“Struggling around the “natural divide”: The protection of tangible and intangible indigenous property”

During a century in which access to information represents the key to doing business, big companies have come to realize that Developing Countries, whose economies are still mainly based on agriculture and textiles, possess invaluable treasures worth billions of dollars. Their varieties of plants and trees, mostly indigenous to the Southern Hemisphere, amount to a huge collection of genetic material with countless potential applications. Moreover, the value of these vast collections of plants and herbs is enhanced by the knowledge of the local communities, which have long studied and experimented with their medicinal and other scientific properties. Shamanic knowledge, for example, has in some cases led to precise and effective results toward curing disease. While indigenous communities do have legal systems and mores regulating how resources—both tangible and intangible— are produced and enjoyed, Developed Countries often view traditional knowledge through the lenses of modern intellectual property systems. Thus, companies located in Developed Countries look for the person who might hold exclusive rights on that subject matter. When they find no author/inventor and no right, they reason that the information lies in the public domain and simply assume the right to appropriate it without giving anything in return. This article analyzes the current normative framework and the international debate surrounding the protection of traditional knowledge, as well as the ecosystems from which such knowledge is derived. The objective of this article is to provide critical thought toward a tentative solution as to how to best protect this knowledge and its environment. The article begins with a comprehensive review of the international legal framework and the on-going proposals in several international situations. The article next discusses how a misappropriation system might be implemented. Fashioned as a sort of negative entitlement system, this system would protect owners of traditional knowledge against illicit misuse or misappropriation. Together with the amendment of current national and international patent laws, such a system could provide the level of protection that would satisfy the interests of both the creators of traditional knowledge and foreign companies.