**Box 20 Possible Approaches to Designing an IP System for Traditional Knowledge**

- **Possibility 1:** A direct national traditional knowledge IP system analogous to the patent system. This “equitable” proposal places possessors of traditional and nontraditional knowledge on footing as equal as possible. In addition to calling for a reassessment of all fundamental issues of patent law, however, this proposal raises many new challenges: • Establishing rules for publishing traditional knowledge to share knowledge with the world. • Circumscribing classes of ideas that qualify as traditional knowledge. • Defining an “item” of traditional knowledge. • Determining the appropriate length for such IPRs, beyond which the published knowledge enters the public domain.

- • Identifying a source for each item of traditional knowledge. • Setting and publishing reasonable and nondiscriminatory licensing terms, including both prices and rights. • Designating conservators and specifying appropriate outlays for moneys collected. • Designating enforcers and defining penalties for noncompliance or infringement. • Drafting international cooperation treaties in the likely event of noncomplying MNCs.

**Possibility 2:** An international direct traditional knowledge IP system analogous to the patent system. This proposal eases many coordination problems, but risks holding the entire venture hostage to international intransigence.

**Possibility 3:** A blanket license for a traditional knowledge IPR:

- Reduces the complexity of system administration.

- • Eliminates much of the direct incentive for innovation, but may leave enough motivation to spur volunteer and nongovernmental organization (NGO) efforts on collection and cataloging.

- Does not really address challenges inherent in international coordination, enforcement, and distribution.

**Possibility 4:** Establish a voluntary fund and encourage MNCs to contribute an amount related to the value that they extract from the Traditional Knowledge Digital Library (TKDL):

- Raises problems of free riding and the general limitations of applying moral suasion to business decisions.

- • Easier to establish and begin quickly.

- Could lead to larger short-term pools of disbursable money than any of the other alternatives.

- Likely to present the fewest problems of international coordination and participation.

Each of these possibilities, along with various hybrid strategies, presents potential costs and benefits. The Government of India should seek input from trusted advisers on the best ways to leverage its imminent TKDL into an IP system capable of leveraging traditional knowledge into aid for traditional communities.

Though it is possible to suggest answers to all these questions, experimentation and empirical evidence will play central roles in the development of meaningful rights for traditional knowledge. India—as the putative pioneer in this area—must recognize that whatever statutory choices it makes must be subject to constant review and revision.

The triple challenges of complexity, controversy, and transaction costs inherent in crafting IPRs for traditional knowledge have led some commentators—including NIF’s Professor Gupta—to advocate international rather than national action. While there may be much wisdom in such prudence, it also risks holding the entire venture hostage to a recalcitrant international community. Though international rights might be preferable to national ones, India must decide what serves its national interests. If unilateral movement will help the practitioners and possessors of traditional knowledge in India, India should move unilaterally. A key part of this 84