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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

J. Janewa OseiTutu

Florida International University (FIU) - College of Law

Date Written: March 19, 2010

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 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

Suggested Citation

OseiTutu, J. Janewa, A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law (March 19, 2010). Marquette Intellectual Property Law Review, Vol. 15, No. 1, Winter 2011; Florida International University Legal Studies Research Paper No. 13-07. Available at SSRN: https://ssrn.com/abstract=1574996

Julia Janewa OseiTutu (Contact Author)

Florida International University (FIU) - College of Law ( email )

11200 SW 8th St.
RDB Hall
Miami, FL 33199
United States

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