Imaging a Traditional Knowledge Commons: A Community Approach to Ensuring the Local Integrity of Environmental Law and Policy

Abstract

"Under the Convention on Biological Diversity, international negotiators are currently developing an International Regime on Access and Benefit Sharing (IRABS). While this inchoate international legal framework primarily addresses commercial research on traditional knowledge, many questions remain about how this framework will affect non-commercial research agreements. This paper therefore presents a possible model for a Traditional Knowledge Commons designed to address some of these questions, such as how one differentiates non-commercial from commercial use of TK and how one defines benefits. The proposed model is formulated to provide a middle ground where traditional knowledge can be promoted and circulated without having to place it either into the public domain or deny access to it entirely. This Traditional Knowledge Commons would provide a platform for knowledge-sharing under conditions created by indigenous communities themselves and protected by a set of online user licenses requiring compliance with customary laws that govern the use of traditional knowledge. In addition to outlining how the model would be structured and how its online licensing system would function, this paper will examine the potential benefits of the model functioning as a system through which innovations developed through the use of traditional knowledge could be returned to the Traditional Knowledge Commons, further expanding this collective pool of knowledge and increasing the potential benefits that may be derived from it. Although the model would ultimately need to rely on the compliance mechanisms provided by the finalized IRABS, this paper also assesses the potential enforcement problems with which the Traditional Knowledge Commons may have to contend. Finally, it concludes with an analysis of the model’s potential for strengthening the self-determination of indigenous communities as well as the protection of biological diversity to which their traditional knowledge is inextricably linked."