Sui generis doesn’t work for traditional knowledge

The question that remains is how best to address the concerns of traditional knowledge generating communities. Yet, the traditional knowledge right that some developing countries and traditional knowledge proponents support is based on an intellectual property model, and therefore, has the potential to produce problems not unlike those which have resulted under the current system. An international sui generis intellectual property right for traditional knowledge may hinder access to affordable knowledge goods, including for indigenous and local communities.

Drawing on the notion of intellectual property ‘from below,’17 this paper aims to contribute to the discussion by evaluating the utility of an intellectual property model for the protection of traditional knowledge. This assessment is done in light of some of the stated goals of traditional knowledge protection,18 and with a view to the potential impact of proprietary traditional knowledge on affordable knowledge goods.19 The creation of a new property right may serve as both an offensive and defensive measure. This article cautions that a legally binding instrument that creates an exclusive proprietary traditional knowledge right may not ultimately benefit indigenous and local communities.

While it is not entirely clear what an international legal instrument to protect traditional knowledge might look like, a sui generis regime to protect such knowledge has been proposed.20 This is because this subject matter does not easily fit within the existing categories of intellectual property. A sui generis regime could result in a new intangible property right that will exclude anyone other than the rights holders from making use of this intergenerational knowledge without consent. Possible characteristics of a traditional knowledge right include perpetual protection, protection of historical communal cultural works, and protection of knowledge that may be useful but that is not be inventive or creative according to the standards of intellectual property law.21

In my view, there are two main difficulties of traditional knowledge that render the benefits of a sui generis intellectual property style traditional knowledge right questionable. First, the absence of clear consensus about the meaning of the indigenous or local person creates serious difficulties in defining the scope of application of the right. I acknowledge, however, that there may be various legitimate reasons for this lack of consensus, including historical and political reasons, which go beyond the scope of the discussion in this paper. Second, the proposed traditional knowledge right does not rectify the inequities caused by the excesses of the current system. It seeks to address the problems by expanding the intellectual property system rather than attempting to correct the existing flaws by contracting the regime.2