Human rights perspective on protection of traditional knowledge and intellectual property: A view from island states in the Pacific

Author(s):  
Sue Farran
2014 ◽  
Vol 16 (1) ◽  
pp. 3-37
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox

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.


2013 ◽  
Vol 15 (3) ◽  
pp. 319-339 ◽  
Author(s):  
Caroline Joan S. Picart ◽  
Caroline Joan S. Picart ◽  
Marlowe Fox

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.


2021 ◽  
Vol 7 (4) ◽  
pp. 1-11
Author(s):  
Jonai Wabwire

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.


2017 ◽  
Author(s):  
Matthew Rimmer

Edited CollectionRimmer, Matthew (Ed.) (2015) Indigenous Intellectual Property: A Handbook of Contemporary Research. Research Handbooks in Intellectual Property. Edward Elgar, Cheltenham, UK and Northampton, Mass.This Handbook considers the international struggle to provide for proper and just protection of Indigenous intellectual property. Leading scholars consider legal and policy controversies over Indigenous knowledge in the fields of international law, copyright law, trademark law, patent law, trade secrets law, and cultural heritage. This collection examines national developments in Indigenous intellectual property from around the world. As well as examining the historical origins of conflicts over Indigenous knowledge, the volume examines new challenges to Indigenous intellectual property from emerging developments in information technology, biotechnology, and climate change.Taking an interdisciplinary approach unmatched by any other book on this topic, this thoughtful Handbook considers the international struggle to provide for proper and just protection of Indigenous intellectual property (IP).In light of the United Nations Declaration on the Rights of Indigenous Peoples 2007, expert contributors assess the legal and policy controversies over Indigenous knowledge in the fields of international law, copyright law, trademark law, patent law, trade secrets law, and cultural heritage. The overarching discussion examines national developments in Indigenous IP in the United States, Canada, South Africa, the European Union, Australia, New Zealand, and Indonesia. The Handbook provides a comprehensive overview of the historical origins of conflict over Indigenous knowledge, and examines new challenges to Indigenous IP from emerging developments in information technology, biotechnology, and climate change.Practitioners and scholars in the field of IP will learn a great deal from this Handbook about the issues and challenges that surround just protection of a variety of forms of IP for Indigenous communities.Contents:The Legacy of David UnaiponMatthew Rimmer,Introduction: Mapping Indigenous Intellectual PropertyMatthew RimmerPART I INTERNATIONAL LAW1. The United Nations Declaration on the Rights of Indigenous Peoples: A Human Rights Framework for Intellectual Property RightsMauro Barelli2. The World Trade Organization, The TRIPS Agreement and Traditional KnowledgeTania Voon3. The World Intellectual Property Organization and Traditional KnowledgeSara Bannerman4. The World Indigenous Network: Rio+20, Intellectual Property, Indigenous Knowledge, and Sustainable DevelopmentMatthew RimmerPART II COPYRIGHT LAW AND RELATED RIGHTS5. Government Man, Government Painting? David Malangi and the 1966 One-Dollar NoteStephen Gray6. What Wandjuk WantedMartin Hardie7. Avatar Dreaming: Indigenous Cultural Protocols and Making Films Using Indigenous ContentTerri Janke8. The Australian Resale Royalty Right for Visual Artists: Indigenous Art and Social JusticeRobert Dearn and Matthew RimmerPART III TRADE MARK LAW AND RELATED RIGHTS 9. Indigenous Cultural Expression and Registered DesignsMaree Sainsbury10. The Indian Arts and Crafts Act: The Limits of Trademark AnalogiesRebecca Tushnet 11. Protection of Traditional Cultural Expressions within the New Zealand Intellectual Property Framework: A Case Study of the Ka Mate HakaSarah Rosanowski12 Geographical Indications and Indigenous Intellectual PropertyWilliam van CaenegemPART IV PATENT LAW AND RELATED RIGHTS13. Pressuring ‘Suspect Orthodoxy’: Traditional Knowledge and the Patent SystemChidi Oguamanam14. The Nagoya Protocol: Unfinished Business Remains UnfinishedAchmad Gusman Siswandi15. Legislating on Biopiracy in Europe: Too Little, too Late?Angela Daly16. Intellectual Property, Indigenous Knowledge, and Climate ChangeMatthew RimmerPART V PRIVACY LAW AND IDENTITY RIGHTS17. Confidential Information and Anthropology: The Politics of the Digital Knowledge EconomySarah Holcombe18. Indigenous Cultural Heritage in Australia: The Control of Living HeritagesJudith Bannister19. Dignity, Trust and Identity: Private Spheres and Indigenous Intellectual PropertyBruce Baer Arnold,20. Racial Discrimination Laws as a Means of Protecting Collective Reputation and IdentityDavid RolphPART VI INDIGENOUS INTELLECTUAL PROPERTY: REGIONAL PERSPECTIVES21. Diluted Control: A Critical Analysis of the WAI 262 Report on Maori Traditional Knowledge and CultureFleur Adcock, 22. Traditional Knowledge Governance Challenges in CanadaJeremy de Beer and Daniel Dylan23. Intellectual Property Protection of Traditional Knowledge and Access to Knowledge in South AfricaCaroline Ncube24. Traditional Knowledge Sovereignty: The Fundamental Role of Customary Law in Protection of Traditional KnowledgeBrendan Tobin


2012 ◽  
Vol 17 (3) ◽  
pp. 245-263 ◽  
Author(s):  
Maui Solomon ◽  
Susan Thorpe

Moriori culture is one of the most researched in the Pacific, and yet perhaps one of the least well understood. Until the last 30 or so years, history had consigned the Moriori people of the Chatham Islands near New Zealand to being defined as extinct and almost landless. Today Moriori are in a spirit of revival and reconnection with their identity and culture. Through the gift of the Traditional Knowledge Revival Pathways (TKRP) software system, laser scanning of rākau momori (tree carvings), and involvement in the Intellectual Property Issues in Cultural Heritage (IPinCH) Project, Moriori are developing an extensive database of cultural landscapes, elder stories, traditional practices and digital records of taonga. The next stage of this research will involve development of an intranet guide to taonga Moriori (ancestral artefacts) in overseas collections. Here we explore the methods and technology that Moriori have been using to assist in the process of preserving taonga for present and future generations to enjoy.


2009 ◽  
Vol 16 (3) ◽  
pp. 357-370 ◽  
Author(s):  
Mark Busse

AbstractThe articles in this special issue on intellectual property in the Pacific document anxieties about culture and tradition, and about the intrusion of ideas of property into previously uncommodified areas of peoples' lives. These include fears that traditional knowledge and skills are not being passed on to young people (Nason and Peter; Pigliasco); that migrants in a globalized world will take aspects of culture with them when they leave (Nason and Peter); that anthropologists and other scholars will wrongfully appropriate and use aspects of the cultures they study for their own benefit (Van Meijl); and that profits from the commercialization of traditional knowledge, practices, and products will not go to the people who consider themselves their owners and caretakers (Lindstrom). In addition, Jo Recht's contribution provides a discussion of attempts to protect culture and tradition through international conventions and national laws. Finally, Andrew Moutu and Michael Goldsmith describe claims of ownership over aspects of nature to reflect on fundamental aspects of intellectual property and ownership more generally.


2021 ◽  
Author(s):  
◽  
Sarah Meads

<p>Restrictive provisions in international trade agreements, particularly trade related intellectual property rights (TRIPS), are impeding access to essential medicines in developing countries, making medicines unaffordable to poor people. The extent to which trade restrictions have adverse effects on health and economic development in Fiji and the Pacific region may depend critically on how Pacific Island Countries cope with the forces of regionalism and the realities of joining the global trading system, where there are pressures to make concessions in TRIPS. Yet awareness is relatively low. A central question to be asked here is what underlying factors shape how Pacific islanders view trade and access to medicines, notably in the area of trade, health, local culture, and human rights and what are the regional and national responses to mitigate potential trade impediments. By combining a public health lens with a multi-sector review of population health trends, intellectual property rights law, trade policymaking, and human rights, this research elaborates multidisciplinary findings that are usually less evident because they are conventionally researched and managed on a sector-by-sector basis. The findings suggest human rights are less significant in this debate, with challenges associated with small island developing states, local cultural preferences and pressures from regionalism, having more of a direct influence. The combined effect of these factors may be creating a unique context that is leading the Pacific region not to deal with these issues as well as some other developing countries might. This paper also discusses the emergence of two new challenges for human rights theory; to promote the collective rights of individual countries in the 'new regionalism', and the relationship with traditional knowledge.</p>


2012 ◽  
Vol 4 (1) ◽  
pp. 313-340
Author(s):  
Kamrul Hossain

Abstract Traditional knowledge offfers significant contribution to the intellectual creations. While authors of intellectual creations are protected within the intellectual property rights regime, the authors of traditional knowledge, however, are not. Intellectual property rights regime offfers certain exclusive rights over the innovations of private authors leaving holders of traditional knowledge aside. Given the collective nature of knowledge held traditionally by a community, and unknown in the intellectual property rights system, traditional knowledge faces complexity to be included within the existing intellectual property rights system, and hence, demands alternative protection regime. This article argues human rights approach as an alternative protection regime for the traditional knowledge – the knowledge mostly held by the indigenous communities. The article examines specific human rights provisions embodied in the international bill of human rights pertaining to both right to enjoy a culture and right to enjoy ‘moral and material’ interests arguing that traditional knowledge form a part of culture, and that such culture-oriented right generates economic interests akin to that of intellectual property right system, albeit within the framework of human rights. While the Saami are the indigenous people holding diverse traditional knowledge of great importance, the article also addresses the specific provisions of the Draft Nordic Saami Convention in order to examine how efffectively the Saami’s traditional knowledge right is protected within the regime of human rights.


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