IPR historically has and can be reformed to safeguard Indigenous knowledge and correct against colonialism.

The way forward fundamentally poses three alternatives: attempt to utilize existing IPR systems to systematically protect Indigenous peoples’ TK, amend such IPR systems to protect the TK of Indigenous Peoples, or seek to create a new Indigenous IPR system. Each of these paths has merit.

While the problems identified in this article regarding the usage of existing IPR systems are manifest, there remain ways they can be used. “Trade secret law” can be used to protect traditional medicinal or other arguably commercially valuable knowledge that is kept a secret within a certain group. “Copyright” may be filed for a version of traditional stories, songs and designs by a traditional knowledge keeper in their own words or creation that can then be subsequently assigned into communal ownership. Indigenous people can seek to protect and defend their key words of identification as “trademarks,” “service marks,” or “domain names.” Lists of the uses of traditional plants, minerals, animals, and traditional manufacturing methods may be kept as a means to identify “prior art,” which can be used to defeat patents being claimed on the same by non-Indigenous peoples.

There are laws in place in different countries and states within the United States that have specifically been amended to address certain problems IPR has caused for Indigenous peoples (“Cultural and Intellectual,” n.d.). There are laws in the United States regarding the necessity to conduct research in Indigenous communities in a respectful and permission-based manner, which can be used to control ownership and access to knowledge released outside the specific Indigenous people or tribe. Trademark law in the United States, and a number of other countries, will no longer register terms seen to be “words of disrepute” extending to Indigenous peoples. There has even been the cancellation of registrations for existing marks seen to mock Indigenous peoples as a reflection of such arguably growing sensitivity.

Finally, there is the opportunity to create and embrace a truly Indigenous-based IPR system for the protection of TK and Indigenous life-ways. While this has not yet been implemented in the form of a globally accepted, United Nations-sponsored, multi-national treaty, certain countries have moved forward with their own versions, or are in the process of doing so. In the case of Africa, nine of the African Regional Intellectual Property Organization (ARIPO) member countries have agreed to create and launch their own Indigenous IPR system through mutual treaty, to be managed by ARIPO. These bold steps will likely serve to incentivize other countries to begin to implement ways they can identify, protect, and allow for the defense of Indigenous IPR. As more countries come to recognize the benefits of respecting and protecting the TK and traditional life-ways of their Indigenous peoples, we can expect to see increasing attempts at legislation and international diplomacy to encourage others to follow suit. According to our recent interview with the United States Patent and Trademark Office, India and Ecuador are two countries involved in such legislation and diplomacy at present. More are likely to follow.

Laws are ultimately a reflection of the values of the society in which such laws are made, used, and enforced. The dominant culture within such societies, therefore, largely determines such laws. The field of intellectual property rights law is no exception. As Indigenous peoples throughout the history of the last 500 years have largely been systematically excluded from shaping the legal systems of the colonizing cultures, it is not surprising that the IPR systems in place have not historically been designed or applied to address the protection of Indigenous TK, or common property in general.

Colonization, however, is a historical event and its impact is a historical construct. While the clock cannot be turned back for our Indigenous societies to a time before colonization, we can work together to ameliorate, or at least reform, its worst impacts. We can decide what to keep or reject within this historical construct. As Indigenous peoples and non-Indigenous peoples, we can seek a new path forward for the world as it is today, and the world as we want it to be.

The traditional knowledge of our Indigenous peoples is not anthropology or ethnography, but rather a part of vibrant and living cultures that have much to share and teach the world. TK has much to contribute to future generations of Indigenous peoples with unique cultures. Understanding that value, and advocating new ways to identify, protect, and enforce rights over such traditional knowledge offers an important path to the future, as well as offering us the opportunity to respectfully acknowledge the depth, diversity, and richness of our intellectual past.