Grafting Traditional Knowledge Onto a Common Law System

Grafting Traditional Knowledge onto a Common

Law System

RUTH L. OKEDIJI*

Modern legal systems are not usually designed to protect Indigenous

traditional knowledge or traditional cultural expressions but are, more

often, historically complicit in their misuse or suppression. The undef‌ined

status of traditional knowledge has left Indigenous communities vulnera-

ble to harms not readily cognizable by either common or civil law sys-

tems: exploitation of those communities’ genetic resources and medical

knowledge, demeaning of their sacred symbols, and further alienation

from their culture and land following colonial dispossession. Indigenous

groups have therefore sought greater protection of traditional knowledge

through a range of domestic and international legal avenues. This

Article examines the experience of Australia as the common law jurisdic-

tion that has likely gone furthest in protecting traditional knowledge.

Aboriginal Australian claimants have found varying degrees of success

through mechanisms such as copyright law, patent law, consumer protec-

tion, f‌iduciary claims, and privacy rights. Even at their most successful,

however, these claimants have not obtained recognition of the unique

interests represented by traditional knowledge. Instead, they have been

forced to translate their claims into terms close to the conventional utilitar-

ian or personality-based justif‌ications for intellectual property. Australia

therefore illustrates the potential of a common law system’s ability to

incrementally adapt to novel claims—but also that system’s ultimate

inadequacy.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

I. THE GLOBAL NORMATIVE FRAMEWORK FOR TRADITIONAL KNOWLEDGE . 78

A. TRADITIONAL KNOWLEDGE AND THE INTERNATIONAL LEGAL ORDER 80

* Jeremiah Smith, Jr. Professor of Law, Harvard Law School. © 2021, Ruth L. Okediji. I am

immensely grateful to Danielle Sullivan, Gabrielle Sullivan, Patricia Adjei, Terri Janke, Lee Elsdon,

Bibi Barba, Sharna White, members of staff of IP Australia, and Katrina Sanderson who spent

considerable time with me sharing about longstanding efforts to protect Aboriginal authors and artists.

My interviews with them greatly enriched my understanding of the Australian cultural and legal

landscape for traditional knowledge and traditional cultural expressions. Graham Dutf‌ield and Daniel

Robinson provided excellent feedback on earlier drafts; Reddy Lee developed a distinctive and

invaluable set of case studies; Kat Geddes was an exceptional lead Research Fellow for the project that

led to this Article; and Sean Lau provided superb research assistance for the f‌inished product.

75

B. THE RATIONALES FOR TRADITIONAL KNOWLEDGE AND THEIR

LIMITATIONS ............................................ 83

II. TRADITIONAL KNOWLEDGE IN AUSTRALIAN INTELLECTUAL PROPERTY

LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

A. COPYRIGHT LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

B. PATENT LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

C. TRADEMARK LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

D. TRADE PRACTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

III. TRADITIONAL KNOWLEDGE BEYOND INTELLECTUAL PROPERTY LAW . . . . 100

A. PRIVACY LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

B. CROSS-CATEGORY REGULATION: BIODIVERSITY CONSERVATION . . . . 103

C. CULTURAL HERITAGE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

D. FIDUCIARY LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

E. NATIVE TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

F. SOFT LAW “PLUS” MECHANISMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

IV. MAPPING VALUES: RIGHTS, REGIMES, AND LEGAL INSTITUTIONS . . . . . . . 112

A. THE OVER- AND UNDER-PROTECTION OF TRADITIONAL KNOWLEDGE

UNDER A PATCHWORK REGIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

B. THE PROMISE AND PERILS OF A SUI GENERIS REGIME . . . . . . . . . . . . . 115

C. GRAFTING TRADITIONAL KNOWLEDGE ONTO NON-AUSTRALIAN

COMMON LAW SYSTEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

INTRODUCTION

There has been longstanding and persistent debate in the international commu-

nity over the appropriate regulation of knowledge assets of communities histori-

cally forced to relinquish land and often forgo creative activity relating to the

management of plant, animal, and other resources. This so-called traditional

knowledge (TK) of Indigenous people and local communities encompasses both

tangible and intangible resources, includes knowledge embodied in innovations,

and is ref‌lected in cultural practices, know-how, and skills. Traditional Cultural

76 THE GEORGETOWN LAW JOURNAL [Vol. 110:75

Expressions (TCEs) are an extension of TK that exist in communicative forms

such as music, folklore, dance, language, and literature.

1

Although a universally accepted def‌inition of TK remains elusive, many

Indigenous groups and local communities adhere to the following criteria: TK is

intergenerational by design, written and orally transmitted, and deeply connected

to the land on which Indigenous people live.

2

Taken together, these features sug-

gest that TK def‌ines sociopolitical relations within Indigenous communities and

is also central to the establishment of communal institutions and regulation of

economic life. Within those communities, TK therefore embodies a system of

governance increasingly recognized in several international instruments, and

with constitutional features including separation of powers and an allocation of

rights and duties among members.

3

Despite a multilateral impasse at the World Intellectual Property Organization

(WIPO), formal sui generis regimes for the protection of TK are on the rise glob-

ally.

4

These developments ref‌lect a measure of conf‌idence by states in an emerg-

ing international law framework that addresses discrete aspects of knowledge

governance for indigenous creativity and innovation.

5

That is especially true in

common law jurisdictions where gap f‌illing via norms and practices is already a

well-established practice, thereby encouraging the development of novel TK

1. Traditional Cultural Expressions, WORLD INTELL. PROP. ORG., https://www.wipo.int/tk/en/

folklore/ [https://perma.cc/K3H9-UJYV] (last visited Aug. 15, 2021).

2. The World Intellectual Property Organization def‌ines traditional knowledge as “a living body of

knowledge that is developed, sustained and passed on from generation to generation within a

community, often forming part of its cultural or spiritual identity.” WIPO, TRADITIONAL KNOWLEDGE

AND INTELLECTUAL PROPERTY (2016), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_tk_1.pdf

[https://perma.cc/24W9-WAPQ].

3. See RUTH L. OKEDIJI, CTR. FOR INT’L GOVERNANCE INNOVATION, TRADITIONAL KNOWLEDGE AND

THE PUBLIC DOMAIN 2 (2018).

4. See, e.g., MARGO A. BAGLEY, CTR. FOR INT’L GOVERNANCE INNOVATION, TOWARD AN EFFECTIVE

INDIGENOUS KNOWLEDGE PROTECTION REGIME: CASE STUDY OF SOUTH AFRICA 1, 4–5 (2018); see also

V.K. Gupta, Protecting India’s Traditional Knowledge, WIPO MAG., June 2011, at 5, https://www.

wipo.int/wipo_magazine/en/2011/03/article_0002.html#2 [https://perma.cc/ZZ7C-7SHQ] (describing

India’s Traditional Knowledge Digital Library).

5. This includes certain intellectual property instruments and treaties, especially in the copyright

f‌ield. See, e.g., UNESCO & WIPO, M ODEL PROVISIONS FOR NATIONAL LAWS ON THE PROTECTION OF

EXPRESSIONS OF FOLKLORE AGAINST ILLICIT EXPLOITATION AND OTHER PREJUDICIAL ACTIONS (1985),

https://www.wipo.int/export/sites/www/tk/en/documents/pdf/1982-folklore-model-provisions.pdf [https://

perma.cc/5QTE-6S3K]. These model provisions sought to protect “expressions of folklore” from

unauthorized use, id. at 10, misrepresentation of source, id. at 11, and willful distortion, id. The provisions

recognized expressions of folklore as products of communities who have vested “traditional artistic

expectations,” id. at 9, and “cultural interests,” id. at 11, in their cultural creations. Another example is the

Tunis Model Law on Copyright for Developing Countries. UNESCO & WIPO, TUNIS MODEL LAW ON

COPYRIGHT FOR DEVELOPING COUNTRIES (1976), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_812.

pdf [https://perma.cc/TG99-67HG]. The Tunis Model Law, which preceded the model provisions,

extended copyright protection to “literary, artistic or scientif‌ic work[s]” by removing the f‌ixation

requirement, id. at 5, eliminating time limits for protection for “[w]orks of national folklore,” id. at 10, and

designating a “competent authority” that could exercise moral rights to prevent folklore from distortion, id.

at 9.

2021] GRAFTING TRADITIONAL KNOWLEDGE 77