Sui generis solves---specifically tailored to protect all elements of ECTK

The ECTK of indigenous groups requires positive protection, rather than the negative rights available under western intellectual property laws. The implementation of positive protection would validate and empower indigenous groups, and affirm the value and worth of indigenous ECTK. From a review of indigenous issues in the Australian context alone, it can be seen that ECTK protection cannot be separated from other indigenous issues such as land rights and self-determination, all of which impact upon indigenous cultural identity.65 The implementation of sui generis laws contributes positively towards these social and policy conflicts that continue to concern indigenous people as their role in contemporary society evolves beside the dominant Western societal paradigm.

Consequently, it must be acknowledged as an established fact that current, Eurocentric intellectual property laws provide protection for ECTK that is either insufficient or ad hoc, depending on the facts of the case. It can be seen from the weight of literature and authority on the topic that such protection has been acknowledged as undesirable due to its uncertain application. Indigenous people need reliable and uniform protection to achieve their goals.

The model law can provide certain protection because it is sui generis in its scope and application to the protection of indigenous ECTK. It establishes a new property right in ECTK that was previously regarded under western intellectual property laws as property within the public domain. The real effect is that traditional owners wishing to protect ECTK no longer need to rely on intellectual property laws as a temporary solution. Rather, the real solution is the creation and implementation of a sui generis law that has been specifically tailored to protect all elements of ECTK, particularly those that are unique to ECTK as opposed to western intellectual property rights. By virtue of their uniqueness, such elements often render ECTK ineligible for protection under western intellectual property laws. The tailoring of the model law to suit ECTK needs is illustrated by the inclusion of clauses that address other aspects of intellectual property protection that caused problems for ECTK in the past, such as the requirements for material form66 and perpetual protection.67

(ECTK – Expressions of culture and traditional knowledge)