Community resources: intellectual property, international trade and the protection of traditional knowledge

Abstract

The protection of traditional and Indigenous cultural production and resources is of critical concern not only to the groups involved but also to the international trading community for which these resources are of increasing economic importance. This thesis examines the basis for "community" approaches to autonomy and legal capacity, the conflict with intellectual property models, the current international discussions towards protection conducted by the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, and additional sources for protection at international law (including environmental instruments and human rights frameworks). The thesis asserts that the current emphasis on intellectual property law is an inadequate framework to address the fundamental object of protection for the communities themselves-the management of traditional use, as well as the biological and cultural sustainability of this use. In order to give effect to an international legal model, it is necessary to generalise "community," but this process is countered by the practical emphasis upon the locally specific application of this model. This is achieved through an examination of the commonalities that allow such generalisation which may in turn be adapted at the level of the local community. The thesis recommends sui generis protection and sets out a model international framework based on the principle of" community resources" that is developed throughout, recognising the unique claims embodied in traditional knowledge, incorporating customary law, and facilitating community management of resources.