patent may not be issued). 65. See Patent Act of 1952, 35
U.S.C. § 116 (This provision allows a group of inventors
168 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

protected under intellectual property law, the group still needs to be clearly
identified as a collective of individuals who have each contributed to the
creation or the innovation.66
The inability to protect traditional knowledge leads to what appears to an
inequitable result. The inadequacy of intellectual property law in preventing
such uses has prompted a call to protect this intergenerational knowledge.67
This becomes a question of equity because persons foreign to the group make
use of their knowledge and are able to profit by obtaining formal legal
protection through the use of intellectual property laws. Yet, the same laws are
not effective in protecting the range of useful knowledge of these local and
indigenous groups. The contradiction lies in the fact that intellectual property
rights were sought because of the perceived value in the knowledge, yet the
knowledge itself is not subject to any kind of internationally recognized legal
right. The essence of the critique is about the injustice of the situation. In other
words, it seems that the local and indigenous communities are not being
treated fairly in these exchanges.
This is not to say that traditional knowledge cannot receive any protection
under existing laws. Traditional knowledge and intellectual property converge
in some areas but are quite distinct in other respects.68 Thus, some kinds of
traditional knowledge can be protected as intellectual property. For example,
traditional knowledge holders make use of trademarks and geographical
indications to protect marks

to jointly file for one invention even if the group of inventors did not “physically work together or at
the same time” and did not make the same “type or amount contribution.” However, all inventors
must apply jointly and make the required oath of inventorship as described in 35 U.S.C. § 115).
66. Id.
67. See, e.g., CARLOS M. CORREA, INTELLECTUAL PROPERTY RIGHTS, THE WTO AND
DEVELOPING COUNTRIES: THE TRIPS AGREEMENT AND POLICY OPTIONS 172 (Third World
Network ed., 2008) (referring to U.S. patent no. 5,304,718 on quinoa which was subsequently
invalidated, and products based on plant materials and knowledge from indigenous communities
such as Neem tree, kava, barbasco, endod, and turmeric) (citing Pat Roy Mooney, The Parts of Life:
Agricultural Biodiversity, Indigenous Knowledge, and the Role of the Third System, 152–54 (1998));
Olufunmilayo B. Arewa, TRIPS and Traditional Knowledge: Local Communities, Local Knowledge,
and Global Intellectual Property Frameworks, 10 MARQ. INTELL. PROP L. REV. 155, 168–79 (2006);
Dr. Gerard Bodeker, Traditional Medical Knowledge, Intellectual Property Rights & Benefit Sharing,
11 CARDOZO J. INT’L & COMP. L. 785 (Summer 2003); Lorna Dwyer, Biopiracy, Trade, and
Sustainable Development, 19 COLO. J. INT’L ENTL. L. & POL’Y 219 (2008); Christine H. Farley,
Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?, 30 CONN. L. REV. 1
(1997); Graham Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W. RES.
J. INT’L L. 233 (Spring 2001).
68. Peter K. Yu, Cultural Relics, Intellectual Property, and Intangible Heritage, 81 TEMP. L.
REV. 433, 443–53 (Summer 2008).
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 169

that identify the goods as originating from a particular community.69

Nonetheless, the existing intellectual property mechanisms for protecting
traditional knowledge are insufficient.70 This leads to the possibility of creating
a new category of intangible property.

D. Creating New Categories of Intellectual Property

The starting point for WIPO appears to be an expansive definition of
intellectual property that can encompass this new subject matter, even if it
does not fit within the current regime. According to a 1990 WIPO study, the
1967 WIPO Convention is clear that intellectual property is a broad concept
that can include matter that does not currently fall within existing categories.71
The definition of intellectual property includes “all other rights resulting from
intellectual activity in the industrial, scientific, literary and artistic fields.”72
WIPO defines its involvement in the possible protection of traditional
knowledge to the extent that the knowledge could be

69. Doris Estelle Long, Is Fame All There Is? Beating Global Monopolists at Their Own
Marketing Game, 40 GEO. WASH. INT’L L. REV. 123, 155–58 (2008) (identifying the use of
trademark law as a way to strengthen local identities and protect traditional knowledge). One
example is that of the Maori trademark in New Zealand; Creative Nz Agrees To Transfer Maori
Trademark—Toi Iho Tm, VOXY.CO.NZ (May 21, 2010, 6:12 PM),
http://www.voxy.co.nz/national/creative-nz-agrees-transfer-maori-trademark-toi-iho
tm/5/49511 (describing the transfer of the Toi Iho trade marks to the Toi Iho Foundation); Susy
Frankel, Trademarks and Traditional Knowledge and Cultural Intellectual Property, in TRADEMARK
LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH 433, 434 (Graeme B. Dinwoodie
& Mark D. Janis, eds., 2008) (“Indigenous peoples have recognized that . . . existing trademark
regimes may be a means by which to protect their cultural icons, signs, and symbols.”).
70. See, e.g., COMM’N ON HUMAN RIGHTS SUB-COMM’N OF PREVENTION OF DISCRIMINATION
AND PROT. OF MINORITIES WORKING GROUP ON INDIGENOUS POPULATIONS, THE MATAATUA
DECLARATION ON CULTURAL AND INTELLECTUAL PROPERTY RIGHTS OF INDIGENOUS PEOPLES 1
(1993); Mathew Rimmer, Australian Icons: Authenticity Marks and Identity Politics, 3 INDIGENOUS
L.J. 139, 153–54, 164–65 (2004) (describing the limitations of existing copyright, trademark law, and
authenticity marks in protecting aboriginal artwork); Graham Dutfield, Protecting Traditional
Knowledge and Folklore: A Review of Progress in Diplomacy and Policy Formulation, International
Trade & Sustainable Development Series, 6–7 (2003), available at
http://www.iprsonline.org/resources/docs/Dutfield%20%20Protecting%20TK%20and%20Fol
klore%20-%20Blue%201.pdf (“Asserting a property right over knowledge is insufficient to prevent
abuses when so much traditional knowledge has fallen into the public domain and can no longer be
controlled by the original TK holders.”).
71. WIPO, INTELLECTUAL PROPERTY NEEDS AND EXPECTATIONS OF TRADITIONAL
KNOWLEDGE HOLDERS: WIPO REPORT ON FACT-FINDING MISSIONS ON INTELLECTUAL PROPERTY
AND TRADITIONAL KNOWLEDGE (1998–1999), 6 (2001), available at
http://www.wipo.int/tk/en/tk/ffm/report/index/html.
72. Id. at 16, 25; WIPO, Convention Establishing the World Intellectual Property Organization
art. 2 (viii), (amended 1979).
170 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

considered intellectual property. The organization therefore recognizes that

international intellectual property law is not static, but rather that it is possible
to create new categories of intellectual property. For instance, under TRIPS
the meaning of intellectual property expanded to include subject matter, like
geographical indications, that had not previously been explicitly protected as
intellectual property in any widely accepted international agreement.73
Additionally, there have been initiatives to protect matter that might otherwise
not clearly meet the criteria for protection. The WIPO Copyright Treaty, for
example, expressly requires protection for compilations of data.74
Given this historical and political context, it may appear beneficial to
traditional knowledge holders to broaden the classic justifications of
intellectual property law in order to include traditional knowledge and “poor
people’s knowledge.”75 However, it is important to remember that many
developing countries have objected to the global reach of intellectual property
rights for various legitimate reasons. These include factors such as the
increased cost and the reduced accessibility of goods, ranging from HIV
medications to educational materials that are protected by intellectual property
rights.76 Further, it has yet to be conclusively shown that intellectual property
rights actually stimulate economic development.77 With this in mind, any new
intellectual

73. For example, the inclusion of geographical indications in TRIPS represented the first time
that this subject matter was acknowledged in a global agreement as a category of intellectual
property. See TRIPS Agreement, supra note 6, at arts. 22, 23. Indications of sources were recognized
in the Lisbon Agreement for the Protection of Appellations of Origin and their International
Registration, 923 U.N.T.S. 205 (1958). However, this agreement has only 27 signatories. See Lisbon
Agreement for the Protection of Appellations of Origin and their International Registration:
Objective and Main Features, WIPO, http://www.wipo.int/lisbon/en/general (last visited Nov. 4,
2010).
74. WIPO: Copyright Treaty, adopted Dec. 20, 1996, 36 I.L.M. 65, art. 5 (1997). This is
because compilations of data would not necessarily be able to recieve copyright protection due to the
requirement that there be some minimal creativity.
75. See, e.g., Madhavi Sunder, The Invention of Traditional Knowledge, 70 LAW & CONTEMP.
PROBS. 97, 123–124 (2007).
76. J. H. Reichman, The TRIPS Agreement Comes of Age: Conflict or Cooperation with the
Developing Countries?, 32 CASE W. RES J. INT’L L. 441, 450–51 (Summer 2000) (noting developing
country concerns about the costs associated with IP protection, including issues such as access to
medicines); Margaret Chon, Intellectual Property “from Below”: Copyright and Capability for
Education, 40 U.C. DAVIS L. REV. 803 (2007); DUTFIELD &
SUTHERSANEN, GLOBAL INTELLECTUAL PROPERTY LAW 9 (Edward Elgar, 2008) (observing that
intellectual property rights generally result in increased prices and a reduced access to knowledge).
77. Andrew W. Torrance & Bill Tomlinson, Patents and the Regress of Useful Arts, 10 COLUM.
SCI. & TECH. L. REV 130, 132, 166 (2009); see Jerome H. Reichman, Intellectual Property in the
Twenty-First Century: Will the Developing Countries Lead or Follow?, 46 HOUS. L. REV. 1115,
1116–1118 (2009) (discussing how various nations attained high levels of
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 171

property right should be carefully contemplated and adequately justified,

taking into consideration a balancing of rights and obligations.78
Developing countries, seeing enhanced intellectual property laws as
ill-suited to their levels of economic development, sought more relaxed
intellectual property standards than those which were ultimately implemented
in TRIPS.79 Given that the contours of traditional knowledge are not
well-defined, developing countries may be overconfident in the assumption
that a sui generis traditional knowledge right will benefit them in the way that
intellectual property rights have benefited some parts of the industrialized
world. A sui generis intellectual property model to protect traditional
knowledge will not eliminate the need to enforce and protect existing
intellectual property rights. Nor will the problems of the current intellectual
property system be corrected through the creation of a new right. Moreover, it
may result in increased costs, including the need to pay to access the
previously free cultural goods of others.

E. Reaching Agreement on an International Legal Instrument to Protect

Traditional Knowledge
Reaching an agreement on the text of an international legal instrument to
protect traditional knowledge is no small task. In this section of the paper, I
will outline the WIPO mandate and progress on

economic growth without having strong intellectual property rights); see GOV’T ACCOUNTABILITY
OFFICE, INTELLECTUAL PROPERTY: OBSERVATIONS ON EFFORTS TO QUANTIFY THE ECONOMIC
EFFECTS OF COUNTERFEIT AND PIRATED GOODS 27 (2010) (observing that despite significant efforts,
it is difficult, to quantify the net effect of counterfeiting and piracy on the economy). But see Viktor
Mayer-Schönberger, The Law as Stimulus: The Role of Law in Fostering Innovative
Entrepreneurship, 6 J. L. & POL’Y FOR INFO. SOC’Y 153, 166–68 (2010) (arguing that the patent
system overall tends to benefit entrepreneurs). See Rod Falvey, Neil Foster & David Greenaway,
Intellectual Property Rights and Economic Growth, in INTERNATIONALISATION OF ECONOMIC
POLICY 7–9 (2004) (showing a positive relationship between intellectual property protection and
economic growth); see, e.g., Walter G. Park & Juan Carlos Ginarte, Intellectual Property Rights and
Economic Growth, 15 CONTEMP. ECON. POL’Y 51 (1997) (stating that intellectual property rights
indirectly affect economic growth).
78. See Robert L. Ostergard, Jr., Economic Growth and Intellectual Property Rights Protection:
A Reassessment of the Conventional Wisdom, in INTELLECTUAL PROPERTY, TRADE AND
DEVELOPMENT: STRATEGIES TO OPTIMIZE ECONOMIC DEVELOPMENT IN A TRIPS-PLUS ERA, 115,
118, 140–41 (Daniel Gervais ed., 2007).
79. Adebambo Adewopo, The Global Intellectual Property System and Sub-Saharan Africa: A
Prognostic Reflection, 33 U. TOL. L. REV. 749, 754–69 (2002); CARLOS CORREA, INTELLECTUAL
PROPERTY RIGHTS, THE WTO AND DEVELOPING COUNTRIES 3 (2000) (discussing how industrialized
countries only sought strong intellectual property rights once they had attained a certain level of
industrialization and economic development).
172 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

traditional knowledge discussions, including the apparent tensions between

developing and developed countries.
WIPO’s work on traditional knowledge began in 1998 with two roundtable
discussions and nine fact-finding missions on traditional knowledge,
innovation, and creativity.80 The most recent WIPO IGC mandate, which was
agreed upon by a consensus decision of the 184 WIPO member states, is a
strong indication that some progress will be made on the international
protection of traditional knowledge.81 The IGC is tasked with reaching
agreement on the text of an international legal instrument to protect genetic
resources, traditional knowledge, and traditional cultural expressions. The text
is to be submitted to the WIPO General Assembly by 2011.82 The WIPO IGC
held its first meeting under the new mandate in early December, 2009.83
However, the discussions on this issue have been slow and difficult, with
many national delegations expressing frustration at the lack of progress in
creating an international framework for the protection of such knowledge.84
This appears to be primarily due to substantial lack of agreement on the need
to protect traditional knowledge, and perhaps, on the utility of addressing the
concerns of traditional

80. WIPO, MATTERS CONCERNING INTELLECTUAL PROPERTY AND GENETIC RESOURCES,

TRADITIONAL KNOWLEDGE AND FOLKLORE—AN OVERVIEW ¶¶ 29–30 WIPO Doc.
WIPO/GRTKF/IC/1/3 (2001). WIPO’s involvement on expressions of folklore dates back to its 1978
work with UNESCO on model provisions for national laws to protect folklore; WIPO IGC,
MATTERS CONCERNING INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL
KNOWLEDGE AND FOLKLORE 3, WIPO Doc. WO/GA/26/6 (2000).
81. See WIPO, IGC RESUMES SUBSTANTIVE WORK, WIPO Doc. PR/2009/625 (2009),
available at http://www.wipo.int/pressroom/en/articles/2009/article_0058.html. 82. WIPO IGC,
MATTERS CONCERNING THE INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND
GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE, WIPO Doc. WO/GA/38/9
(2009). The text is to be based on existing WIPO documents, with three documents to provide the
basis for the committee’s work: WIPO/GRTKF/IC/9/4, WIPO/GRTKF/IC/9/5,
WIPO/GRTKF/IC/11/8A (Traditional Cultural Expressions, Traditional Knowledge and Genetic
Resources). According the schedule included in the mandate, the WIPO General Assembly meeting
is to take place in September 2011.
83. WIPO, IGC RESUMES SUBSTANTIVE WORK, WIPO Doc. PR/2009/625 (2009), available at
http://www.wipo.int/pressroom/en/articles/2009/article _0058.html (after the first meeting, further
discussion on the composition of inter-sessional working groups, their mandates, and various related
matters was still required); WIPO, WIPO MEMBER STATES ADVANCE WORK ON TRADITIONAL
KNOWLEDGE, FOLKLORE AND GENETIC RESOURCES, WIPO Doc. PR/2010/639 (2010), available at
http://www.wipo.int/pressroom/en/articles/2010/article_0012.html (update showing IGC progress).
84. WIPO IGC, REPORT ¶¶ 13, 19, 22-29, 32, 34, 37, 38, 42, 242, WIPO Doc.
WIPO/GRTKF/IC/14/12 (2009).
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 173

knowledge holders by creating new legal rights.

Developing countries tend to support traditional knowledge protection
while the industrialized countries are more hesitant. For instance, in its
response to a 2007 WIPO questionnaire, the United States conveyed its
reluctance to move forward on international legal protection for traditional
knowledge.85 The United States expressed the view that it was premature to
discuss various matters relating to the protection of traditional knowledge.
These included the term of protection, possible limitations and exceptions, and
sanctions and penalties.86 In contrast, the Bandung Declaration of the New
Asian African Strategic Partnership submitted to WIPO that same year by
Indonesia stresses the “urgent need to expedite the establishment of
international legally binding instruments” to protect traditional knowledge,
including sui generis mechanisms.87
In an attempt to breach the apparent impasse, the African Group submitted
a proposal to the 14th session of the WIPO IGC.88 In this June 2009 proposal,
the African Group seeks a legally binding international instrument for the
protection of traditional knowledge. The proposal summarizes the general
positions of the WIPO member States, categorizes them into groups and then
provides the African Group’s suggestion for moving forward.89 The summary
reflects the lack of consensus on matters ranging from the definition of
traditional knowledge, to issues such as whom should be the beneficiaries of
any such protection and whether there is actually a need for an international
regime to protect this subject matter.90 This underscores the need for a solid
policy rationale for its protection, and one that makes sense in respect of
intangible goods.

85. The United States is seen as one of the primary opponents to an international regime to
protect TK. See Paul Kuruk, Goading a Reluctant Dinosaur: Mutual Recognition Agreements as a
Policy Response to the Misappropriation of Foreign Traditional Knowledge in the United States, 34
PEPP. L. REV. 629, 683–86 (2007).
86. WIPO IGC, TRADITIONAL CULTURAL EXPRESSIONS/EXPRESSIONS OF FOLKLORE AND
TRADITIONAL KNOWLEDGE, COMMENTS OF THE UNITED STATES OF AMERICA 5–7, 12–4 (2007),
available at http://www.wipo.int/export/sites/www/tk/en/igc/pdf/usa_tk-tce.pdf (responses to
Questions 5, 6, and 8).
87. WIPO, BANDUNG DECLARATION ON THE PROTECTION OF TRADITIONAL CULTURAL
EXPRESSIONS, TRADITIONAL KNOWLEDGE, AND GENETIC RESOURCES ¶ 8, WIPO Doc.
WIPO/GRTKF/IC/11/12 (2007) (submitted by Indonesia).
88. WIPO, AFRICAN GROUP SUBMISSION ON WIPO/GRTKF/IC/13/9, WIPO Doc.
WIPO/GRTKF/14/9 (2009).
89. Id. at Annex I, page 1.
90. WIPO, AFRICAN GROUP SUBMISSION ON WIPO/GRTKF/IC/13/9, WIPO Doc.
WIPO/GRTKF/14/9 (2009).
174 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1 II.

JUSTIFYING INTANGIBLE PROPERTY RIGHTS

 A. Classic Approaches to Intellectual Property Law
Unlike physical property, the boundaries of abstract objects are
exclusively determined by the law that creates property rights in intangible
goods. Thus, such property rights create exclusivity where none would
otherwise exist. As intangible goods, intellectual creations are non-rivalrous
and non-excludable.91 Intellectual property is considered a public good because
it is not diminished by additional uses.92 It is therefore important to have a
solid policy rationale for any legal regime that creates property in intangible
goods. I will briefly outline the main justifications for intellectual property
rights, which can be described as natural rights theories and utilitarian or
incentive theories.93
According to natural rights theory, the creator deserves protection for his
intellectual creations because he has mixed his labor with what previously
belonged to the commons and is therefore entitled to his just desserts.94
Utilitarian justifications for intellectual property protection tend to be based on
the goal of promoting economic efficiency, or providing incentives for
innovation despite the costs that may be associated with creating new
products. This is particularly true for industrial property.95

91. Michael A. Carrier, Cabining Intellectual Property Through a Property Paradigm, 54

DUKE L.J. 1, 32 (2004); CHRISTOPHER MAY, A GLOBAL POLITICAL ECONOMY OF INTELLECTUAL
PROPERTY RIGHTS: THE NEW ENCLOSURES 3–4 (2d ed. 2010).
92. WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF
INTELLECTUAL PROPERTY LAW 13–14 (2003).
93. The relatively new “social planning theory” approach to IPRs has as its underlying idea the
need for intellectual property protection to be part of planned attempt to create rules that “advance a
vision of a just and attractive culture.” See, eg., William Fisher, Theories of Intellectual Property, in
NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 175 (Stephen R. Munzer ed.,
2001).
94. See JANICE M. MUELLER, PATENT LAW 28–29 (Vicki Been et al. eds., 3d ed. 2009)
(discussing natural rights theory). Another natural rights approach, more closely associated with civil
law systems, treats intellectual property as a type of moral right linked to the creator’s personhood.
Moral rights theory tends to be more commonly used to justify copyright protection. For example,
international copyright law recognizes the author’s moral right to have the work attributed to her and
not to have the work altered without consent. See WIPO, BERNE CONVENTION FOR THE PROTECTION
OF LITERARY AND ARTISTIC WORKS, art. 6 bis (Paris Act of July 24, 1971 as am. Sept. 28, 1979)
(1886) [hereinafter Berne Convention]; Visual Artists Rights Act of 1990, 17 U.S.C, §106A (2006)
(limited moral rights provision for intentional or grossly negligent destruction of a visual artwork).
95. Trademarks, for example, are thought to help consumers make more economically efficient
choices by relying on the marks to distinguish the source of goods. Trademark laws serve the public
good insofar as they reduce confusion and misleading practices in the market place. They also
encourage the production of high quality products to be used in association
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 175

It has been suggested that the utilitarian justification of providing

incentives for innovation is, though not perfect, perhaps the strongest
justification for intellectual property rights.96 Society agrees to protect certain
intangible goods not only for the benefit of the producers but also for the
benefit of the users and the public in general. Intellectual property rights are
part of a social contract—an exchange between the inventor or creator and the
public.97 This is a good starting point from which to assess intellectual property
law in terms of its public purpose, but it has its limitations. The modern
discourse on intellectual property often focuses on innovation and creativity as
the utilitarian goals of intellectual property policy.98 Unfortunately, the other
social benefits that intellectual property law should generate tend to be
overlooked.99 It is useful to go beyond a predominantly economic focused
utilitarian approach in order to create space for the consideration of other
goals, such as access to affordable knowledge goods.100

B. An Instrumentalist Approach
Property rights in intangible goods can affect the distribution of

with the mark. Patents, for example, provide an incentive for commercializing new inventions to
compensate for the costs involved in developing and bringing a new product to the market.
Moreover, they decrease secrecy and increase the pool of knowledge that is available to society. See
WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL
PROPERTY LAW 294 (2003). Patenting requires that the invention be disclosed such that a skilled
third party could reproduce the invention, thereby leading to the dissemination of knowledge. Patents
can thus be said to curtail the desire to keep inventions secret. See TRIPS Agreement, supra note 6,
at art. 29.1; U.S. Patent Act, 35 U.S.C. §111, 112 (requiring that the patent application contain a
specification, with a written description of the invention, as well as an explanation of how to make
and use the invention “in such full, clear, concise, and exact terms as to enable any person skilled in
the art to which it pertains . . . to make and use the same”).
96. Edward C. Hettinger, Justifying Intellectual Property, 18 PHILOSOPHY & PUBLIC AFFAIRS,
31, 47–48 (Winter 1989).
97. See, e.g., JANICE M. MUELLER, PATENT LAW 30–31 (Vicki Been et. al. eds., 3d ed. 2009).
Though this explanation is often used to explain patent law, it is applicable to other forms of
intellectual property as well.
98. Professor Long suggests that, though intellectual property has been justified on the basis of
natural law, labor theory, and personality theory, the TRIPS Agreement has established the theory of
utilitarianism, and trade utilitarianism in particular, as the single international philosophy of
intellectual property rights. See Doris Estelle Long, “Democratizing” Globalization: Practicing the
Policies of Cultural Inclusion, 10 CARDOZO J.
INT’L & COMP. L. 217, 243 (2002).
99. See Margaret Chon, Intellectual Property and the Development Divide, 27 CARDOZO L.
REV. 2821, 2831 (2006) (observing that there has been a focus on the wealth maximizing function of
intellectual property).
100. Id. at 2823, 2858 (suggesting that intellectual property should be responsive to
development paradigms and advocating a principle of substantive equality).
176 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

power in favor of the rights holders.101 This is because certain abstract objects
relate to physical or knowledge resources upon which many may depend.102
The push to protect traditional knowledge can be characterized, in part, as a
response to the perceived unequal distribution of power.103 This is largely due
to the expansion of developed country standards for intellectual property
protection for all countries without regard to their differing levels of
development.104 The traditional knowledge narrative appears to be partly driven
by a desire for a more equitable international intellectual property system, one
that is seen to value the contributions of both the developed and the
developing world.105
Professor Drahos proposes an instrumentalist approach to intellectual
property, which considers the social costs of intellectual property protection.106
He characterizes intellectual property rights as “liberty-intruding privileges of
a special kind,” which can lead to factionalism and to a concentration of
private power.107 It follows that if intellectual property is considered from a
distributive justice perspective, the scope of these rights should be limited.108
This approach strives to achieve more than a simple cost-benefit analysis and
conceives

101. PETER DRAHOS, A PHILOSOPHY OF INTELLECTUAL PROPERTY 158–59 (1996);

CHRISTOPHER MAY, A GLOBAL POLITICAL ECONOMY OF INTELLECTUAL PROPERTY RIGHTS: THE
NEW ENCLOSURES 68 (2d ed. 2010) (explaining that there is a disparity in power between the owners
of intellectual property and the social groups who may benefit from more openness).
102. PETER DRAHOS, A PHILOSOPHY OF INTELLECTUAL PROPERTY 158–59 (1996). Examples
include resources such as seeds, genes, forms of medical treatment, and chemical compounds.
103. David Castle & E. Richard Gold, Traditional Knowledge and Benefit Sharing: From
Compensation to Transaction, in ACCESSING AND SHARING THE BENEFITS OF THE GENOMICS
REVOLUTION 65, 67 (Peter W.B. Phillips & Chika B. Onwuekwe eds., 2007); David Skillman &
Christopher Ledford, Limiting the Commons with Uncommon Property: A Critique of Chander &
Sunder’s “The Romance of the Public Domain,” 8 OR. REV. INT’L L.
337, 340–41, 347 (2006).
104. David Skillman & Christopher Ledford, Limiting the Commons with Uncommon
Property: A Critique of Chander & Sunder’s “The Romance of the Public Domain,” 8 OR. REV.
INT’L L. 337, 340–41, 347 (2006).
105. David Castle & E. Richard Gold, Traditional Knowledge and Benefit Sharing: From
Compensation to Transaction, in ACCESSING AND SHARING THE BENEFITS OF THE GENOMICS
REVOLUTION 65, 67 (Peter W.B. Phillips & Chika B. Onwuekwe eds., 2007).
106. PETER DRAHOS, A PHILOSOPHY OF INTELLECTUAL PROPERTY 213–214, 223 (1996).
107. Id. at 5.
108. Indeed, rather than viewing intellectual property law as creating rights, Professor Drahos
suggests that the narrative should shift to intellectual property law as granting privileges, that are
accompanied by corresponding duties. See id. at 200.
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 177

of intellectual property as a means to an end.109 Utilizing this model,

intellectual property law would be developed with a view to achieving
objectives that are based on some moral value. Though instrumentalism is not
linked to any particular moral value, its humanist orientation would lead to a
consideration of distributive justice theories.110
If the traditional knowledge dialogue is partially a response to the
deleterious effects of TRIPS, then a distributive justice analysis of traditional
knowledge may be relevant to the traditional knowledge narrative. Treating
intellectual property as a means to an end, one might ask whether a traditional
knowledge right will achieve the goal of more equity, or, for the purposes of
this paper, whether it will result in access to affordable knowledge goods.
Global intellectual property law has been criticized as reflecting a top-down
approach to intellectual property regulation and one that is based on the needs
and objectives of wealthy states.111 Asking whether a traditional knowledge
right supports a particular equity oriented outcome serves as a useful
framework for analyzing property rights in intangible goods. It also allows for
a consideration of some of the concerns of developing countries, knowledge
users, and the poor.
From a development perspective, Professor Chon suggests that a
distributive justice approach, which focuses on the needs of users in both
developed and developing countries for accessible and affordable knowledge
goods may respond to the imbalance in the global regime.112 As Professor Chon
points out, distributive justice can be approached from an economic
perspective or a political perspective. It may also involve a consideration of
the relationship between the production of knowledge goods and other social
goods such as public health or education.113 On the global scale, this may lead
one to query how best to ensure the intellectual property balance such that the
inequities of the global trading system are not exacerbated.114

1. The International Treaties Support a Balanced Approach

Given the international nature of the traditional knowledge debate, some
consideration should be given to the global view of intellectual

109. PETER DRAHOS, A PHILOSOPHY OF INTELLECTUAL PROPERTY 213–214, 223 (1996).

110. Id. at 214–215.
111. Id. at 805.
112. Margaret Chon, Intellectual Property “from Below”: Copyright and Capability for
Education, 40 U.C. DAVIS L. REV. 803, 805, 813 (2007).
113. Id. at 809.
114. Id. at 810.
178 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

property rights as reflected by the major multilateral intellectual property

agreements. Although they are always born of compromise, the treaties
represent the best approximation of the collective views of the states that have
endorsed them.
The language of the international treaties, which reflects the need to
balance the rights of users and producers, supports a distributive justice
approach to international intellectual property law. The balancing function of
the intellectual property regime may be characterized as a question of
distributive justice because it requires a consideration of which social group is
entitled to intellectual property protected knowledge goods.115 The Berne
Convention and the Paris Convention, for example, contain various limitations
and exceptions to intellectual property rights to prevent the abuse of the
limited monopoly and to allow users to access the work even if it is subject to
property rights.116 Similarly, TRIPS provides for limited exceptions to the rights
conferred by copyright, patent, and trademark.117 These provisions aim to
ensure not only that the public domain is enhanced, but also that intellectual
property law contributes to the social and economic needs of society.118

115. Id. at 806.

116. See e.g., Paris Convention for the Protection of Industrial Property art. 5A(2), 5C(1)
(1883) [hereinafter Paris Convention] (Article 5A(2) allows for the compulsory licensing of patents
under certain circumstances and Article 5C(1) of the Paris Convention allows countries to cancel the
registration of a mark if it goes unused without any reasonable justification on the part of the right
holder. Article 5A(2) provides that “[e]ach country of the Union shall have the right to take
legislative measures providing for the grant of compulsory licenses to prevent the abuses which
might result from the exercise of the exclusive rights conferred by the patent, for example, failure to
work.” Article 5C(1) states that “[i]f, in any country, use of the registered mark is compulsory, the
registration may be cancelled only after a reasonable period, and then only if the person concerned
does not justify his inaction.” In copyright law, Article 9 of the Berne Convention allows Berne
members to provide in their national laws for the reproduction of protected works “in certain special
cases,” on the condition that the reproduction “does not conflict with a normal exploitation of the
work and does not unreasonably prejudice the legitimate interests of the author.”).
117. TRIPS Agreement, supra note 6, at art. 30, provides for limited exceptions to the patent
right, art. 17 provides for limited exception to the rights conferred by trademark, and art. 13 provides
for limited exceptions to the rights conferred by copyright.
118. The term “public domain” as used in this article refers to works that are not subject to
intellectual property rights. Works that are protected under intellectual property law but subject to
certain limited exceptions to the rights conferred would not, in the context of this piece, be
considered works in the “public domain.” I recognize that some eminent scholars, such as Professor
Boyle, use the term “public domain” to encompass those areas of free access within intellectual
property law. See James Boyle, THE PUBLIC DOMAIN:
ENCLOSING OF THE COMMONS OF THE MIND 38–39 (2008). The aspects of traditional knowledge
that are currently debated are those that fall within the public domain insofar as they are not subject
to intellectual property rights at all. Thus, I discuss the exceptions to intellectual property rights as an
element of the balancing function of intellectual property
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 179

Even more pertinent to the discussion about excluded subject matter, is the
international recognition that not all forms of knowledge should fall within the
ambit of intellectual property law. For instance, TRIPS enshrines the
established principle that copyright law extends to the expression of an idea,
but not to the idea itself.119 Further, with a view to protecting public health and
morality, WTO members may exclude diagnostic, therapeutic, and surgical
methods from patentability.120 Additionally, the policy objective of curtailing
monopolies on language means that generic words are not protectable as
trademarks.121 In other words, there may be policy reasons for preventing some
types of knowledge from being subject to property rights.
Finally, TRIPS, which incorporates by reference the main provisions of
the Berne Convention and the Paris Convention, explicitly acknowledges in
Articles 7 and 8 the importance of a balanced intellectual property regime.122
Article 7 states:
The protection and enforcement of intellectual property rights
should contribute to the promotion of technological innovation
and to the transfer and dissemination of technology, to the
mutual advantage of producers and users of technological
knowledge and in a manner conducive to social and economic
welfare, and to a balance of rights and obligations [emphasis
added].123
This is consistent with a distributive justice analysis of intellectual
property law as well as with the notion that intellectual property policy should
serve some broader public good.124
The arguments about equity and fairness that are raised in the context of
the traditional knowledge narrative reinforce the need to take the distributive
justice aspects of intellectual property policy into account in determining the
appropriate model for the protection of

policy rather than as part of the public domain.

119. TRIPS Agreement, supra note 6, at art. 9.2. Procedures, methods of operation, and
mathematical concepts are also excluded from protection.
 120. Id. at art. 27.3. In addition, art. 27.2 of TRIPS allows WTO members to exclude certain
inventions from patentability in order to protect public health and morality. 121. Id. at art. 15–17;
Paris Convention, supra note 116, at art. 6 quinquies. 122. Article 8 of TRIPS incorporates the
flexibility for WTO member states to implement measures to protect public health and to “promote
the public interest in sectors of vital importance to their socio-economic and technological
development.” TRIPS Agreement, supra note 6, at art. 8.
123. Id. at art. 7.
124. See Peter K. Yu, The Objectives and Principles of the TRIPS Agreement, 46 HOUS. L.
REV. 979 (2009).
180 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

traditional knowledge.

III. A TRADITIONAL KNOWLEDGE RIGHT

A. The Objectives of Traditional Knowledge Protection

This section of the paper compares the objectives and rationale for
traditional knowledge protection to those for intellectual property. In so doing,
the aim is to consider whether, given some of the stated objectives for
traditional knowledge protection, an intellectual property model is suitable.
Some commentators view a sui generis intellectual property regime as a
necessity.125 Others have suggested that it may make sense for traditional
knowledge to be protected as intellectual property due to broad similarities
between the two.126
The view that this knowledge should be treated as intellectual property is
reflected in public statements made by certain indigenous groups. For
example, the 1993 Mataatua Declaration on Cultural and Intellectual
Property Rights of Indigenous Peoples127 reaffirmed the undertaking of United
Nations Member States to “[a]dopt or strengthen appropriate policies and/or
legal instruments that will protect indigenous intellectual and cultural property
and the right to preserve customary and administrative systems and practices .
. . .”128 Similarly, the 1992 Indigenous Peoples Earth Charter129 contains various
provisions on traditional knowledge, including a statement indicating that it
should be considered a crime to usurp traditional knowledge and medicines,
and a request that “our right to intellectual and cultural properties be
guaranteed and that the mechanism for its implementation be in favor of our
peoples, and studied in depth and implemented.”130

125. Lorna Dwyer, Biopiracy, Trade, and Sustainable Development, 19 Colo. J. INT’L ENVTL.
L. & POL’Y 219, 249–52 (Summer 2008).
126. Peter K. Yu, Cultural Relics, Intellectual Property, and Intangible Heritage, 81 TEMP. L.
REV. 433, 448–53 (Summer 2008).
127. COMM’N ON HUMAN RIGHTS SUB-COMM’N OF PREVENTION OF DISCRIMINATION AND
PROT. OF MINORITIES WORKING GROUP ON INDIGENOUS POPULATIONS, THE MATAATUA
DECLARATION ON CULTURAL AND INTELLECTUAL PROPERTY RIGHTS OF INDIGENOUS PEOPLES
(1993). The conference was convened by the Nine Tribes of the Mataatua in New Zealand and
attended by more than 140 delegates from fourteen countries.
128. Id. at 1.
129. Kari-oca Conference, Appendix 5 (May 25–30, 1992) [hereinafter IPEC]. 130. Id. ¶¶ 99, 102.
Other traditional knowledge related statements can be found in paragraphs 28 and 96 of the IPEC.
With respect to the criminalization of the taking of traditional knowledge, the notion that the illegal
taking should be considered a crime is not a concept that is foreign to intellectual property law.
 Indeed, TRIPS, Article 61 requires the criminalization of trademark counterfeiting or copyright
piracy that takes place “on a
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 181

The WIPO draft provisions on traditional knowledge and traditional

cultural expressions consist of general principles and objectives. A review of
the draft provisions reveals that the international community is yet to address
traditional knowledge protection in a specific and definitive way. However,
since one of the options is to treat it as a new form of intellectual property, I
will next discuss the areas where the goals of traditional knowledge and
intellectual property may overlap and where they may diverge or conflict.

1. Commonality between the Policy Objectives of Intellectual Property and

Traditional Knowledge
I identify the right to exclude others, economic incentives, and innovation
as three potentially shared objectives of traditional knowledge and intellectual
property.

a. Exclusion
Intellectual property rights prevent others from making use of the
protected creation without the consent of the right holder. This is similar to the
protection sought for traditional knowledge insofar as traditional knowledge
holders seek to prevent others from making use of their intangible goods
without consent.131 However, because the right holder is clearly identified in
the intellectual property context, the excluded other is also well defined. In the
traditional knowledge context, it may not be clear precisely whom is the
“other” to be excluded.132 This is because the boundaries of the category for
traditional knowledge holder are amorphous.133

b. Economic Rationale
Some traditional knowledge holders may be opposed to commercializing
goods that have been created from the use of traditional knowledge and
genetic resources because they consider it sacred.134 Thus, even if permission
were sought to use the traditional

commercial scale.”
131. Among the objectives of traditional knowledge protection is the requirement for prior
informed consent. See infra note 140.
132. See the discussion of “indigenous person” at section III (B) of the paper. 133. Indeed, it
may not be possible to create clear boundaries, particularly if, as discussed in the paper, not all
indigenous persons are traditional, and not all traditional persons are indigenous.
134. Peter K. Yu, Cultural Relics, Intellectual Property, and Intangible Heritage, 81 TEMP. L.
REV. 433, 455 (Summer 2008); WIPO IGC, DECLARATION OF SHAMANS ON INTELLECTUAL
PROPERTY AND PROTECTION OF TRADITIONAL KNOWLEDGE AND GENETIC RESOURCES ¶ 2, WIPO
Doc. WIPO/GRTKF/IC/2/14 (2001).
182 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

knowledge, it may well be refused.135

Still, not all traditional knowledge would fall into this category. According
to the Mataatua Declaration, for example, indigenous peoples should be the
sole owners of their cultural and intellectual property.136 However, they are
willing to share this knowledge as long as they can define and control its
use.137 Some traditional knowledge holders have expressed the view that they
should be entitled to any patent rights arising from the use of their knowledge,
as well as the ability to prevent any unauthorized taking of their genetic
resources.138 Thus, protecting traditional knowledge does not necessarily imply
that such knowledge could not be utilized in commercial channels, provided
the traditional knowledge producing communities could exercise control over
its use.
Equitable benefit sharing is another goal that reflects the economic
objectives of traditional knowledge protection.139 The objective is to

135. Peter K. Yu, Cultural Relics, Intellectual Property, and Intangible Heritage, 81 TEMP. L.
REV. 433, 457 (Summer 2008); WIPO IGC, DECLARATION OF SHAMANS ON INTELLECTUAL
PROPERTY AND PROTECTION OF TRADITIONAL KNOWLEDGE AND GENETIC RESOURCES ¶ 2, WIPO
Doc. WIPO/GRTKF/IC/2/14 (2001).
136. COMM’N ON HUMAN RIGHTS SUB-COMM’N OF PREVENTION OF DISCRIMINATION AND
PROT. OF MINORITIES WORKING GROUP ON INDIGENOUS POPULATIONS, THE MATAATUA
DECLARATION ON CULTURAL AND INTELLECTUAL PROPERTY RIGHTS OF INDIGENOUS PEOPLES 1–2
(1993) (declaring that “Indigenous Peoples of the world have the right to self determination and in
exercising that right must be recognised as the exclusive owners Of their cultural and intellectual
property . . . .”).
137. See, e.g., COMM’N ON HUMAN RIGHTS SUB-COMM’N OF PREVENTION OF
DISCRIMINATION AND PROT. OF MINORITIES WORKING GROUP ON INDIGENOUS POPULATIONS, THE
MATAATUA DECLARATION ON CULTURAL AND INTELLECTUAL PROPERTY RIGHTS OF INDIGENOUS
PEOPLES 1–2 (1993); (recognizing that “Indigenous Peoples are capable of managing their traditional
knowledge themselves, but are willing to offer it to all humanity provided their fundamental rights to
define and control this knowledge are protected by the international community . . . .”).
138. WIPO IGC, DECLARATION OF SHAMANS ON INTELLECTUAL PROPERTY AND PROTECTION
OF TRADITIONAL KNOWLEDGE AND GENETIC RESOURCES ¶¶ 7, 15, WIPO Doc.
WIPO/GRTKF/IC/2/14 (2001).
139. WIPO IGC, THE PROTECTION OF TRADITIONAL KNOWLEDGE: REVISED OBJECTIVES AND
PRINCIPLES, WIPO Doc. WIPO/GRTKF/IC/9/5 (2006). This is one of the documents that will serve
as the basis of discussion for an international instrument to protect traditional knowledge. The
enumerated policy objectives are as follows: recognize value, promote respect, meet the actual needs
of traditional knowledge holder, promote conservation and preservation of traditional knowledge,
empower holders of traditional knowledge and acknowledge the distinctive nature traditional
knowledge systems, support traditional knowledge systems, contribute to safeguarding traditional
knowledge, repress unfair and inequitable uses, concord with relevant international agreements and
processes, promote innovation and creativity, ensure prior informed consent and exchanges based on
mutually agreed terms, promote equitable benefit-sharing, promote community development and
legitimate trading activities, preclude the grant of improper intellectual property rights to
unauthorized parties, enhance transparency and mutual confidence, and complement
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 183

“promote the fair and equitable sharing and distribution of monetary and
non-monetary benefits arising from the use of traditional knowledge.”140
In addition to the objectives outlined by WIPO, the language in
international instruments, such as the Convention on Biological Diversity
(“CBD”) and the International Treaty on Plant Genetic Resources provide
further evidence that there is some interest in commercializing traditional
knowledge, or at least sharing in the economic benefits derived therefrom.141
For example, the CBD Article 8(1)(j) encourages an “equitable sharing of the
benefits” arising from the use of traditional knowledge.142 Article 15(5) of the
CBD requires State parties to obtain prior informed consent before accessing
genetic resources.143 The wide support for these treaties, as evidenced by the
number of signatories, suggests that there are a significant number of nations
whose indigenous stake-holders support the idea of prior informed consent
and equitable benefit sharing if a product based on traditional knowledge is
commercialized.
It seems reasonable to conclude therefore that part of the policy rationale
underlying the protection of traditional knowledge is commercial. Traditional
knowledge is said to play an important role in

protection of traditional cultural expressions.

140. Id. at 4. A closely related objective of traditional knowledge protection is to ensure that
prior informed consent for the use of the knowledge is obtained on mutually agreed terms. See id.
141. Convention on Biological Diversity (with annexes), concluded at Rio de Janeiro on June
5, 1992, [hereinafter CBD] 1760 UNTS 79; 31 ILM 818 (1992) (as of this writing, the United States
has signed but not ratified the CBD), available at http://www.cbd.int/convention/parties/list/. The
Preamble of the CBD expressly recognizes “the close and traditional dependence of many indigenous
and local communities embodying traditional lifestyles on biological resources, and the desirability
of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices
. . . .”; Food and Agricultural Organization, International Treaty on Plant Genetic Resources for Food
and Agriculture, (2002) [hereinafter ITPGR] (as of this writing, the United States has signed but not
ratified the ITPGR), available at http://www.fao.org/legal/treaties/033s-e.htm. The CBD and the
ITGPR have provisions relating to intellectual property rights, traditional knowledge and access to
genetic materials.
142. CBD, supra note 141, at art. 8(j) provides: “Subject to its national legislation, respect,
preserve and maintain knowledge, innovations and practices of indigenous and local communities
embodying traditional lifestyles relevant for the conservation and sustainable use of biological
diversity and promote their wider application with the approval and involvement of the holders of
such knowledge, innovations and practices and encourage the equitable sharing of the benefits
arising from the utilization of such knowledge, innovations and practices.”
143. Id. at art. 15(5) provides: “Access to genetic resources shall be subject to prior informed
consent of the Contracting Party providing such resources, unless otherwise determined by that
Party.”
184 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

the global economy, with the market value of plant-based medicines sold in
developed countries estimated to be worth billions.144 Also, some indigenous
groups may view their traditional knowledge as private property that is
capable of commercialization.145 Thus, the commercial nature of intellectual
property law is not necessarily incompatible with traditional knowledge
protection.
Despite this common commercial aspect, the economic objective of
traditional knowledge is related to the sharing of benefits from the
commercialization of such knowledge rather than as a way to recoup the costs
associated with commercialization. The traditional knowledge objective of
equitable benefit sharing would be consistent with a development-focused
distributive justice approach to intellectual property. This would move away
from the main distributive economic aspect of classical intellectual property
law, which aims to distribute the costs of innovation and commercialization.146
This classical intellectual property economic distribution serves to create
incentives for innovation. By comparison, traditional knowledge aims to
achieve a more equitable outcome in the sense that the benefits arising from
the use and commercialization of the property are shared. Thus, the
underlying economic policy justifications remain somewhat distinct from one
another. This emphasizes the importance of the equity seeking distributive
justice elements to traditional knowledge.

c. Innovation
One could list innovation as another shared policy objective of intellectual
property rights and a traditional knowledge right. Intellectual property policy
aims to stimulate innovation, and thereby the development of new intangible
goods. Traditional knowledge protection is also supposed to promote
innovation and creativity and to enhance the transmission of traditional
knowledge within indigenous and traditional communities.147
At the same time, the innovation intellectual property seeks to

144. Graham Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W. RES. J.

INT’L L. 233, 243–44 (Spring 2001).
145. See id. (noting that the market valued of plant based medicines was estimated to be $61
billion in 1990).
146. Margaret Chon, Distributive Justice and Intellectual Property: Intellectual Property “from
Below”: Copyright and Capability for Education, 40 U.C. DAVIS L. REV. 803, 808 (2007) (noting
that from an economic perspective, distributive justice may require the allocation of resources among
social groups).
147. WIPO IGC, THE PROTECTION OF TRADITIONAL KNOWLEDGE: REVISED OBJECTIVES AND
PRINCIPLES 4, WIPO Doc. WIPO/GRTKF/IC/9/5 (2006).
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 185

promote and the innovative aspects of traditional knowledge differ in some

respects. Traditional knowledge is described as innovative insofar as it is
constantly evolving in response to a changing environment.148 This responsive
evolution could be described as adaptive rather than innovative. Intellectual
property seeks to incentivize innovations and creations that are new or
independently created, even though they may build upon the prior works of
others.149 Admittedly, most patents are granted on minor improvements and
copyright law does not require that a work be innovative, only that it be
original. This supports the position that traditional knowledge is no less
innovative than patentable or copyrightable subject matter. Yet, it is precisely
because some traditional knowledge could not meet the requirements for
intellectual property protection that a sui generis right has been proposed. It
seems reasonable to conclude therefore, that innovation may be a partially
shared objective, but that the concept of innovation in the traditional
knowledge context is broader than in intellectual property law. Thus, the
threshold for innovation in the traditional knowledge context may be lower.

2. Equity-Oriented Goals as a Major Distinction

The fairness aspect of the traditional knowledge narrative underscores the
distinction between the aims of intellectual property and traditional
knowledge. Traditional knowledge has been characterized as representing
intangible developing country goods while intellectual property protects
intangible developed country goods.150 Part of the logic underlying the
argument in favor of an intellectual property type protection for traditional
knowledge is that if the developed countries can protect their intangible goods,
commercialize them and benefit economically, developing countries should be
entitled to the same treatment for their intangible goods. This may help
explain why some traditional knowledge proponents seek a sui generis regime
for what some describe as intellectual property in traditional knowledge.151

148. WIPO IGC, TRADITIONAL KNOWLEDGE: OPERATIONAL TERMS AND DEFINITIONS 11,
WIPO Doc. WIPO/GRTKF/IC/3/9 (2002).
149. See TRIPS Agreement, supra note 6; Universal Declaration of Human Rights, infra note
166.
150. Id.; see Madhavi Sunder, The Invention of Traditional Knowledge, 70 LAW & CONTEMP.
PROBS. 97, 112 (Spring 2007).
151. WIPO IGC, DECLARATION OF SHAMANS ON INTELLECTUAL PROPERTY AND PROTECTION
OF TRADITIONAL KNOWLEDGE AND GENETIC RESOURCES ¶ 15, WIPO Doc. WIPO/GRTKF/IC/2/14
(2001); UNESCO Symposium on the protection of traditional knowledge and expressions of
indigenous cultures in the Pacific Islands, Noumea, 15-19
186 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

Intellectual property seeks to promote the creation of new works to enrich

the public domain. It also strives, through various exceptions, to maintain a
balance between the rights of the user and the rights of the creator. By
comparison, it seems that traditional knowledge advocates seek to protect the
rights of traditional and indigenous communities essentially for reasons of
equity. This may be because the problems of “bio-piracy” and
misappropriation of traditional knowledge are not really about intellectual
property per se. Rather, the debate seems to be, in large part, about the effects
of a strong intellectual property regime in situations where there is a marked
inequality of bargaining power. This can be characterized as a problem of
commercial entities, academic institutions, or individuals taking advantage of
and exploiting those who are less resourced or lack knowledge about the
intellectual property regime.152 This is about the dynamics of power.
Generally speaking, the persons said to be traditional knowledge holders
are in a relatively weak position compared to those who tend to be able to
obtain intellectual property rights.153 This may be due to differences in
economic status, education, or knowledge about the intellectual property
system. That said, would protecting traditional knowledge through a sui
generis intangible property right create a more equitable, from a distributive
justice perspective, intellectual property regime? What would be the public
service function of an intangible property right in traditional knowledge? It
has been posited that the protection of traditional knowledge serves the greater
good because traditional knowledge holders will continue to innovate and that
there is a strong link to the preservation of the environment, both physical and
cultural.154

February 1999 Final Declaration, UNESCO, available at

http://portal.unesco.org/culture/en/files/14264/10645002355Noumea1999.pdf/Noumea1999.pdf (last
visited Nov. 4, 2010).
 152. See, e.g., Graham Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W.
RES. J. INT’L L. 233, 271 (Spring 2001) (observing that patent law tends to favor corporate interests,
even when it is to the detriment of traditional peoples); See Letter From David Hirschmann,
President and Chief Exec. Officer, Global Intellectual Property Center of the United States Chamber
of Commerce, To the President of the United States (Feb. 16, 2010), available at
http://www.theglobalipcenter.com/sites/default/files/documents/adminletter.pdf (last visited May 10,
2010) (outlining the Chamber of Commerce agenda for the promotion and protection of American
intellectual property rights through increased vigilance and enforcement activities).
153. Consider, for example, the intellectual property resources and economic resources of a
small African ethnic group, such as the San people located in South Africa as compared to the
resources of a research institution or a pharmaceutical company. 154. See generally Madhavi Sunder,
The Invention of Traditional Knowledge, 70 LAW
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 187

However, as part of this equity-oriented discourse, the traditional

knowledge right appears to be contemplated as a kind of natural right.155 A
focus on intangible property as a kind of natural right, deriving from Locke’s
labor theory, can result in an imbalanced intellectual property system. This is
because intellectual property, as a natural right, achieves a status that allows it
to take priority over other competing interests.156 Thus, the use of an
intellectual property model to protect traditional knowledge may not be
consistent with the delicate balance that intellectual property law seeks to
achieve. Ultimately, this could be detrimental not only to the broader public
but also to the traditional knowledge holders themselves.
Yet, it should be possible to have an international intellectual property
system that does not enable sophisticated, complex users of intellectual
property laws to take advantage of indigenous and local communities or others
who could be considered to be in a position of relative disadvantage. This
objective should be feasible without creating new intangible property rights.
Instead of creating more intellectual property rights, it may be more effective
to take an instrumentalist approach to intellectual property—one that aims to
attain certain social goods. Among these could be a more equitable human
development oriented interaction between intellectual property law and less
resourced persons.157
Two examples of the equity seeking objectives of a traditional knowledge
right are the protection of cultural heritage and the promotion of value and
respect.

a. Protecting Cultural Heritage

It is not surprising that intellectual property law is inadequate to protect all
forms of traditional knowledge. Although some intangible cultural goods can
be protected under intellectual property law, and copyright law in particular,
the protection of intangible cultural goods and classical intellectual property
have different objectives and serve fundamentally different purposes.158 One
seeks to protect cultural

& CONTEMP. PROBS. 97 (Spring 2007).

155. I say this in the sense that traditional knowledge seems to be heavily influenced by the
human rights-related concerns of traditional knowledge holders.
156. PETER DRAHOS, A PHILOSOPHY OF INTELLECTUAL PROPERTY 200–01 (1996). 157. I use
the term “disadvantaged person” to refer to those who are disadvantaged in relation to the intellectual
property system either due to economics, education, or for historical or cultural reasons.
158. Since copyright protects literary artistic works, it could be said to protect intangible
cultural goods to the extent that these creations are considered cultural property.
188 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

heritage, while the other seeks to promote creativity, innovation, efficiency and
commercialization.159 Control over cultural goods, heritage, and expressions is
not considered to be the primary objective of intellectual property
protection.160 Rather, at this time, the predominant rationale for intellectual
property rights is to stimulate innovation and creativity.

b. Promoting Value and Respect

Policy objectives for the protection of traditional knowledge include aims
such as recognizing the value of traditional knowledge and promoting respect
for such knowledge.161 In addition, traditional knowledge holders aim to
repress unfair and inequitable uses, safeguard the knowledge, and promote
community development.162 It is immediately apparent that some of the
objectives of traditional knowledge protection are based on a desire to
promote respect for the traditional knowledge source communities and the
development of such communities. However, creating property rights in
traditional knowledge is not necessarily essential to recognizing its social
value. Indeed, some of the most valuable knowledge cannot receive
intellectual property protection, precisely because of its value.163
Similar value promoting objectives are found in the 2003 UNESCO
International Convention for the Safeguarding of the Intangible Cultural
Heritage164 (“UNESCO Convention”) and were likely carried over into

For example, certain cultural songs, paintings, or books may be subject to copyright protection.
Geographical indications may be a form of intellectual property that can be used to protect elements
of culture.
159. Various scholars have observed the inconsistency between the objective of protecting
cultural property and the goals of intellectual property policy. See SUSAN SCAFIDI, WHO OWNS
CULTURE?: APPROPRIATION AND AUTHENTICITY IN AMERICAN LAW 17–19 (2005) (stating that the
utilitarian policy objective of enriching the public domain is among the greatest barriers to the
protection of cultural products); Christine H. Farley, Protecting Folklore of Indigenous Peoples: Is
Intellectual Property the Answer?, 30 CONN. L.
REV. 1, 55 (1997) (pointing out that, with respect to copyright law, what some traditional knowledge
advocates seek is contrary to the goal of disseminating of information that copyright law seeks to
encourage, and that it runs the risk of diminishing the public domain).
160. Whether intellectual property law has slowly been taking on a new role may be worthy of
further consideration. See Barton Beebe, Intellectual Property Law and the Sumptuary Code, 123
HARV. L. REV. 810, 816–17 (2010) (arguing that intellectual property rights are increasingly used as
an indication of authenticity).
161. WIPO IGC, THE PROTECTION OF TRADITIONAL KNOWLEDGE: REVISED OBJECTIVES AND
PRINCIPLES 3, WIPO Doc. WIPO/GRTKF/IC/9/5 (2006). 162. Id. at 4.
163. For example, scientific theorems and mathematical principles are not patentable. 164. U.N.
EDUC. SCI. & CULTURAL ORG. (UNESCO), Convention for the Safeguarding of the Intangible
Cultural Heritage (2003) (signed by 118 states as if December
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 189

the WIPO forum from there. The definition of intangible cultural heritage is
similar to that of traditional knowledge and would appear to cover much of the
same subject matter.165 The preamble to the UNESCO Convention refers to
certain international instruments, including the Universal Declaration on
Human Rights.166 It goes on to recognize the importance of safeguarding the
“intangible common heritage of humanity” and notes the absence of a binding
multilateral agreement to protect intangible cultural heritage.
The UNESCO Convention requires State parties to take measures to
safeguard intangible cultural heritage within their territories, and establishes
policy and educational commitments for the State parties to undertake in order
to do so.167 However, it does not establish specific legal mechanisms for the
protection of this heritage. Further, Article 3 of the UNESCO Convention
provides that it should not be interpreted as affecting any rights or obligations
under any international intellectual property conventions.168 By comparison,
WIPO has the task of creating effective legal protections for traditional
knowledge.169
If the ultimate goal is to shift the global intellectual property regime to one
that is more favorable to the poor or to communities that have been
disadvantaged by intellectual property laws, a sui generis traditional
knowledge right may not be the most effective solution. Indeed, it could have
the opposite effect.

2009 but notable exceptions include the United States, Canada, Australia, and New Zealand),
available at http://portal.unesco.org/en/ev.php
URL_ID=17716&URL_DO=DO_TOPIC&URL_SECTION=201.html.
165. Article 2.1 of the Convention defines intangible cultural heritage as “the practices,
representations, expressions, knowledge, skills— as well as the instruments, objects, artifacts and
cultural spaces associated therewith— that communities, groups and, in some cases, individuals
recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from
generation to generation, is constantly recreated by communities and groups in response to their
environment, their interaction with nature and their history, and provides them with a sense of
identity and continuity, thus promoting respect for cultural diversity and human creativity.” Examples
of intangible cultural heritage listed in Article 2.2 of the Convention include oral traditions and
expressions, performing arts, social practices, rituals and festive events, knowledge and practices
concerning nature and the universe, and traditional craftsmanship. This broad definition would
include most, if not all, of what has been defined as traditional knowledge and traditional cultural
expressions at WIPO. Id.
166. United Nations, Universal Declaration of Human Rights, G.A. res 217A(III), U.N.Doc
A/180 at 71 (1948).
167. UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage, art. 11,
13, 14 (2003).
168. Id. at art. 3.
169. Of course, since the negotiations are taking place outside of the WTO, it remains to be
seen how any new agreement will intersect with WTO Members TRIPS obligations.
190 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

B. Traditional Knowledge Challenges

From a distributive justice perspective, traditional knowledge faces at least
two difficulties in the attempt to receive an intellectual property type
protection.
First, the introduction of a new intangible property right means a
retraction, at least with respect to some traditional knowledge, of the public
domain as it is currently understood.170 This challenge requires traditional
knowledge holders to provide a solid public policy rationale for limiting
access to, and use of, such information. If a sui generis
traditional knowledge right is to be created, the broader social good served by
protecting traditional knowledge as a new form of intellectual property should
be very clearly articulated.
Second, due to its intergenerational nature, it has been suggested that
traditional knowledge should be protected indefinitely, and possibly
retroactively.171 This has implications for the accessibility and affordability of
the protected knowledge.
Third, traditional knowledge is linked to a people rather than to a concept
that has been reduced to form by a single identifiable creator.172 This challenge
is potentially a more significant one because it requires a demarcation of
explicit cultural and ethnic lines in defining a property right. This task is
further complicated by the fact that, contrary to what some traditional
knowledge proponents seem to assume, every society has knowledge that has
been handed down in one form or another. We are potentially all traditional
knowledge holders of some kind.

1. The Public Domain as a Eurocentric Concept

It has been observed that much of what is considered traditional

170. Whether or not one links the concept of “public domain” to intellectual property, under
the current international regime, there are no globally recognized proprietary rights in those forms of
traditional knowledge that do not meet the criteria for protection under intellectual property law.
Hence, from an intellectual property perspective, it is legally available to the public, provided that it
has not been kept secret.
171. Mataatua Declaration, Recommendation 2; WIPO IGC, DECLARATION OF SHAMANS ON
INTELLECTUAL PROPERTY AND PROTECTION OF TRADITIONAL KNOWLEDGE AND GENETIC
RESOURCES ¶ 15, WIPO Doc. WIPO/GRTKF/IC/2/14 (2001); see Paul Kuruk, Goading a Reluctant
Dinosaur: Mutual Recognition Agreements as a Policy Response to the Misappropriation of Foreign
Traditional Knowledge in the United States, 34 PEPP. L. REV. 629, 655 (2007); Graham Dutfield,
TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W. RES. J. INT’L L. 233, 251 (Spring
2001).
172. As WIPO has correctly observed, it is possible to have a group of rights holders. Such a
group would normally be a collective of identifiable individuals. It is also possible to have a single
entity having some public or official status as the right holder, in the case of certification marks, for
example, that is the right holder for the entitled group.
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 191

knowledge is likely in the public domain.173 Consequently, it could be

problematic to attempt to assert property rights over such material.174 Whereas
intellectual property law generally seeks to prevent creations and innovations
from falling into the public domain for a specified period, an international
treaty on traditional knowledge may involve the creation of a new property
right in information that is already publicly known or at least known by certain
groups of people.175
However, the view that rejects intellectual property rights for traditional
knowledge on the basis that such rights would shrink the public domain has
been criticized as Eurocentric.176 For instance, some WIPO participants have
expressed the view that the public domain is not a concept that was recognized
by indigenous peoples and that expressions of folklore, for example, could not
have entered the public domain if they were never protected as intellectual
property.177 These intangible cultural goods are regulated by customary law
rather than by intellectual property law. Thus, some communities may
consider traditional knowledge as falling outside the intellectual property
concept of public domain.
Whether or not one acknowledges the concept of the public domain, if one
accepts that knowledge is a public or communal good, then it is important to
be cautious in creating laws that restrict access to this good. Further, the
empirical data on the effect of intellectual property rights remains
inconclusive, and the utility of strong intellectual property rights at all stages
of a nation’s economic development remains questionable.178

173. WIPO IGC, TRADITIONAL CULTURAL EXPRESSIONS/EXPRESSIONS OF FOLKLORE AND

TRADITIONAL KNOWLEDGE, COMMENTS OF THE UNITED STATES OF AMERICA 9 (2007), available at
http://www.wipo.int/export/sites/www/tk/en/igc/pdf/usa_tk tce.pdf. At its tenth session, the WIPO
IGC identified ten key questions relating to the protection of TK, then sought comments on these
issues from WIPO member states and interested parties between its tenth (November–December
2006) and eleventh (July 2007) sessions.
174. Id.
175. TRIPS Agreement, supra note 6, at arts. 12, 33 (term of protection for copyright and
patent, respectively); id. at arts. 13, 27.3, 30 (limited exceptions to copyright and patent); see
Madhavi Sunder, The Invention of Traditional Knowledge, 70 LAW & CONTEMP. PROBS. 97, 101
(2007).
176. Paul Kuruk, Goading a Reluctant Dinosaur: Mutual Recognition Agreements as a Policy
Response to the Misappropriation of Foreign Traditional Knowledge in the United States, 34 PEPP.
L. REV. 629, 647–649 (2007).
177. WIPO IGC, THE PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS/EXPRESSIONS
OF FOLKLORE: REVISED OBJECTIVES AND PRINCIPLES 40, WIPO Doc. WIPO/GRTKF/IC/9/4
(2006).
178. Andrew W. Torrance & Bill Tomlinson, Patents and the Regress of Useful Arts, 10
COLUM. SCI. & TECH. L. REV 130, 132, 166 (2009); see FREDERICK M. ABBOTT, THOMAS
192 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

One could respond that all property rights, by definition, reduce

accessibility. Further, it could be said that intellectual property rights generally
lead to higher cost goods in order to allow producers to recoup rents. This may
be true. This is also the reason why a solid policy rationale is required before
new intellectual property rights are created. Moreover, it is not exclusively the
public domain that should be considered but also the broader social good that
intellectual property policy ideally supports.
If the objective sought can be achieved without creating a new property
right, then it seems that alternative methods should be pursued—or at least
thoroughly explored before creating the new right. More importantly, if a sui
generis traditional knowledge right could also reduce access to affordable
knowledge goods, including for developing country nationals and local or
indigenous communities, then perhaps it is not the best defense against
misappropriation and bio-piracy.
2. Perpetual Protection
A traditional knowledge right would not necessarily be circumscribed by a
limited term of protection.179 It is suggested that the protection should be
indefinite and even retroactive to protect historical works.180 This is one aspect
of traditional knowledge protection that is clearly distinct from classical
intellectual property law, and which emphasizes some of the inconsistencies
between the policy objectives of intellectual property and traditional
knowledge.
An important aspect of the intellectual property balance is that, for most
intellectual property forms, the protection granted is time limited.181 Moreover,
it can be observed that the term of protection is

COTTIER & FRANCIS GURRY, INTERNATIONAL INTELLECTUAL PROPERTY IN AN INTEGRATED

WORLD ECONOMY 73–75 (2007).
179. WIPO, AFRICAN GROUP SUBMISSION ON DOCUMENT WIPO/GRTKF/IC/13/9 14, WIPO
Doc. WIPO/GRTKF/IC/14/9 (2009); WIPO, THE PROTECTION OF TRADITIONAL KNOWLEDGE,
DRAFT GAP ANALYSIS: REVISION 28, WIPO Doc. WIPO/GRTKF/IC/13/5(b) Rev. (2008); Graham
Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W.
RES. J. INT’L L. 233, 251 (Spring 2001).
180. Mataatua Declaration, Recommendation 2; WIPO IGC, DECLARATION OF SHAMANS ON
INTELLECTUAL PROPERTY AND PROTECTION OF TRADITIONAL KNOWLEDGE AND GENETIC
RESOURCES ¶ 15, WIPO Doc. WIPO/GRTKF/IC/2/14 (2001); Paul Kuruk, Goading a Reluctant
Dinosaur: Mutual Recognition Agreements as a Policy Response to the Misappropriation of Foreign
Traditional Knowledge in the United States, 34 PEPP. L. REV. 629, 655 (2007); Graham Dutfield,
TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W. RES. J. INT’L L. 233, 251 (Spring
2001).
181. More recently accepted forms of international intellectual property, such as geographical
indications, are an exception to this principle of term limit. Though trademarks can be renewed
indefinitely, subject to certain conditions, there is a term of protection
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 193

shorter for more restrictive rights. Thus, for example, the agreed upon
minimum term of patent protection is twenty years from the date of the filing
of the patent application.182 Patent protection is available only for a single
invention, so if someone else develops the same invention, the patent will only
go to one inventor.183 Copyright, by comparison, results in a more limited
monopoly.184 Under the Berne Convention, the minimum copyright term for
literary and artistic works is the life of the author plus fifty years.185 However,
copyright law allows for the same independent creation to be protected,
provided it is not a copy of someone else’s original work. In this sense,
copyright is a less restrictive form of protection. The longer term of copyright
protection is, therefore, less detrimental to society as compared to a lengthy
patent term.
In other words, intellectual property law needs to be balanced so that the
state granted monopoly over intellectual creations is not, ultimately,
detrimental to the public. However, due to its intergenerational nature,
traditional knowledge could be protected indefinitely and even retroactively.
This may not be consistent with the equity-oriented objective of access to
affordable traditional knowledge goods. Thus, any indefinite right granted
should be relatively less restrictive in order not to offend the principle of a
balance between the interests of the right holder and the public.186

3. Identifying the Traditional or Indigenous Traditional Knowledge

Producing Community
By definition, the protectable knowledge should be intergenerational,
associated with a traditional or indigenous community, and integral to the
cultural identity of the indigenous or

provided for trademarks. See TRIPS Agreement, supra note 6, at art. 18. 182. Id. at art. 33. For a
patent to be granted the innovation must be new, useful and non-obvious. Once an innovation has
been invented, the same invention can no longer meet the criteria for patent protection, and a second
patent will not be granted. See id. at art. 27(1).
183. 35 U.S.C. § 102 (2006); TRIPS Agreement, supra note 6, at art. 27.1 (setting out
requirement of novelty for patentability); 35 U.S.C. §§ 102 (g), 135 (provisions on interference).
184. See Copyright Act of 1976, 17 U.S.C. § 102 (provides that copyright subsists in “original
works of authorship”—two individuals can individually paint the same scene and each will be
entitled to copyright protection for her work).
185. Berne Convention, supra note 94, at art. 7(1); TRIPS Agreement, supra note 6, at art. 12.
186. For a more in depth discussion on this point, see J. Janewa OseiTutu, Traditional
Knowledge: Is Perpetual Protection a Good Idea? 50 IDEA No. 4, 697 (2010).
194 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

traditional community who are the custodians of such knowledge.187 At the

same time, traditional knowledge is characterized as neither old, nor static.188 It
is constantly being revised, improved and regenerated. That said, is the
difference between traditional knowledge and other knowledge primarily
cultural? Who is this indigenous person or community for whom protection is
sought? To whom does the benefit accrue when benefit sharing is
implemented? Who should be compensated? This raises the question of not
only the group identity, but is also relevant to the question of term of
protection. For example, how far back in time should one look in order to
correctly identify the beneficiaries?189
WIPO does not define the groups that could be covered by any potential
international treaty, or other legal instrument that may be eventually agreed
upon by WIPO Member states. Many country delegations do, however,
acknowledge the need for a definition.190 For the purpose of defining the scope
of the right, it would be preferable to have some basic definition of the
potential right holder.191 Since it is possible, in some instances, to have group
ownership of an intellectual property right, the communal nature of a
traditional knowledge right is not necessarily a barrier to protection.192
Additionally, it has been pointed out that it is not accurate to say that
traditional knowledge is always communal and that Western intellectual
property is individual. The traditional knowledge may be in the hands of a
select few, an exclusive group of men or women, and may not necessarily be
widely held knowledge.193 The right holder could, therefore, be a group. It is

187. WIPO IGC, TRADITIONAL KNOWLEDGE—OPERATIONAL TERMS AND DEFINITIONS 11,

WIPO Doc. WIPO/GRTKF/IC/13/9 (2002).
 188. WIPO ICG, REVIEW OF EXISTING INTELLECTUAL PROPERTY PROTECTION OF
TRADITIONAL KNOWLEDGE 11, WIPO Doc. WIPO/GRTKF/IC/3/7 (2002). 189. There are several
related questions that may arise with respect to identification and compensation, some of which may
be too detailed to address in an international agreement. For example, will only those people who
still live in the particular community or country, to the exclusion of those who moved out the
community or to another country, be included among the rights holders? Would the right extend to
persons who have a parent who is not part of the relevant traditional knowledge generating
community? These are examples of the complex matters that would have to be addressed at some
point— most likely at the national level. Thanks to Lisa P. Ramsey for highlighting some of these
issues. 190. WIPO IGC, THE PROTECTION OF TRADITIONAL KNOWLEDGE: REVISED OBJECTIVES
AND PRINCIPLES, art. 4, p. 22, WIPO Doc. WIPO/GRTKF/IC/9/5 (2006). 191. See, e.g., Robert W.
Kastenmeier & Michael J. Remington, The Semiconductor Chip Protection Act of 1984: A Swamp or
Firm Ground, 70 MINN. L. REV. 417 (1985). 192. See WIPO ICG, REVIEW OF EXISTING
INTELLECTUAL PROPERTY PROTECTION OF TRADITIONAL KNOWLEDGE 12, WIPO Doc.
WIPO/GRTKF/IC/3/7 (2002). 193. GRAHAM DUTFIELD & UMA SUTHERSANEN, GLOBAL
INTELLECTUAL PROPERTY LAW 328 (2008).
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 195

not clear, however, how to identify the persons who would comprise this
group.194 In the intellectual property context, when the right holder is a group,
the boundaries of the group are normally clearly delineated, and the group is
usually comprised of a collection of identifiable individuals.195
In 2007, the United Nations General Assembly adopted a Declaration on
the Rights of Indigenous People (“DRIP”).196 Unfortunately, the DRIP contains
no definition of an indigenous person.197 In any event, the meaning of
indigenous person may be different in the traditional knowledge context than
in other areas. Further, the term “indigenous” may have multiple meanings in
the context of the traditional knowledge discussion.
In the absence of an agreed upon definition, I start by looking at a plain
language meaning of the term.198 The Concise Oxford Dictionary defines the
term “indigenous” as meaning, “originating or naturally occurring in a
particular place; native.”199 This terminology has been utilized to describe the
people European adventurers met at the lands they found. Hence, the peoples
Europeans met in the Americas have been referred to as “natives” as have the
peoples Europeans encountered when they voyaged to places such as India
and Africa. In an early study, WIPO took as a working definition of
indigenous

194. See the discussion at section III of the paper.

195. See e.g., the U.S. Copyright Act of 1976, 17 U.S.C. §101 (2006) defines a “joint work” as
the work of “two or more authors with the intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole.”; see also U.S. Patent Act of 1952, 35 U.S.C.
§111 (2009), which states that the inventor, or person authorized by the inventor, may apply for a
patent; 35 U.S.C. §116 (2009), which provides that if there is more than one inventor, they shall
jointly apply for the patent; 35 U.S.C. §118 (2009) (outlining circumstances where someone other
than the inventor may file for patent protection).
196. United Nations, Declaration on the Rights of Indigenous Peoples (2007), available at
http://www.un.org/esa/socdev/unpfii/en/declaration.html (Australia, Canada, New Zealand, and the
United States voted against the adoption of the Declaration).
197. See PATRICK THORNBERRY, INDIGENOUS PEOPLES AND HUMAN RIGHTS 33 (2002).
198. In other fields of international law, including trade law, resort is made to the ordinary
meaning of the words, including the use of dictionaries. In addition it is customary to resort to the
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969) (“a treaty shall be interpreted
in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose”). The term “indigenous” could be interpreted in its
context to refer to people who were colonized. However, for the purpose of illustrating the point
about the implication of the definition for the scope of the right, I will make use of the simple
dictionary definition of the word “indigenous.”
199. CONCISE OXFORD DICTIONARY (10th ed. 1999).
196 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

communities, peoples, and nations:

[T]hose which, having a historical continuity with ‘pre
invasion’ and pre-colonial societies that developed on their
territories, consider themselves distinct from other sectors of
the societies now prevailing in those countries, or parts of
them. They form at present non-dominant sectors of society
and are determined to preserve, develop and transmit to future
generations their ancestral territories, and their ethnic
identities, as the basis of their continued existence as peoples,
in accordance with their own cultural pattern, social
institutions, and legal systems.200
The term “traditional” or “indigenous” peoples, as it is used in the
traditional knowledge discourse, appears to refer essentially to those persons
who are not of European origin. However, the precise scope of persons who
may be considered indigenous is not obvious from the WIPO materials
relating to traditional knowledge, or from the literature on the protection of
indigenous peoples and their cultural heritage. In the context of the traditional
knowledge narrative it is not apparent that this term is limited to those persons
described in Western dialogue as “Aboriginal” or “First Nations” in places
such as Canada, Australia, and New Zealand, to the exclusion of African,
Asian, and Latin American ethnic or ‘tribal’ groups.201
Although there is no agreed upon definition of “indigenous” or
“traditional” persons, the common thread that has been identified among the
various definitions is the recognition that “a people’s deep, historical, ancestral
roots to traditional lands as integral to indigeneity.”202 While this may be a
good starting point, the fact remains there is no global definition of indigenous
peoples.203 This therefore creates a certain element of risk due to the difficulty
in limiting the

200. WIPO, INTELLECTUAL PROPERTY NEEDS AND EXPECTATIONS OF TRADITIONAL

KNOWLEDGE HOLDERS: WIPO REPORT ON FACT-FINDING MISSIONS ON INTELLECTUAL PROPERTY
AND TRADITIONAL KNOWLEDGE (1998–1999), 23 (2001), available at
http://www.wipo.int/tk/en/tk/ffm/report/index/html.
201. See Kristen A. Carpenter, Sonia K. Katyal & Angela R. Riley, In Defense of Property, 118
YALE L.J. 1022, 1103 (2009) (describing most of the world’s indigenous peoples as residing in the
developing world).
202. Id. at 1034–35.
203. Siegfried Wiessner, Indigenous Sovereignty: A Reassessment in Light of the UN
Declaration on the Rights of Indigenous Peoples, 41 VANDERBILT JRNL. TRANSNAT’L L. 1141, 1163
(2008) (noting the absence of definition of the term indigenous people in the United Nations
Declaration on the Right of Indigenous Peoples, and explaining that many scholars have justified this
lack of definition).
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 197
scope of a potential traditional knowledge property right.204 For instance, it has
been proposed that the immediate beneficiaries of a traditional knowledge
right should be the direct descendants of the traditional guardians of the
knowledge.205 This would require an identification of not only the relevant
community, but also the individuals within the community who are entitled to
some kind of right in the traditional knowledge. Given the intergenerational
nature of traditional knowledge, this could be quite a complex and daunting,
although not impossible, task.
It may also be that the term “indigenous” or “traditional” implies a
reference to aboriginal societies living traditional lifestyles as opposed to
modern lifestyles. There are many difficulties in identifying and categorizing
such a group, including the fact that it is rare to find peoples who are entirely
“traditional.”206 When we entertain the Colombian suggestion that intellectual
property rights should recognize the traditional knowledge of indigenous,
“Afro-American” or local communities, the notion of an indigenous or
traditional person can become quite broad.207 Guatemala considers itself to be a
country with a majority population comprised of indigenous and traditional
communities. Consequently, many of the creations of a given country could
theoretically be protectable as traditional knowledge.208 Similarly, Asian
countries have submitted to WIPO that they are “mostly rich in genetic
resources, traditional knowledge and folklore . . . .”209
The various categories of intellectual property law are defined on the basis
of the knowledge that is created. In this way, intellectual property rights are
open to anyone whose innovation or creative work

204. Id.
205. See Mataatua Declaration, Recommendation 2.
206. I recall being struck by the sight of a Masai man walking through the streets of a small
dusty town in Tanzania, wearing the telltale traditional bright Masai cloth and the traditional Masai
footwear, listening to his iPod as he walked along, his cell phone tucked in his belt. Given that the
Masai are essentially herdsmen and cattle ranchers, he may depend on the land, and probably rears
his cattle in accordance with traditional methods handed down from generation to generation. At the
same time, he will likely have modern elements to his life, and may well make use of new
technologies that are protected by intellectual property rights, such as mobile phones, to conduct
business.
207. WIPO IGC, REPORT ¶ 29, WIPO Doc. WIPO/GRTKF/IC/14/12 (2009). 208. Id. ¶ 31;
Siegfried Wiessner, Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the
Rights of Indigenous Peoples, 41 VANDERBILT JRNL. TRANSNAT’L L. 1141, 1163 (2008) (observing
that, while it is not consistent with his understanding of the term, some African nations claim that all
Africans are indigenous).
209. WIPO IGC, POSITION PAPER OF THE ASIAN GROUP AND CHINA 1, WIPO Doc.
WIPO/GRTKF/IC/2/10 (2001).
198 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

meets the criteria for protection.210 Traditional knowledge is defined by the

knowledge produced, which is to be handed down through the generations. It
is further defined by the characteristics of the people who produce such
knowledge. Traditional knowledge producers are described as “traditional” or
“indigenous” peoples. As it has been characterized thus far, this new form of
intangible property would be a form of protection that would not be available
to all humanity.
An intangible property right that is, by definition, explicitly linked to
ethnic identities raises a variety of issues which go beyond the scope of this
paper. However, when one considers the meaning of traditional knowledge in
the broadest sense, there are significant frailties in the distinction between
non-indigenous information that is handed down through the generations and
the intergenerational indigenous or traditional knowledge. The next section of
this paper turns to a discussion of other kinds of intergenerational, or
traditional, knowledge.

C. Other Intergenerational Knowledge Goods

1. Cultural Exchange
Culture is not static. Rather, various cultures interact to borrow from and
influence one another.211 Depending on the level of exclusivity of a sui generis
traditional knowledge right, one indigenous or traditional community could
find that it is unable to make free use of traditional knowledge from another
indigenous or traditional community. There is also the risk of a reduced
availability of traditional knowledge to those within that traditional society
who don’t have rights of access. Furthermore, the current concept of
traditional knowledge may be relatively easily broadened to include not only
developing

210. I acknowledge there may be cost barriers to obtaining intellectual property rights. 211. Cultural
exchange means that Asian arts such as acupuncture, Karate, and Yoga have become common in the
Western world as well as throughout the developing world. Thus one can find Karate classes
everywhere—from Africa to Europe to North America. Further, cultural migration and exchange
lead to cultural traditions such as African American step dancing that are derived from African
traditional dances. At the same time, young Africans have incorporated African American step
dancing and hip hop dancing into their youth culture. See Olufunmilayo B. Arewa, Piracy, Biopiracy
and Borrowing: Culture, Cultural Heritage and the Globalization of Intellectual Property, 20- 21
(Case Res. Paper
Series in Legal Stud., Working Paper No. 04-19, 2006), available at
http://papers.ssrn.com/abstract=596921 (observing that to ignore the role of borrowing among
cultures creates a static view of culture and that notions of piracy and biopiracy demonize
borrowing); id. at 60–62 (“The potential complexities involved in establishing cultural boundaries are
often ignored in public discourse about local knowledge,” and arguing that culture is not static and
any “process of borrowing necessarily involves acts of appropriation.”).
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 199

country cultural heritage and knowledge but also the cultural heritage and
knowledge of some European communities.
For example, methods of wine and cheese production tend to be based on
cultural practices of European groups who could be considered “indigenous,”
in the purest sense of the word, to their localities. The value Europeans place
on their cultural food products is reflected in the European demand for
increased international protection for geographical indications.212 In bi-lateral
trade agreements, the European Union has also sought protection for
“traditional expressions” for European wines.213
The knowledge about the uses of the neem tree or turmeric may be
valuable intergenerational knowledge. However, there are many other kinds of
ancient knowledge, which appear to have been discounted. One might argue
that if traditional knowledge is about power and inequality, a discussion that
excludes the colonial context is not a true discussion at all.214 In my view, it
becomes a discussion about the characteristics of the knowledge and not about
the characteristics of the generators of the knowledge. This allows the analysis
to focus on the nature of the property, instead of the nature of the property
owner.
The next section turns to a discussion of some common household items to
illustrate that intergenerational knowledge is not necessarily exclusive to
particular ethnic groups.

2. Vinegar and Silver as Examples

Vinegar and silver have been used for generations for their cleansing or
healing properties, the knowledge of which comprises intergenerational
knowledge. It may seem somewhat extreme to consider the uses of vinegar as
traditional knowledge. This may be because its uses date back so far, or
perhaps because it has become so

212. See TRIPS Agreement, supra note 6, at arts. 22–24 (provisions on geographical
indications); Daniel Gervais, The Lisbon Agreement’s Misunderstood Potential (The WIPO Journal,
Working Paper No. 10-21, 2009) (discussing renewed interest in the Lisbon Agreement and the
relationship between geographical indications and appellations of origin); Irene Calboli, Expanding
the Protection of Geographical Indications of Origin Under TRIPS: “Old” Debate or “New”
Opportunity?, 10 MARQ. INTELL. PROP. L. REV. 181, 182 (2006).
213. See, e.g., Canada and the European Community on Trade in Wine and Spirits Agreement
(Sept. 16, 2003), available at http://www.agr.gc.ca/itpd-dpci/ag-ac/4971-eng.htm; Agreement
Between the European Community and Australia on Trade in Wine (Dec. 1, 2008) (replaces 1994
Agreement).
214. Dorothy E. Roberts, Why Culture Matters to Law: the Difference Politics Makes in
CULTURAL PLURALISM, IDENTITY POLITICS, AND THE LAW, AUSTIN SARAT & THOMAS R. KEARNS,
EDS. 83 (University of Michigan Press, 1999) (noting that culture matters to law and that apparently
neutral legal principles that purport to disregard culture effectively privilege the existing dominant
cultural norms)
200 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

commonly used globally—having spread from one culture to another— that it

does not immediately strike one as intergenerational cultural knowledge or
traditional knowledge.
Well known for its preservative, antiseptic and cleansing properties,
vinegar has been used for generations in various capacities. According to the
recorded history of vinegar, the Babylonians used it as far back as several
thousand years ago to preserve and pickle food. The ancient Greek,
Hippocrates, subsequently prescribed vinegar to fight infections and various
illnesses.215 Similarly, the ancient Greeks, Romans and others used silver to
keep water pure.216 The Greeks apparently discovered the health benefits of
silver, noting that those with silver canteens did not get sick.217 Silver continues
to be used in a medical capacity for its antibacterial properties.218
 Credit is perhaps due to the Greek tribes for our modern day knowledge of
the health benefits of vinegar and silver. If this ancient knowledge is not
protectable as a form of intangible property, is it because it is too old, even
though the uses continue to evolve, or because the Greeks are not
“indigenous”? Is it because such knowledge has become part of the common
heritage of humankind? If this knowledge had been protectable, what would
our modern day uses of vinegar and silver look like? Might all non-Greeks
need to seek permission for certain uses? If so, this kind of system could
easily lead, it seems, to the excessive concentration of power through control
over intangible goods. Even if this would not have been the result, it is not
apparent what would have been the benefit to the global public— to
humankind—had such knowledge been treated as a form of intangible
property. Using an instrumentalist analysis, one might ask what would be the
objective sought and how it would serve the distributive justice goals of
ensuring access to affordable knowledge goods.
The question then becomes whether the reasons for creating a new

215. ENZYME FACTS, http://www.enzyme-facts.com/vinegar-history.html (last visited Sept. 18,

2010); VINEGAR WORKS WONDERS, http://www.vinegarworkswonders.com/history.asp (last visited
Sept. 18, 2010); VINEGAR HISTORY: HOW THE ANCIENTS BENEFITTED FROM VINEGAR,
http://www.apple-cider
vinegar-benefits.com/vinegar-history.html (last visited Sept. 18, 2010).
216. OVERVIEW OF SILVER, http://www.burnsurgery.com/Modules/silver/section1.htm (last
visited Sept. 18, 2010).
217. See generally The Historical Uses of Silver (April 17 2008), available at
http://colloidal-silver-solution.blogspot.com/2008/04/historical-uses-of-silver.html; LOIS N.
MAGNER, A HISTORY OF MEDICINE 8 (2d ed. 2005).
218. Shan Bergin & Paul Wraight, Silver Based Wound Dressings and Topical Agents for
Treating Diabetic Foot Ulcers, THE COCHRANE DATABASE OF SYSTEMATIC REVS. (Jan. 2006).
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 201

right make sense in the context of intellectual property law and whether a
property right is a good solution if there are other alternatives available. In my
view, because traditional knowledge seems to be primarily about equity, the
solution should focus on achieving a more equitable intellectual property
outcome. This can be done through means other than the creation of new
property rights. On the other hand, one might observe that property rights are
linked to power and equality. However, if the distinction between traditional or
indigenous peoples and non-traditional peoples fails to achieve clarity in an
international instrument, I query whether more equality is likely to be
achieved. For example, will indigenous and local people improve their
economic condition or have increased access to affordable knowledge goods?
If traditional knowledge is primarily about the dynamics of inequality, a
new intellectual property style right is a poor solution. First, traditional
knowledge seems to be partially a response to the overreach of the intellectual
property system. Second, I query the efficacy of addressing what appears to be
partly an issue of human rights and political inequality through the use of an
intellectual property model. This is particularly so in light of the reasons for
having intellectual property rights and some of the problems that may be
associated with them. Third, the overreach of intellectual property law is not
limited to developing countries and poor people.219 The defects of the
intellectual property system from a traditional knowledge perspective should
be characterized not as a North-South issue but as an excessive intellectual
property rights issue. This does not mean that intellectual property rights do
not have a disparate impact on certain groups, nor does it mean that this
disparate impact should go unacknowledged. However, the better solution is to
curtail the intellectual property system, not to expand it.
The potentially broad category of rights holders, combined with the
possibility of perpetual protection make a sui generis traditional knowledge
right likely to increase the cost while decreasing the accessibility of traditional
knowledge goods. Creating more property rights in intangibles is not
necessarily beneficial for the global public,

219. Ass’n for Molecular Pathology v. USPTO, 702 F. Supp. 2d. 181 (S.D.N.Y. 2010) (“Myriad
Genetics”) (The court invalidated patents held by Myriad genetics that pertain to testing for a genetic
predisposition to breast cancer. The plaintiffs included the Association for Molecular Pathology, the
American College of Medical Genetics, the American Society for Clinical Pathology, the College of
American Pathologists, various individual scientists, medical professional, and patients who were in
need of the testing. The decision has been appealed.).
202 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

nor consistent with a distributive justice approach to global intellectual

property law. Developing country nationals, many of whom struggle to pay the
costs for patented medicines or copyrighted works may find that they suddenly
have to pay for items, including those of European origin, which they had not
conceptualized as traditional knowledge.220 For example, how would one
distinguish an Italian claim to the method of preparing espresso or cappuccino
from other culture-based claims? If the preparation of espresso could be
considered an innovation handed down from generation to generation, there is
no clear reason why it could not be considered traditional knowledge. There is
no simple solution to this problem, nor do I purport to have the answers.
However, if the problem is reframed as an issue of the fair and equitable
treatment of traditional and indigenous peoples, rather than as a matter of
intellectual property law per se, it may help to advance the dialogue.

IV. ADDRESSING THE PROBLEM

A. The Need for a Balanced System

In addition to those who have raised concern over issues such as bio piracy,
some scholars have observed that there is a current imbalance in the
intellectual property regime.221 Others have emphasized the dangers of
overprotecting intellectual property and the harm that results from a shrinking
public domain.222 Professor Boyle, for example, points out that the expansionist
intellectual property agenda has upset the fundamental balance between
intellectual property and the public

220. SUSAN SCAFINDI, WHO OWNS CULTURE?: APPROPRIATION AND AUTHENTICITY IN

AMERICAN LAW 99–100 (2005) (discussing a television narrative about the Italian origin of food
products such as cappuccino and espresso, which are now commonly found in coffee shops around
the world). Though this is a fictional account, it is illustrative of the difficulty in limiting what is
considered traditional knowledge.
221. See RICHARD A. SPINELLO & MARIA BOTTIS, A DEFENSE OF INTELLECTUAL PROPERTY
RIGHTS 1–4 (Edward Elgar ed., 2009) (describing the extensive scholarly criticisms of the excesses
of the IP regime and noting that, though the entire IP system should not be overhauled, there is a
need for balance and reform); Anupam Chander & Madhavi Sunder, Symposium: Forward: Is Nozick
Kicking Rawls’s Ass? Intellectual Property and Social Justice, 40 U.C. DAVIS L. REV. 563, 574–77
(Mar. 2007) (advocating a social justice approach to intellectual property, which would take into
account a range of human values beyond an incentive theory approach to intellectual property).
222. JAMES BOYLE, THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF THE MIND 8–9
(2008) (explaining that intellectual property law does not necessarily work as it should, but
sometimes does the exact opposite, becoming “a kind of perpetual corporate welfare— restraining
the next generation of creators instead of encouraging them”); James Boyle, The Second Enclosure
Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROBS. 33, 37–41
(2003) (describing the expansion of intellectual property rights); LAWRENCE LESSIG, THE FUTURE
OF IDEAS (2001).
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 203

domain.223 The faulty assumption underlying the promotion of increasingly

strong intellectual property rights is that this will lead to more progress.
However, it is by maintaining a balance that we are best able to achieve the
goals of a healthy intellectual property system.224
On the other hand, it has been suggested that the benefits of open access
go to the wealthy and powerful.225 As a matter of distributive justice, this
supports the need for some form of global protection for traditional
knowledge. The question is whether a sui generis intellectual property right is
the solution. The traditional knowledge dialogue appears to be primarily about
the relationship between the knowledge that is protected by intellectual
property law and that which is not.226 In essence, the way in which the
intellectual property regime intersects with traditional knowledge and
facilitates what is seen as the unfair use of this knowledge can be identified as
a significant part of the problem.
If one approaches international intellectual property ‘from below,’ the
system should, arguably, be modified to ensure that the concerns of developing
countries and indigenous peoples are addressed. Developing countries have
already found the global expansion of minimum standards difficult to contend
with and, in some cases, expensive to implement.227 Moreover, from a public
policy perspective,

223. James Boyle, A Manifesto on WIPO and the Future of Intellectual Property, 2004 DUKE
L. & TECH REV. 0009, 2 (2004) .
224. Id. at 11 (encouraging a return to the “rational roots of intellectual property rather than an
embrace of its recent excesses”).
225. Madhavi Sunder, The Invention of Traditional Knowledge, 70 LAW & CONTEMP. PROBS.
97, 106 (2007).
226. The problem seems to be not just that intellectual property rights are unavailable for all
kinds of traditional knowledge. Rather, there is some level of discontent about the ability of persons
and entities external to the knowledge generating community to obtain intellectual property rights
over traditional knowledge based goods. This explains the use of the term “bio-piracy.”
227. Rochelle Cooper Dreyfuss & Andreas F. Lowenfeld, Two Achievements of the Uruguay
Round: Putting TRIPS and Dispute Settlement Together, 37 VA. J. INT’L L. 275, 302 (1997) (“Now
that there is time to be more reflective, we should recognize that as far as developing countries are
concerned, the TRIPS Agreement could have a substantially different impact from the remainder of
the WTO agreements. One effect is obvious: the cost to member states of enforcing intellectual
property rights is formidable. Monitoring is expensive, the obligation to destroy infringing materials
entails high social costs, and countries with weak civil justice systems must spend the money to
create them. All of this is in addition to the cost of setting up copyright, trademark, and patent offices
and staffing them with trained personnel. Even after these costs are borne, the TRIPS Agreement
may present a significant problem to developing countries.”); J.H. Reichman, Enforcing the
Enforcement Procedures of the TRIPS Agreement, 37 VA. J. INT’L L. 335, 348–49 (1997)
(“[D]eveloping countries face real difficulties in overcoming technological lag at socially acceptable
costs, and most of the benefits they may derive from implementing the substantive standards will
take time to accrue.”).
204 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

there should be a balancing of rights and an assessment of the public benefit.228

A more balanced system would provide protection for rights holders while
ensuring adequate protections for users. A more equitable system would
recognize and respect the contributions of non
Western cultures, as well as the interests of individuals, vis-à-vis large
corporations or institutions.
The citizens of the demandeur states may, despite the interest of these
governments in protecting traditional knowledge, ultimately not benefit if an
intangible intellectual property style right for traditional knowledge becomes
globally recognized. If the goal in protecting traditional knowledge is to
ensure that indigenous and traditional peoples experience social and economic
gains, advocating traditional knowledge as beneficial for developing countries
and indigenous communities, on the assumption that developing but not
developed countries are rich in intergenerational knowledge and culture, may
be a risky proposition.

1. Beyond the North-South Framework

The desire for an international regime to protect traditional knowledge
may be part of a negotiating strategy in response to developing country
demands for stronger intellectual property rights. The trade-off would be that
the developed countries would be required to protect traditional knowledge in
exchange for enhanced intellectual property laws.229 In other words, the
developed countries have, through TRIPS, obtained protection for their
intellectual goods, and developing countries seek to do the same, both as a
defensive and offensive strategy, in response to TRIPS.230 The perception exists
at WIPO that

228. Peter K. Yu, The Objectives and Principles of the TRIPS Agreement, 46 HOUS. L. REV. 979,
1004–05, 1007 (2009) (discussing the balancing aspects of the TRIPS Agreement). 229. Paul Kuruk,
Goading a Reluctant Dinosaur: Mutual Recognition Agreements as a Policy Response to the
Misappropriation of Foreign Traditional Knowledge in the United States, 34 PEPP. L. REV. 629,
689–92 (2007) (observing that developing countries have sought to negotiate traditional knowledge
protection at the WTO in exchange for higher levels of IP protection based on the principle of
reciprocity, and advocating this negotiating strategy as a fair one given the sacrifice made by
developing countries to implement TRIPS for the benefit of developed countries); see Graham
Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W. RES. J. INT’L L. 233, 271
(Spring 2001); Peter K. Yu, Cultural Relics, Intellectual Property, and Intangible Heritage, 81 TEMP.
L. REV. 433, 482–83 (Summer 2008). 230. Madhavi Sunder, The Invention of Traditional Knowledge,
 70 LAW & CONTEMP. PROBS. 97, 111–12 (Spring 2007); see Jerome H. Reichman, The TRIPS
Agreement Comes of Age: Conflict or Cooperation with the Developing Countries?, 32 CASE W. RES
J. INTL L. 441, 451–52 (Summer 2000) (noting the concern the benefits of higher levels of intellectual
property protection are unevenly distributed to the detriment of developing countries, while
developing country proposals for a new form of intellectual property to protect traditional
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 205

the developed countries are interested in justifying international agreements

aimed at strengthening or harmonizing international intellectual property
norms, while resisting any attempt to address traditional knowledge
protection, which is primarily a developing country concern.231
However, bio-piracy, the misappropriation of genetic resources, and the
issue of control over genetic information extend beyond the context of
traditional knowledge.232 In other words, the underlying problems that inform
the traditional knowledge discussion are not limited to developing countries or
indigenous peoples.233
In the United States, for example, there have been various instances of
litigation arising from genetic research. The cases concern issues similar to
those raised in the traditional knowledge narrative. These include the matter of
prior informed consent and the ability of the persons providing the genetic
materials to retain control over the use of such materials and any associated
intellectual property rights arising from the research.234 Thus, in the context of
genetic research, there have been discussions about community rights versus
individual rights in

knowledge were not well received).

231. See generally WIPO IGC, REPORT, WIPO Doc. WIPO/GRTKF/IC/14/12 (2009); Graham
Dutfield, TRIPS-Related Aspects of Traditional Knowledge, 33 CASE W. RES. J. INT’L L. 233, 273
(Spring 2001) (observing that solutions to prevent misappropriation have more to do with human
rights than IP rights).
232. For a discussion of the problem as it relates to the control of genetic information, see THE
GOVERNANCE OF GENETIC INFORMATION: WHO DECIDES? (Heather Widdows & Caroline Mullen
eds., 2009).
233. I acknowledge that, due to power imbalances, developing country nationals and
indigenous groups are more susceptible to unfair treatment by commercial entities. 234. See Moore
v. Regents of the Univ. of Cal., 793 P.2d 479 (Cal. 1990) (plaintiff complained that his physicians
failed to disclose pre-existing research and economic interests in his cells before extracting them);
Greenberg v. Miami Children’s Hosp. Research Inst., Inc., 264 F. Supp. 2d. 1064 (S.D. Fla. 2003)
(plaintiffs sought to control the uses of genetic materials taken for research purposes, and from which
a gene was isolated, a test developed and a patent obtained); Havasupai Tribe v. Ariz. Bd. of Regents,
204 F.3d. 1063 (Ariz. Ct. App. 2008) (the Havasupai tribe filed suit after discovering that their
genetic materials were being used for purposes for which they had not given their consent. The
proceedings are ongoing. The Association of Molecular Pathology, American College of Medical
Genetics, American Society for Clinical Pathology, and College of American Pathologists challenged
the validity of the Myriad patents on the BRCA1 and BRCA2 genes. The Myriad patents are
allegedly interfering with further breast cancer research and treatments and have been challenged as
contrary to the U.S. Constitution, the First Amendment free speech right, and the Fourteenth
Amendment); see Ass’n for Molecular Pathology v. USPTO, 702 F. Supp. 2d. 181 (S.D.N.Y. 2010)
(this case is illustrative of the controversy that surrounds gene patents in general, and those related to
medical and health issues in particular). Clearly, it is not only developing countries and
disenfranchised peoples who may benefit if the intellectual property system is corrected to ensure
that intellectual property rights are beneficial rather than harmful.
206 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1
controlling information, as well as questions about how best to share the
benefits arising from the use of the research.235
The objective of controlling genetic materials and preventing companies
from obtaining patent rights in such materials is not unlike the desire of
traditional knowledge holders to control the use of the genetic resources found
on their lands. Like human genetic materials, the spiritual or cultural aspects
of traditional knowledge are not currently protected under the law. In other
words, developing countries and traditional or local peoples are not the only
complainants. The tensions in the intellectual property regime can be seen in a
variety of situations, even within developed countries.236 A distributive justice
analysis of intellectual property that gives greater weight to the user oriented
social goods may assist in correcting the imbalance in both industrialized and
industrializing countries.

2. A Question of Justice
The protection of traditional knowledge may be seen as not only an
intellectual property issue, but also as a trade and human rights issue.237

235. See, e.g., Søren Holm, Me, Myself, I—Against Narcissism in the Governance of Genetic
Information, in THE GOVERNANCE OF GENETIC INFORMATION: WHO DECIDES? 37 (Heather
Widdows & Caroline Mullen eds., 2009) (discussing whether the individual, the family, or the state
should retain control over genetic information); see also, Heather Widdows, Constructing Communal
Models of Governance: Collectives of Individuals or Distinct Ethical Loci?, in THE GOVERNANCE
OF GENETIC INFORMATION: WHO DECIDES? 75, 84–85 (Heather Widdows & Caroline Mullen eds.,
2009). The matter of the taking of the genetic materials of indigenous groups has been raised in the
genetic information debate as well. However, the discussion is not with respect to cultural property,
nor intellectual property rights, but rather the question of fairness and informed consent.
236. Patents related to genetic materials and life forms are not without controversy. Some
countries have decided not to grant patents on life forms. For example, the Supreme Court of Canada
decided that the Harvard onco-mouse was not patentable subject matter under Canadian law. See
Harvard Coll. v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45 (Can.).
237. Stephen J. Munzer & Kal Raustiala The Uneasy Case for Intellectual Property Rights in
Traditional Knowledge, 27 CARDOZO ARTS & ENT. L.J. 37, 48 (“[T]he contemporary debate about
TK centers on economically subordinate groups, almost always indigenous peoples, and the
movement of their understanding or skill to economically more powerful Western (or Westernized)
groups or nations.”); WIPO IGC, REPORT ¶ 30, WIPO/GRTKF/IC/14/12 (2009). I acknowledge that
intellectual property rights have sometimes been characterized as human rights based on Article 27
of the Universal Declaration on Human Rights. United Nations, Universal Declaration of Human
Rights, G.A. res. 217A(III), U.N.Doc A/180 (1948). However, Intellectual Property rights are
generally treated a property rights, rather than human rights. Further, Articles 27(1) and (2) of the
Universal Declaration on Human Rights recognize a right for all persons to enjoy the benefit of
scientific and literary creations, while at the same time acknowledging the right of the creator to the
material and moral interests in his or her work. This would be consistent with a balanced approach to
intellectual property protection rather than a creator-focused
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 207

The justifications for an international traditional knowledge instrument tend to

highlight the rights of the affected population to protect its culture, heritage
and dignity. This right-holder centered approach may be logical in the context
of a human rights framework where the primary policy objective is the
protection of the individual’s personhood, dignity and liberty.238 Nevertheless,
it may not be suitable within an intellectual property framework. It may also
be an indication of weaknesses in international norms regulating rights of
groups marginalized globally, and which would be more appropriately
addressed in other multilateral settings.
A human rights framework for intellectual property, based in part of the
Universal Declaration of Human Rights, has been proposed, but such
framework remains to be fully developed.239 In any event, it would require a
consideration of the rights of both users and producers of intangible goods.240
The raison d’etre for intellectual property rights should not merely be the
protection of the right holder, but also the various public goods intellectual
property policy seeks to achieve.
Intellectual property law strives to maintain a balance between the public
good of access and the free movement of information with the need to protect
creators and innovators. It does so with a view to stimulating further creative
activity. A predominantly creator-focused approach, which is the approach
some traditional knowledge proponents tend to take, leads to an intangible
rights regime that is tilted heavily in favor of the right holder.241 This appears to
be the same

approach to intellectual property protection.

238. Even such rights may be limited when, in the context of hate speech, for example, there is
a risk of harm to the public.
239. Laurence R. Helfer, Towards a Human Rights Framework for Intellectual Property, 40
U.C. DAVIS L. REV. 971, 1015–20 (2007) (proposes the use of a human rights framework in
approaching the traditional knowledge debate. Professor Helfer suggests that a human rights
framework could be used in three possible ways: 1) to expand intellectual property rights, 2) to
impose external limits on intellectual property, or 3) to use intellectual property law to help achieve
human rights objectives); see also Mary W. S. Wong, Toward an Alternative Normative Framework
For Copyright: From Private Property to Human Rights, 26 CARDOZO ARTS & ENT. L.J. 775 (2009)
(advocating the use of a human rights framework as a way to accommodate both property rights and
development interests, thereby achieving a better balance).
240. United Nations, Universal Declaration of Human Rights, G.A. res. 217A(III), U.N. Doc
/810, art. 27 (1948). Art 27 States: (1) Everyone has the right freely to participate in the cultural life
of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2)
Everyone has the right to the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author.
241. See, e.g., Peter S. Menell, Intellectual Property: General Theories, in ENCYCLOPEDIA OF LAW
AND ECONOMICS 129 (Boudewijn Bouckaert & Gerrit De Geest eds., 2000) (giving an overview of
the different theories on intellectual property). Thomas
208 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

kind of logic that has led to the development of policies that have prompted a
fair amount of scholarly and public critique of the current intellectual property
system.242 However, instrumentalist intellectual property policy should not be
weighted in favor of the protected information, person or group to the
detriment of the public. This would be contrary to the goals of distributive
justice.
Intellectual property rights can be described as the relationship between
individuals in respect of their desire to control intangible goods or abstract
objects.243 Can we find a way to minimize abuses in the dynamic of this
relationship between commercial entities and individuals? This appears to be a
significant element of the problem faced by traditional knowledge holders.
The status quo seems to reflect a preference for the interests of commercial
entities to the detriment of individual persons or communities. By
re-characterizing the problem that needs to be addressed, effective alternative
solutions can be developed.

Jefferson rejected a natural rights view on intellectual property and instead adopted a utilitarian
approach. See Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization,
and Thomas Jefferson, 79 S. CAL. L. REV. 993, 1030 (2006) (stating that Jefferson doubted “natural
rights to property of any sort”).
242. See e.g., JAMES BOYLE, SHAMANS, SOFTWARE AND SPLEENS (1996); PETER DRAHOS &
JOHN BRAITHWAITE, INFORMATION FEUDALISM: WHO OWNS THE KNOWLEDGE ECONOMY? (2003);
LAWRENCE LESSIG, THE FUTURE OF IDEAS; MICHELE BOLDRIN & DAVID K. LEVINE, AGAINST
INTELLECTUAL MONOPOLY (2008); MICHAEL PERELMAN, STEAL THIS IDEA (2002); Margot
Kaminski, The Origins and Potential Impact of the Anti Counterfeiting Trade Agreement (ACTA), 34
YALE J. INT’L L. 247, 254–56 (2009) (criticizing the Anti Counterfeiting Trade Agreement) India
Plans Front to Nip New Piracy Law, THE ECON. TIMES (May 29, 2010), available at
http://economictimes.indiatimes.com/articleshow/5986902.cms (discussing India’s concerns over the
effects of ACTA on exports of information technology and medicine as well as India’s efforts in
getting other developing countries to unite together in opposition to ACTA); WTO, Council Debates
Anti-counterfeiting Talks, Patents on Life, WTO News Items (June 9, 2010), available at
http://www.wto.org/english/news_e/news10_e/trip_08jun10_e.htm (noting that China and India
conducted lengthy statements against ACTA and how ACTA conflicts with the TRIPS Agreement);
Monika Ermert, Indian Official: ACTA Out of Sync With TRIPS and Public Health, INTELL. PROP.
WATCH (May 5, 2010), http://www.ip
watch.org/weblog/2010/05/05/indian-official-acta-out-of-sync-with-trips-and-public health/(stating
that ACTA will be hard on India due to juggling of competing public policy issues, IPR protection
and public health.); Doug Palmer, U.N. Urged to Probe U.S. Trade Stance on Generic Drugs,
REUTERS (Jul 20, 2010), http://www.reuters.com/article/idUSTRE66J1CG20100720 (stating that
AIDS groups are accusing the United States of “using the ‘Special 301’ report to pressure countries
to give up certain public health rights they have under a World Trade Organization agreement on
intellectual property rights known as TRIPS.”).
243. PETER DRAHOS, A PHILOSOPHY OF INTELLECTUAL PROPERTY 1, 5 (1996); SUSAN
SCAFIDI, WHO OWNS CULTURE?: APPROPRIATION AND AUTHENTICITY IN AMERICAN LAW 159
(2005).
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 209

B. Intellectual Property Related Solutions that Don’t Require an

Expansion of the Existing Regime
It may be inaccurate to assume that the general public and the local
communities that develop traditional knowledge will be served by expanding
the notion of intangible property. Indeed, intellectual property law can play
only a small role in responding to the problems faced by local and indigenous
communities. A legally binding international instrument that is based on an
intellectual property model, while useful in achieving a global standard, is not
the only solution. It is worth remembering that the adequate protection and
enforcement of intellectual property rights, as required by TRIPS, has proven
to be a challenge.244 A new traditional knowledge right would not help to
relieve this burden. Furthermore, it would still need to be implemented,
monitored and enforced in order to be effective.
Adjusting the current global intellectual property regime would be
preferable to creating a sui generis intellectual property right in traditional
knowledge. It may also be more effective in achieving a greater degree of
fairness than creating a parallel intellectual property system. The protection of
traditional knowledge is a complex problem for which there is no simple
comprehensive solution. I suggest a multi
pronged approach, and offer some preliminary suggestions for alternatives that
may be worthy of further consideration. This includes a discussion of some
possibilities that may have already been raised at the WIPO or the WTO.

1. Accounting for Diverse Circumstances

A distributive justice approach to global intellectual property would shift
the policy space from the focus on economic utilitarianism towards

244. Office of the U.S. Trade Representative, 2010 Special 301 Report 15 (2010) (noting that,
despite the grace periods given for TRIPS implementation, many developing countries have yet to
establish effective mechanisms for enforcing intellectual property rights while some are still
finalizing legislation to implement their TRIPS obligations); WTO dispute resolution panels have
been established to resolve various TRIPS disputes relating to its implementation or enforcement.
See, e.g., WTO, China—Measures Affecting the Protection and Enforcement of Intellectual Property
Rights (Request for the Establishment of Panel by the United States) (2007); WTO, European
Communities—Protection of Trademarks and Geographical Indications for Agricultural Products
and Foodstuffs (Request for the Establishment of Panel by the United States) (2003); WTO,
European Communities – Protection of Trademarks and Geographical Indications for Agricultural
Products and Foodstuffs, (Request for the Establishment of Panel by Australia) (2003); WTO,
Canada— Term of Patent Protection, (Report of the Appellate Body) (2000); WTO, United States—
Section 110(5) of the US Copyright Act, (Report of the Panel) (2000); WTO, India—Patent
Protection for Pharmaceutical and Agricultural Chemical Products (Complaint by the European
Communities and their Member States) (1998).
210 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

addressing the imbalances in the intellectual property system so that it does

not encroach on the rights of those who lack economic, political and
informational resources. This may require developing measures to prevent the
inappropriate use of traditional knowledge in obtaining intellectual property
rights. As part of this, the regime should be refined so that sophisticated users
of the global intellectual property system do not trample upon poor people’s
rights. This issue is being tackled in multiple fora and has been addressed to
some extent in multilateral agreements such as the CBD, and the International
Treaty on Plant Genetic Resources for Food and Agriculture.245 Further,
various proposals are under consideration at the WTO TRIPS Council to
address the matter of disclosure of genetic resources in patent applications.246
Paragraph 19 of the Doha Declaration directs the WTO TRIPS Council to
consider the relationship between traditional knowledge and intellectual
property.247 In addition, WTO members issued a Doha Declaration on Public
Health in which they expressly agreed that the TRIPS agreement should be
interpreted with sufficient flexibility to allow member States to address the
health needs of their populations.248 A declaration on TRIPS and traditional
knowledge would be consistent with the work mandated by paragraph 19 of
the Doha Declaration. The statements therein could be aimed at increasing the
likelihood of an interpretation of TRIPS that is consistent with the notion of
respect for traditional knowledge.249
Additionally, WIPO could set guidelines to prevent the inappropriate
exertion of intellectual property rights over traditional knowledge. The Model
Provisions on Folklore contain some useful elements.250 For example, section 1
of the Model Provisions establishes

245. FAO Conference, Resolution 3/2001 (2001), available at

http://www.fao.org/Legal/TREATIES/033s-e.htm. The United States has signed but not ratified the
treaty.
246. See WTO, Article 27.36, Traditional Knowledge, Biodiversity, available at
http://www.wto.org/english/tratop_e/TRIPS_e/art27_3b_e.htm; WIPO, Submission by Australia,
Canada, New Zealand, Norway and the United States of America, 2 (2010) (proposing changes
aimed at knowledge holder before relying upon that knowledge for use in an invention and ensuring
that patents are not granted for inventions that are not novel or inventive).
247. WTO, Ministerial Declaration, WT/MIN(01)/DEC/1 (2001).
248. WTO, Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2
(2001).
249. See Daniel Gervais, Traditional Knowledge & Intellectual Property: A TRIPS Compatible
Approach, MICH. ST. L. REV. 137, 160–63 (2005) (proposing and outlining a draft declaration on
traditional knowledge and trade).
250. WIPO IGC, MATTERS CONCERNING INTELLECTUAL PROPERTY AND GENETIC
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 211

that expressions of folklore shall be protected against “illicit exploitation” and

other prejudicial actions as defined therein.251 A traditional knowledge
document could build upon such work. Illicit exploitation should be explicitly
linked to commercial exploitation and limited to a clearly identifiable
traditional or indigenous community. Also, the existence of a disparity in
bargaining power between the knowledge source community and the
intellectual property right holder or commercializing entity should be among
the criteria required in order to establish illicit exploitation.

2. Mediation
The use of the WIPO Mediation and Arbitration Center as an option for
resolving traditional knowledge-related disputes has been suggested and is
worth exploring.252 The WTO also has a dispute resolution mechanism that can
be used for TRIPS-related disputes between WTO Member States.253 However,
the WTO does not resolve disputes that are unrelated to State obligations
under the WTO agreements, nor does it serve to resolve disputes between
private parties. The WIPO Mediation and Arbitration Center, by comparison,
was established for the purpose of resolving international disputes between
private parties.254 It has been effectively used to resolve numerous domain
name disputes.255
In light of the poor economic situation of many indigenous and traditional
peoples, mediation and arbitration could be quite useful as a less costly
alternative.256 In the context of alternative dispute resolution, existing soft law
norms outside the intellectual property framework that encourage good
corporate behavior could also be considered as a

RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE, WIPO Doc. WIPO/GRTKF/IC/1/3, 28

(2001) (describing the Model Provisions as a “sui generis model for intellectual property-type
protection of traditional knowledge-related subject matter.”). Though I do not see an intellectual
property model as the best option, there are some aspects of the Model provisions that could serve as
a starting point.
251. UNESCO-WIPO, Model Provisions for National Laws on the Protection of Expressions of
Folklore Against Illicit Exploitation and Other Prejudicial Actions (1985). 252. See WIPO IGC,
POSITION PAPER OF THE ASIAN GROUP AND CHINA, WIPO Doc. WIPO/GRTKF/IC/2/10, 2 (2001).
253. TRIPS Agreement, supra note 6.
254. WIPO ARBITRATION AND MEDIATION CENTER,
http://www.wipo.int/amc/en/center/background.html.
255. WIPO UDRP Domain Name Decisions (gTLD), available at
http://www.wipo.int/amc/en/domains/decisionsx/index.html.
256. See Jacques de Werra, Fighting Against Biopiracy: Does the Obligation to Disclose in
Patent Applications Truly Help?, 42 VAND. J. TRANSNAT’L L. 143, 174–78 (2009) (proposing the
use of arbitration and mediation to resolve traditional knowledge cases).
212 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

resource.257 Any such process would have to be sensitive to the reality that in
such disputes, one side could have significantly more financial or
informational resources.258 It would be important to take this into account in
order to adequately address the concerns of both the intellectual property right
holder and the relevant traditional knowledge community.

3. Capacity Building
WIPO and the WTO could assist developing countries and indigenous
peoples in documenting their traditional knowledge. India established a
Traditional Knowledge Digital Library consisting of 200,000 traditional
Indian medicine formulations and gave the European Patent Office access to
the database for the purposes of patent searches and examinations.259
According to the Government of India, there have been more than 2,000 cases
annually of misappropriation of Indian traditional medicinal knowledge since
the time the WIPO IGC was established.260 Nonetheless, the documentation
has been useful in enabling the Indian government to contest certain patents.261
WIPO and the WTO already provide technical assistance to developing
countries.262 For those who cannot afford to collect the relevant traditional
knowledge data and set up systems such as that developed by India, technical
assistance could be provided through existing international mechanisms.

4. Education
WIPO should continue to promote further education on the use of the
existing intellectual property system in order to assist traditional knowledge
communities to prevent misappropriation.263 Although the

257. See, e.g., The OECD Guidelines for Multinational Enterprises: Text, Commentary and
Clarifications, COMM. ON INT’L INV. AND MULTINATIONAL ENTER. (Oct. 31, 2001), available at
http://busa.org.za/docs/Guidelines.pdf.
258. Some multinational corporations have revenues greater than the gross domestic product of
entire countries. This may make it difficult for some countries to adequately represent their position.
See FREDERICK M. ABBOTT ET AL., INTERNATIONAL INTELLECTUAL PROPERTY IN AN INTEGRATED
WORLD ECONOMY 73–75 (2007).
259. WIPO IGC, REPORT ¶ 42, WIPO Doc. WIPO/GRTKF/IC/14/12 (2009). 260.
Id.
261. For example, the patent related to turmeric.
262. TRIPS Agreement, supra note 6, at art. 67 (provision on technical cooperation);
Convention Establishing the World Intellectual Property Organization art. 4(v) (amended 1979)
(provision on technical cooperation).
263. Convention Establishing the World Intellectual Property Organization, art. 4(vi) provides
that WIPO “shall assemble and disseminate information concerning the protection of intellectual
property . . . .”
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 213

existing intellectual property regime may favor industrialized countries, it is

important to acknowledge that some of the intangible property that may be
described as traditional knowledge is protectable under the current law.

5. National Measures
Some countries have taken measures to explicitly protect their traditional
knowledge and cultural property in the absence of an international
agreement.264 This is an important step because, as sovereign states, national
governments control access to their territories and resources. If biopiracy, for
example, is a significant problem for a particular nation, then tighter national
controls will have a greater effect than an international instrument to protect
traditional knowledge as a new form of intangible property. Unfortunately,
some governments may not be sufficiently resourced to exercise the necessary
control. Further, the affected community may be a minority group whom the
government does not effectively represent. This presents a variety of
challenges that would have to be addressed at the national level and possibly
with the assistance of the international community.

CONCLUSION
Classical intellectual property rights serve a public function in exchange
for the time-limited private right that is granted by the state. Property rights in
intangible goods must be justified because they effectively remove certain
categories of knowledge products from the public sphere. As discussed, there
is a risk of public harm, including an undue concentration of power, in
creating excessively strong intellectual property rights. Likewise, there is a
risk of harm if intellectual property law develops to include subject matter that
would be better protected through the use of a less monopolistic means.
Certainly, the international intellectual property system needs to reflect
competing values, which means it must recognize and respect other interests.
As intellectual property minimum standards have

264. WIPO IGC, REPORT ¶ 20, WIPO Doc. WIPO/GRTKF/IC/14/12 (2009); WIPO IGC,
Comparative Summary of TCE Sui Generis Legislation, Annex II, WIPO Doc. GRTKF/IC/9/INF/4;
Copyright Act 2005, § 17 (Ghana) (providing perpetual protection for Ghanaian folklore); N.Z.
Trade Marks Act, 2002, § 17 (prohibiting the registration of marks that are likely to offend a segment
of the community, including the Maori); Law introducing a Protection Regime for the Collective
Knowledge of Indigenous Peoples Derived from Biological Resources Law No. 27811, 2002 (Peru)
(providing sui generis protection for indigenous knowledge); Special System for the Collective
Property Rights of Indigenous Peoples Law No. 20, June 26, 2000 (Pan.).
214 MARQUETTE INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

become globally enforceable through TRIPS, it is essential to take into

account divergent views, histories, and philosophies. The difficulty with
TRIPS and the subsequent “TRIPS plus” agreements is that they may be seen
as privileging Western ideologies and values.
Nonetheless, as the global community moves towards greater integration,
it is counterproductive to develop what amounts to a “Western” intellectual
property system alongside a “non-Western” intellectual property system.
There appears to be little to no benefit in creating or reinforcing what appears
to be a cultural divide in the protection of intangible goods.265 Moreover,
developing countries and indigenous peoples may find that they face increased
costs and reduced access to traditional knowledge goods. This may be
especially true for goods that originate outside of their particular territories or
communities. This outcome would be contrary to the equity-oriented values
that appear to be an important element of traditional knowledge protection.
At the same time, a distributive justice approach to intellectual property
law requires that the problems in the existing system be addressed. Many
scholars have articulated the case for a more balanced intellectual property
regime that makes room for competing values and interests. It is possible, and
preferable, to address the underlying issues rather than to expand a system
which has yet to be shown to be beneficial for every society. If the goal of
access to affordable knowledge and information is a worthy one, then an
assessment of traditional knowledge from a distributive justice perspective
leads to the conclusion that a sui generis intangible property right in
traditional knowledge may not be the most appropriate response to the
problems of bio-piracy and misappropriation.
The corollary to this position is that the international community should be
mindful of the need to balance rights and obligations in the development of
international intellectual property law and policy. Unfortunately, the recent
negotiations on the Anti-Counterfeiting Trade Agreement (“ACTA”) serve as
yet another example of an expanding protectionist intellectual property model
that predominantly favors industrialized countries’ interests.266 It should come
as no surprise then

265. If one accepts the view that traditional knowledge represents intangible developing
country goods while intellectual property represents intangible developed country goods, then from
that standpoint, the cultural divide already exists. As I argue in this paper, however, this dichotomy is
not accurate.
266. For the position of the Government of the United States, see http://www.ustr.gov/acta. For
more critical perspectives, see Professor Michael Geist’s commentary at
http://www.michaelgeist.ca/content/view/4525/135/. See also American
2011] A SUI GENERIS REGIME FOR TRADITIONAL KNOWLEDGE 215

if developing countries push back on matters, like traditional knowledge, that

are of concern to them. Developing countries may quite reasonably perceive
the negotiations on ACTA as industrialized countries working together to
strengthen protection for their intangible goods while ignoring the needs of
the majority of the world. In light of their continued interest in improving
global protection for intellectual property, any arguments put forth by
industrialized countries to dispel the need for traditional knowledge protection
may appear to be contradictory and self-serving. Regrettably, what seems to
be absent is an instrumentalist analysis of the objectives of intellectual
property policy. Ideally, this should include an assessment of the benefit to the
global public that comprises the international community.

University, PIJIP, Urgent ACTA Communiqué, available at

http://www.wcl.american.edu/pijip/go/acta-communique.