Protection of traditional knowledge: Trade barriers and the public domain

In recent years, developing nations have pushed for international copyright and other intellectual property regimes to expand protection over the cultural heritage and collective knowledge of particular indigenous groups, which includes works typically protected by copyright such as visual art, storytelling, dance, and music. These "traditional knowledge" protections have been justified by factors like economic protection, equity in intellectual property ownership, cultural protection, and economic development. These motivating factors are a far cry from the underpinnings of traditional Western intellectual property law - and in particular, U.S. copyright law - which focuses on incentivizing the creation of new content for the promotion of "the Progress of Science and useful Arts." Because of these differing justifications, traditional knowledge protections at the international level have generated some degree of friction between the developed and the developing world. So far, much of the debate focuses on the "political" and "real" costs and benefits of traditional knowledge rights, but there is little discussion of the legal consequences of current protections. Given the underlying ideological conflict, some legal dissension is likely to occur regarding enforcement and protection of traditional knowledge rights.

Duke Scholars

Author David Hansen School of Law