Piracy, Biopiracy and Borrowing: Culture, Cultural Heritage and the Globalization of Intellectual Property

Abstract:     
The appropriation of local knowledge within the framework of existing global intellectual property rules is a major issue of contention today. The discourse surrounding this issue is highly charged with accusations of piracy from developed countries countered with allegations of biopiracy from developing countries. Flowing beneath the surface of this dialogue are multiple levels of historical experience. The time of formation of intellectual property frameworks in the nineteenth century was a period when evolutionary views of the development of human societies were paramount. Local knowledge (folklore) and societies seen as possessing such knowledge were seen as retrograde survivals of a stage through which civilized societies had already passed and left far behind. Consequently, local knowledge was subject to devolutionary assumptions that meant that an inverse relationship was believed to exist between degree of civilization and amount of local knowledge such as folklore. Local knowledge was thus seen as something that the civilized did not have. As a result, local knowledge relevant to developing countries, such as folklore, was never protected within developed country national intellectual property systems or multilateral intellectual property frameworks based upon such national systems. Professor Arewa examines the implications of this historical context for current day protection of local knowledge, suggesting that intellectual property categories, rather than being natural, fixed and determinate, are contextually determined ways of protecting creations and inventions deemed to have value. As such, the greatest impediments to protecting local knowledge is seeing the value inherent in local knowledge and designing a protection framework accordingly. In constructing a framework for protection, local knowledge innovation zones, modeled after the successful United States nineteenth century intellectual property development strategy, may serve an important role in both fostering the commercial development of local knowledge while contributing to the development of technological capacity in local communities.

Keywords: IIntellectual Property, Folklore, Local Knowledge, Local Knowledge Innovation Zones, Value Assignment, Legal Framework, International Law, TRIPs, Agreement on Trade-Related Aspects of Property Rights, Developing Countries, Third World Countries, Local Communities, Traditional Knowledge

JEL Classifications: K11, K33, K49

Working Paper Series