Legal Geographies of Intellectual Property, ‘Traditional’ Knowledge and Biodiversity: Experiencing Conventions, Laws, Customary Law, and Karma in Thailand

2013 ◽  
pp. n/a-n/a
Author(s):  
DANIEL F. ROBINSON
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Customary Law ◽  
Legal Geographies

scholarly journals Indigenous Customary Law and International Intellectual Property: Ascertaining an Effective Indigenous Definition for Misappropriation of Traditional Knowledge

2020 ◽  
Vol 51 (4) ◽  
pp. 597
Author(s):  
Nopera Dennis-McCarthy
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Customary Law ◽  
World Intellectual Property Organization ◽  
Effective Protection ◽  
System A ◽  
Property System ◽  
The World ◽  
Definition Of ◽  
Property Regime

The effective protection of indigenous traditional knowledge from misappropriation is a fundamental challenge faced by the intellectual property system. A substantial aspect of this challenge is how the intellectual property regime can practically utilise or incorporate indigenous customary law as a means of protection against misappropriation, when there is an inherent tension between the former and the latter. Any international legal instrument intended to protect against misappropriation of indigenous traditional knowledge will have to contend with this tension: a definition of misappropriation ought to encourage use of local indigenous customary law, but it also must be practically applicable within the confines of the intellectual property system. Consequently, this article considers the challenge in two parts. The first part requires ascertainment of a potential international legal definition of misappropriation that will uphold and maintain indigenous customary law, in the context of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) draft articles. To ensure the definition effectively affirms indigenous customary law, it will be based on three key "approaches" to indigenous custom. The second part entails application of the definition to the domestic context, namely through the case studies of New Zealand and Australia, and a subsequent critique of the difficulties of application, to illustrate the challenge of incorporating indigenous customary law within the intellectual property system. This article concludes that the risks inherent in an aspirational definition of misappropriation which may have some challenges in application are outweighed by the potential of normalising and encouraging indigenous customary law as the foundational basis for truly effective protection of traditional knowledge against misappropriation.

Intellectual Property for Mystics? Considerations on Protecting Traditional Wisdom Systems

2010 ◽  
Vol 17 (3) ◽  
pp. 519-546
Author(s):  
Rosanne Trottier
Keyword(s):  
Intellectual Property ◽  
Complex Systems ◽  
Cultural Heritage ◽  
Traditional Knowledge ◽  
Customary Law ◽  
Intangible Cultural Heritage ◽  
Cultural Expressions ◽  
Traditional Cultural Expressions ◽  
Traditional Communities

AbstractEfforts to protect, if not revitalize, intangible cultural heritage in its traditional communities, cannot succeed without due attention to issues of ownership—cultural, environmental, intellectual, economic … “intellectual property” categories in a wisdom system such as that of the Baul of Bengal show that Traditional Knowledge, Customary Law and Traditional Cultural Expressions are inseparable “property,” and that “ownership” should be understood on traditional terms. Within such an integrated continuum, knowledge itself is not limited to it modern meaning.Is it possible to bring about a true and equitable dialogue between radically antagonistic intellectual property universes—the modern one driven by profit, and traditional ones rooted in complex systems of multiple values?The death of a wise old one is the loss of a whole library—L. S. Senghor

Horticultural development of bush food plants and rights of Indigenous people as traditional custodians – the Australian Bush Tomato (Solanum centrale) example: a review

2012 ◽  
Vol 34 (4) ◽  
pp. 359 ◽  
Author(s):  
L. Slade Lee
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Indigenous People ◽  
Value Chain ◽  
Customary Law ◽  
Food Plants ◽  
Benefit Sharing ◽  
Agricultural System ◽  
Research Information ◽  
New Crop

New crops are regularly being introduced into cultivation, typically accompanied by a very small agricultural knowledge base. Often, there is a lack of agronomic research information or production experience upon which to rely, nor plant varieties optimised for an agricultural system. The challenges of a new industry may be compounded by a lack of consumer awareness of the new product and value-chain models need to be developed to suit the product. Frequently the plant species being developed into a new crop is one traditionally used as a food source or for medicinal or other applications by Indigenous people. Thus a complex series of additional factors comes into play – consent of the original custodians, respect and acknowledgement of their traditional knowledge that may be exploited, and totemic, kinship and spiritual associations that may be impacted. Establishing benefit sharing for the hereditary stewards, and protection of traditional collective intellectual property is an important ethical consideration. In the 21st century, the previous unjust exploitation of the traditional knowledge of the original custodians without acknowledgement or benefit sharing, is no longer accepted. However, prevailing strategies to safeguard intellectual property and traditional knowledge associated with native plants, for instance, to ensure that benefit is captured for Indigenous hereditary custodians may be lacking or may contravene Indigenous customary law. Where scientific, cultural, ethical, legal and commercial issues interact at the emergence of a new crop industry, stakeholders from various perspectives will bring critical, sometimes conflicting, impediments to resolve. The challenges that arise in the commercial exploitation of the Australian Bush Tomato, Solanum centrale, and its horticultural development, are reviewed and the approaches to their resolution are discussed.

Protection of Traditional Health Knowledge: International Negotiations, National Priorities and Knowledge Commons

2020 ◽  
Vol 6 (1) ◽  
pp. 98-120
Author(s):  
Ghazala Javed ◽  
Ritu Priya ◽  
Deepa V. K.
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Health Knowledge ◽  
Customary Law ◽  
Intellectual Property Right ◽  
Convention On Biological Diversity ◽  
International Consensus ◽  
Traditional Health ◽  
Knowledge Commons

Traditional knowledge (TK) is under debate in the contemporary world for its inherent value and need for protection from ‘biopiracy’. International consensus is proving difficult on defining its scope and ambit of protection. Traditional health knowledge (THK) is a promising domain of TK which, due to its immense economic and commercial value, is prone to misappropriation. International provisions exist for protection and definitions of TK and related resources at various fora such as the Convention on Biological Diversity. Proposals to protection of TK under Intellectual Property Right regimes are being addressed by the World Intellectual Property Organisation (WIPO). The text of a proposed treaty is being debated at WIPO’s Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTKF). This article spells out the issues being negotiated at the WIPO-IGC-GRTKF. With THK characterised in a tiered manner based on its secret or diffused public availability, consideration of customary law is an imperative. India proposed that the national governments be given status of knowledge holders for THK in the public domain and fiduciary rights in case of closely held/associated THK. The article finds that a comprehensive national policy instrument and sui generis law for the protection of THK have become especially urgent in the light of international debates. It also proposes that, rather than Intellectual property (IP), the framework of a ‘knowledge commons’ for just sharing of TK and its innovations may be a better option.

scholarly journals A Regional Review of Genetic Resource Access and Benefit Sharing – Key Issues and Research Gaps

2021 ◽  
pp. 1-24
Author(s):  
Clare Morrison ◽  
Fran Humphries ◽  
Charles Lawson
Keyword(s):  
Intellectual Property ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
National Level ◽  
Sustainable Use ◽  
Benefit Sharing ◽  
Comparative Approach ◽  
Future Research ◽  
Access And Benefit Sharing ◽  
Legal Mechanism

Countries are increasingly using access and benefit sharing (ABS) as a legal mechanism to support the conservation and sustainable use of the world’s biological diversity. ABS regulates collection and/or use of genetic resources/traditional knowledge and sharing benefits from their use with the provider. The purpose of this review is to assess the trends, biases and gaps of ABS literature using a regional comparative approach about the key topics of concern between each region. It analyses four key topic groupings: (1) implementation of international, regional and national ABS policy and law; (2) intellectual property and ABS; (3) traditional knowledge; and (4) research, development and commercialisation. Findings included gaps in: (1) analysing effectiveness of national level implementation; (2) addressing apparent conflicts between support for intellectual property promoting exclusivity for traditional knowledge and challenges to intellectual property exclusivity for patents; (3) examining traditional knowledge of local communities (in contrast to Indigenous Peoples); and (4) lack of practical examples that quantify benefit sharing from research and commercialisation outcomes. We conclude that future research addressing the identified gaps and biases can promote more informed understanding among stakeholders about the ABS concept and whether it is capable of delivering concrete biological conservation, sustainable use and equity outcomes.

Asian Borderlands and the Legal Protection of Traditional Knowledge and Traditional Cultural Expressions

2013 ◽  
Vol 47 (4) ◽  
pp. 1403-1433 ◽  
Author(s):  
CHRISTOPH ANTONS
Keyword(s):  
Intellectual Property ◽  
United Nations ◽  
Traditional Knowledge ◽  
Biological Diversity ◽  
Legal Protection ◽  
Indigenous Communities ◽  
Cultural Property ◽  
World Intellectual Property Organization ◽  
Convention On Biological Diversity ◽  
Nuanced Understanding

AbstractTraditional knowledge related to biodiversity, agriculture, medicine and artistic expressions has recently attracted much interest amongst policy makers, legal academics and social scientists. Several United Nations organizations, such as the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity under the United Nations Environmental Programme (UNEP), have been working on international models for the protection of such knowledge held by local and indigenous communities. Relevant national, regional or provincial level legislation comes in the form of intellectual property laws and laws related to health, heritage or environmental protection. In practice, however, it has proven difficult to agree on definitions of the subject matter, to delineate local communities and territories holding the knowledge, and to clearly identify the subjects and beneficiaries of the protection. In fact, claims to ‘cultural property’ and heritage have led to conflicts and tensions between communities, regions and nations. This paper will use Southeast Asian examples and case studies to show the importance of concepts such as Zomia, ‘regions of refuge’ and mandala as well as ‘borderlands’ studies to avoid essentialized notions of communities and cultures in order to develop a nuanced understanding of the difficulties for national and international lawmaking in this field. It will also develop a few suggestions on how conflicts and tensions could be avoided or ameliorated.

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.

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