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Protection of Traditional Knowledge: Trade Barriers and the Public Domain

Journal of the Copyright Society of the U.S.A., Vol. 58, No. 4, Summer 2011

38 Pages Posted: 23 Feb 2011 Last revised: 16 May 2017

David R. Hansen

Duke University Libraries; University of North Carolina (UNC) at Chapel Hill - School of Law; University of California, Berkeley - School of Law

Date Written: February 26, 2011

Abstract

In recent years, developing nations have pushed for international copyright and other intellectual property regimes to expand protection over the cultural heritage and collective knowledge of particular indigenous groups. These “traditional knowledge” protections have been justified by factors like economic protection, equity in intellectual property ownership, cultural protection, and economic development. These motivating factors are a far cry from the underpinnings of traditional Western intellectual property law - and in particular, U.S. copyright law - which focuses on incentivizing the creation of new content for the promotion of “the Progress of Science and useful Arts.” Because of these differing justifications, traditional knowledge protections at the international level have generated some degree of friction between the developed and the developing world. So far, much of the debate focuses on the “political” and “real” costs and benefits of traditional knowledge rights, but there is little discussion of the legal consequences of current protections. Given the underlying ideological conflict, some legal dissension is likely to occur regarding enforcement and protection of traditional knowledge rights.

This paper examines “positive” traditional knowledge protections, which provide copyright-like rights over content, including the right exclude, license, and profit from these works. In many cases these protections regulate works that Western eyes would view as in the public domain. Initiatives to provide international protection for traditional knowledge expressions have blithely proceeded without much regard for the potential consequences under existing international law. This paper makes the point that at least some existing traditional knowledge protections not only conflict with IP-policy norms of the United States and the European Community, but also that these protections violate the very terms of TRIPS and GATT. As work toward international protection of traditional knowledge progresses, policy makers should be aware of these legal incompatibilities and how they evidence the deep conflict between expansive traditional knowledge protections and Western IP policy.

Keywords: Intellectual Property, Copyright, Traditional Knowledge, International Trade, TRIPS

Suggested Citation

Hansen, David R., Protection of Traditional Knowledge: Trade Barriers and the Public Domain (February 26, 2011). Journal of the Copyright Society of the U.S.A., Vol. 58, No. 4, Summer 2011. Available at SSRN: https://ssrn.com/abstract=1768004

David R. Hansen (Contact Author)

Duke University Libraries ( email )

100 Fuqua Drive
Durham, NC 27708-0204
United States

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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