The New Discovery Doctrine: Some Thoughts on Property Rights and Traditional Knowledge

American Indian Law Review, 2007

26 Pages Posted: 18 May 2007

See all articles by Rebecca M. Bratspies

Rebecca M. Bratspies

City University of New York - School of Law


The discourse surrounding traditional knowledge takes place on a number of levels simultaneously. Trade advocates view ownership of traditional knowledge and biological diversity through the lens of the World Trade Organization (WTO) agreements. Environmentalists approach the question with ecosystem preservation in mind. Because most of the world's remaining biodiversity exists within the territories of indigenous peoples, issues of sovereignty, identity and colonialism inevitably swirl beneath the surface. And, of course, all these dialogues occur against a backdrop of a globalizing market economy that values resources almost exclusively in terms of their monetary value.

So far, the dynamic seems to be a tug of war between two alternative property visions: state ownership of biological resources, as articulated in Article 8j of the Convention on Biological Diversity, and private ownership of these resources under the TRIPS agreement.

There is, however, a third aspectto this struggle over traditional Knowledge and biological resources. Most of the world's remaining biodiversity exists within indigenous lands and territories. Rather than as an aspect of state sovereignty over territory, or the fruits of private invention, indigenous leaders conceive of these resources as an aspect of self-determination - as a recognition of their fundamental rights to property and culture. Indigenous groups are thus trying to expand the discourse over biological resources so that it includes their interests and their hopes for wresting back control over territories, resources and heritage.

Given the resources devoted to developing comprehensive laws to ensure protection of intellectual property one might ask why the current legal system does so little to safeguard the cultural and intellectual property interests of indigenous groups. When the interests and assets of an entire group are, by definition, not embraced within the protective mantle we call property, it ought to prompt exploration of some hard questions. This article attempts to pose some of those questions and to suggest areas for further inquiry.

Keywords: indigenous, traditional knowledge, TRIPS, biodiversity, property

JEL Classification: K19, K32, K33

Suggested Citation

Bratspies, Rebecca M., The New Discovery Doctrine: Some Thoughts on Property Rights and Traditional Knowledge. American Indian Law Review, 2007. Available at SSRN:

Rebecca M. Bratspies (Contact Author)

City University of New York - School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

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