How Can Traditional Knowledge Best Be Regulated? Comparing a Proprietary Rights Approach with a Regulatory Toolbox Approach

25(1) The Contemporary Pacific, pp. 1-31, 2013

26 Pages Posted: 24 Jul 2013

See all articles by Miranda Forsyth

Miranda Forsyth

School of Regulation & Global Governance (RegNet)

Date Written: July 23, 2011

Abstract

Traditional knowledge is increasingly being seen as a new potential source of economic value in the Pacific Islands region. As a result of this, and a belief that traditional knowledge is currently at risk in a number of respects, a move to protect it has developed over the past decade. This move has largely focused on the creation, through legislation, of a sui generis inalienable and perpetual property right in traditional knowledge, vested in its “owners” or “holders.” However, very little attention has been paid to date to the issue of determining who these owners or holders should be. The first part of this paper seeks to fill this gap by highlighting the institutional and normative issues implicated in any legislation envisaging group ownership over traditional knowledge. The second part proposes an alternative approach to the regulation of traditional knowledge, one that is not based on the creation of new proprietary rights. It argues that this alternative “regulatory toolbox” approach can achieve the same objectives for the protection of traditional knowledge that have been articulated in the push for the development of sui generis legislation, but avoids many of the potential sites of conflict inherent in such an approach.

Keywords: traditional knowledge, regulation, Pacific Islands, customary law, legal pluralism, intellectual property, community, ownership

Suggested Citation

Forsyth, Miranda, How Can Traditional Knowledge Best Be Regulated? Comparing a Proprietary Rights Approach with a Regulatory Toolbox Approach (July 23, 2011). 25(1) The Contemporary Pacific, pp. 1-31, 2013. Available at SSRN: https://ssrn.com/abstract=2297186

Miranda Forsyth (Contact Author)

School of Regulation & Global Governance (RegNet) ( email )

Canberra, Australian Capital Territory 0200
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
80
Abstract Views
387
rank
301,447
PlumX Metrics