Traditional knowledge: the challenges facing international lawmakers

• Author: Marisella Ouma
• Position: Intellectual Property Consultant, Kenya

But growing commercial use of these resources beyond the traditional context means they are increasingly vulnerable to misappropriation and misuse by third parties. That is why holders of traditional knowledge and many international policymakers are calling for new policies and laws in this area.

Some countries, including Costa Rica, Kenya, Peru and Zambia, already have laws that protect traditional knowledge. Others have focused specifically on protecting genetic resources. And some have joined ranks at the regional level to protect traditional knowledge. For example, the Swakopmund Protocol on the Protection of Traditional Knowledge and Traditional Cultural Expressions was adopted in 2010 by the 19 member states of the African Regional Intellectual Property Organization (ARIPO).

Although these developments are an important step in the right direction, such fragmented protection does not offer the custodians of traditional knowledge an adequate level of protection in today’s globalized world.

Why international protection is needed

National and regional laws that protect traditional knowledge have only a limited impact. For one thing, they only have legal effect in the country or countries in which they have been enacted. One way to extend the protection they confer is by establishing bilateral or plurilateral agreements between countries that share a common interest in protecting traditional knowledge and have similar national laws. But few countries actually have these laws in place. That is why it is so important to have an international regime that establishes minimum standards of protection and for countries to ratify and implement such a regime at the national level. Only then will it be possible to extend protection beyond national borders, for example to promote reciprocity in the treatment of traditional knowledge.

National and regional laws share a number of common objectives. They define what is to be protected and who is to benefit and how. They often seek to (a) ensure that control over traditional knowledge rests with indigenous or local communities, (b) preserve and protect against misappropriation and misuse by third parties and (c) promote equitable benefit sharing. Protection often goes well beyond intellectual property (IP) aspects of traditional knowledge (e.g. eligibility to acquire IP rights over traditional knowledge), encompassing all aspects of its use in a traditional context.

Drawing these shared policy objectives into an international agreement would offer a more adequate response to the unauthorized use of traditional knowledge, or acquisition of IP rights over that knowledge, by third parties who have no legitimate claim on it. At the very least, an international agreement that was implemented at the national level would ensure that the custodians of traditional knowledge have control over and can manage its use and are properly compensated.

International negotiations

Discussions on arrangements to preserve, promote and protect traditional knowledge at the international level are ongoing in different international forums. At WIPO, negotiations on IP forms of protection have been taking place within the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore since 2011 (the Committee began its work in 2001, but formally...