National use of a sui generis system for TK (traditional knowledge) can lead to an international treaty in regards to TK protection

The interest in sui generis systems-national and international, for protection of TK is a public policy objective that reflects the needs and expectations of communities, particularly traditional knowledge holders. In IPRs, claims for international protection are considered only when national protection exists. The quest for protecting traditional knowledge within the cultures of knowledge traditions bound to IPR systems, as presently developed, is a futile search for a “procrustean bed for an ameboid phenomena” (Viswanathan, 2001). There is no reason to regard a functioning IPR frame as more perfect than one that mirrors a natural process or approximates a synthetic repository for a real flower or butterfly. IPR concepts are useful to describe the innovation tree but there is no reason to mistake concepts for the tree itself. Specification through documentation in a discrete representation can detract from and deny or devalue living processes. The pursuit of validity, standardisation, universalisation, uniqueness, authenticity and historicity are features of IPR regimes. If TK could be adapted to them, there would be no need to ponder over missing markets. The struggles for and against commodification are essentially about acquiring new IPRs. Biopiracy and piracy of traditional knowledge is a global public bad. This may be mitigated if international cooperation replaces the paradigm of ‘external affairs’ with policy-making to internalise externalities at source by recognising and provisioning ‘global public goods’. The recognition of traditional knowledge as a global public good may someday enable an international sui generis system to be operationalised. However, that would need the Convention on Biodiversity and TRIPS to be harmonised to enable WIPO, UNESCO, UNIDO, UNEP, FAO, WORLD BANK, WHO and UNDP to facilitate processes that may otherwise conflict with WTO. An international treaty providing ‘sui generis’ protection to traditional knowledge can be reached through WIPO or UNESCO or WTO but the immediate prospects of doing so are fraught with considerable difficulties.