Traditional Knowledge, Indigenous Peoples, and Local Communities

2017 ◽  
Author(s):  
Susy Frankel
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Local Communities ◽  
Minimum Level ◽  
Short Term ◽  
Practical Matter ◽  
Ip Law ◽  
Level Of Agreement

This chapter situates the claims for protection of traditional knowledge in the international intellectual property (IP) context. Drawing on examples, it discusses the meaning of “traditional knowledge” and how the goals and means of protecting that knowledge do not fit within the framework of IP law. In order to address the overlap with IP and provide protection against misuse of traditional knowledge, a number of international bodies have been involved in negotiations and treaty drafting. The chapter discusses those developments, and concludes that even though international resolution looks unlikely in the short-term, the protection of traditional knowledge will continue to feature in international IP debates until a minimum level of agreement at least reached. In order to attain such agreement, there needs to be relevant national laws and, as a practical matter, sufficient investment in the innovation of traditional knowledge in order to deliver the value of protection to its holders.

scholarly journals Forbidding the Tragedy of Commons; Conserving Indigenous Knowledge through Indigenous Peoples and Local Communities Entitlement for Future Generations from the Perspectives of Intergeneration Justice

2018 ◽  
Vol 7 (3.30) ◽  
pp. 99
Author(s):  
Al-Hanisham Mohd Khalid ◽  
Rohaida Nordi ◽  
Safinaz Mohd Hussein
Keyword(s):  
Intellectual Property ◽  
Indigenous Knowledge ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Indigenous Peoples ◽  
Local Communities ◽  
Future Generations ◽  
The Core ◽  
Core Issues

Conserving indigenous knowledge (IK) has long been discussed in international fore for more than five decade. The core issues is there is unanimity among scholars, governments, indigenous peoples and local communities on whether and how issue of IK could be harmonise within intellectual property rights law framework particularly copyrights. This paper aims to highlight the issues of conserving indigenous knowledge since indigenous knowledge does not belong to one generation but all generations. Discussion will embark on from the perspective of intellectual property jurisprudence through the works of Henry Reynolds, James Tully and Will Kymlicka. The outcome of this paper demonstrates promising thought into the role of intergeneration justice in protecting indigenous peoples in Malaysia. It is the contention of this paper that perhaps such conditions could apply to traditional knowledge too in addressing the plight of indigenous peoples. 

scholarly journals A Review of intellectual property rights: The weak link with the African Traditional knowledge

2021 ◽  
Vol 7 (4) ◽  
pp. 1-11
Author(s):  
Jonai Wabwire
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Indigenous Peoples ◽  
Weak Link ◽  
Local Communities ◽  
International Level ◽  
Cultural Participation ◽  
Governmental Organizations

Protecting traditional knowledge (TK) has been acknowledged in various discussions under the umbrella of a number of inter-governmental organizations that deal with biodiversity, the environment, indigenous peoples’ rights, human rights, among others. It has, however, been difficult to arrive at a consensus on the proper modality that can serve the needs and desires of Indigenous and Local Communities (ILCs) in their economic and cultural participation. The paper examines the requirements for the protection of TK and explores the modalities of TK protection at the international level for regulating the control of, access to and utilization of biodiversity associated with it. It is argued that any modality of TK protection should incorporate defensive and positive protection that address gaps in protecting TK. Protection of TK should, therefore, involve identifying different modalities, including those based on Intellectual Property, to fit the nature and use of TK in particular contexts. The paper makes a case for a shift in strategy for protecting TK by adopting pluralistic modalities that address the protection needs of ILCs, depending on the purpose and the context in which the knowledge is practiced.

Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part II

2014 ◽  
Vol 16 (1) ◽  
pp. 3-37
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
Biological Diversity ◽  
Convention On Biological Diversity ◽  
Nagoya Protocol ◽  
Trade Law ◽  
International Trade Law ◽  
Traditional Cultural Expressions

Abstract In Part I of this two-part article, we explained why western assumptions built into intellectual property law make this area of law a problematic tool, as a way of protecting traditional knowledge (tk) and expressions of folklore (EoF) or traditional cultural expressions (tce) of indigenous peoples. Part II of this article aims to: 1) provide a brief review of the Convention on Biological Diversity (cbd) and the Nagoya Protocol, and examine the evolution of the intellectual property rights of indigenous peoples from the Agreement on Trade Related Aspects of Intellectual Property (trips Agreement) to the cbd to the Nagoya Protocol; and 2) examine possible core principles, inducted (rather than deduced) from actual practices already in place in the areas of patents, copyrights, and trademarks in relation to protecting tk and EoF. These explorations could allow for discussions regarding indigenous peoples, human rights and international trade law to become less adversarial.

Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part I

2013 ◽  
Vol 15 (3) ◽  
pp. 319-339 ◽  
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Property Rights ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Indigenous Peoples ◽  
Property Law ◽  
Cultural Expression ◽  
Intellectual Property Law ◽  
Traditional Cultural Expressions

Abstract This article is the first part of a two-part piece, which considers the intellectual property rights of indigenous peoples. After establishing pragmatic working definitions of who “indigenous peoples” are and what folklore (or “traditional cultural expression”) is, as compared with, but dialectically related to, “traditional knowledge,” this article does the following: 1) explains why western assumptions built into intellectual property law make this area of law a problematic tool for protecting traditional knowledge (TK) and expressions of folklore (EoF) or traditional cultural expressions (TCE) of indigenous peoples; and 2) creates a general sketch of human rights related legal instruments that could be and have been harnessed, with varying degrees of success, in the protection of the intellectual property of indigenous peoples.

Rights to the Benefits of Research: Compensating Indigenous Peoples for their Intellectual Contribution

1997 ◽  
Vol 56 (2) ◽  
pp. 127-137 ◽  
Author(s):  
Fundación Indígena (FSI) ◽  
Brij Kothari
Keyword(s):  
Intellectual Property ◽  
Medicinal Plants ◽  
Indigenous Knowledge ◽  
Intellectual Property Rights ◽  
Indigenous Peoples ◽  
Research Process ◽  
Local Communities ◽  
Ethical Guidelines ◽  
Self Reflection ◽  
Written Form

Research on indigenous knowledge has resulted in innumerable benefits to the Outsider(s). Indigenous peoples should be compensated in return. This article argues for integrating compensation and empowerment into the heart of the research process itself rather than viewing them as post-project undertakings. "Rights to the Benefits of Research" (RBR) is proposed as a unifying term to coalesce ideas of compensation for benefits to the Outsider(s) obtained from a noncommercial research process. In contrast, compensation of indigenous peoples via "Intellectual Property Rights" (IPR) is seen as predicated primarily upon commercial benefits. A strategy to implement RBR based on ethical guidelines and indigenous peoples' empowerment is suggested. A participatory ethnobotanical research project conducted in Ecuador serves to illustrate benefits for which compensation would fall under RBR but not IPR. The project involved the local communities in documenting their oral knowledge of medicinal plants in a written form, primarily for themselves. It is assessed along extractive, compensatory, and empowering tendencies through post-project self-reflection. The article posits that the conservation of indigenous knowledge for and by the local peoples could have positive implications for protecting their intellectual property from predations by the Outsider(s).

Part III Rights to Culture, Ch.11 Intellectual Property and Technologies: Article 31

2018 ◽  
Author(s):  
Stoll Tobias
Keyword(s):  
Intellectual Property ◽  
Cultural Heritage ◽  
Traditional Knowledge ◽  
Indigenous Peoples ◽  
State Action ◽  
Technology And Culture ◽  
Science Technology ◽  
Cultural Expressions ◽  
Traditional Cultural Expressions

This chapter looks at the specific right to intellectual property and technologies in Article 31. Article 31 sets out a number of rights of indigenous peoples relating to their science, technology, and culture, and calls for State action in this regard, which is to be taken with the involvement of those peoples. The provision relates to three different subject matters, between which there obviously exists quite some overlap. It refers, first, to ‘cultural heritage, traditional knowledge and traditional cultural expressions’. Second, it refers to ‘intellectual property’ over such heritage, knowledge, and expressions, and third, to ‘manifestations of…sciences, technologies and cultures’ — representative examples of which find themselves included in an illustrative list. According to Article 31, with a view to each of these subject matters, indigenous peoples have a right to ‘maintain, control, protect and develop’.

scholarly journals Intellectual Property Rights Systems and the Assemblage of Local Knowledge Systems

2008 ◽  
Vol 15 (2) ◽  
pp. 201-221 ◽  
Author(s):  
Saskia Vermeylen ◽  
George Martin ◽  
Roland Clift
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Indigenous Peoples ◽  
Local Knowledge ◽  
Ethical Issues ◽  
Third Space ◽  
Unresolved Conflict ◽  
Indigenous Society

The mounting loss of the traditional knowledge of indigenous peoples presents environmental as well as ethical issues. Fundamental among these is the sustainability of indigenous societies and their ecosystems. Although the commercial expropriation of traditional knowledge grows, rooted in a global, corporate application of intellectual property rights (IPRs), the survival of indigenous societies becomes more problematic. One reason for this is an unresolved conflict between two perspectives. In the modernist view, traditional knowledge is a tool to use (or discard) for the development of indigenous society, and therefore it must be subordinated to Western science. Alternatively, in the postmodernist view, it is harmonious with nature, providing a new paradigm for human ecology, and must be preserved intact. We argue that this encumbering polarization can be allayed by shifting from a dualism of traditional and scientific knowledge to an assemblage of local knowledge, which is constituted by the interaction of both in a third space. We argue that IPR can be reconfigured to become the framework for creating such a third space.

scholarly journals Protection of traditional medical knowledge under intellectual property law

2015 ◽  
Author(s):  
Alexandra Alexandrou ◽  
Alkinoos Athanasiou ◽  
Panagiotis D Bamidis
Keyword(s):  
National Identity ◽  
Intellectual Property ◽  
Traditional Knowledge ◽  
Cultural Practices ◽  
Negative Impact ◽  
Medical Knowledge ◽  
Legal Protection ◽  
Legal Framework ◽  
Indigenous Populations ◽  
Ip Law

Intellectual Property (IP) Law constitutes the legal framework that ensures the protection of original creations of the mind against their illicit use and misappropriation. Providing the original creator with his rights constitutes a problem in cases such as traditional knowledge and cultural expressions since the rights over a practice cannot be traced back to specific individuals. Traditional Medical Knowledge (TMK) describes the practices and knowledge gained by native indigenous populations which is passed on from generation to generation and which is conducive towards the development of medicinal research. These forms of medical know-how are multidimensional and are often closely linked to the cultural practices and the national identity of many indigenous populations. The lack of a means of legal protection for this source of knowledge is an issue that touches both upon economic and moral grounds. The industrial exploitation of TMK native to a country may not only undermine that country’s economy and facilitate misappropriation; it may also have a negative impact on matters of national identity. This is an issue of ongoing importance, which has not yet been adequately met. Patents (a significant IP protection in the medical field) have little application to TMK. Trade secrets and geographical indications are other such solutions of limited usefulness in the protection of TMK but have been used in some countries alongside with sui generis systems and customary laws or practices. A possible solution example can be examined at initiatives such as the Traditional Knowledge Digital Library, which aims at documenting traditional medical literature on ancient Indian therapeutic practices. It is necessary that based upon current IP resolution methods a new means of protection is provided for that will enable all nationalities to safeguard their cultural diversity whilst respecting medical knowledge dissemination within the framework of a digital era.

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