Indigenous/Traditional Knowledge & Intellectual Property

Issues Paper
knowledge &

Prepared by Dr. Jane Anderson

for the
Center for the Study of the Public Domain
Duke University School of Law

© 2010 Center for the Study of the Public Domain, issued under a
Creative Commons Attribution/Non-Commercial/Share Alike 3.0 unported license

Executive Summary

The relationship between indigenous/traditional knowledge and intellectual property law is a complicated contemporary legal problem. Questions around indigenous knowledge protection present issues unlike any other that intellectual property law has had to consider. Indigenous peoples’ concerns include legal questions involving copyright, patents, trademarks, designs and/or confidential information. They also raise issues that are not always legal or commercial in nature and can include ethical, cultural, historical, political, religious/spiritual and moral dimensions.

Intellectual property law is largely European in derivation and promotes particular cultural interpretations of knowledge, ownership, authorship, private property and monopoly privilege. Indigenous peoples do not necessarily interpret or conceptualize their knowledge systems and knowledge practices in the same way or only through these concepts.

Indigenous peoples’ interests in intellectual property law can affect over 370 million indigenous people and any researcher, cultural institution, corporation, industry affiliate or government department working in and/or with indigenous peoples and/or indigenous communities.

While the value of indigenous knowledge has changed dramatically in the last ten years, there is not yet an international consensus about how indigenous rights to the protection of their knowledge systems can be secured, either within an intellectual property regime or through some other over-arching legislative or policy framework.

Indigenous people must be centrally involved in developing appropriate frameworks for access and use of their knowledge and knowledge practices. Future directions are foundationally dependent upon the development of frameworks that enhance and embolden indigenous perspectives about existing and emerging knowledge management approaches. Indigenous knowledge can no longer be considered a raw-resource from which others benefit. Indigenous people are asking for their cultural systems and ways of governing knowledge access and use to be recognized as legitimate, and to be respected as custodians/owners/nurturers of knowledge that is valuable within and beyond indigenous contexts.

Critical evaluation of categories and frameworks that have been taken for granted are crucial for developing new strategies in this area. Rethinking how we do research, how we conceptualize knowledge, how we share knowledge, how we recognize legitimate overlaps in knowledge use and circulation, and the extent of the role of law in influencing our social orders of knowledge exchange, are necessary starting points.


My sincere thanks to Jamie Boyle, Jennifer Jenkins, Kathy Bowrey, Andrea Geyer, Andy Russell, Sophie Anderson and Sally Engle Merry. Thanks also to Jennifer Behrens and Jessica Rivera for their research assistance. This work was written while I was a Visiting Scholar in the Institute of Law and Society at the New York University School of Law.

Indigendous/Traditional Knowledge & Intellectual Property PDF

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I. Introduction

1.1 What is the issue?

1.2 Politics and definitional problems

1.3 Who is involved?

II. Examples of Use and Misuse of Indigenous Knowledge

2.1 AVEDA and ownership of the word ‘Indigenous’

2.2 Registration of batik designs in Indonesia

2.3 Traditional knowledge and Bikram Yoga

2.4 Genetic information, databases of DNA and the Genographic Project

2.5 San/Hoodia case and access and benefit-sharing

2.6 The Bugis creation story and the theater production I La Galigo

2.7 Lego and the use of Maori names

III. Current Proposals: Dangers, Problems and Opportunities

3.1 Current proposals

3.2 Proposals that modify the current intellectual property framework

3.2.1 Labeling and/or trademarks

3.2.2 Moral rights

3.2.3 Confidential information

3.2.4 Performers’ rights

3.2.5 Limitations and exceptions to existing legislation

3.3 Proposals that utilize critical intellectual property discourse

3.3.1 Public domain

3.3.2 Creative Commons

3.4 Proposals that target private law solutions

3.4.1 Protocols

3.4.2 Knowledge registries and databases

3.4.3 Licenses and licensing

3.5 Combined Approach – Toolkits

3.6 Alternative regimes

3.6.1 Customary law

3.6.2 Sui generis legislation

3.6.3 Human rights, cultural rights, community rights?

3.6.4 An international treaty?

3.7 Other international treaties, conventions and instruments

3.7.1 Access and benefit-sharing scheme

3.7.2 The Agreement on the Trade-Related Aspects of Intellectual Property (TRIPS)

IV. Conclusion: Future Direction

4.1 Future directions

4.2 Indigenous peoples’ participation, collaboration and partnership

4.3 Next steps

V. Further Resources