The protection of traditional knowledge (TK) – the know-how, skills, innovations and practices of indigenous peoples and local communities has been a subject of heated debate in many international forums. TK has proved to be useful as an input in modern industries. For instance, pharmaceutical companies have used medicinal TK to develop drugs more quickly. Despite its value, TK faces an alarming rate of loss and there are many initiatives that attempt to preserve it for posterity. However, almost every major issue on TK protection is contentious, including whether international TK protection is necessary or if domestic legislation alone would suffice to preserve the knowledge from loss. Many countries in the Global-South who tend to hold the lion’s share of TK have enacted a domestic TK protection regime, while most countries in the Global-North, in which most firm that use TK reside, have little TK protection. Following from this state of affairs, there is a considerable gap in negotiating positions; and the most advanced instrument on TK protection (the Draft Articles on TK protection) is far from becoming a guideline, let alone a binding treaty. This paper argues that negotiators should seek the minimum consensus among like-minded countries to develop a binding international instrument for TK protection and leave the rest of the issues to be addressed through domestic legislation. There is a need to strike a balance between providing flexibilities for domestic jurisdictions to craft domestic laws based on its context, and ensuring that there is sufficient international obligation that would encourage the preservation and dissemination of TK. Such a framework should begin with the minimum consensus among key stakeholders including source communities/countries and countries in which major TK users reside. The paper proposes the adoption of five key articles that any international TK protection regime should adopt. These are: 1) a provision defining TK and the general subject matter that should be subject to protection; 2) an article requiring the establishment of domestic frameworks that would encourage the codification and disclosure of TK through databases/registries; 3) an article setting out enforcement measures; 4) provisions on national treatment and MFN treatment; and 5) a provision on the relationship of the instrument to other international agreements. Since many jurisdictions seem to accept such requirements, the international TK protection regime should adopt these provisions and allow policy makers to adopt a fitting domestic framework for their jurisdictions.
Aman Gebru, The Global Protection of Traditional Knowledge: Searching for the Minimum Consensus, 17 J. Marshall Rev. Intell. Prop. L. 42 (2017)