TK unlimited: The emerging but incoherent international law of traditional knowledge protection

Abstract

There is an emerging international regime complex concerning traditional knowledge (TK). Debate continues on what form legal protection should take including how benefits from commercial use ought to be shared. This article considers how far progress is feasible. It makes three related claims. First, dominant in policy debates has been a tendency to position “tradition” in direct and binary opposition to “modern”. We show how this is ahistorical, reinforcing misconceptions regarding the nature of TK, and its relationship to other knowledge systems. It also tends to discourage possibilities for mutually advantageous collaborations based on respect for local norms regulating access, control and ownership. The second claim is that many TK advocates, by misconceiving it this way, are too expansive in terms of the knowledge that they demand the proposed international regimes should cover. This precludes possibilities for policy coherence. The third is that the access and benefit sharing measures envisaged by the Convention on Biological Diversity tend to downplay the social and cultural value of TK for holders and their communities themselves. This matters because of TK's significance to local people's lives, which is likely to outweigh potential monetary value that may arise from its translation into biotechnological knowledge inputs.

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