Intellectual Property Law and the Protection of Traditional Knowledge: From Cultural Conservation to Knowledge Codification

The legal protection of traditional knowledge (TK) – the know-how, skills and practices of indigenous and local communities – has recently become a focus of dialogue and scholarship at national and international stages. Intellectual property (IP) laws protect scientific and artistic creations. Patent laws in particular give exclusive rights over new (novel), inventive (non-obvious) and useful knowledge. Consequently, new ‘modern knowledge’ is protected through legal intervention that provides limited artificial monopolies while TK is considered to be ‘old knowledge’ that fails to meet the requirements of patent laws such as novelty and non-obviousness. TK was considered to be in the public domain free for anyone to use. However, there is a growing body of scholarship which argues that innovation and knowledge production does take place within traditional settings and that legal protection is required to conserve this valuable body of knowledge. While such arguments have mainly used approaches based on distributive justice and equity, this paper takes an economic analysis of law approach to propose a new justification for the protection of TK. In the year 2000 the World Intellectual Property Organization (WIPO) established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in response to calls from member countries for the creation of an international forum for deliberation on the topics. After more than a decade of negotiations, delegates in the IGC have managed to produce a draft instrument on the protection of TK. However, many aspects of the instrument remain controversial and have given rise to a divide between developed and developing countries. The meaning of protection, scope of rights and remedies are among the controversial provisions of the draft instrument. The protection of TK has also been discussed under the framework of the Convention on Biodiversity and the United Nations Declaration on the Right of Indigenous People, among others. This paper proposes an ‘incentive to codify’ justification distinguished from the currently dominant ‘incentive to conserve’ justification for the protection of TK. It posits that the incentive required in the case of TK is not for conservation of lifestyle as is claimed currently but for codification of the knowledge. Taking traditional medicinal knowledge as a case study, it argues that a carefully crafted legal protection for codified TK will encourage its systemic documentation and save this highly valuable body of knowledge from the alarming rate of loss it is face with. In addition to its inherent value, traditional medicinal knowledge has proved to be a valuable predictive tool in bioprospecting projects - the R&D efforts conducted on biological resources to discover new drugs. However, because of negative past experiences governments of countries in which indigenous and local communities reside have increasingly become restrictive with regard to access to TK. Thus, the codification and disclosure of such knowledge is of urgent importance. In order to support the claim for the ‘incentive to codify’ justification, TK is analyzed as a global public good with non-rivalrous and non-excludable features and subject to market failure. Analogy is also made to patent laws and the implication of such legal intervention on the codification of modern knowledge.