Table of Contents

Indigenous Intellectual Property

Indigenous Intellectual Property

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Matthew Rimmer

This Handbook considers the international struggle to provide for proper and just protection of Indigenous intellectual property. Leading scholars consider legal and policy controversies over Indigenous knowledge in the fields of international law, copyright law, trademark law, patent law, trade secrets law, and cultural heritage. This collection examines national developments in Indigenous intellectual property from around the world. As well as examining the historical origins of conflicts over Indigenous knowledge, the volume examines new challenges to Indigenous intellectual property from emerging developments in information technology, biotechnology, and climate change.

Chapter 24: Traditional knowledge sovereignty: the fundamental role of customary law in the protection of traditional knowledge

Brendan Tobin

Subjects: law - academic, cultural heritage and art law, human rights, intellectual property law

Extract

Indigenous peoples’ struggle for recognition and protection of their rights over their traditional knowledge is intimately linked to their primary struggle for recognition of their rights to self-determination and to govern their affairs in accordance with their own laws, customs and traditions. These rights encompass the right to control access and use of their traditional knowledge in accordance with their own laws, customs and traditions. These rights are now clearly recognised under international instruments that require states to give due respect, due recognition, due regard, and/or to ‘take into consideration’ the customary laws of Indigenous peoples. The challenge now facing legislators and Indigenous peoples alike is to secure the implementation and enforcement of these obligations in practice. The current chapter seeks to throw some light on these issues through analysis of national, regional and international regulation of traditional knowledge, with particular attention to the experiences of Peru and the European Union. Following a brief introduction, section 1 examines the rights of Indigenous peoples to self-determination and their own customary legal regimes. Section 2 discusses Indigenous peoples’ mistrust of intellectual property regimes and the search for sui generis (of its own kind) systems for protection of traditional knowledge. Section 3 provides an overview of the treatment of customary law in international regulation of traditional knowledge. Section 4 considers regional experiences in traditional knowledge governance from Latin America, Africa and Oceania.

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