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2019 | OriginalPaper | Chapter

Traditional Knowledge and the Public Domain in Intellectual Property

Author : Ruth L. Okediji

Published in: Intellectual Property and Development: Understanding the Interfaces

Publisher: Springer Singapore

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Abstract

The protection of traditional knowledge is among the most vexing and morally compelling issues in international intellectual property law today. As a matter of conventional IP law, many applications of traditional knowledge—its dizzying array of expressions, forms, and utilities—easily overlay the globally ubiquitous trade secret, patent, copyright, and trademark categories. But as a matter of political and economic organization, the epistemological core of traditional knowledge is based on the distinctiveness and cultural autonomy of indigenous groups and local communities. Amid the notable arguments against recognizing proprietary rights for traditional knowledge holders, the most provocative is the claim that such knowledge is already in the public domain. The claim that traditional knowledge consists principally of public domain material has significant implications for the welfare and development capacity of indigenous groups. It undermines treaties that already acknowledge or require protection for the rights of indigenous groups and, by extension, traditional knowledge holders. Moreover, it violates central obligations of the international IP framework such as non-discrimination and protection for non-economic interests associated with cultural goods. There is no meaningful basis for the argument that exclusive property rights for traditional knowledge are unavailing because of its unique characteristics. This article addresses public domain concerns in the context of ongoing efforts to secure an international regime of protection for traditional knowledge.

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previous chapter Warner Lambert v Actavis: The Tricky Task of Examining Patent Infringement in New Medical Use Cases

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WIPO (2016), Annex, p. 5.

See WIPO, Traditional knowledge. http://www.wipo.int/tk/en/tk/.

Sometimes the claim that traditional knowledge is knowledge principally in the public domain is made directly. See, e.g., Munzer and Raustiala (2009), p. 41 (“Expansive protection of traditional knowledge would, with some qualifications, remove what is now in the public domain from that domain”). Other times, the claim of traditional knowledge as public domain is the outcome of influential definitional treatments. See, e.g., Boyle (2008), p. 38 (“The public domain is material that is not covered by intellectual property rights”); Sunder (2006). See also, Chander and Sunder (2004), p. 1357 (criticizing the idealization of the absolutist version of the public domain).

See, e.g., United Nations Declaration on the Rights of Indigenous Peoples, September 13, 2007, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. See Convention on Biological Diversity, Articles 1, 8(j), June 5, 1992, 31 I.L.M. 822; Convention on Biological Diversity, Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, U.N. Doc. UNEP/CBD/COP/DEC/X/1, October 29, 2010, [hereinafter Nagoya Protocol]; United Nations Convention on the Protection and Promotion of the Diversity of Cultural Expressions, October 20, 2005, 2440 U.N.T.S. 311.

Agreement on Trade-Related Aspects of Intellectual Property Rights, April 15, 1994, 1869 U.N.T.S. 299 [hereinafter TRIPS Agreement], Article 70.

Bradley (1997).

See Chander and Sunder (2004).

See Okediji (2018).

See generally, Intergovernmental Committee (IGC), World Intellectual Property Organization (providing an overview of activities of the IGC). http://www.wipo.int/tk/en/igc/.

See, e.g., Aoki (1998), pp. 46–57 (describing “biopiracy” perpetrated by the Global North against the Global South); Shiva (2016), p. 2 (“The creation of property through the piracy of others’ wealth remains the same as 500 years ago. The freedom that transnational corporations are claiming through intellectual property rights protection in the GATT agreement on Trade-Related Intellectual Property Rights (TRIPS) is the freedom that European colonizers have claimed since 1492.”)

See Reichman et al. (2016), pp. 50–52 (noting that the scientific norms and practices supporting free access by researchers to explore biodiversity-rich environments in former colonies/developing countries for purposes of discovering, isolating and collecting genetic resources for deposit in ex-situ repositories were well-established by the 1950s.)

For example, the International Undertaking on Plant Genetic Resources (1983) was based on “the universally accepted principle that plant genetic resources are a heritage of mankind and consequently should be available without restriction” (Article 1); The Preamble to the Recommendation for the Protection of Movable Cultural Property (1964) states “[m]ovable cultural property representing the different cultures forms part of the common heritage of mankind.” Similarly, the Preamble to Recommendation on the Safeguarding of Traditional Culture and Folklore (1989) states “folklore forms part of the universal heritage of humanity” as did the Preamble to the UNESCO-WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1982), “folklore represents an important part of the living cultural heritage of the nation.” See id. See also, Halewood (2014), p. 288 (“Since the earliest days of settled agriculture, crop domestication and improvement efforts have generally taken place within open systems of innovation . . . The maintenance of collaborative systems to collect, conserve, and provide access to plant genetic resources in support of crop science and plant breeding distinguishes agricultural innovation systems from those associated with pharmaceutical, cosmetic and industrial research and development.”)

See Reichman et al. (2016), p. 23; Munzer and Raustiala (2009), p. 67. See Litman (1990), p. 975; see also Boyle (2003), p. 8.

See Shiva (2016), pp. 1–5.

See also Boyle (1997).

See generally Chon (2012); Jaszi (1991); Boyle (1992).

Chon (2012), p. 839 (describing collaborative authorship in scientific disciplines).

See Lemley (2012).

Lessig (2006).

See Benkler (2017); Zittrain (2006).

See, e.g., Munzer and Raustiala (2009), p. 78.

See, Eldred v. Ashcroft, 537 U.S. 186 (2003); Directive 2011/77/EU, of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyright and certain related rights, 2011 O.J.E.U.

See, e.g., Ledford (2005).

17 U.S.C. §103 (2003); see also, Eldred v. Ashcroft, 537 U.S., p. 186.

Compare 37 C.F.R. (2002), and Trade-Marks Act, R.S.C. 1985, c. T-13 (Can.).

See Gervais (2010); see also, Hughes (2006).

Boyle (2003).

See WIPO (2014), p. 5 [hereinafter IGC 27].

Singer (1998); Fisher (2007).

See Rose (1999), p. 51.

Fisher (2007).

Copyright law in the U.S. contains an analogous principle: successful plaintiffs cannot claim defendants’ profits that are attributable to expression the plaintiffs do not own. Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1549 (9th Cir. 1989) (“Where a defendant alters infringing material to suit its own unique purposes, those alterations and the creativity behind them should be taken into account in apportioning the profits of the infringing work.”)

See Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088 (9th Cir. 1994) (holding that authorizing activity abroad that would infringe United States copyright law if conducted domestically does not itself constitute an infringement of copyright).

See generally Bradley (1997).

Henkin (1979) (“The relations of one nation with another, as soon as they begin, are permeated by basic legal concepts: nationality, national territory, property, torts, contracts, the rights and duties and responsibilities of states. . . . Related to territoriality is the concept of internal sovereignty. Except as limited by international law or treaty, a nation is master in its own territory.”)

The “effects” doctrine has been applied in some IP cases. See, e.g., NV. V. Goson’s.com (S.D.N.Y. 2000) (holding that New York was a proper forum in which to challenge unauthorized retransmission of Web News taken from sources in the U.S. and distributed abroad. The court reasoned that the acts had effects in New York because, among other things, substantial revenue was derived and New York customers were deceived.)

As defined by the United States Supreme Court, “comity of nations” is “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.” See Hilton v. Guyot, 159 U.S. 113 (1895).

Nagoya Protocol, Article 15.

17 U.S.C. §102(b).

See, e.g., 17 U.S.C. §105 (2012) (“Copyright protection under this title is not available for any work of the United States Government . . .”); but see, Okediji (2016), p. 335 (“The public domain status of federal government works is a deliberate policy choice justified in reference to the public interest although . . . there are important exceptions to the rule.”)

See, e.g., 35 U.S.C. §41(b) (providing for the expiration of a patent in the event that maintenance fees are unpaid).

See, e.g., Nu-Enamel Corp. of IL v. Armstrong Paint & Varnish Works, 95 F.2d 448, 450 (7th Cir. 1938) (“a manufacturer of goods is entitled to the reputation he has established and the public has the right to rely upon his distinctive means of distinguishing between his and other goods. Courts will not unduly extend monopolies under trademarks, but where a clear property right is shown and it is apparent that the right is being invaded and trespassed upon as in the present case, we shall not hesitate to grant relief.”); Dreyfus Fund, Inc. v. Royal Bank of Canada, 525 F. Supp. 1108, 1115 (S.D.N.Y. 1981) (“A trademark owner is not required to maintain any particular level or type of advertising to avoid the abandonment or weakening of its mark. The owner must only continue to use the mark in a manner that preserves its consumer recognition or distinctiveness.”)

Conley et al. (2013).

See Dinwoodie and Dreyfuss (2004).

Bagley (2009).

See Samuelson (2007); TRIPS Agreement, Article 9(2) (“Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”) See also, Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).

See 37 C.F.R. §202.1(a).

See Boyle (2008); Litman (1990); Benkler (2017).

Eldred v. Ashcroft, 537 U.S., p. 219 (“In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection.”) (citations omitted).

Baker v. Selden, 101 U.S. 99, 102 (1880) (“To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters-patent, not of copyright.”)

See generally Okediji (2017a); see also, Samuelson and Scotchmer (2002); Eldred v. Ashcroft, 537 U.S., pp. 219–220 (describing the role of the fair use doctrine in facilitating public expression).

Samuelson (2017).

Berne Convention for the Protection of Literary and Artistic Works, Article 15(4), July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221, Article 6bis [hereinafter Berne Convention].

See UNDRIP.

See UNDRIP, Article 11(1).

See UNDRIP, Article 31.

See CBD.

See Nagoya Protocol.

E.g., Article 7 of the Nagoya Protocol states “In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established. Id., Article 7.

Lei No. 13.123, de 20 de Maio de 2015 (Brazil).

Patents Act 2013, s 3 (New Zealand).

Decree-Law No. 11/2013 of August 22, 2013, on the Protection of Cultural Heritage (China), available at http://www.wipo.int/wipolex/en/details.jsp?id=15171. The Protection of Traditional Knowledge and Cultural Expressions Act (2016) Kenya Gazette Supplement No. 154 (Kenya); Protection, Promotion, Development And Management Of Indigenous Knowledge Systems Bill, B 6-2016 (South Afr.); Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore within the Framework of the African Regional Intellectual Property Organization (ARIPO), August 9, 2010.

See Bagley (2017), p. 1 (describing 54 African nations’ “proposal to allow policy space in the draft [WIPO Design Law Treaty] for countries to be able to require design applicants to disclose the origin of traditional cultural expressions, traditional knowledge, and biological or genetic resources used in creating protectable designs.”)

See Nagoya Protocol, Article 1 (describing provisions for access and benefit sharing).

CBD; Nagoya Protocol; UNDRIP.

Cf. Dinwoodie (2007); UNDRIP.

Munzer and Raustiala (2009); Boyle (2008).

See Chander and Sunder (2004).

IGC 27.

Boyle (2003).

Id.

Litman (1990); cf. Lessig (2002).

Munzer and Raustiala (2009).

See, e.g., Interpretation of the International Undertaking on Plant Genetic Resources, U.N. Doc. C89/24, (November 11–30, 1989).

Halewood (2014).

Oguamanam (2005); Oguamanam (2014).

Gordon (1993).

Rose (1999); Rose (2003), pp. 93–94.

See Gervais (2010).

See Hughes (2006).

Id.

Geneva Act of Lisbon Agreement on Appellations of Origin and Geographical Indications, May 20, 2015.

Article 2 of the Lisbon Agreement provides that the treaty applies to “(i) any denomination protected in the Contracting Party of Origin consisting of or containing the name of a geographical area, or another denomination known as referring to such area, which serves to designate a good as originating in that geographical area, where the quality or characteristics of the good are due exclusively or essentially to the geographical environment, including natural and human factors, and which has given the good its reputation; (ii) any indication protected in the Contracting Party of Origin consisting of or containing the name of a geographical area, or another indication known as referring to such area, which identifies a good as originating in that geographical area, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin” (emphasis added); id., Article 2.

Protection, Promotion, Development And Management Of Indigenous Knowledge Systems Bill, supra note 62, § 26(3)(b).

See UNESCO (2006).

See CBD.

Rose (2003), p. 100.

Gana (1995).

See General Assembly Resolution 1803 (XVII), Permanent Sovereignty Over Natural Resources, U.N. Doc. A/RES/1803 (December 14, 1962).

See UNDRIP, Article 31.

Nagoya Protocol.

See Benkler (2017); Fisher (1988); Lessig (2006), p. 199.

Berne Convention.

As Article 43 of UNDRIP states, “the rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” See UNDRIP, Article 43.

See Nagoya Protocol, Art. 12 (3) (a) requiring Parties to support development by indigenous groups and local communities of ‘community protocols’ in relation to access to traditional knowledge associated with genetic resources, including the fair and equitable sharing of benefits arising out of the utilization of such knowledge.

See Chander and Sunder (2004).

IGC 27, paras. 95 and 226.

Id., Article 3.

100

See Lange (1981); Fisher (2007).

101

Boyle (2008).

102

Singer (1998), pp. 240–258.

103

Monsanto Canada Inc. v. Schmeiser, 1 S.C.R. 902 (Can. 2004); Organic Seed Growers & Trade Ass’n v. Monsanto Co., 718 F.3d 1350 (Fed. Cir. 2013).

104

See Samuelson (2000); see Lange and Jefferson Powell (2008).

105

Singer (1998), p. 241.

106

See Nagoya Protocol; UNDRIP.

107

UNDRIP, Article 31(2). See also, Nagoya Protocol, Article 12.

108

There are now several different variations of the three-step test, but all have the same basic design and effect. See, e.g., Berne Convention, Article 9(2); TRIPS Agreement, Article 13; WIPO Copyright Treaty, Article 10(1); WIPO Copyright Treaty, Article 10(2).

109

See Boyle (2008); Litman (1990); Sunder (2006); Chander and Sunder (2004).

110

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Title: Traditional Knowledge and the Public Domain in Intellectual Property
Author: Ruth L. Okediji
Publisher: Springer Singapore
Book: Intellectual Property and Development: Understanding the Interfaces
Print ISBN: 978-981-13-2855-8

Electronic ISBN: 978-981-13-2856-5

Copyright Year: 2019
DOI: https://doi.org/10.1007/978-981-13-2856-5_12

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