Intellectual Property and Traditional Knowledge

Stephen R. Munzer and Kal Raustiala have posted The Uneasy Case for Intellectual Property Rights in Traditional Knowledge (Cardozo Arts & Entertainment Law Journal, Vol. 27, pp. 37-97, 2009) on SSRN. Here is the abstract:

    Should traditional knowledge – -the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes – receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.
Questions or Comments? Email me at derek.fincham@gmail.com

1 thought on “Intellectual Property and Traditional Knowledge”

  1. This is a vital issue, as companies like unto Monsanto are patenting plants and their extracts – naturally occurring plants that hold promise or development for bio-chemicals extracted and-or isolated for use in various compounds for commercial and medical use. The companies are using native knowledge and native herbal medicines to gain control over the legal uses and or utilization of plants for profit that is not shared with the natives of the areas the plants come from.
    This is an issue also tied to the Alimentary Codex of food and plant regulation that is being considered in the US Congress and the European Union.

    These are dangerous times for those who Do Not want to consume commercial packaged foods, pharmaceuticals, and irradiated produce/dairy/meats. Most people in my school have had no idea that these regulatory actions are being considered – what will everyone do if this stranglehold is put upon our food and medicne sources?

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