IP rights are inevitable and effective at protecting indigenous interests. Expanding the public domain fractures international legal frameworks, reproducing colonial exclusions.

The comparison between traditional knowledge and IP has drawbacks, particularly since, as noted earlier, advocates for the former are not typically interested in IP analogues. Nonetheless, the kind of rights that traditional knowledge holders seek have particularly strong parallels in copyright and trademark law. And for all practical purposes, any international regime for traditional knowledge will invariably be shaped both in opposition to, and in coordination with, the universe of existing IP rights in which the public domain plays an integral role. How the public domain issue is structured in the context of traditional knowledge will require a principled consensus about the rights of resource holders to assert control over their knowledge assets and to defend the lifestyles and institutions that produce them.

Several international legal instruments already recognize this right of control, most notably the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).54 Article 11(1) of UNDRIP provides that “Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as . . . artefacts, designs, ceremonies, technologies and visual and performing arts and literature.” 55 Article 31(1) of UNDRIP further provides that “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.” 56 In the same vein, the Convention on Biological Diversity (CBD) 57 and its Nagoya Protocol 58 explicitly defend the right of indigenous groups to hold their knowledge, to control access to it, and to benefit from its utilization. 59

Countries are also enacting laws to protect traditional knowledge. Brazil passed a law in 2015 that “regulates access to components of the genetic heritage, protection of and access to associated traditional knowledge and the fair and equitable sharing of benefits for the conservation and sustainable use of Brazilian biodiversity.”60 One of the stated purposes of New Zealand’s Patents Act of 2013 is to “address Māori concerns relating to the granting of patents for inventions derived from indigenous plants and animals from Māori traditional knowledge.”61 China also passed a Cultural Heritage Protection Law in 2013; Kenya did so in 2016; South Africa has an Indigenous Knowledge Protection bill currently before Parliament; and some member states of the African Regional Intellectual Property Organization have ratified the Swakopmund Protocol to protect traditional knowledge.62 This national trend toward traditional knowledge protection will require reconsideration of the weak harmonization that characterizes IP law. Given the rich diversity in national implementation of global IP obligations, the unavoidable interaction among the various categories of IP and traditional knowledge suggest a need for new mechanisms to police the cross-border acquisition of IP rights to secure the interests of traditional knowledge holders. 63 In one sense, this is precisely what the Nagoya Protocol and a mandatory disclosure of origin regime for genetic resources and associated tradi- tional knowledge could ably facilitate. 64

In sum, national regimes for traditional knowledge protection are increasingly a legal reality and part of a global science and innovation network. Deploying or leveraging the public domain as a means of refuting the normative and moral impulse in favor of a multilateral framework recognizing minimum standards for the protection of traditional knowledge is inconsistent with the underlying logic of the global IP system that supports this network. It also portends deep fractures in the emerging regime complex for the global governance of indigenous knowledge goods. 65 Opposition to a multilateral framework for the protection of traditional knowledge may eventually cede to some form of limited protection or soft law instrument. 66 Certainly, narrow rights in traditional knowledge appear facially consistent with a liberal view of the public domain.67 But the current binary tenor of the public domain discourse in the context of traditional knowledge—one that effectively defines traditional knowledge out of entitlement-based protection by unduly expansive and ahistorical views of the public domain—risks obscuring other distributional and justice issues of importance to indigenous communities.6