Lifting the Lid on “The Community”: Who Has the Right to Control Access to Traditional Knowledge and Expressions of Culture?

Abstract

This article explores some key considerations around determining who should have the right to control access to, and benefit from, traditional knowledge and intangible cultural heritage. It highlights the complexities involved in these considerations by examining in detail the different claims to control by different segments of the population in regard to two case studies: Samoan tattooing and the Vanuatu land dive. It uses insights from this analysis to problematize the assumptions about the use of concepts such as "community" in legislation designed to protection traditional knowledge and expressions of culture, and it also reflects on what effect such legislative developments may have on the cultural industries initiative and the implementation of the Convention on Intangible Cultural Heritage.

Legal pluralism: The regulation of traditional medicine in the Cook Islands

“…These findings accord with other fieldwork I have done in regard to traditional knowledge in Pacific Island countries over the past four years: simplistic narratives about knowledge transmission and geographical boundedness of knowledge are belied by the reality of its dynamism, diffusion and recirculation. I have also observed a trend among the actual practitioners of traditional knowledge to take a far more open approach to the need to share and pass on knowledge than the policymakers in the capitals and regional organisations, who instead stress the need to document and assign rights over it (Forsyth 2012b). …”

Making Room for Magic in Intellectual Property Policy

“…This attention has been occasioned over the last decade by a range of concerns, including bio-prospecting, misappropriation, ensuring equity in the global intellectual property regime, the possibilities of traditional knowledge and local or grassroots innovation for development in the global South and amongst indigenous communities, and finally as part of claims of indigenous communities across the globe for recognition of their human rights and rights to their cultural heritage. Whilst there is a good deal of variation in the approaches of these different regulatory regimes, most of them focus on drafting new legislation, centralising the state as the regulator of traditional knowledge and creating exclusive property rights in traditional knowledge that are vested in communities or groups (see Forsyth 2011Forsyth , 2012Forsyth , 2013a. In general, the international treaties and legislation actually in force or in development deal with traditional knowledge by conceptualising it as another subject-matter for the global intellectual property regime to regulate.…”

Intellectual property protection and development: The case of sustainable sea transport in Pacific Island countries

“…As the examples discussed in this article have shown, there are often different levels of ‘insiders’ in a knowledge community, who have different levels of claims over the knowledge (e.g. clan, community, island, country, region) and the nature of these claims changes over time and have particular salience in certain contexts as opposed to others (Forsyth, ). This is illustrated by the example of traditional wayfinding knowledge, which, as has been shown, has come to be shared throughout the region, and also with many aspects of canoe designs that have been developed and combined in different parts of the region at different times.…”