New Scholarship on IP and Traditional Knowledge in Tribal Codes

Dalindyebo Bafana Shabalala has posted “Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes” on SSRN.

Here is the abstract:

Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in the broader territory of the United States, this Article argues that a necessary condition for success may be ensuring such protection on their own tribal territory. This Article serves as an early contribution to a broader research agenda aimed at providing more data as a basis for tribal claims for protection of their traditional knowledge and traditional cultural expressions. It presents a survey of the nature and scope of legal and formal protection that tribal legislation in the United States has provided for traditional knowledge and traditional cultural expressions. It further surveys and analyzes the nature and scope of protection provided under federal law and assesses the gap between what tribal codes provide and what federal law provides. It then proposes a series of next steps as a research agenda.

TICA CLE: “International Treaties, Agreements, and Instruments which include Traditional Knowledge, Genetic Resources, or Traditional Cultural Expressions” (Feb. 2, 2017)


The description:

This CLE will provide an overview of select international treaties, agreements and other instruments that have provisions regarding Traditional Knowledge (TK), Genetic Resources (GR), or Traditional Cultural Expressions (TCE). 

Primarily in the past 25 years, many such documents have been negotiated, adopted or approved globally and regionally among various nation states, including the United States.  TK, GR and TCE generally include those of Indigenous Peoples.  Provisions on TK, GR, or TCE are contained in global or multi-national documents addressing, among other subjects: Human Rights, Climate Change, the Environment, Natural Resources, Free Trade, Food, Biological Diversity, Genetics, and Intellectual Property. 

Currently, the World Intellectual Property Organization (WIPO), through an Inter-Governmental Committee, is considering a treaty or other instrument on TK, GR, and TCE.  The U.S. Patent and Trademark Office likely will be conducting Listening Sessions with American Indian and Alaska Native Tribes in 2017 on the WIPO TK, GR and TCE instrument negotiations.  This CLE will help tribal governments and their attorneys and advocates prepare for important discussions at the Listening Sessions.

Guidelines for Considering Traditional Knowledges in Climate Change Initiatives

The Guidelines for Considering Traditional Knowledges in Climate Change Initiatives is available for download here.

This publication is intended to be an informational resource for tribes, agencies, and organizations across the U.S.

About the Guidelines:

The Third National Climate Assessment issued in May 2014 contained a chapter dedicated to the impact of climate change on tribal peoples. In light of the increasing recognition of the significance of traditional knowledges (TKs) in relation to climate change, a self-organized, informal group of indigenous persons, staff of indigenous governments and organizations, and experts with experience working with issues concerning traditional knowledges (The Climate and Traditional Knowledges Workgroup – CTKW), felt compelled to develop a framework to increase understanding of issues relating to access and protection of TKs in climate initiatives and interactions between holders of TKs and non-tribal partners. The Guidelines were originally developed to inform the Department of Interior’s Advisory Committee on Climate Change and Natural Resource Science (ACCCNRS) in May 2014.

Symposium, Traditional Knowledge: IP and Federal Policy

March 21, 2014 at American University Washington College of Law

Further information available here.

Both a live and archived webcast will be available.

Munzer & Raustiala on IP and Indigenous Traditional Knowledge

Stephen Munzer and Kal Raustiala have posted “The Uneasy Case for Intellectual Property Rights in Traditional Knowledge” on SSRN. The paper appears in the Cardozo Arts & Entertainment Law Journal, Vol. 27, pp. 37-97, 2009. Here is the abstract:

Should traditional knowledge – -the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes – receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.