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Traditional Knowledge, Genetic Resources, Customary Law and Intellectual Property

A Global Primer

Paul Kuruk

The book examines the national, regional and international frameworks of protection of traditional knowledge in all regions of the world. It also discusses options to enhance the existing legal regimes including the use of customary laws and protocols; the adoption of mutual recognition agreements premised on the principle of reciprocity; and the disclosure of source or country of origin of traditional knowledge in intellectual property applications.
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Chapter 13: The customary law option

Paul Kuruk

Extract

The chapter examines the protection of traditional knowledge through use of customary laws. It is argued that the link found to exist between traditional knowledge and customary law as evidenced by similarities in their definitions, confirms the significance of customary law as the primary regulatory mechanism over uses of traditional knowledge. Following a discussion of the extent to which customary law is recognized under selected legal systems, including Africa, the US, New Zealand, Australia, the Andean Community and the Pacific Island countries, the chapter assesses the effectiveness of customary law as an enforcement mechanism with reference to definitional issues, its status as national law, its principles of liability, and procedures for its ascertainment and application. Despite the noted limitations of customary law, the chapter urges the formal recognition of customary law as part of national legal systems and the improvement of methods for ascertaining and enforcing it.

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