We endorse a radical public domain plus system that uses unobstructed documentation to combat the IP systems’ appropriation of the Third World in the name of ‘protections’

The public domain could potentially be viewed as a good choice of knowledge framework for traditional knowledge, identified as it is with freedom and equality of access. The public domain is by its nature equally available to all who would use the information contained within it.1 0 6 Thus it would seem to conform to Principles 1 and 2, as access is not facially dependent on the user's financial resources and the knowledge could be used for development by those too poor to pay for it. It does not, however, meet the gender-specific goals, Principles 3 and 4; women would not necessarily gain any particular credit for their work and ideas, nor would they gain any remuneration that might be used for economic advancement and community development. Additionally, the "equal access" nature of the public domain may not be so equal; more frequently, it is the developed world that has the capital and infrastructure to exploit the knowledge contained in the public domain, often converting that knowledge into patentable innovation. 1 0 7 The equal access vision of the public domain may be more romanticization than reality.10 8 One way in which the public domain might be useful as a framework for women's traditional knowledge would be as a basis on which to build what I will call a "public domain plus" regime. Such a regime would leave the knowledge in the public domain, free from the threat of enclosure by private entities for their exclusive use, but would tack on a new requirement: anyone using the knowledge or product could do so but would need to give public recognition to the community of women in which it originated. 1 09 For example, a company could market a distinctive cloth woven by women of a particular tribe or village, with a statement attached both in marketing materials and on the cloth's label giving credit to the women with whom the idea and conceptual creation of the product originated, even if they did not physically make it. This regime would thus comport with Principle 3, highlighting women's knowledge and valuing their work, but would still not fulfill Principle 4, as women would receive no economic return for their knowledge. However, let us not abandon "public domain plus" quite yet: as will be set out below, patents and geographical indications (GIs) may be difficult for women to obtain in order to protect their traditional knowledge. 110 Thus, the focus may necessarily turn to "recognition" of women's traditional knowledge, rather than "protection" of the same. Recognition would mean giving credit where credit is due, using women's knowledge but freely announcing its source. Unlike patentees, women would likely not be able to enforce conditions such as receiving credit; thus I propose voluntary principles which entities looking to use the fruits of women's traditional knowledge could follow in cases where the women hold no patent and the knowledge is technically in the public domain.' 11 First, the use of women's traditional knowledge should be acknowledged and the community of women who are its source identified as such in labeling and advertising. Second, companies should consider remitting at least a small portion of the profits made from the use of such knowledge to the source community; even if not required by law, such a remittance would make the use more equitable and could, of course, be cited by a company as part of its community assistance efforts. 112 In this way, women's traditional knowledge would be made available to the public, but women's contributions would be recognized and might even result in some amount of remuneration, thus creating both economic and social value in women's work. While not ideal, this solution may be the best we can do within the current legal framework. The potential dangers of the patent system must remain present in any plans regarding patent use; historically and even in the present day, patents (and, Patel argues, the IPR system generally) "reserve[] the Third World markets to foreigners .... The system guarantees private foreign gains at public cost to the Third World."' "18 In addition to their general hostility to redistribution and their historical harm to the developing world, patents do nothing to advance women qua women. Patents are (supposedly) genderblind-they would grant no particular recognition to women's work as such and thus continue to keep it invisible and undervalued except insofar as women's ideas might prove profitable to a foreign body that wishes to license them. This occurrence, as Patel indicates, might be quite infrequent. 1 Instead, the more important issue for women holders of traditional knowledge with regard to patents is finding ways to keep others from patenting their knowledge. Because much of women's traditional knowledge is not widely known, it may easily be exploited by sophisticated entities. 10 Thus, it would be wise to pursue documentation of women's knowledge, such that entities looking to patent products or processes that have their roots in exploited women's knowledge may not be granted. To this extent, libraries and registers which document traditional knowledge 21 (such as India's Traditional Knowledge Digital Library or TKDL 122 ) are an excellent idea, as they may keep such exploitative patents from being granted, though they should also add a label internally for traditional knowledge that is primarily held by women.123 Of course, in order to keep exploitative patents from being granted, patent offices would have to be encouraged to make use of traditional knowledge registers when researching "prior art" on patent applications. This requirement is sadly lacking at present, and advocates should consider ways of incorporating it into their national patent offices' regulatory framework. 1 24 This documentation would not give women a patent-like right in the knowledge, so it is unimportant who adds the knowledge to the database. In summary, the potentially most useful policy changes where patents are concerned would include: 1) the expansion of traditional knowledge catalogues and databases, with more traditional knowledge included; 2) the addition of a gender tag or category, such that women's contribution to traditional knowledge would be recognized within the databases; and 3) broadly enforced requirements within national and international patent offices that the contents of these databases be searched as part of meeting the novelty requirement for patent applications. In summary of the policy recommendations of this Comment, I propose the following: 1) a "public domain plus" system of voluntary recognition and remittance by entities planning to create products whose roots lie in women's traditional knowledge, where a company using the knowledge would indicate the knowledge's origin and perhaps remit part of its profits to the women's home community as part of a voluntary program; 2) that more traditional knowledge libraries, catalogues, and databases be established; 3) that these libraries include a tag for gender, indicating whether the source of the knowledge is primarily women; and 4) that national and international patent offices include a requirement that these libraries be searched as part of fulfilling the novelty requirement of patent applications. Women have been "holding up two-thirds of the sky" for centuries, but their contributions outside of the science lab have been largely unsung, unheeded, and unrewarded. Advances in the literature on traditional knowledge in recent years have meant many steps in the right direction, but it is time for the blinders to come off with regard to gender. A gendered lens should be adopted for analysis of traditional knowledge in theory as well as in practice, with sound guiding principles established for the formation of policy to recognize the value and existence of women's traditional knowledge. Anything less falls short, for both traditional knowledge and feminism.