The Misappropriation of Traditional Knowledge

“Traditional knowledge constitute[s] [an] integral [element] of indigenous peoples’ societies and cultures and, consequently, indigenous peoples’ rights to autonomy and self-governance [extends] to such knowledge.” – James Anaya, Former Special Rapporteur on the rights of indigenous peoples^[1]

I. What is Traditional Knowledge?

This article will discuss examples of misappropriation of traditional knowledge, existing international legal frameworks aimed at protecting it, and new developments in international law. Traditional knowledge (TK) is the “knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles.”^[2] TK is “developed from experience gained over the centuries” and is passed down “from generation to generation.”^[3] TK is collectively owned and takes the form of “cultural values, beliefs, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds.”^[4]

II. Misappropriation of Traditional Knowledge

Biopiracy is the appropriation of traditional knowledge for commercial profits.^[5] Biopiracy has produced billions of dollars worldwide primarily in the pharmaceutical industry. Communities in States with the most biodiversity and/or high populations of indigenous communities are most at risk of biopiracy. Instances of biopiracy include:

III. International Instruments

As the commercial misappropriation of traditional knowledge proliferates around the world, traditional knowledge demands greater protection. However, given the gradual, inter-generational, and communal nature of traditional knowledge, existing intellectual property regimes have failed to protect it.^[6] Key principles that have attempted to protect traditional knowledge thus far include the principle of prior informed consent and the principle of fair and equitable benefit sharing.

The World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (Committee) is currently negotiating a new treaty that could allow for the protection of traditional knowledge by harmonizing national, regional, and international standards.^[7] However, protection must also be flexible enough to account for the context-specific concerns of traditional knowledge holders, potential users, and States involved.

1. The Convention on Biological Diversity (CBD) and The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD (Nagoya Protocol)

Article 8(j) of the CBD puts forth a general obligation, requiring States to “respect, preserve, maintain and promote knowledge” of indigenous peoples and “promote their wider application with the approval and involvement of the holders of such knowledge.”^[8] Article 7 of the Nagoya Protocol expounds upon this obligation by requiring States to “take measures, with the aim of ensuring that traditional knowledge” held by indigenous communities is accessed with their “prior and informed consent or approval and involvement.”^[9] The CBD also requires States to “encourage the equitable sharing of the benefits arising from the utilization” of TK.^[10] The Nagoya Protocol furthers this obligation by requiring States to take “legislative, administrative or policy measures” to ensure fair and equitable benefit-sharing for uses of TK.^[11]

2. The Protection of Traditional Knowledge: Draft Articles (Draft Treaty)

The most recent version of the Draft Treaty was transmitted to the Committee at its 39^th Session on March 22, 2019, which they will revisit between June 17-21, 2019.^[12] The Preamble recognizes the right of indigenous and local communities “to maintain, control, protect and develop their intellectual property over their cultural heritage, including their traditional knowledge”; promotes “respect for . . . the dignity, cultural integrity and spiritual values of [] traditional knowledge holders”; and recognizes “the need for new rules and disciplines concerning the provision of effective and appropriate means for the enforcement of rights relating to traditional knowledge, taking into account differences in national legal systems.”^[13]

Elements of the misappropriation of traditional knowledge covered in the Draft Treaty’s alternative definitions include: (1) “access” or “use”; (2) “without free, prior and informed consent or approval and involvement, and, where applicable, without mutual agreed terms,” “in violation of customary law and established practices governing the access or use of such traditional knowledge,” or in “violation of national law in the provider country”; and (3) for the purpose of “commercial, research, academic and technology transfer.”^[14]

While there are three alternatives of the Draft Treaty’s objectives, the first most specifically addresses three key issues required to protect traditional knowledge. In particular, the Draft Treaty states, “The objective of this instrument is to provide effective, balanced and adequate protection relating to intellectual property against”: (1) misappropriated traditional knowledge; (2) “uncompensated” (or failure to provide monetary or non-monetary benefits) traditional knowledge use; and (3) “the erroneous grant of intellectual property rights over traditional knowledge.”^[15]

The Scope of (and Conditions of) Protection affirms the following principles: (1) Member States should refer to customary laws and practices of TK holders; (2) “Member States [should/shall]” take national measures to ensure TK holders have an “exclusive and collective right to maintain, control, use, develop, authorize or prevent access to and use/utilization of their traditional knowledge; and receive a fair and equitable share of benefits arising from its use”; and (3) “Member States [should/shall]” take measures to “protect the integrity of traditional knowledge” or protect economic and moral interests of TK holders or respect “cultural norms and practices.”^[16]

While the Draft Treaty has made progress in terms of recognizing and prioritizing the needs and interests of local and indigenous communities, several gaps remain. The Committee has identified the following areas in which the law can be further developed (a non-exhaustive list): (1) specifying which elements of TK are subject to legal protection; (2) stronger or more specific prior informed consent language than the Nagoya Protocol; (3) how to account for inventions based on TK; (4) how to protect against misappropriation of TK; (5) whether TK needs to be disclosed and what would be required for disclosure; (6) whether intellectual property law protection is applicable in the context of traditional knowledge apart from the invalidation of unlawful patents; and (7) an appropriate framework for equitable benefit sharing.^[17]

IV. Conclusion

While challenges to protecting some of the world’s most vulnerable populations persist, the international community has finally prioritized the issue of traditional knowledge by negotiating the Draft Treaty. By recognizing customary laws and the cultural value of traditional knowledge as integral to the identity of local and indigenous communities, the Draft Treaty demonstrates potential. It remains to be seen how the negotiations will attempt to balance the areas of sovereignty over a State’s natural resources, intellectual property rights, human rights, indigenous rights, and environmental concerns. Another area of future interest for the negotiations will be how the Draft Treaty frames the relationship between national law and international law protection. Traditional knowledge reflects “a rich cultural heritage”^[18] and it is up to all actors in the global community to protect it.

1. Statement, Professor James Anaya, Special Rapporteur on the rights of indigenous peoples, Indigenous Peoples’ Rights to Genetic Resources and Traditional Knowledge, U.N. Statement (February 4, 2013). ↑
2. Convention on Biological Diversity, art. 8(j), June 5, 1992, 1760 UNTS 79 [hereinafter CBD]. ↑
3. Traditional Knowledge, Innovations and Practices, Convention on Biological Diversity, https://www.cbd.int/traditional/intro.shtml [hereinafter CBD Website]. ↑
4. CBD Website. ↑
5. John Reid, Biopiracy: The Struggle for Traditional Knowledge Rights, 34 Am. Indian L. Rev. 77, 79 (2009). ↑
6. Teshager Dagne, The Protection of Traditional Knowledge in the Knowledge Economy: Cross-Cutting Challenges in International Intellectual Property Law, 14 Int’l Comm. L. Rev. 137, 147-148 (2012). ↑
7. The Protection of Traditional Knowledge: Draft Articles, March 22, 2019, WIPO/GRTKF/IC/40/4 [hereinafter Draft Treaty]. ↑
8. CBD, art. 8(j). ↑
9. The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, art. 7, October 10, 2010 [hereinafter Nagoya Protocol]. ↑
10. CBD, art. 8(j). ↑
11. Nagoya Protocol, art. 5(1). ↑
12. Draft Treaty. ↑
13. Draft Treaty, Preamble. ↑
14. Draft Treaty, art. 1. ↑
15. Draft Treaty art. 2. ↑
16. Draft Treaty, art. 5. ↑
17. The Protection of Traditional Knowledge: Updated Draft Gap Analysis, WIPO Doc. WIPO/GRTKF/IC/39/6 (January 16, 2019). ↑
18. Nagoya Protocol, Preamble. ↑