Contribution to Book
At a seminar organized by UNCTAD and the Government of India in 2002, participants considered how evolving national systems for the protection of traditional knowledge could be supported or augmented by international measures adopted at the regional or global level. The need for solutions on the international level has been discussed in a number of fora. Yet, the effective protection of the holders of traditional knowledge requires that these discussions move in some way toward implementation of working systems of protection. This short paper, commissioned by UNCTAD for a conference in February 2004, and to be republished in a book on traditional knowledge, focuses on framework, or structural, issues, rather than on the substantive elements of sui generis systems for the protection of traditional knowledge. It considers the extent to which proponents must articulate the need for a completely new paradigm, or whether instead they can point to historical antecedents in the intellectual property system. The principal impetus for the paper is the proposal of the Indian government that international law require the disclosure of the country of origin of genetic resources and related traditional knowledge in patent applications (and require compliance with the laws of the country of origin). This proposal is essentially an attempt to derogate from the principle of territoriality that pervades and is at the root of, international intellectual property law. That principle is most resolutely advocated and enforced in the patent context. In contrast, international trademark (and geographical indications) law - while firmly based upon the same general principle - has in several respects developed exceptions to that principle. These exceptions might provide the source for a range of options that countries might consider as the model for a system of traditional knowledge protection that likewise moves away from the principle of territoriality. An historical analysis of where resistance to such developments has been most acute in the field of trademark and geographical indications might also provide guidance to those seeking to construct an approach to traditional knowledge that encounters less resistance. The paper conceptualizes the different departures from territoriality in trademark law and thus suggests analogous devices for the protection of traditional knowledge that could be developed along the lines suggested by the Indian government. This helps to identify the structural variables that countries should consider in fashioning a traditional knowledge regime that eschews a rigid commitment to territoriality.
Towards an International Framework for the Protection of Traditional Knowledge, in Elements of National sui Generis Systems for the Preservation, Protection and Promotion of Traditional Knowledge: Innovations and Practices and Options for an International Framework (Twarog & Turner eds., forthcoming 2006) (study commissioned by the United Nations Conference on Trade and Development).