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INTERNATIONAL / INTELLECTUAL PROPERTY / TRADITIONAL KNOWLEDGE

Minnesota Intellectual Property Review, Volume 2 No 2, 2001

Protection of Traditional Knowledge

Srividhya Ragavan

All kinds of intellectual property laws - on patents, trade marks, copyright, geographical indications and industrial designs, - are apt to impinge on traditional knowledge. For this purpose, traditional knowledge includes art, dance and music, medicines and folk remedies, folk culture, bio-diversity, plant varieties, handicrafts, designs and literature. The author provides some telling examples of the interaction of traditional knowledge and intellectual property: he refers to the United States patent granted to the inventor of Ayahuascar, a traditional medicine used by people in the Amazon basin. and contrasts this with the unsuccessful application to patent turmeric under United States law: this is a substance traditionally used in India for cooking and healing. One of the problems of protecting traditional knowledge is illustrated by some of the copyright cases, in which there may, under most jurisdictions' copyright laws, be no fixation, no originality and no single claimant. Australian Aboriginal artists objected to the use of their works on a manufacturer's T-shirts; but the legal issues were not resolved, as the complaint led to an out-of-court settlement. In the author's opinion, trade mark law and laws on geographical indications are more favourable to the protection of traditional knowledge: even more favourable are the possibilities of protection as trade secrets, though the author warns that the Convention on Bio-diversity may have the unintended effect of requiring traditional knowledge to be "shared". He points out that there may be some future, subject to TRIPS, in the development of sui generis protection for traditional knowledge. The author comments on the international conventions having a bearing on traditional knowledge; examines some of the judicial decisions in Australia and the United States; and reviews national responses to the problem of traditional knowledge in the Philippines, India, Thailand and various African countries. The author concludes with the interesting observation that, unless the developed countries' legal systems give greater recognition to traditional knowledge, there is a danger that developing countries and the least developed countries will be lukewarm in their support for Western systems of intellectual property protection generally and for the role and policies of the World Trade Organisation in particular. [20063]