A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Daniel J. Gervais
Chapter 7: Traditional knowledge and innovation as a global concern
Worldwide, many countries and indigenous peoples have raised concerns over how creators and inventors make use of, frequently without consent, their traditional knowledge and then obtain intellectual property rights relating to those uses. The problem is that those whose knowledge and cultural objects are used most often are not properly acknowledged and derive no economic benefit from such uses. This situation is justified on the basis that the knowledge and cultural products (where they exist) are in the so-called public domain. In other words, the knowledge and its manifestations are free from legal constraints over their use. The fact that there is no definitive agreement over the contours, or indeed the cultural norms, behind the public domain appears not to be a deterrent to those who assert that much traditional knowledge is or should be in the public domain. As the public domain is the arena from which the difficulties of not protecting traditional knowledge arise, consequently a discussion of the public domain is both where this chapter begins and also where it will end. A common theme that those who seek protection of traditional knowledge articulate is their relationship with the knowledge and its uses. This includes their role as holders, and sometimes users, of the knowledge on behalf of others. This might be described as a guardianship role. Accordingly this chapter uses the phrase “knowledge guardians”.
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