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The Invention of Traditional Knowledge

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Type: Journal Article
Author: Sunder, Madhavi
Journal: Law and Contemporary Problems
Volume: 70
Date: 2007
URI: https://hdl.handle.net/10535/3522
Sector: Information & Knowledge
Subject(s): intellectual property rights
open access
indigenous institutions
Abstract: From Introduction: "In this article, I pay homage to Boyle's innovation in my own way. Part II argues that by foregrounding the important role of 'raw materials' in the process of innovation, cultural environmentalism helped provide a theoretical and political basis for recognition and recompense for the purveyors of those raw materials often indigenous peoples who have cultivated the earth's biodiversity and who hold 'traditional knowledge' about that biodiversity. The invention of the public domain helped to foster 'the invention of traditional knowledge' as a political and legal category worthy of rights. But while Boyle's theory of the public domain provided intellectual heft to new claims for traditional knowledge protection, so, too, has it proved a stumbling block. Today, the 1992 Convention on Biological Diversity (CBD) and, more recently, the draft of a proposed Access to Knowledge Treaty (A2K) promote an international legal regime that would reward traditional knowledge holders for their role in preserving biodiversity and ancient knowledge that is, for their role in preserving the public domain. But these international legal documents do not expressly recognize the inventiveness of traditional knowledge, or the attendant intellecual property rights claimed by the world's poor as authors and inventors of new knowledge. Part III argues that traditional knowledge is much more dynamic and innovative - indeed evolving - than the 'environmentalism' metaphor, with its connotations of conservation, acknowledges. "I explore the theoretical implications of this shift in understanding poor people's knowledge in Part IV. I argue that a legal regime that recognizes poor people as agents - that is, as the subjects of intellectual property, and not just as the objects of intellectual property, offering up raw materials for others to transform - is premised upon a broader view of the relationship between intellectual property and development itself. Here, yet another side of intellectual property is revealed: its social and cultural face, not just the economic. World actors are beginning to recognize that intellectual property is about more than incentives for innovation. Just like real property rights, intellecual property rights can promote freedom and security, potentially enabling knowledge societies in which the rich and poor alike may cultivate and materially benefit from their ideas."

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