Communities as inventors: Rethinking positive protection of traditional knowledge through patents

Abstract

Traditional knowledge of indigenous communities often overlaps with spiritual traditions in which certain biogenetic resources are understood to be “sacred”. Accordingly, one of the key concerns of these communities is to retain control over the manner in which the knowledge is used so as to ensure that its sanctity is preserved. While much of the literature on the protection of traditional knowledge revolves around defensive protection, some commentators have argued for positive protection using patent law by recognizing the entire community as inventors and vesting property rights in perpetuity with the community as a whole. This paper observes that such positive protection through patents is consistent with the TRIPS Agreement and is likely to be successful in combating biopiracy but suffers from one crucial flaw—even if the community owns patent rights over a biogenetic resource, the community has no means to ensure that a potential licensee of the patent would adhere to the religious protocols of the community. Accordingly, it argues for the incorporation of collective moral rights rooted in indigenous law into the legal framework governing the licensing of traditional knowledge patent with a view to ensuring that indigenous communities can preserve their cultural heritage even after such community patents are licensed.