Traditional IPR practices are damaging to cultural knowledge and indigenous autonomy – A sui Generis system, that allows indigenous created systems that focus on the group sovles the case

Indigenous peoples’ claims to rights over their knowledge and their insistence that such knowledge forms be preserved are legitimate. The need to protect indigenous knowledge is recognized under international law. Yet the question is how to preserve, protect, and reward indigenous knowledge without compromising indigenous cultural identity and traditional values. As the primary mechanism for the allocation of rights over knowledge and its products, intellectual property rights are central to this discourse. There is consensus in the relevant circles that intellectual property rights, specifically patents, do not adequately protect indigenous knowledge and interests. This book’s emphasis on the divergence between the patent regime of intellectual property rights and TKPT hammers this point home. The malleable and dynamic character of conventional intellectual property, despite the concept’s inadequacies, can be invoked to accommodate the peculiar nature of indigenous knowledge; hence, the need for a sui generis patent regime in the form, for instance, of ‘community patent,’ or something like PBRs, based on modified elements of mainstream patent. However, attempts to create a sui generis regime concentrate on reconstructing only some procedural, practical, and peripheral issues, such as lowering the threshold for patent eligibility, duration of rights, legal status of indigenous or communal applicants, or redefinition of prior arts. There is no attempt to tackle the conceptual conflict inherent in the application of conventional intellectual property incidents to indigenous knowledge forms. No consideration is given to the epistemic schism between indigenous and Western ways of knowing, which is reinforced by intellectual property rights, especially the patent regime. In other words, alternative or sui generis proposals, based on the elements of the extant intellectual property system, especially patents, are still deficient for the purpose of indigenous knowledge protection. To be legitimized by the patent regime, indigenous knowledge must submit to the touchstone of Western scientific validation. The concept of science is a fundamental point of tension between indigenous and Western ways of knowing. I subscribe to the view that science is a pluricultural phenomenon, a way of knowing that is not value neutral. The recognition of this plurality in the ways of knowing is very critical for indigenous peoples. Alternative or sui generis intellectual property rights designed to accommodate indigenous knowledge need not imitate conventional regimes.5 It is important to bear this in mind because such regimes are forged from epistemic foundations and other priorities that are different from indigenous ones. However, it is not in all cases that Western intellectual property does not serve indigenous interests. For instance, an imaginative deployment of indications of origin could enhance the commercialization of indigenous artworks, even though this would not satisfy all indigenous stakeholders. Similarly, the proposal that patents deriving from indigenous knowledge must acknowledge or disclose the role of indigenous peoples is a way of recognizing indigenous contributions to innovation.6 Nonetheless, it does not address the epistemic complicity of intellectual property in the appropriation of local knowledge. Mere disclosure and acknowledgement are not cures for the inadequacies of conventional intellectual property rights in regard to indigenous knowledge. There is a need to look inwards, within indigenous customary practices and other national regimes, in the search for creative intellectual property schemes that align with the values of indigenous and local cultures.