Intellectual Property and Traditional Knowledge: Challenges Ahead

Rachel Migicovsky is a JD Candidate at Osgoode Hall Law School

According to the World Intellectual Property Organization, Traditional Knowledge (TK) is  “knowledge which has a traditional link with a certain community: it is … developed, sustained and passed on within a traditional community, and…between generations”. The introduction of TRIPS in 1994, a WTO agreement introducing an international uniform legal standard for the treatment of intellectual property, heralded the beginning of a constant discussion surrounding the treatment of IP by Western legal systems. Further debate emanates from a decision on August 10, 2010 by nine of the seventeen African Regional Intellectual Property Organization (ARIPO) member states to sign the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore; the remaining eight countries must now follow suit. The Protocol provides that owners of TK shall have exclusive rights to that knowledge. The UN has released a report noting that intellectual property law may not always be compatible with TK. However, the practical utility of the Protocol also merits examination.

As Johanna Gibson has noted, the process through which community-specific knowledge develops can be more significant than the end product, and each indigenous community has its own norms. Yet ARIPO has now forced the Protocol onto some unwilling participants, subjecting them to laws that have the power to distort and homogenize the unique elements the Protocol was intended to protect. For example, Rebecca Tsosie points out transitioning to IP’s rights-based language may undermine TK’s evolutionary nature. However, Marilyn Strathern has noted that IP is a powerful tool for protection against unjust encroachment on intangible goods. Indeed, IP Osgoode member Rosemary Coombe has argued—pointing to groups in Chiapas, Mexico—that indigenous actors have found ways to operate in legal and commercial frameworks, claiming intellectual property rights in a way that asserts, rather than undermines, their identities.