|Intellectual property law|
|Sui generis rights|
Traditional knowledge (TK), indigenous knowledge (IK), and local knowledge generally refer to the matured long-standing traditions and practices of certain regional, indigenous, or local communities. Intellectual property ( IP) is a legal field that refers to creations of the mind such as musical literary and artistic works inventions and symbols names Copyright is a legal concept enacted by Governments, giving the creator of an original work of authorship Exclusive rights to control its distribution usually for A patent is a set of Exclusive rights granted by a State to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an A trademark or trade mark, represented by the symbols ™ and ®, or mark is a distinctive sign or indicator used by an individual Industrial design rights are Intellectual property rights that protect the visual design of objects that are not purely utilitarian A utility model is an Intellectual property right to protect Inventions This right is available in a number of national Legislations such as Argentina A geographical indication (GI is a name or sign used on certain products which corresponds to a specific geographical location or origin (eg A trade secret is a Formula, practice, Process, Design, instrument, Pattern, or compilation of Information which Related rights is a term in Copyright law used in opposition to the term " Authors' rights " A trade name, also known as a trading name or a business name, is the name which a Business trades under for commercial purposes although its registered In Computer networking, a domain name is a name given to a collection of network devices that belong to a domain which is an administrative space managed according Sui generis (English pronunciation ( IPA) /ˌsuːiˈdʒɛnərɪs/ roughly "SOO-ee JEN-a-ris" Latin pronunciation /ˌsuːiˈgeneris/ is a Neo-Latin In European Union law, a database right is a legal right introduced in 1996. A mask work is a two or three-dimensional layout or topography of an Integrated circuit (IC or "chip" i Plant breeders' rights (PBR also known as plant variety rights (PVR are Intellectual property rights granted to the breeder of a new variety In European Union member countries a supplementary protection certificate (SPC is a Sui generis, Patent -like Intellectual property Indigenous intellectual property is an umbrella legal term used in national and international forums to identify Indigenous peoples ' special rights to claim (from within Critics of the term " Intellectual property " argue that the increased use of this terminology coincided with a more general shift away from thinking about things like copyright The word tradition comes from the Latin traditionem acc of traditio which means "a giving up delivering up surrendering" and is used in a number of The article is about the geographic sense of the term For other uses including Regions and Regional, see Region (disambiguation. The term Indigenous Peoples or autochthonous peoples can be used to describe any Ethnic group who inhabit a geographic region with which they have the earliest historical In biological terms a community is a group of interacting Organisms sharing an environment. Traditional knowledge also encompasses the wisdom, knowledge, and teachings of these communities. Wisdom is a concept of personal gaining of Knowledge, Understanding, Experience, discretion and intuitive understanding, along with a capacity In many cases, traditional knowledge has been orally passed for generations from person to person. Oral tradition, oral culture and oral lore is a way for a society to transmit history, literature, law and other Knowledges Some forms of traditional knowledge are expressed through stories, legends, folklore, rituals, songs, and even laws. Storytelling is the ancient art of conveying events in Words Images and Sounds often by Improvisation or embellishment A legend ( Latin, legenda, "things to be read" is a Narrative of human actions that are perceived both by teller and listeners to History The concept of folklore developed as part of the 19th century ideology of Romantic nationalism, leading to the reshaping of oral traditions to serve modern ideological A ritual is a set of actions often thought to have Symbolic value the performance of which is usually prescribed by a Religion or by the Traditions A song is a Musical composition. Songs contain vocal parts that are performed 'sung' and generally feature Words ( Lyrics) commonly followed Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society Other forms of traditional knowledge are often expressed through different means.
"Traditional knowledge" is not recognized as "knowledge" by all who study it since it includes beliefs, values and practices.
Such knowledge typically distinguishes one community from another. For some communities, traditional knowledge takes on a personal and spiritual meaning. Spirituality, in a narrow sense concerns itself with matters of the Spirit, a concept closely tied to religious belief and Faith, a transcendent reality Traditional knowledge can also reflect a community's interests. Some communities depend on their traditional knowledge for survival.
Cosmological connections and differences in worldview distinguish "traditional knowledge" from "local knowledge". A comprehensive world view (or worldview) is a term Calqued from the German word Weltanschauung ( Welt is the German Social scientists often place knowledge within a naturalistic framework, and emphasize the gradation of recent knowledge into knowledge acquired over many generations. These accounts use terms like "adaptively acquired knowledge", "socially constructed knowledge," and other terms that emphasize the social aspects of knowledge. Local knowledge and traditional knowledge may be thought of as distinguished by the length of time they have existed - decades to centuries versus millennia. A large number of scholarly studies in the naturalistic tradition demonstrate that traditional knowledge is not a natural category, and may reflect power struggles and relationships for land, resources and social control than adherence to a claimed ancestry or heritage. Power is a measure of a person's ability to control the environment around them including the behavior of other people Social control refers to social mechanisms that regulate individual and group behavior leading to conformity and compliances to the rules of a given Society or An ancestor is a Parent or ( recursively) the parent of an ancestor (i
Traditional knowledge, on the other hand, may be perceived very differently by indigenous and local communities themselves. Western society has gone through many traumatic episodes over the past five centuries to separate secular knowledge from spiritual knowledge. This is generally not the case for indigenous and local communities. Their knowledge is often embedded in a cosmology, and the distinction between "intangible" knowledge and physical things is often blurred. Cosmology (from Greek grc κοσμολογία - grc κόσμος kosmos, "universe" and grc -λογία -logia) is study Indigenous peoples often say that "our knowledge is holistic, and cannot be separated from our lands and resources". Traditional knowledge in these cosmologies is inextricably bound to ancestors, and ancestral lands. Knowledge may not be acquired by naturalistic trial and error, but through direct revelation through conversations with the Creator, spirits, or ancestors. Revelation is the act of revealing or disclosing (see etymology or in the theological perception making something obvious and clearly understood through active or passive communication As Chamberlin (2003) writes of a Gitksan elder from British Columbia confronted by a government land claim: "If this is your land," he asked, "where are your stories?"
Critics of "traditional knowledge" maintain that there is no such thing as "spiritual knowledge". Gitxsan (also spelled Gitksan) are an indigenous people whose home territory comprises most of the area known as the Skeena Country in English (Git means They would argue that "episodes. . . to separate secular knowledge from spiritual knowledge" actually constitutes the gradual discarding of ancient superstition. Superstition ( Latin superstitio, literally "standing over" derived perhaps from standing in awe used in Latin as a unreasonable or excessive belief Advancements in scientific medicine are an example of this. Hundreds of years ago medieval medicine used to believe that disease was caused by the "four humours", as well as factors such as destiny, and astral influences. Humorism, or humoralism, was a theory of the makeup and workings of the human body adopted by Greek and Roman physicians and philosophers These notions were discarded when it was determined that they could not be supported by evidence, but similar unsubstantiated beliefs continue to exist in "traditional knowledge".
Indigenous and local communities often do not have strong traditions of ownership over knowledge that resemble the modern forms of private ownership. Many have clear traditions of custodianship over knowledge, and customary law may guide who may use different kinds of knowledge at particular times and places, and obligations that accompany the use of knowledge. From their perspective, misappropriation and misuse of knowledge may be offensive to traditions, and may have spiritual and physical repercussions in their cosmological systems.
Subsequently, indigenous and local communities argue that others' use of their traditional knowledge warrants respect and sensitivity. Critics of "traditional knowledge", however, maintain that such demands for "respect" are really an attempt to prevent unsubstantiated beliefs from being subjected to the same scrutiny as other knowledge claims. This has particular significance for environmental management because the spiritual component of "traditional knowledge" can be used to justify any activity, including the unsustainable harvesting of resources.
Recently, international attention has turned to intellectual property laws to preserve, protect, and promote their traditional knowledge. Intellectual property ( IP) is a legal field that refers to creations of the mind such as musical literary and artistic works inventions and symbols names The reasons for this are complex. In 1992, the Convention on Biological Diversity (CBD) recognized the value of traditional knowledge in protecting species, ecosystems and landscapes, and incorporated language regulating access to it and its use (discussed below). It soon became apparent that implementing these provisions would require that international intellectual property agreements would need to be revised to accommodate them.
This became even more pressing with the adoption of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which established rules for creating and protecting intellectual property that could be interpreted to contradict the agreements made under the CBD. In response, the states who had ratified the CBD requested the World Intellectual Property Organization (WIPO) to investigate the relationship between intellectual property rights, biodiversity and traditional knowledge. WIPO began this work with a fact finding mission in 1999. Considering the issues involved with biodiversity and the broader issues in TRIPs (involving all forms of cultural expressions, not just those associated with biodiversity - including traditional designs, music, songs, stories, etc. ), WIPO established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTKF).
The period of the early 1990s to the Millennium was also characterized by the rapid rise in global civil society. The high-level Brundtland Report (1987) recommended a change in development policy that allowed for direct community participation and respected local rights and aspirations. Indigenous peoples and others had successfully petitioned the United Nations to establish a Working Group on Indigenous Populations that made two early surveys on treaty rights and land rights. The Working Group on Indigenous Populations (WGIP was a subsidiary body within the structure of the United Nations. These led to a greater public and governmental recognition of indigenous land and resource rights, and the need to address the issue of collective human rights, as distinct from the individual rights of existing human rights law.
The collective human rights of indigenous and local communities has been increasingly recognized - such as in the International Labor Organization (ILO) Convention 169 (1989) and the Declaration on the Rights of Indigenous Peoples (2007). The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly during its 62nd session at UN Headquarters The Rio Declaration (1992), endorsed by the presidents and ministers of the majority of the countries of the world, recognized indigenous and local communities as distinct groups with special concerns that should be addressed by states. The Rio Declaration on Environment and Development, often shortened to Rio Declaration, was a short document produced at the 1992 United Nations "Conference
Initial concern was over the territorial rights and traditional resource rights of these communities. Indigenous peoples soon showed concern for the misappropriation and misuse of their "intangible" knowledge and cultural heritage. Indigenous peoples and local communities have resisted, among other things: the use of traditional symbols and designs as mascots, derivative arts and crafts; the use or modification of traditional songs; the patenting of traditional uses of medicinal plants; and the copyrighting and distribution of traditional stories.
Indigenous peoples and local communities have sought to prevent the patenting of traditional knowledge and resources where they have not given express consent. They have sought for greater protection and control over traditional knowledge and resources. Certain communities have also sought to ensure that their traditional knowledge is used equitably - according to restrictions set by their traditions, or requiring benefit sharing for its use according to benefits which they define.
Three broad approaches to protect traditional knowledge have been developed. The first emphasizes protecting traditional knowledge as a form of cultural heritage. The second looks at protection of traditional knowledge as a collective human right. The third, taken by the WTO and WIPO, investigates the use of existing or novel sui generis measures to protect traditional knowledge. Sui generis (English pronunciation ( IPA) /ˌsuːiˈdʒɛnərɪs/ roughly "SOO-ee JEN-a-ris" Latin pronunciation /ˌsuːiˈgeneris/ is a Neo-Latin
Currently, only a few nations offer explicit sui generis protection for traditional knowledge. A nation is a Human Cultural and Social Community. In as much as most members never meet each other yet feel a common bond it may be considered Sui generis (English pronunciation ( IPA) /ˌsuːiˈdʒɛnərɪs/ roughly "SOO-ee JEN-a-ris" Latin pronunciation /ˌsuːiˈgeneris/ is a Neo-Latin However, a number of countries are still undecided as to whether law should give traditional knowledge deference. In Political geography and International politics, a country is a Political division of a geographical entity Indigenous peoples have shown ambivalence about the intellectual property approach. Indigenous intellectual property is an umbrella legal term used in national and international forums to identify Indigenous peoples ' special rights to claim (from within Some have been willing to investigate how existing intellectual property mechanisms (primarily: patents, copyrights, trademarks and trade secrets) can protect traditional knowledge. Others believe that an intellectual property approach may work, but will require more radical and novel forms of intellectual property law ("sui generis rights"). Others believe that the intellectual property system uses concepts and terms that are incompatible with traditional cultural concepts, and favors the commercialization of their traditions, which they generally resist. Many have argued that the form of protection should refer to collective human rights to protect their distinct identities, religions and cultural heritage.
Two protective paradigms have been employed to protect traditional knowledge using intellectual property tools:
The first protective paradigm seeks to prevent others from using or securing intellectual property rights over traditional knowledge. The word paradigm ( Greek:παράδειγμα (paradigmacomposite from para- and the verb δείχνυμι "to show" as a whole -roughly- meaning "example" For example, some communities have created traditional knowledge databases to evidence their traditional knowledge as prior art in order to prevent perceived abuses such as biopiracy. A Computer Database is a structured collection of records or data that is stored in a computer system Prior art (also known as or State of the art, which also has other meanings in most systems of Patent law constitutes all Information that Biopiracy is a negative term for the appropriation generally by means of Patents, of legal rights over indigenous knowledge - particularly indigenous biomedical knowledge Although traditional knowledge databases may preempt some from securing rights over traditional knowledge, databases do disclose such traditional knowledge to the public. This becomes a problem since many communities would rather keep such traditional knowledge within their community. Many communities have their own traditional or customary laws that regulate the use of traditional knowledge that may differ substantially from their national systems or the international system of intellectual property rights. Disclosure may violate these customs.
Disclosure may also displace the problem. Disclosure is a tool to stop the granting of patents, or the revocation of granted patents. In intellectual property law, patents cannot be granted or can be invalidated if it can be shown that there exists "prior art": knowledge in the public domain that is equivalent to the process or product for which a patent is sought. Disclosure puts the knowledge into the public domain. It does not stop use of the traditional knowledge or associated resource - only the monopolistic use of the knowledge or associated resource for the 20 years of the patent. In some parts of the world, traditional knowledge may be less threatened by unjust enrichment than by non-monopolistic exploitation that exhausts resources and makes them unavailable to indigenous and local communities for the practice of their traditions. In many cases, it can be very difficult for poor, rural communities to defend their knowledge and resources once their commercial or subsistence values become widely known.
One consequence of this defensive form of protection may be the loss of an economic catalyst to discover new things. Other defensive efforts include preempting the registration of community names as trademarks and actions for misappropriation. A trademark or trade mark, represented by the symbols ™ and ®, or mark is a distinctive sign or indicator used by an individual In Law, misappropriation is the intentional illegal use of the Property or funds of another person for one's own use or other unauthorized purpose particularly by
The second protective paradigm (often called "positive protection") seeks to secure protective legal rights over traditional knowledge. This is achieved by either using the existing laws or using legislative means to enact new sui generis laws. Sui generis (English pronunciation ( IPA) /ˌsuːiˈdʒɛnərɪs/ roughly "SOO-ee JEN-a-ris" Latin pronunciation /ˌsuːiˈgeneris/ is a Neo-Latin Some have argued that some countries, like the United States, may face constitutional problems with granting perpetual rights to these communities. The United States of America —commonly referred to as the They also raise utilitarian concerns with granting legal rights to traditional knowledge. Utilitarianism is the idea that the moral worth of an action is solely determined by its contribution to overall Utility, that is its contribution to happiness For instance, some forms of traditional knowledge (such as cures for disease) may be used to help others; and if exclusive rights were granted, some may go unhelped. A cure is a substance or procedure that makes a sick or diseased person well A disease is an abnormal condition of an organism that impairs bodily functions and can be deadly Other concerns deal with the equitable sharing of benefits and resources. Natural resources are naturally occurring substances that are considered valuable in their relatively unmodified ( natural) form
Indigenous and local communities have responded that their rights to control the use of their knowledge is an inherent right of self-determination, a right that is not granted by governments, but needs to be recognized and respected. In the United States system, for example, the Cherokee Cases (1823-1832) at the United States Supreme Court determined that the Indian Tribes were themselves nations at the time of contact, and that they retained their sovereign rights unless explicitly ceded in treaty or abrogated by Congressional act. They have argued in national and international law-making bodies that their knowledge systems are not governed by national intellectual property systems. Some have rejected the idea of the public domain as applying to their knowledge. They have argued that it has been inappropriate to extend intellectual property laws, themselves a little over 100 years old, to displace customs reaching back to time immemorial. Many are uncomfortable with applying the concepts of intellectual property to their traditional knowledge systems, even for positive protection. Just as citizens of one country are bound to respect the intellectual property laws of foreign countries related to imported products through international agreements, indigenous and local communities have sought for the respect of their traditional beliefs and customary laws beyond their territorial borders. Since the issue has not been resolved at the Constitutional level in the United States, it remains to be seen how the conflict between tribal sovereignty and the intellectual property provisions of the Constitution will be interpreted. Some nations, particularly in Latin America, have recognized the inherent right of indigenous communities to control the use of and derive benefits from the use of their knowledge in national constitutions and legislation. Most nation states have yet to develop policy and law related to traditional knowledge.
There is no common indigenous and local community position on issues of the "common heritage of mankind" or the "global public good". Indigenous peoples and local communities have shared much of their knowledge and resources with the global community. Many have traditions of sharing. Healers, in general, have spiritual obligations to heal the sick and have shared their healing knowledge. Indigenous peoples, on the other hand, have strong traditions of reciprocity. They argue that much of the historical appropriation and use of traditional knowledge has not occurred with reciprocity. Indigenous and local communities are often the poorest of the poor, subsisting on less than 1 US dollar a day. Their knowledge and resources, on the other hand, have made contributions to the welfare of humankind as the basis of much of the world's food system and naturally-derived medicines.
Forced disclosure of and access to traditional knowledge and resources for the benefit of mankind, against their customs, without consent or without reciprocity may be as unjust as privatization of their knowledge and resources in patents, trademarks, trade secrets and copyrights. Indigenous and local communities have strong traditions related to the spiritual, sacred, secret or guardianship nature of their knowledge and resources that may prohibit some sharing.
The international standards emerging out of the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity (CBD) are that 1. the development of any policies, laws or rules regarding traditional knowledge and associated resources must involve the full and effective participation of indigenous and local communities; 2. access to traditional knowledge and resources (particularly genetic resources) can only be obtained through the free, prior informed consent (FPIC) of indigenous and local communities; and 3. Indigenous and local communities have the right to determine the form of benefit sharing, and use by others can only proceed on the basis of mutually agreeable terms between the custodians or holders of knowledge and resources and external parties.
Many indigenous and local communities have argued that the reasons and mechanisms for protecting their knowledge do not lie within the logic of the intellectual property system, but within the human rights system.
Intellectual property law predominantly uses the language of economic incentives to justify intellectual property protection. Under this rationale, states grant, as a privilege, a temporary monopoly on ownership and control of knowledge (for current copyright in the United States, this is Life + 70 years for individual works, and 95-120 years for corporate works; for patents it is 20 years). This monopoly is presumed to be a necessary incentive for innovation. After the expiration of the protection, the knowledge falls into the public domain for others to freely use in derivative innovations, for novel parts of which they may be granted intellectual property rights.
Indigenous and local communities have argued that they generally don't use such incentives to innovate. Their use of knowledge is spiritually and culturally guided. Misappropriation and misuse of this knowledge may violate customary laws that are at the core of their collective and cultural identity. These beliefs are currently protected by a number of national constitutional provisions and statutory laws, and are increasingly being recognized as a distinct human right within the United Nations.
An example may help to make this clear. If someone walked into an intellectual property court with a slave that they claimed as property, no court in the world would (explicitly) argue that a question of ownership would be resolved on the basis of economic efficiency, or that the slave had been owned for such a time that he or she was now in the public domain, available for anyone to exploit. Human slavery is outlawed because it violates fundamental human rights, and the judge would rule on that basis.
Similarly, indigenous and local communities have argued that public claims on their knowledge without their consent amounts to a misappropriation of their identity and heritage, a violation of their fundamental, inalienable and collective human rights.
The World Intellectual Property Organization (WIPO) is currently working with different nations, organizations, and indigenous and local communities to address the policy/legal issues with traditional knowledge protectionism through the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The World Intellectual Property Organization ( WIPO) is one of the 16 specialized agencies of the United Nations. This Secretariat of the Committee has produced numerous excellent comparative reviews of existing intellectual property tools for protective traditional knowledge and providing benefit sharing. As of March 2008, there are still large disagreements among countries as to whether there should be a binding or non-binding (voluntary) international legal regime.
The Convention on Biological Diversity (CBD), signed at the United Nations Conference on Environment and Development (UNCED) in 1992, was the first international environmental convention to develop measures for the use and protection of traditional knowledge, related to the conservation and sustainable use of biodiversity. By 2006, 188 had ratified the Convention and agreed to be bound by its provisions, the largest number of nations to accede to any existing treaty (the United States is one of the few countries that has signed, but not ratified, the CBD). Significant provisions include:
Article 8. In-situ Conservation
Each Contracting Party shall, as far as possible and as appropriate:
(a). . .
(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices
Article 10. Sustainable Use of Components of Biological Diversity
Each Contracting Party shall, as far as possible and as appropriate:
(a). . .
(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements
The interpretation of these provisions has been elaborated through decisions by the parties (ratifiers of the Convention) (see the Convention on Biological Diversity Handbook, available freely in digital format from the Secretariat).
The parties to the Convention set a 2010 target to negotiate an international legally-binding regime on access and benefit sharing (ABS) at the Eighth meeting (COP8), 20-31 March 2006 in Curitiba, Brazil. The ABS negotiations will address inter-governmental obligations related to genetic resources, and these will involve measures related to the rights of indigenous and local communities to control access to and derive benefits from the use of genetic resources and associated traditional knowledge.
Article 27. 3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) sets out certain conditions under which certain biological materials or intellectual innovations may be excluded from patenting. The Article also contains a requirement that Article 27 be reviewed. In the TRIPs-related Doha Declaration of 2001, Paragraph 19 expanded the review to a review of Article 27 and the rest of the TRIPs agreement to include the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD) and the protection of traditional knowledge and folklore. This is an issue of intensive on-going international debate.
Recently, traditional knowledge has been drawn into the debate related to access to medicines, access to food, the need for poverty alleviation, and related issues that affect the livelihoods and welfare of billions of people worldwide. It has been argued that traditional knowledge is an important source of health security, food security and livelihood security for the world's poor. As such, it has been argued that the benefits of sharing and actively disseminating traditional knowledge outweigh the benefits of protection and recognition of ownership.
The Creative Commons, with its roots in the open software movement, the literary arts, the open access movement in science and the humanities, and in the media, arts, entertainment and communications communities, has also proposed that traditional knowledge is an essential and public source of cultural creativity.
Indigenous and local communities have been divided on these issues. There are large potential benefits to traditional knowledge sharing in promoting more locally appropriate, culturally acceptable and ecologically sustainable methods of protecting community health, nutrition, shelter and livelihoods. Indigenous traditions of sharing knowledge mean that much of this knowledge is already widespread and not easily defended by law. Many indigenous peoples have traditions that at least some parts of their traditional knowledge are meant to be shared as a spiritual obligation to help others.
Indigenous and local communities have pointed out that they make rich and complex distinctions about their knowledge and associated resources. There is no single, simple rule applying to traditional knowledge. Indigenous peoples vary in the amount that they share knowledge. Some societies have many secret traditions, while others are more open. Some uses of their knowledge may be acceptable - for example the use of traditional agricultural knowledge to feed other poor communities. Other uses, such as the sampling of a fragment of a sacred song into a musical arrangement, or the incorporation of traditional knowledge related to medicinal plants into a commercial patent, may not.
Part of the debate involves the question of whether or not traditional knowledge is part of the public sphere, national commons, or global commons as part of a "common heritage of humankind". Private intellectual property rights in the non-customary system are temporary monopolies that are granted by a sovereign. Once these monopolies expire, they fall into a national or global sphere, the public domain. There are many valid concerns about the trend to longer duration and wider breadth of intellectual property rights granted by many governments.
However, indigenous and local communities draw their rules for knowledge from their local commons, and their local customs may diverge greatly from any claims that a national society or global society may make on their knowledge. Applying the Balance Doctrine (the legal doctrine that private interests must be balanced against societal values) may not protect minority rights, as the values of a dominant society can overwhelm the values of indigenous and ethnic minorities.
Resolving these issues will require a wide and vigorous engagement of indigenous and local communities themselves in defining their aspirations towards knowledge exchange, and the rules that emerge will likely vary from community to community, and among categories and contexts of traditional knowledge.
Traditional knowledge has a number of dimensions that make a superficially simple concept difficult to define and apply.
Naturalistic accounts emphasize the evolutionary and constructed nature of knowledge. In these accounts, local wisdom can accumulate through long periods of trial-and-error; enlightened guesses, and adaptation. Long-accumulated knowledge allows for sustainable adaptations to local environmental conditions.
The accounts of indigenous and local communities themselves are different. They tend to emphasize the spiritual, ancestral, relational and cosmological connections to their knowledge. While traditional knowledge may be acquired from a teacher, and improved through experience, it ultimately may be derived through direct communication with the spirit world.
Political accounts are again different. Indigenous peoples do not have rights based on their knowledge per se, but on the recognition of their rights to self-determination as peoples. This is clearest in settler societies in which there was a distinct and massive colonizing event, such as happened in Australia, New Zealand, Latin America, and North America. In most of these countries, indigenous peoples are recognized as a distinct class of people with "dual citizenship". They are members of their nation states, but they are also members of indigenous collectives (first nations, clans, tribes) that governed themselves prior to contact and through the Law of Nations retained sovereign powers not ceded or lawfully terminated. The dual citizenship has given rise to very complex rules of laws which recognize spheres of rights to self-governance and self-determination.
These principles have reached a high level of recognition within the international legal system as not only applying to indigenous peoples living in settler states, but to all indigenous peoples. This system initially focused on issues such as territorial rights and security, the right to protection of tangible cultural heritage (such as ancestral remains and sacred objects), the right to culturally appropriate education, the right to hold and practice traditional spiritual beliefs, the right to apply customary law in traditional courts, and the right to speak a traditional language.
The extension of the recognition of rights to traditional knowledge is still new. It has been aided by the increasing activism and awareness of indigenous peoples, a better understanding by citizens of the history of indigenous peoples within their nations and their distinct cultural beliefs and needs, and the increasing recognition of indigenous rights by national governments. The need for the legal protection of traditional knowledge stems in part from the failure of voluntary respect for their traditional beliefs, both in commercial and non-commercial uses of their knowledge.
It also derives from the rapid and massive rise of intellectual property activity in the past two decades. The United States receives over 350,000 patent applications a year, while China grows at a rate of 34% per year in applications. Part of this activity has been in the natural products bioprospecting sector in tropical countries where bioprospectors often harvest biological samples of traditional cultural resources.
Despite significant remaining conflicts, an international consensus may be emerging: 1. That there is a distinct class of national citizens in many countries that can be identified as indigenous and that possess aboriginal rights; 2. Indigenous peoples have the right to self-determination and protection of their cultural heritage; 3. Indigenous peoples have a right to negotiate directly with government on issues related to their rights, and that they have the right to participate fully and effectively in negotiation, planning and implementation of policies and laws; 4. That in addition to currently recognized land and property rights, indigenous peoples have rights to "intangible" heritage; 5. Access to this heritage requires their full, prior informed consent.