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Traditional Knowledge and Global Lawmaking Kuei-Jung Ni Northwestern Journal of International Human Rights Volume 10 | Issue 2 Article 3 Winter 2011 Traditional Knowledge and Global Lawmaking Kuei-Jung Ni Follow this and additional works at: http://scholarlycommons.law.northwestern.edu/njihr Recommended Citation Kuei-Jung Ni, Traditional Knowledge and Global Lawmaking, 10 Nw. J. Int'l Hum. Rts. 85 (2011). http://scholarlycommons.law.northwestern.edu/njihr/vol10/iss2/3 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Human Rights by an authorized administrator of Northwestern University School of Law Scholarly Commons. Vol. 10:2] Kuei-Jung Ni Traditional Knowledge and Global Lawmaking Kuei-Jung Ni! I. INTRODUCTION ¶1 The value and significance of traditional knowledge (TK)1 has been widely recognized. According to the study of the World Intellectual Property Organization (WIPO), TK has tremendous merits in various respects, generating cultural, social, ecological, biological, agricultural, and industrial values.2 ¶2 In short, TK refers to the knowledge, innovations and practices of indigenous and local communities in the world. Yet there seems to be no definite and universally approved definition of TK.3 The concept of TK may be reflected in the work of the WIPO, which outlines its general scope as follows: [T]he term “traditional knowledge” refers to the content or substance of knowledge resulting from intellectual activity in a traditional context, and includes the know-how, skills, innovations, practices and learning that form part ! Professor of Law & Director, Institute of Technology Law, National Chiao Tung University, Taiwan. Ph.D. in Law (University of Edinburgh); LL.M. (University of California at Berkeley); LL.M. (National Taiwan Ocean University); LL.B. (National Taiwan University). A preliminary version of this article was presented at the “International Conference on Culture Diversity under International Trade Regimes: Policy and Practices,” organized by the Asian Center for WTO and International Health Law and Policy, College of Law, National Taiwan University in Taipei, Taiwan, on June 28-29, 2007. This research work was supported by a grant from the National Science Council of the Republic of China (Taiwan) (NSC 97-2410-H-009-025-MY3-). The author thanks Jo Ting Fu and Kai Chih Chang for their helpful assistance. 1 The alternative term of ‘Indigenous Knowledge’ has also been used for the description of this knowledge. See CHIDI OGUAMANAM, INTERNATIONAL LAW AND INDIGENOUS KNOWLEDGE: INTELLECTUAL PROPERTY, PLANT BIODIVERSITY, AND TRADITIONAL MEDICINE 20 (2006); Suman Sahai, Indigenous Knowledge and Its Protection in India, in TRADING IN KNOWLEDGE: DEVELOPMENT PERSPECTIVES ON TRIPS, TRADE AND SUSTAINABILITY 174 (Christophe Bellmann et al. eds. 2003). 2 Intergovernmental Committee (IGC), The Protection of Traditional Knowledge: Revised Objectives and Principles, Eighth Sess., WORLD INTELLECTUAL PROPERTY ORGANIZATION, INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE, Geneva, June 6- 10, 2005, WIPO/GRTKF/IC/8/5 [hereinafter IGC Eighth Sess. Doc.]; IGC, The Protection of Traditional Knowledge: Revised Objectives and Principles, WORLD INTELLECTUAL PROPERTY ORGANIZATION, INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE, Ninth Sess., Geneva, Apr. 24-28, 2006, WIPO/GRTKF/IC/9/5, Revised Provisions for the Protection of Traditional Knowledge: Policy Objectives and Core Principles, Annexes to both WIPO/GRTKF/IC/8/5 and WIPO/GRTKF/IC/9/5, I. Policy Objectives, Annex 3 (2006) [hereinafter WIPO DRAFT, TK Objectives and Principles]. 3 Peter Drahos, A Networked Responsive Regulatory Approach to Protecting Traditional Knowledge, in INTELLECTUAL PROPERTY, TRADE AND DEVELOPMENT: STRATEGIES TO OPTIMIZE ECONOMIC DEVELOPMENT IN A TRIPS-PLUS ERA 396 (Daniel J. Gervais ed. 2007). 85 NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN RIGHTS [2011 of traditional knowledge systems, and knowledge embodying traditional lifestyles of indigenous and local communities, or contained in codified knowledge systems passed between generations.4 ¶3 From an ownership perspective, TK could arguably be classified as a form of intellectual property. In contrast to the normal entitlements of intellectual property that individuals normally enjoy, however, the property elements of TK are quite unique. TK is generated collectively, and processed and preserved by indigenous peoples or local communities.5 TK is thus distinctively associated with a group of people who may regard their body of TK as being beyond that of a personal or proprietary nature. ¶4 TK is often transmitted orally from generation to generation,6 and it typically is not codified within any modern system of documentation. TK is also not limited to any precise form, “tak[ing] the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds.”7 The uniquely communal sense in which TK is possessed might estrange it from modern intellectual property rights.8 ¶5 Due to TK’s conservation value, its preservation can make a great contribution to sustainable development of biodiversity.9 Thus, such a robust body of law governing TK may involve complex considerations of environmental, developmental and social elements. ¶6 Further, given the close linkages between TK and its holders, TK holders become the most indispensable stakeholder in designing any legal structure concerning TK.10 Certainly, the 4 WIPO DRAFT, TK Objectives and Principles, supra note 2, art. 3(2). Drahos considers the WIPO’s ‘open-ended, inclusive approach to the subject matter of TK’ an adequate model. Drahos, supra note 3. 5 See Introduction, CONVENTION ON BIOLOGICAL DIVERSITY, https://www.cbd.int/traditional/intro.shtml (last visited Nov. 16, 2011). 6 Id. 7 Id. 8 One study shows that modern intellectual property rights systems, such as patents, copyright, trade secrets, and trademarks seem not really available to TK holders, in spite of few national practices using intellectual property rights for TK protection. See GRAHAM DUTFIELD, INTELLECTUAL PROPERTY, BIOGENETIC RESOURCES AND TRADITIONAL KNOWLEDGE 100-09 (2004); ALEXANDRA XANTHAKI, INDIGENOUS RIGHTS AND UNITED NATIONS STANDARDS: SELF-DETERMINATION, CULTURE AND LAND 225 (2007) (arguing that intellectual property rights are inadequate for the protection of indigenous bio-diversity rights). Cf. Nuno Pires de Carvalho, From the Shaman’s Hut to the Patent Office: A Road Under Construction, in BIODIVERSITY & THE LAW: INTELLECTUAL PROPERTY, BIOTECHNOLOGY AND TRADITIONAL KNOWLEDGE 257-58 (Charles R. McManis ed. 2007) (indicating national protection of TK by using existing IP systems); David R. Downes, How Intellectual Property Could be a Tool to Protect Traditional Knowledge, 25 COLUM. J. ENVT’L L. 253 (2000) (speculating the feasibility of articulating intellectual property rights over TK). 9 It is observed that TK “commonly refers to knowledge associated with the environment” DUTFIELD, supra note 8, at 91. The Convention on Biological Diversity (CBD) recognizes that many indigenous and local communities that are TK holders “have cultivated and used biological diversity in a sustainable way for thousands of years. Some of their practices have been proven to enhance and promote biodiversity at the local level and aid in maintaining healthy ecosystems.” Introduction, CONVENTION ON BIOLOGICAL DIVERSITY, supra note 5. 10 The instruments of WIPO and the U.N. on TK have addressed the needs of TK holders. See infra Part III. B. D. 86 Vol. 10:2] Kuei-Jung Ni promotion and recognition of the rights of indigenous peoples will be instrumental in pressuring national authorities to take necessary measures to protect TK, especially when such actions entail the conclusion of binding treaties.11 ¶7 As TK is created, applied, and preserved by local and indigenous communities, its protection used to be a national or local matter and concern. Nonetheless, there are significant reasons for the international community to pay due regard to TK protection as well, and there is a growing global movement to promote the international status of indigenous peoples, who possess most TK. For one, given its intrinsic value, the protection and preservation of TK benefits humankind as a whole, and should accordingly be of interest to the international community. In particular, because TK access and utilization has been exercised in boundary-crossing ways, the theft of TK has been and should continue to be strongly intolerant to international society. Misappropriation of TK has led to the granting of undesirable patents on inventions based directly on TK related to local bio-diversity, resulting in a form of TK piracy.12 ¶8 To date, the international community has responded to the issue of TK by formulating a variety of documents with differential legal implications. The Convention on Biological Diversity (CBD)13 appears to be the first international agreement that obliges State parties to protect bio-related TK. The CBD has mandated the use of TK to comply with access and benefit- sharing devices. After intense debate and study, the WIPO, based on a defensive approach, has drafted an unprecedented instrument exclusively for the protection of TK. The World Trade Organization
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