A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law
70 Pages Posted: 24 Mar 2010 Last revised: 26 Feb 2014
Date Written: March 19, 2010
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 right for 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 international protection for traditional knowledge than developed countries. At the same time, developing countries have been critical of the impact of intellectual property rights on various social issues such as access to medicines and 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, creating a sui generis intellectual property style right may hinder the equity-oriented goals of some traditional knowledge holders.
Keywords: Intellectual property, International intellectual property, Traditional knowledge, Traditional cultural, expressions, Genetic resources, WIPO, WTO, Biopiracy, Misappropriation, Sui generis right, TRIPS, Developing countries
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